Bombay High Court
Philomina Dias vs Central Bureau Of Investigation And Anr on 16 June, 2023
Author: Prakash D. Naik
Bench: Prakash D. Naik
2023:BHC-AS:16167
1-WP-1047-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 1047 OF 2022
Philomina Dias ...Petitioner
Versus
Central Bureau Of Investigation & Anr. ...Respondents
....
Mr. Sanjeev Kadam i/by Mr. Akhilesh Singh, Advocate for the Petitioner.
Mr. Bharat Mirchandani h/f Mr. Hiten Venegavkar for Respondent No.1-
C.B.I.
Ms. Pallavi N. Dabholkar, APP for the Respondent No.2 - State.
....
CORAM : PRAKASH D. NAIK, J.
DATE : 16th JUNE, 2023.
PER COURT:
1. The Petitioner is aggrieved by order dated 01.03.2022 passed
by the learned Special Judge (CBI) in C.B.I. Special Case No.4 of
2008 rejecting the application for discharge.
2. The case of the prosecution is as follows :-
The CBI, EOW, Mumbai had registered the case bearing No.
R.C. 14/E/2017/CBI/EOW/Mumbai dated 31.08.2017 for the
offences punishable under Sections 120-B of Indian Penal Code (for
short 'IPC') r/w Sections 420, 468, 468, 411 and 471 of IPC and
Sections 13(2), 13(1)(d) of Prevention of Corruption Act against
Sajakali Jamadar 1 of 6
::: Uploaded on - 17/06/2023 ::: Downloaded on - 17/06/2023 21:19:36 :::
1-WP-1047-2022.doc
present applicant/accused No.11 Philomina Dias, on the basis of
written complaint received from D.G. Kallatti, the DGM of Central
of India against M/s. Ashok Property Developers and M/s. Aashish
Communications System and its Director/Guarantor 1) Ashok
Kumar Singh, Proprietor of M/s. Aashish Communication Systems;
3) Philomina Dias (Applicant/Accused No.11), 4) Shrikant Shankar
Pawar, Proprietor of M/s. Dattaguru Construction and M/s. Shree
Enterprises; 5) Manita Rajesh Agarwal, owner of M/s. Naman
Sales; 6) Sanjay Kumar Yadav, owner of M/s. Grace International
and Promoter/Director of M/s. Ashok Infra Energy Project Ltd; 7)
Nitin Ashok Maniyar; 8) Hitendra Virendra Gangwar, M/s. Rachana
Valuers & Surveyors; 9) Mehul @ Sadashiv D. Pandey; 10)
Janardan D. Pande; 11) Kalpesh Jayram Koshti; 12) Arvind Atma
Sethi (Bankar); 13) Subhas K. Roy (Banker and 14) Ramesh Madan
Patel that they entered into criminal conspiracy in the year 2011-
12, cheated the Central Bank of India, Peddar Road Branch,
Mumbai and Mumbai Main Officer, Mumbai of its funds to the tune
of Rs.17 Crores balance of outstanding Rs.32,52,30,749/- by
creation of false and fabrication of documents, dishonestly
suppressing the material information, offering immovable property
as collateral security by over valuation for availing credit facility
and also mis-utilization of credit facility.
Sajakali Jamadar 2 of 6
::: Uploaded on - 17/06/2023 ::: Downloaded on - 17/06/2023 21:19:36 :::
1-WP-1047-2022.doc
3. Learned Advocate for the Petitioner submitted that, there is
no evidence to frame charge against the Petitioner. The Petitioner
was the guarantor and the properties which were furnished as
collateral security and the documents relating to those properties
were not fabricated. The Petitioner had not participated in the
crime. She was not aware about the credit facilities which were
alleged to be taken on the basis of alleged fabricated documents.
She is the wife of the co-accused. The co-accused is the borrower.
Although it is alleged that the amount of Rs.3,00,000/- was
transferred into the account of the Petitioner, there is no document
on record to show that such amount has been credited into the
bank account of the Petitioner. The Petitioner did not receive any
amount of Rs.3,00,000/- which could be termed as proceeds of
crime.
4. Learned counsel for Respondent No.1 submitted that the
Petitioner had acted in connivance with the co-accused. There is
charge of conspiracy. The Petitioner is the wife of co-accused Ashok
Kumar Singh. Properties were given as collateral security for loan
facility availed by the co-accused. She is the beneficiary of the
crime proceeds for an amount of Rs. 3,00,000/-. At the stage
discharge, the Court is not required to hold a detailed roving
inquiry. The prosecution has made out prima facie case to proceed
Sajakali Jamadar 3 of 6
::: Uploaded on - 17/06/2023 ::: Downloaded on - 17/06/2023 21:19:36 :::
1-WP-1047-2022.doc
against the Petitioner. Learned Special Judge has considered these
aspects and rejected the application for discharge. At this stage,
the defence of the accused cannot be considered.
5. Learned counsel for the Respondent No.1 has relied upon the
following decisions:
i. Central Bureau of Investigation Vs. Hari Singh Ranka
and Ors. passed in Criminal Appeal No. 1289 of 2017 arising
out of Special Leave Petition (Cri.) No.5857 of 2017 passed
by the Hon'ble Supreme Court vide Judgment and Order
dated 18th July 2017.
ii. Sushil Sure Vs. C.B.I. & Anr. in Criminal Appeal No.
1109 of 2011 arising out of Special Leave Petition (Cri.)
No.6113 of 2009 passed by the Hon'ble Supreme Court vide
Judgment and Order dated 6th May, 2011.
6. Perused the impugned order passed by the trial Court and
the documents on record. The Petitioner is the wife of accused. It
is not in dispute that, she stood as guarantor. The documents
relating to the property which has been kept as collateral security
were not fabricated. Although it is alleged that the amount of
Rs.3,00,000/- has been transferred into the account of the
Petitioner, the prosecution has not been able to justify as to which
account of the Petitioner, the said amount is transferred. There is
no cogent evidence to establish even prima facie to show that the
Sajakali Jamadar 4 of 6
::: Uploaded on - 17/06/2023 ::: Downloaded on - 17/06/2023 21:19:36 :::
1-WP-1047-2022.doc
Petitioner is beneficiary of the proceeds of crime. The written
complaint which was treated as FIR alleged that, Petitioner is the
wife of Mr. Ashok Singh. She stood guarntor for overdraft facility.
Out of the three properties mortgaged as collateral security, the two
properties were owned by the Petitioner and one property was
owned by the Ashok Kumar Singh. However, there is no dispute
with regards to the properties mortgaged in this account. Ashish
Kumar Singh, son of Ashok Kumar Singh Applied for overdraft
facility for an amount of Rs.2.75 Crores. The Petitioner and Ashok
Singh were guarantors of said facility. Four properties were given
as security by way of mortgage in this account. Out of four
properties, three properties were owned by Petitioner and one
property owned by Mr. Ashok Singh. However, there is no dispute
with regards to the properties mortgaged in this account.
Statement of Vilas Patkar refers to the fact that, Petitioner is having
bank account in Syndicate Bank with Ashok Kumar Singh and
beneficiary of Rs.3,00,000/- from account of Grace International
owned by Sanjay Yadav. The Bank statement of Petitioner with
Syndicate Bank is produced by learned Advocate for the Petitioner
and contended that the said statement does not show any entry of
Rs.3,00,000/- being credited from Grace International to account of
Petitioner. Nothing incriminating was produced by prosecution to
Sajakali Jamadar 5 of 6
::: Uploaded on - 17/06/2023 ::: Downloaded on - 17/06/2023 21:19:36 :::
1-WP-1047-2022.doc
support transfer of proceeds of crime to Petitioner. The evidence on
record does not attribute any other overt act to the Petitioner
having participated in the crime or connivance with the co-accused
in the alleged transaction. It is true that, at the stage of discharge,
the Court is not called upon to conduct a roving inquiry. However,
to frame charge there has to be prima facie evidence which is
lacking in the present case qua the Petitioner. In these
circumstances, the Petitioner is required to be discharged from the
impugned proceedings.
ORDER
i. Writ Petition No.1047 of 2022 is allowed; ii. The order dated 01.03.2022 passed by the learned Special Judge (CBI) in C.B.I. Special Case No.4 of 2008 is quashed and set-aside.
iii. The Petitioner is discharged from the proceedings in CBI Special Case No.4 of 2008 pending before the Special Court, C.B.I. at Greater Bombay.
iv. Petition is disposed off accordingly.
(PRAKASH D. NAIK, J.)
Sajakali Jamadar 6 of 6
::: Uploaded on - 17/06/2023 ::: Downloaded on - 17/06/2023 21:19:36 :::