Bombay High Court
Alnoor Hasan Ali Jamal vs State Of Maharashtra And Anr on 18 November, 2022
Author: Revati Mohite Dere
Bench: Revati Mohite Dere, S. M. Modak
Digitally
signed by
SHAGUFTA
SHAGUFTA Q PATHAN
Q PATHAN Date: 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc
2022.11.21
14:22:35
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 3375 OF 2022
IN
CRIMINAL WRIT PETITION NO. 2007 OF 2016
Alnoor Hassan Ali Jamal ...Applicant/
Original Petitioner
IN THE MATTER OF :
Alnoor Hasan Ali Jamal
Age-71 years, Occupation - Business,
C/o. DMD Advocates,
121, Maker Chambers-IV,
Nariman Point, Mumbai - 400 021 ...Petitioner
Versus
1. State of Maharashtra
2. Union of India,
Through Ministry of Home Affairs
and Bureau of Immigration
3. Pulin Bole,
Age - 53 years, Occupation : Service,
Having his address at :
Solitaire, 80, SV Road,
Santacruz West,
Mumbai - 400 054 ...Respondents
SQ Pathan/Wakodikar 1/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc
WITH
CRIMINAL WRIT PETITION NO. 2007 OF 2016
Alnoor Hasanali Jamal
Age-64 years, Occupation - Business,
C/o. M/s. Agrud Partners
Advocates & Solicitors,
13, Nariman Bhavan, Nariman Point,
Mumbai - 400 021 ...Petitioner
(Accused No.3)
Versus
1. State of Maharashtra
2. Navnit Mehta,
Occupation : Business,
Residing at Solitaire
80, S. V. Road, Santacruz (West),
Mumbai-400 054 ...Respondents
WITH
INTERIM APPLICATION NO. 3376 OF 2022
IN
CRIMINAL WRIT PETITION NO. 2008 OF 2016
Alnoor Hassan Ali Jamal ...Applicant/
Original Petitioner
IN THE MATTER OF :
Alnoor Hasan Ali Jamal
Age-71 years, Occupation - Business,
C/o. DMD Advocates,
121, Maker Chambers-IV,
Nariman Point, Mumbai - 400 021 ...Petitioner
SQ Pathan/Wakodikar 2/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc
Versus
1. State of Maharashtra
2. Union of India,
Through Ministry of Home Affairs
and Bureau of Immigration
3. Pulin Bole,
Age - 53 years, Occupation : Service,
Having his address at :
Solitaire, 80, SV Road,
Santacruz West,
Mumbai - 400 054 ...Respondents
WITH
CRIMINAL WRIT PETITION NO. 2008 OF 2016
Alnoor Hasanali Jamal
Age-65 years, Occupation - Business,
C/o. M/s. Agrud Partners
Advocates & Solicitors,
13, Nariman Bhavan, Nariman Point,
Mumbai - 400 021 ...Petitioner
(Accused No.5)
Versus
1. State of Maharashtra
2. Navnit Mehta,
Occupation : Service,
Residing at Solitaire
80, S. V. Road, Santacruz (West),
Mumbai-400 054 ...Respondents
SQ Pathan/Wakodikar 3/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc
WITH
INTERIM APPLICATION NO. 3378 OF 2022
IN
CRIMINAL WRIT PETITION NO. 2009 OF 2016
Alnoor Hassan Ali Jamal ...Applicant/
Original Petitioner
IN THE MATTER OF :
Alnoor Hasan Ali Jamal
Age-71 years, Occupation - Business,
C/o. DMD Advocates,
121, Maker Chambers-IV,
Nariman Point, Mumbai - 400 021 ...Petitioner
Versus
1. State of Maharashtra
2. Union of India,
Through Ministry of Home Affairs
and Bureau of Immigration
3. Pulin Bole,
Age - 53 years, Occupation : Service,
Having his address at :
Solitaire, 80, SV Road,
Santacruz West,
Mumbai - 400 054 ...Respondents
SQ Pathan/Wakodikar 4/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc
WITH
CRIMINAL WRIT PETITION NO. 2009 OF 2016
Alnoor Hasanali Jamal
Age-65 years, Occupation - Business,
C/o. M/s. Agrud Partners
Advocates & Solicitors,
13, Nariman Bhavan, Nariman Point,
Mumbai - 400 021 ...Petitioner
(Accused No.2)
Versus
1. State of Maharashtra
2. Navnit Mehta,
Occupation : Business,
Residing at Solitaire
80, S. V. Road, Santacruz (West),
Mumbai-400 054 ...Respondents
WITH
INTERIM APPLICATION NO. 3379 OF 2022
IN
CRIMINAL WRIT PETITION NO. 2010 OF 2016
Alnoor Hassan Ali Jamal ...Applicant/
Original Petitioner
IN THE MATTER OF :
Alnoor Hasan Ali Jamal
Age-71 years, Occupation - Business,
C/o. DMD Advocates,
121, Maker Chambers-IV,
Nariman Point, Mumbai - 400 021 ...Petitioner
SQ Pathan/Wakodikar 5/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc
Versus
1. State of Maharashtra
2. Union of India,
Through Ministry of Home Affairs
and Bureau of Immigration
3. Pulin Bole,
Age - 53 years, Occupation : Service,
Having his address at :
Solitaire, 80, SV Road,
Santacruz West,
Mumbai - 400 054 ...Respondents
WITH
CRIMINAL WRIT PETITION NO. 2010 OF 2016
Alnoor Hasanali Jamal
Age-65 years, Occupation - Business,
C/o. M/s. Agrud Partners
Advocates & Solicitors,
13, Nariman Bhavan, Nariman Point,
Mumbai - 400 021 ...Petitioner
(Accused No.3)
Versus
1. State of Maharashtra
Through Economic Offence Wing
Unit-III
2. Navnit Mehta,
Occupation : Business,
Residing at Solitaire
80, S. V. Road, Santacruz (West),
Mumbai-400 054 ...Respondents
SQ Pathan/Wakodikar 6/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc
WITH
CRIMINAL WRIT PETITION NO. 3218 OF 2022
Alnoor Hasan Ali Jamal,
Canadian National, Aged 71 years,
C/o. DMD Advocates,
Having its office at 121,
Maker Chambers IV, Nariman Point,
Mumbai - 400 021 ...Petitioner
(Accused No.1)
Versus
1. The Investigating Officer,
Mandar Vasudev Lad,
Economic Offences Wing,
Unit VI (GC-4), Mumbai
2. Shobhit Rajan,
Aged about 54 years,
Occupation : Business, residing at
Naivedya, 85, Carter Road,
Bandra (W), Mumbai - 400 050
3. State of Maharashtra
4. Union of India, Through the
Joint Secretary, Ministry of Home Affairs,
Foreigners Division, & Through
Bureau of Immigration,
Commissioner (Immigration) ...Respondents
WITH
CRIMINAL WRIT PETITION NO. 2110 OF 2016
SQ Pathan/Wakodikar 7/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc
Alnoor Hasanali Jamal
Age-65 years, Occupation - Business,
C/o. M/s. Agrud Partners
Advocates & Solicitors,
13, Nariman Bhavan, Nariman Point,
Mumbai - 400 021 ...Petitioner
(Accused No.3)
Versus
1. State of Maharashtra
2. Shobhit Rajan,
Occupation : Business, Residing at
Naivedya, 85, Carter Road,
Bandra (West), Mumbai - 400 050 ...Respondents
Ms. Fereshte Sethna a/w Mr. Ameya Pant, Ms. Shivani Sanghavi,
Mr. Ashish Mishra, Mr. Abhishek Tilak, Ms. Prapti Kedia, Mr. Mohit
Tiwari, Mr. Suyash Bhave and Mr. Hasmukh Ravaria, Mr. Manoj
Taneja i/b DMD Advocates for the Applicant/Petitioner
Mr. Aabad Ponda, Senior Advocate a/w Mr. Ashwin Shete, Mr. Abhay
Dhadiwal, Mr. Priyank Daga and Mr. Gaurav Suralkar i/b Jayakar &
Partners, for the Respondent No. 3/Original Complainant in IAs
Mr. Aabad Ponda, Senior Advocate a/w Mr. Ashwin Shete, Mr. Abhay
Dhadiwal, Mr. Priyank Daga and Mr. Gaurav Suralkar i/b Jayakar &
Partners, for the Respondent No. 2/Original Complainant in WP Nos.
2110/2016 and 3218/2022
Mr. J. P. Yagnik, A.P.P for the Respondent-State
SQ Pathan/Wakodikar 8/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc
CORAM : REVATI MOHITE DERE &
S. M. MODAK, JJ.
RESERVED ON : 10/10/2022
PRONOUNCED ON : 18/11/2022
ORDER (Per Revati Mohite Dere, J.) :
1 Pursuant to the liberty granted by the Apex Court vide order dated 26.8.2022 passed in Interim Application No.115062/2022 in Civil Appeal No. 633/2016, the applicant has filed the aforesaid Interim Applications in the aforesaid Petitions and Petition No.3218/2022, seeking certain interim reliefs. (Initially, five separate writ petitions were filed, however, the same were later converted into four Interim Applications, pursuant to the liberty granted by this Court vide order dated 3.10.2022). 2 Writ Petitions i.e. Writ Petition Nos. 3334/2022, 3333/2022 and 3332/2022 (pending before the Single Judge of this Court) were directed to be tagged with Criminal Writ Petition No.3218/2022, pursuant to the administrative order dated 12.9.2022, passed by the Hon'ble the Chief Justice and accordingly, all the petitions have been placed before this Bench.
SQ Pathan/Wakodikar 9/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 3 The reliefs essentially sought in all the aforesaid applications/petitions, by the applicant/petitioner, is a safe passage to India from Africa and again back from India to Africa, to enable the applicant to be present for the final hearing of Civil Appeal No. 633/2016 pending before the Hon'ble Supreme Court. Accordingly, stay is sought of the Lookout Circulars (LOCs), the Non-Bailable Warrants and essentially stay of all the proceedings pending against the applicant. Stay is also sought of the investigation conducted by the Economic Offences Wing (`EOW') in two MECRs i.e. MECR No. 11/2013 registered with the EOW, Unit-III, Mumbai (earlier MECR No. 1/2013-Khar Police Station) and MECR No. 1/2018 registered with the EOW, Unit-IX, Mumbai (earlier MECR No.1/2015-Tilak Nagar Police Station).
4 We have heard all the interim applications/petitions at some length, as agreed, only for the purpose of consideration of the interim reliefs.
SQ Pathan/Wakodikar 10/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 5 SUBMISSIONS ON BEHALF OF THE APPLICANT :
5.1 Ms. Sethna, learned counsel for the applicant, in all the aforesaid applications submitted that the applicant is a septuagenarian Canadian national and a prominent entrepreneur, having multiple global business ventures across several countries and that by virtue of his Indian descent, the applicant was keen to replicate his international successes, by expanding his business activities in India. Learned counsel further submitted that in June 1999, the applicant undertook negotiations in London, USA, in relation to a 13-acre prime commercial property situated at Sakinaka, Mumbai, owned by Warner Lambert's Downstream Indian subsidiary, Parke Davis Ltd., which was relocating its pharmaceutical factory to Hyderabad. Learned counsel submitted that the negotiations culminated in a Memorandum of Understanding (MOU) dated 19.8.1999, signed at London, between the applicant alongwith Alnoor Jamal Group of Companies (duly signed by the applicant) (hereinafter for the sake of brevity referred as 'AJGC') and Warner Lambert. The agreed price for the SQ Pathan/Wakodikar 11/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc purchase of the said property at Sakinaka was Rs. 49 crores. Learned counsel submitted that the applicant arranged for a collateral security, by giving an undertaking dated 20.8.1999, issued by M/s. Beale & Co.
to Warner Lambert, recording share certificates, in relation to the applicant's companies to the extent of GBP 362,554 (INR 2.5 crores), for due performance. According to the learned counsel for the applicant, pursuant to the said MOU, the applicant was introduced to Mr. Shobhit Rajan (respondent No.2), as a potential option to assist locally, for the development of the said Sakinaka property. Learned counsel submitted that in the negotiations that followed, the respondent No.2-Mr. Shobhit Rajan made representations to the applicant, that he would take full responsibility of looking after the day-to-day affairs and also undertake obligations for raising finance, in relation to the acquisition (beyond earnest money) and development of a real estate project. Accordingly, a shareholders' agreement dated 23.121999, came to be executed. Ms. Sethna, learned counsel for the applicant submitted that by virtue of the said agreement, the respondent No.2 became entitled to receive a salary and 50% (sweat) SQ Pathan/Wakodikar 12/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc equity. According to the learned counsel for the applicant, it was the respondent No.2 who induced the applicant to part with 50% equity interests to himself (respondent No.2), in the applicant's valuable reality project in India. It is submitted that vide e-mail dated 28.12.1999 from the applicant to the respondent No.2, it was recorded that the responsibility to raise finance (through banks and external third parties) for the realty project lay squarely with the respondent No.2. Ms. Sethna submitted that the respondent No.2, through diverse illegal and fraudulent misrepresentations, including benami shareholders, swiftly ramped up his equity to over 71% in Pantheon Infrastructure Pvt. Ltd. (earlier known as A Class Builders & Developers Pvt. Ltd.) through which, the realty asset was to be acquired.
5.2 According to the learned counsel for the applicant, dishonest acts of the respondent No.2 are evident from the following acts;
SQ Pathan/Wakodikar 13/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc
(i) In January, 2000 (which was subsequently disclosed), the respondent No.2 transferred 400 out of 500 equity shares to himself (including the companies controlled by him) and 100 equity shares to the applicant, thus violating the Shareholders' Agreement;
(ii) that on 29.6.2000 (the same was subsequently discovered), the respondent No.2 had issued to himself one share of Pantheon, in order to secure in excess of 50% shareholding, so as to assert majority shareholding of the applicant;
(iii) that the respondent No.2 in June 2000, claimed that Nilesh Parekh, if inducted, will bring Tata Group into the project, which was clearly an attractive proposition for a foreign national. Accordingly, a supplementary agreement to the Shareholders' Agreement was executed pursuant to the said representation made by the respondent No.2;
(iv) that the supplementary agreement purporting to take Mr. Nilesh Parekh on Board, records that the shareholding of the SQ Pathan/Wakodikar 14/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc applicant and the respondent No.2 would be diluted from 50% to 33.33%. By the said agreement, Nilesh Parekh was granted a right to nominate a director. It is submitted that initially, Nilesh Parekh joined the Board, but his Directorship was objected to by the bankers, owing to his involvement in a scam, pursuant to which, Mr. Navnit Mehta came to be appointed as the third Director (according to the applicant Mr. Navnit Mehta was also agent of the respondent No.2);
(v) that based on the dishonest representations of the respondent No.2, there was one more dilution in the equity, i.e. the respondent No.2 is alleged to have induced the applicant to further dilute his share holding from 33.33% to 28.33%, in 2001, when the respondent No.2 introduced Mr. Bharat Doshi, stating that Mr. Doshi would arrange Rs.15 crores and also meet any bridge-loan requirements from time to time against the 15% collateral, to be released back to the three shareholders when the loans were repaid. In short, the allegations as against the respondent No.2 is that he claimed that all three i.e. Mr. Jamal, Mr. Rajan and Mr. Parekh, would SQ Pathan/Wakodikar 15/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc each dilute 5% shareholding, thus, coming down to 28.33% and that the same would be ramped up to 33.33% after the loans of Mr. Bharat Doshi were repaid.
5.3 Ms. Sethna further submitted that after the said shareholding was issued in March 2002 i.e. 28.33% to each of the aforesaid three persons and 15% to Bharat Doshi, the applicant subsequently learnt that the said corporate entities were under the control of the respondent No.2 and hence, the applicant did not partake thereafter. According to the learned counsel for the applicant, despite the contractual obligation to the Shareholders' Agreement, to deliver monthly management accounts, the respondent No.2 claimed that the project was extremely time-intensive, not permitting for regular streamlined reporting. Learned counsel submitted that discussions took place in the meetings held, when the applicant visited India, however, the respondent No.2, dishonestly represented the financial power and contributions to the project made by Mr. Bharat Doshi and kept the applicant in the dark, with respect to the bank SQ Pathan/Wakodikar 16/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc funding being siphoned out of the company and the convoluted transactions done to rotate the funds with the assistance of Mr. Bharat Doshi.
5.4 Learned counsel for the applicant further submitted that the applicant confronted the respondent No.2 with respect to equity dilution liable to reversal; bank borrowed monies that had gone missing from the company and illegally diverted by the respondent No.2 and dealings with immovable assets without his prior knowledge and consent, however, the respondent No.2 illegally ousted the applicant from the company, claiming alleged non-attendance of the applicant at the Board Meetings. Learned counsel submitted that the respondent No.2 acted with the support of the co-director Mr. Navnit Mehta and nominee director Mr. Nilesh Parekh.
5.5 Ms. Sethna further submitted that pursuant to the aforesaid, the applicant immediately initiated proceedings with the Company Law Board under Sections 397, 398, 401, 402 of the SQ Pathan/Wakodikar 17/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc Companies Act, 1956, for oppression and mismanagement. She submitted that when the applicant's lawyers took search of the records with the Registrar of Companies, in relation to Pantheon, they discovered that the respondent No.2-Shobhit Rajan was holding 71.67% equity with both, Mr. Nilesh Parekh and Mr. Bharat Doshi, acting as his benamidaars. Before the Company Law Board, the applicant alleged his illegal ouster from Directorship and illegal dilution of shareholding and as such, alleged acts of oppression, acts of financial mismanagement, diversion of funds and dishonest dealings in the proceedings before the Company Law Board. She submitted that in the company petition filed before the Company Law Board as against the respondent No.2-Shobhit Rajan, it was prayed for restoration of the applicant's Directorship to Pantheon, following his illegal ouster on 11.11.2005. Certain other reliefs were also sought. 5.6 It appears that the Company Law Board, after hearing the parties, recorded some findings which were in favour of the applicant and some in favour of the respondent No.2. Both, the applicant and SQ Pathan/Wakodikar 18/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc the respondent No.2 assailed the said order passed by the Company Law Board, before this Court. This Court upheld the Company Law Board's findings in relation to the acts of oppression and mismanagement committed by the respondent No.2-Shobhit Rajan and dismissed the cross appeal filed by the respondent No.2. The respondent No.2 has impugned the said order of the High Court before the Apex Court and that the same is pending before the Apex Court. (As far as the proceedings before the Company Law Board are concerned, it is not necessary to get into the merits of the same, as in the present applications, we are not concerned with the proceedings, before the Company Law Board.) 5.7 Ms. Sethna, learned counsel for the applicant submitted that the applicant had lodged a criminal complaint, being Criminal Complaint No. 55/SW/2012 in the Court of the learned 38 th Metropolitan Magistrate, Ballard Estate, as against the respondent No.2-Shobhit Rajan and co-conspirators alleging offences punishable under Sections 420, 468, 471 r/w 34, 109, 120 and 120B of the SQ Pathan/Wakodikar 19/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc Indian Penal Code ('IPC'). Learned counsel submitted that the learned Magistrate vide order dated 29.05.2013 issued process as against the respondent No.2 and others. She submitted that even the applicant's company Akkadian lodged a complaint, being Criminal Complaint No. 45/SW/2013 in the Court of Metropolitan Magistrate at Andheri, as against the respondent No.2-Shobhit Rajan and others, alleging offences punishable under Sections 406, 409, 477A r/w 34, 109 and 120B of the IPC and that the learned Magistrate was pleased to issue process as against the respondent No.2 and others on 25.2.2013.
5.8 Learned counsel further submitted that another complaint was lodged by the applicant's company - Akkadian Housing & Infrastructure Pvt. Ltd. (hereinafter for the sake of brevity referred to as 'Akkadian'), being Criminal Complaint No. 51/SW/2013 in the Court of Metropolitan Magistrate at Bandra as against the respondent No.2-Shobhit Rajan and others, alleging offences punishable under Sections 406, 409, 410, 411, 424, 477A r/w 34, 109 and 120B of the SQ Pathan/Wakodikar 20/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc IPC and that summons have been issued to the bankers to produce books on 8.3.2013.
5.9 Learned counsel further submitted that on 25.2.2013, the applicant's company - Akkadian has lodged another complaint, being Criminal Complaint No. 95/SW/2013 in the Court of Metropolitan Magistrate at Andheri as against the respondent No.2-Shobhit Rajan and others, alleging offences punishable under Sections 378, 406, 409, 411, 109, 34 and 120B of the IPC and that the learned Magistrate was pleased to pass an order under Section 156(3) of the Criminal Procedure Code (`Cr.P.C') on 13.3.2013. Learned counsel submitted that pursuant to the said order, the Sakinaka Police Station registered an MECR.
5.10 According to the learned counsel for the applicant, as a counter blast to the aforesaid four cases filed/registered as against the respondent No.2, at the behest of the applicant, the respondent No.2 filed a complaint on 16.8.2013, being Criminal Complaint No. SQ Pathan/Wakodikar 21/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 234/SW/2013 in the Court of the learned Metropolitan Magistrate, Bandra, as against the applicant and others, alleging offences punishable under Sections 406, 420, 464, 465, 467, 468, 471, 474, 477A, 417, 418, 384 r/w 109, 114, 120B and 34 of the IPC on 16.8.2013.
5.11 Learned counsel submitted that pursuant to the said complaint, the learned Magistrate passed an order under Section 156(3) of the Cr.P.C on 28.8.2013, pursuant to which, the Khar Police Station, Mumbai, registered MECR No.1/2013 on 28.8.2013. Subsequently, the investigation was transferred to the EOW, Unit-III for investigation and the case was re-numbered as MECR No. 11/2013. Learned counsel for the applicant submitted that on the very day i.e. in the intervening night of 28/29.8.2013, the Police Officers from the Khar Police Station alongwith two Advocates of the respondent No.2-Shobhit Rajan, on the instructions of the respondent No.2 encroached upon the privacy of the applicant and his ailing wife who were staying in Hotel Marine Plaza, Mumbai. Learned counsel SQ Pathan/Wakodikar 22/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc submitted that the malafides are writ large from the fact, that thereafter, on a complaint made by the applicant, a detailed investigation report dated 18.10.2013 was submitted by Dr. Dorje, DCP, Zone IX, Mumbai, which clearly records that the police had acted in an indecent, illegal and improper manner. She submitted that the said report recommended awarding strict punishment to the concerned police officers and officials for their defaults. Learned counsel further submitted that pursuant thereto, the applicant even moved the National Human Rights Commission (`NHRC') and that the NHRC vide order dated 17.4.2018 granted compensation of Rs.50,000/- each, to the petitioner and his wife. 5.12 Learned counsel further submitted that the respondent No.2, to harass the applicant, again filed a complaint through the nominee Director of Pantheon, Mr. Navnit Mehta being C.C.No. 284/ SW/2013 as against the applicant, Akkadian, Mr. Nazir Mussa, their Advocates, alleging offences punishable under Sections 167, 192, 466, 464, 465, 468, 469, 471, 474, 193, 196, 109, 120B of the IPC. SQ Pathan/Wakodikar 23/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 5.13 Learned counsel submitted that again, respondent No.2 and his employee and co-conspirator - Ajay Chawla instituted another complaint being C.C.No.296/SW/2013 in the Court of the Metropolitan Magistrate as against the applicant, Akkadian, Nazir Mussa and their Advocate alleging offences punishable under Sections 466, 464, 465, 468, 471, 474, 193, 196, 109, 120B of the IPC on 10.10.2013. Learned counsel submitted that pursuant thereto, the police conducted a raid at the Akkadian office at Ghatkopar, Mumbai, at the instance of the respondent No.2.
5.14 Learned counsel further submitted that not being satisfied with the aforesaid complaints being lodged, the respondent No.2- Shobhit Rajan, again on 6.5.2014 caused the nominee Director of Pantheon Mr. Navnit Mehta to file another complaint before the learned Magistrate, Vikhroli, Mumbai, being C.C.No.99/SW/2014, as against the applicant and others alleging offences punishable under Sections 420, 464, 465, 467, 468, 471, 474, 477A, 406, 418 r/w 109, SQ Pathan/Wakodikar 24/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 120B and 34 of the IPC and certain provisions of the Information Technology Act.
5.15 Learned counsel further submitted that during this period, one of the alleged co-accused - Nazir Mussa (applicant's uncle) attended the EOW on 2.6.2014, to join investigation, in relation to one of the complaint i.e. MECR No.11/2013. She submitted that despite the same, the EOW, at the behest of the respondent No.2- Shobhit Rajan, initiated a Lookout Circular as against the applicant and Nazir Mussa on 6/6/2014, which was revealed through the media reports on 7/6/2014. Learned counsel submits that pursuant to the media reports, a letter was issued on behalf of the Akkadian through their Advocates to the Senior Inspector of Police, EOW, Unit - III, Mumbai. She submitted that pursuant thereto, the applicant's uncle - Nazir Mussa (co-accused), met the Commissioner of Police and sought recall of the Lookout Circular issued on 6/6/2014. She submitted that despite the Commissioner of Police assuring that there was no scope of concern, on the very same day in the evening, Nazir Mussa was arrested and was incarcerated in jail for about 28 days. SQ Pathan/Wakodikar 25/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 5.16 Ms. Sethna, learned counsel further submitted that around the same time, i.e. on 9/6/2014, one Mr. Nathan attended the Court of learned Magistrate, Vikhroli in C.C.No. 99/SW/2014 and the Advocates filed their Vakalatnama on behalf of all including the applicant. She submitted that despite the same, the complainant- Navnit Mehta filed an application and sought issuance of a non- bailable warrant as against the applicant, which was declined by the learned Magistrate. Learned counsel submitted that subsequently, i.e. on 12.12.2014, the applicant's exemption application was rejected by the learned Metropolitan Magistrate in C.C.No. 99/SW/2014 and on 23.03.2015, the learned Magistrate rejected the application of the complainant for issuance of non-bailable warrant on the basis of the Police report, which disclosed that bailable warrant could not be served on the applicant, since he was a resident of Kenya and as such, non-bailable warrant could not be issued. She submitted that despite repeated applications being filed by the complainant-Navnit Mehta for issuance of non-bailable warrant, the same were rejected by the SQ Pathan/Wakodikar 26/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc learned Magistrate, not only on 23.3.2015, but even on 7.4.2015. Learned counsel submitted that despite the applications for issuance of non-bailable warrant being rejected by the learned Magistrate, when the matter came up before the learned Magistrate, 50 th Court (In- Charge Court), Vikhroli, the application filed by the complainant- Navnit Mehta seeking issuance of non-bailable warrant was allowed. Learned counsel submitted that again the complainant filed an application for taking the case on board, out of turn, before the In- Charge Court, without intimating the Advocate of the applicant, and that the In-Charge Court issued non-bailable warrant as against the applicant through the Consulate, despite the fact, that on earlier two occasions, the application seeking issuance of non-bailable warrant, was rejected. She submitted that it is a matter of record that the learned Magistrate (In-Charge Court) was later suspended from service.
5.17 Learned counsel submits that Navnit Mehta again filed a complaint before the learned Magistrate at Vikhroli being C.C.No. 88/ SQ Pathan/Wakodikar 27/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc SW/2015 as against the applicant and others alleging offences punishable under Sections 409, 420 etc. of the IPC and the provisions of the Information Technology Act on 24.4.2015. She submitted that again the very same In-Charge Judge, who had issued the non-bailable warrant as against the applicant, passed an order under Section 204 of the Cr.P.C.
5.18 It is further submitted that Navnit Mehta again filed another complaint on 20.5.2015 before the learned Metropolitan Magistrate, 72nd Court, Vikhroli, being C.C.No. 97/SW/2015 (now C.C.No. 136/SW/2018) seeking investigation under Section 156(3) of the Cr.P.C, alleging the very same offences punishable under the IPC, under the Information Technology Act, Foreigners Act and the Passport Act. Learned counsel submitted that again the very same In- Charge Magistrate, who was subsequently suspended, passed an order under Section 156(3) of the Cr.P.C. in the said case, pursuant to which, FIR being MECR No.1/2015 was registered with the Tilak Nagar Police Station, Mumbai. The said case was subsequently SQ Pathan/Wakodikar 28/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc transferred to the EOW, Unit-IX, Mumbai and renumbered as MECR No.1/ 2018.
5.19 It is further submitted that Mr. Navnit Mehta again, filed a complaint with the very same Magistrate on 21.5.2015 i.e. one day post the filing of the earlier complaint as against the applicant and others, being C.C.No. 98/SW/2015 (now C.C.No. 135/SW/2018) alleging offences under the IPC and the Information Technology Act and that the very same In-Charge Court, again passed an order under Section 204 of the Cr.P.C on 21.5.2015.
5.20 Ms. Sethna submitted that the very same Judge, who not only issued non-bailable warrant, despite it being rejected on two earlier occasions, had also issued process and an order under Section 156(3) of the Cr.P.C, as an In-Charge Court. She submitted that the same is far from a co-incidence. Learned counsel submitted that the applicant had made a detailed complaint as against the said Magistrate to (i) the Hon'ble the Chief Justice of India; (ii) the Hon'ble the Chief Justice; (iii) the Registrar General; (iv) The Registrar (Vigilance-I); and SQ Pathan/Wakodikar 29/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc
(v) the Registrar (Vigilance-II), of this Court. Learned counsel further submitted that it is a matter of record that subsequently, the said Magistrate was suspended from service, by this Court, however, it is not known, whether it was pursuant to the applicant's complaint/representation/otherwise. She submits that the fact remains, that the said Judge was suspended.
5.21 Learned counsel for the applicant further submitted that although initially, interim relief in the aforesaid writ petitions, at that stage was refused, the subsequent developments i.e. the suspension of the Magistrate, who passed the impugned orders, NHRC report and the liberty granted by the Apex Court, warrants fresh consideration of the interim reliefs sought by the applicant.
5.22 Ms. Sethna heavily relied on the observations made by this Court on 23.10.2015 whilst quashing the FIR/complaint as against the co-accused Nazir Mussa (applicant's uncle) i.e. in the case of Nazir Mussa vs. The Commissioner of Police & Ors.1. She submitted that 1 2015 SCC Online Bom 6585 SQ Pathan/Wakodikar 30/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc the said judgment has been confirmed by the Apex Court. She submitted that the findings recorded in the said judgment and order certainly have a bearing, even on the applicant's case. Learned counsel further submitted that the applicant has admittedly not been declared as a proclaimed offender by any Court of Law, till date. She submitted that the facts clearly reveal that the dispute if any, is a civil dispute and that no offences as alleged, are disclosed in any of the said complaints/FIR filed/lodged by the respondent No.2-Shobhit Rajan and his nominees. Learned counsel further submitted that taking the prosecution case as it stands, no offence as alleged is disclosed qua the applicant, thus warranting interference of this Court, in its writ jurisdiction, as also under Sections 482 of the Cr.P.C. It is submitted that the facts and the complaints lodged by the respondent No.2- Shobhit Rajan and at his behest, clearly show the intent of the respondent No.2, which is to ensure, that the applicant does not come to India, so as to enable him, to usurp/siphon off the property, which as of today, is more than Rs. 700 crores.
SQ Pathan/Wakodikar 31/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 5.23 Ms. Sethna, learned counsel for the applicant submitted that the malafides of the officers of the EOW are further writ large, from the fact, that the police, at the instance of the respondent No. 2, issued LOC on 12.8.2022, only after the order was passed by the Apex Court on 4.8.2022, seeking listing of the Interim Application No. 115062/2022 in Civil Appeal No. 633/2016 (safe passage to come to India), despite the fact that the case is of the year 2015. 5.24 Ms. Sethna, learned counsel for the applicant submitted that all the aforesaid five cases pertain to the same transaction and is between the same parties. She submitted that five separate complaints have been filed malafidely, for different periods i.e. one complaint is for the period 31.3.2000 to 31.3.2012 for non-furnishing accounts and the other complaints are for the period 31.3.2008 to 31.3.2012 and 31.3.2000 to 31.3.2007 and 2013.
5.25 Learned counsel submitted that all the aforesaid complaints have been lodged by the respondent No.2 malafidely, only to ensure SQ Pathan/Wakodikar 32/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc that the applicant is unable to come to India and deal with the property, which is worth thousands of crores. She submitted that the police have been investigating the cases, both MECRs, only at the behest of the respondent No.2. She submitted that infact, the complaints/FIR lodged at the instance of the applicant, have not even been investigated by the police, thus showing bias and malafides. 6 SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2 :
6.1 Mr. Ponda, learned senior counsel for the respondent No.2 vehemently opposes the grant of any discretionary relief in favour of the applicant. He submitted that nothing has changed since the last order dated 27.7.2016 passed by this Court refusing interim relief to the applicant herein;
6.2 that the Apex Court vide order dated 26.8.2022, granted liberty to the applicant to file fresh petitions only in respect of 'other complaints' i.e. complaints distinct and separate from the complaints which are the subject matter in the aforesaid petitions. He further SQ Pathan/Wakodikar 33/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc submitted that the interim applications cannot be entertained inasmuch as, what are filed are fresh applications in the earlier petitions. It is submitted that none of the instant cases, would fall in the category of cases, warranting filing of fresh applications. It is further submitted that the applicant has completely misconceived the order dated 26.8.2022 passed by the Apex Court and as such, the interim applications ought not to be entertained. It is submitted that in view of the last sentence of the order dated 26.8.2022 passed by the Apex Court, it is clear, that the question of granting interim relief would have to be decided on merits and as such, the Apex Court has not expressed any opinion with respect to the five pending cases before this Court.
6.3 Learned Senior counsel further submitted that the applicant is not entitled to any discretionary relief on the grounds of
(i) abscontia; (ii) Twisting Facts; (iii) Fraud and Suppressio Veri; (iv) Blameworthy conduct of the applicant; (v) Review of the earlier order; (vi) Grounds argued for interim relief are all taken up in writ SQ Pathan/Wakodikar 34/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc petitions filed in the year 2016; (vii) Malafides of the complainant is not a ground for quashing; (viii) Non-compliance with the earlier orders; (ix) Disobedience/Scant respect for orders of the Court; and
(x) The applicant is not ready to subject himself to the jurisdiction of this Hon'ble Court, and even now, wants his matters to be heard in his absence.
6.4 As far as abscontia is concerned, Mr. Ponda, learned senior counsel for the respondent No.2 submitted that the applicant is a absconder, as he has evaded the process of this Court i.e. despite knowing that the proceedings are pending against him in this Court, the applicant continues to remain out of the country; that action is sought against the applicant under Section 299 of the Cr.P.C.; that the applicant's conduct post the order dated 27.7.2016 shows his scant respect, not only to the judicial process, but also to the order dated 27.7.2016; and that a person who is absconding, cannot be heard in law.
SQ Pathan/Wakodikar 35/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 6.5 Mr. Ponda, learned senior counsel submitted that the applicant is well-aware of the processes issued as against him by the Court of Law i.e. non-bailable warrant dated 23.4.2015 issued in C.C.No. 99/SW/2014, proclamation dated 28.4.2016 issued in C.C.No.99/SW/2014; Lookout circular dated 6.6.2014 issued in C.C.No. 234/SW/2013; and summons issued in three cases. Learned counsel submitted that even today, the applicant does not want to surrender himself to the jurisdiction of this Court and hence, no indulgence be shown to the applicant. In this context, Mr. Ponda relied on several judgments in support of his submissions. Compilation of judgments is tendered on almost every submission in Point No. 6.3 above.
6.6 As far as twisting of facts are concerned, Mr. Ponda submitted that the present applications reflect all the events and actions that had taken prior to passing of the order dated 27.7.2016 in the aforesaid petitions. He submitted that there is no change of circumstance nor any subsequent development, warranting entertaining of the aforesaid applications. He further submitted that SQ Pathan/Wakodikar 36/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc infact, the applicant had not even challenged the interim order dated 27.7.2016 before the Apex Court and as such, no new grounds are made out or disclosed for reconsideration/interference in the aforesaid order dated 27.7.2016 passed by this Court, whilst rejecting interim relief.
6.7 As far as conduct of the respondent No.2 is concerned, Mr. Ponda, learned senior counsel for the respondent No.2 submitted that the observation of this Court, with respect to the conduct of the respondent No.2 forms a detailed part of the order passed in 2016, when this Court refused to consider grant of interim relief on account of the conduct of the applicant. He submitted that malafides of the respondent No.2-complainant cannot be a ground for quashing of the proceedings. He submitted that allegations of malafides as against the complainant i.e. respondent No.2 are of no consequence and cannot by itself, be a ground for quashing of the proceedings. He submitted that the applicant cannot be allowed to come to Delhi to attend his SLP, pending before the Apex Court by giving a complete go bye to the process initiated in the State of Maharashtra. He submitted that SQ Pathan/Wakodikar 37/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc co-accused-Nazir Mussa's judgment and order cannot be considered as a ground for quashing the case against the applicant, inasmuch as, their roles are different.
SUBMISSIONS OF THE LEARNED A.P.P :
7 Learned APP also opposed the application. He submitted that only if the applicant is ready to co-operate in the investigation and is ready to appear before the authorities, i.e. before the police and the Courts, that this Court can consider granting protection to the applicant. Learned APP further submitted that after conducting a detailed investigation in MECR No. 11/2013, the EOW has filed charge-sheet as against the applicant and others in the Court of the learned Additional Chief Metropolitan Magistrate, 47 th Court, Esplanade, Mumbai. He further submitted that the EOW has issued an open Lookout Circular dated 12.8.2022 in the name of the applicant with instructions to restrict him from going abroad and to intimate the originator immediately. Learned APP submitted that the presence of the applicant is essential for conducting investigation. SQ Pathan/Wakodikar 38/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 8 FACTS IN BRIEF - as are necessary to decide the interim reliefs :
Facts of each of the five complaints/cases are set-out in brief, as under :
IN WP/2110/2016 & WP/3218/2022 (CC No. 234/SW/2013 (now 486/PW/2021) pending before the learned Metropolitan Magistrate, 9th Court, Bandra, arising out of MECR No. 1/2013 registered with the Khar Police Station, subsequently transferred to the EOW, Unit-III, Mumbai and renumbered as MECR No. 11/2013)
9 The respondent No. 2-Shobhit Rajan filed a private complaint in the Court of the learned Metropolitan Magistrate, 9 th Court, Bandra, on 16.8.2013 as against the applicant and others, alleging offences punishable under Sections 417, 418, 420, 464, 465, 467, 468, 471, 474, 477-A, 384 r/w 109, 114, 120-B and 34 of the IPC. The allegations in this complaint are that the accused Nos.1 to 6 (including applicant), have acted in collusion and conspired to cheat and defraud the complainant, by preparing false, fabricated, forged accounts and auditor's report, etc. with the help of accused Nos.7 and SQ Pathan/Wakodikar 39/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 8 for the period 31.3.2000 till 31.3.2012. (The applicant is accused No. 1 in the said case.) 9.1 In the said private complaint, the learned Magistrate passed an order under Section 156 (3) of the Cr.P.C, pursuant to which, the Khar Police Station, Mumbai, registered MECR No. 1/2013 on 28.8.2013 alleging the aforesaid offences as against the applicant and others. Subsequently, the said MECR was transferred to the EOW, Unit-III, Mumbai and renumbered as MECR No. 11/2013. It is a matter of record that on 28/29.8.2013, the police officers from the Khar Police Station alongwith two advocates of the respondent No. 2-Shobhit Rajan went to Marine Plaza, Mumbai, where, the applicant and his wife were staying, to apprehend the applicant. Pursuant thereto, the applicant approached the Deputy Commissioner of Police (`DCP'), Zone-IX, Mumbai, and made a complaint with respect to the said post-midnight raid. Accordingly, the DCP, Zone-IX, Mumbai, conducted an inquiry into the post-midnight raid and in its report dated 18.10.2013 observed, as under :
SQ Pathan/Wakodikar 40/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc "At the end of overall enquiry of the matter, it is clear that in the MECR No. 1/2013 under Sections 420, 464, 465, 468, 471, 474, 477 (A), 417, 418, 109, 120 (b) registered at Khar Police Station, it is stated that cheating is done of Rs.250 crores. It is noticed that from the date of registration of said offence within 2 hours without collecting any evidence, on the directions of complainant and under guidance of Assistant Police Commissioner Shivajirao Kolekar, Bandra Division, Mumbai and Senior Police Inspector Vikas Sonawane, Police Inspector Chhagan Jadhav and Police Squad at night 23.20 PM from Khar Police Station from 2 private vehicles of complainant along with complainant, 2 Advocates of complainant went at Hotel Marine Plaza for arresting applicant Alnoor Jamal, the senior citizen without any evidence. The said act is indecent, illegal and improper for disciplined department like Police department. It is recommended for awarding strict punishment to abovementioned officers and officials for their defaults.
............" (emphasis supplied)
9.2 Subsequently, the investigation was transferred from Khar
Police Station, to the EOW, Unit-III, Mumbai, and the C.R. was renumbered as MECR 11/2013. It appears that on 6.6.2014, the EOW initiated a look out circular against the applicant. On 10.6.2014, when the applicant's uncle, Nazir Mussa (a co-accused), a British SQ Pathan/Wakodikar 41/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc National arrived in Mumbai to take part in the criminal investigation conducted by the EOW, in relation to the said MECR No. 11/2013, he was arrested and was in jail for about 28 days. After, Nazir Mussa was enlarged on bail, Nazir Mussa filed a petition before this Court, being Writ Petition No. 2253/2014 and sought quashing of the proceeding qua him. This Court, vide judgment and order dated 23.10.2015 in the case of Nazir Mussa vs. The Commissioner of Police & Ors.
(supra), allowed the said petition and quashed the proceeding i.e. quashed MECR No. 11/2013 registered with the EOW, Unit-III, Mumbai, qua Nazir Mussa. The said judgment and order dated 23.10.2015 was challenged by the respondent No.2 by filing a Special Leave Petition (`SLP'). The Apex Court, vide order dated 12.2.2016 dismissed the said SLP (Cri.) No. 630/2016 preferred by the respondent No.2-Shobhit Rajan. It appears that again, a review petition was filed by the respondent No.2, however, the Apex Court, vide order dated 12.4.2016 dismissed the said review petition challenging the order dated 12.2.2016 passed by the Apex Court, dismissing the SLP filed by the respondent No.2-Shobhit Rajan.SQ Pathan/Wakodikar 42/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 9.3 It is a matter of record that the applicant had also filed a complaint with the NHRC, following his harassment by the police i.e. the midnight raid conducted by the police at the behest of respondent No.2-Shobhit Rajan i.e. the incident of 28/29.8.2013. The NHRC vide its order dated 17.4.2018, awarded the applicant and his wife compensation of Rs.50,000/- each. The respondent No.2 filed an application seeking review of the said order dated 17.4.2018 passed by the NHRC, however, the same was dismissed by the NHRC on 2.8.2019.
9.4 It appears that the Investigating Officer, EOW, has filed charge-sheet in the said MECR 11/2013 on 4.8.2021 before the learned Judicial Magistrate First Class, 47 th Court, Esplanade, Mumbai, and that the said Court has taken cognizance of the said charge-sheet. As per the charge-sheet, the look out circular initiated by the EOW is still live, as against the applicant. SQ Pathan/Wakodikar 43/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 9.5 It appears that the learned Magistrate on 17.11.2021 issued summons to the applicant and on 19.7.2022, learned Magistrate issued a non-bailable warrant, as against the applicant.
IA/3378/2022 IN WP/2009/2016 (CC No.99/SW/2014 instituted before the learned Metropolitan Magistrate, 49th Court, Vikhroli, Mumbai, now pending before the learned Magistrate, 50th Court, Vikhroli, Mumbai) 10 On 7.5.2014, Mr. Navnit Mehta (complainant) i.e. respondent No. 2 filed a complaint before the Metropolitan Magistrate, 49th Court, Vikhroli, Mumbai, as against the applicant and others, alleging offences punishable under Sections 420, 464, 465, 467, 468, 471, 474, 477A, 406, 418 r/w 109, 120B and 34 of the IPC and Sections 66D, 72A, 84B, 84C and 85 of the Information Technology Act, 2000. The allegations in this complaint are essentially of fraud, cheating, making false documents, forgery, using them as genuine, falsification of accounts of the applicant and using them as genuine to derive wrongful gain and to cheat and mislead the public and the Company Pantheon Infrastructure Pvt. Ltd. and its shareholders and filed and transmitted via electronic records, the said SQ Pathan/Wakodikar 44/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc false statements, records, registers with ROC, for the period 31.3.2000 to 31.3.2012.
10.1 It appears that the learned In-Charge Magistrate Shri C. R. Lohar, 50th Court, Vikhroli, Mumbai, issued process as against the applicant under Section 204 Cr.P.C.
10.2 On 13.5.2014, the complainant i.e. respondent No. 2 filed an application seeking service of summons through the concerned embassy, however, the same was rejected by the learned Magistrate, 49th Court, Vikhroli, Mumbai. Again, an application was filed by the complainant seeking issuance of non-bailable warrant against the applicant, which was also rejected by the same Magistrate vide order dated 9.6.2014. It appears that an Advocate was engaged on behalf of the applicant for the limited purpose of pointing out irregularities and seeking the applicant's exemption from appearance, however, the advocate was not heard and bailable warrant was issued as against the applicant. Again, the complainant filed applications for service of SQ Pathan/Wakodikar 45/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc bailable warrants as against the applicant, through the Canadian and Kenyan Consulates. Applications for issuance of non-bailable warrant, were also filed; however, the same were rejected by the learned Magistrate, 49th Court, Vikhroli, Mumbai. It appears that thereafter, the complainant i.e. respondent No.2-Navnit Mehta filed an application seeking inquiry under Section 340 Cr.P.C as against the applicant and his advocates on 21.8.2014. An application for issuance of non-bailable warrant, against the applicant was also filed on 16.9.2014, however, no orders were passed on the said application. It appears that subsequently, the said case i.e. CC No.99/SW/2014 was transferred from the learned Magistrate, 49 th Court, Vikhroli, Mumbai, to the learned Magistrate, 73rd Court, Vikhroli, Mumbai. 10.3 It appears that on 23.3.2015, the application for issuance of non-bailable warrant filed by the complainant i.e. respondent No. 2 was rejected by the said Court i.e. the learned Magistrate, 73 rd Court, Vikhroli, Mumbai. The order records that the applicant could not be served bailable warrant, as he resides in Kenya, hence, a non-bailable SQ Pathan/Wakodikar 46/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc warrant cannot be issued in the absence of any provision permitting the same. Again, on 7.4.2015, an application for issuance of non- bailable warrant was filed by the complainant-Navnit Mehta, however, the same was rejected by the learned Magistrate, 73 rd Court, Vikhroli, Mumbai.
10.4 Thereafter, on 23.4.2015, within a few days, after the earlier applications seeking issuance of non-bailable warrant, was rejected, the complainant i.e. respondent No.2 again filed an application before the In-Charge Magistrate, 50 th Court, Shri C. R. Lohar, who allowed the said application without assigning any reasons and on the next date i.e. on 24.4.2015, the same Judge i.e. Shri Lohar directed that the non-bailable warrant, be executed through the Consulate of Kenya.
10.5 Thereafter, when the matter came up before the regular Court, the regular Court granted execution of the non-bailable warrant, against the applicant through the Canadian embassy on SQ Pathan/Wakodikar 47/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 20.10.2015. On 28.11.2015, the learned Magistrate re-issued directions to serve the non-bailable warrant, at the correct address of the applicant in Canada. On 28.4.2016, the learned Magistrate, 73rd Court, directed publication of proclamation against the applicant. Accordingly, the proclamation was published in the Times of India Edition on 5.5.2016; in newspaper-Daily News at Tanzania on 6.6.2016 and in a newspaper-Guardian at Kenya on 13.6.2016. 10.6 It appears that on 25.8.2016, a second application was filed by the complainant seeking rejection of the Vakalatnama dated 15.7.2015 of Mr. Chavan and for initiating inquiry under Section 340 Cr.P.C as against the applicant and his advocates. 10.7 It appears that subsequently, the complainant i.e. respondent No. 2 again filed an application seeking attachment of the applicant's property, however, the learned Magistrate, 73 rd Court, Vikhroli, rejected the said application seeking attachment of the applicant's property and inter alia held that the applicant cannot be SQ Pathan/Wakodikar 48/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc treated as a proclaimed offender under Section 82 (4) of the Cr.P.C. The said order was challenged by the complainant i.e. respondent No.2 before the learned Sessions Judge, however, the learned Sessions Judge, vide order dated 12.5.2017, rejected the said application i.e. CRA No.1312/2016. Again, the said order was challenged in the High Court by way of a writ petition, being Writ Petition No.2729/2017. We are informed that the said petition is pending. 10.8 It appears that on 19.7.2015, the complainant Navnit Mehta expired. Pursuant to which, Shri Pulin Bole was allowed to be substituted as a complainant in the aforesaid complaint vide order dated 17.2.2021. In the meantime, the learned Magistrate rejected the vakalatnama filed on behalf of the applicant vide order dated 27.1.2021. Thereafter, the case was again transferred from the learned Magistrate 73rd Court, to the Magistrate, 50th Court, Vikhroli. Again, an application was filed for issuance of non-bailable warrant, by the substituted complainant, however, the same was rejected by the learned Magistrate vide order dated 18.11.2021. SQ Pathan/Wakodikar 49/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc IA/3379/2022 IN WP/2010/2016 (CC No.88/SW/2015 pending before the learned Metropolitan Magistrate, 73rd Court, Vikhroli, Mumbai, Now pending before the learned Magistrate, 50th Court, Vikhroli, Mumbai) 11 A complaint was filed by Navnit Mehta (complainant) as against the applicant, in the Court of the learned Magistrate, 73 rd Court, Vikhroli, Mumbai, alleging offences punishable under Sections 409, 420, 464, 465, 467, 468, 471, 474, 477, 477A, 406, 418, 419 r/w 120B and 34 of the IPC and Sections 66D and 72A of the Information Technology Act, 2000. The allegations in this complaint are essentially of falsification of books of accounts, making of false or fraudulent entries in the registers, books of accounts and documents belonging to the Company with an intention to defraud, preparing false Annual Returns of Accused No.2 for several years. It is alleged that the accused No.1 issued false Auditors' Reports for various years i.e. for the said false entries, registers, books of accounts, documents on the basis of Annual Returns of the Company for the period pertaining to 31.3.2008 - 31.3.2012.
SQ Pathan/Wakodikar 50/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 11.1 It appears that Shri C. R. Lohar, the learned In-Charge Magistrate, 50th Court, Vikhroli, vide order dated 24.4.2015, issued process as against the applicant under Section 204 Cr.P.C. 11.2 Thereafter, it appears that several applications were filed by the complainant for issuance of non-bailable warrants against the applicant, however, the said applications were rejected by the learned Magistrate, 73rd Court, Vikhroli, Mumbai, vide orders dated 12.10.2015, 29.6.2016 and 19.8.2016.
11.3 Since the complainant Navnit Mehta expired on 19.7.2015, an application for substitution of the complainant was made and Shri Pulin Bole was allowed to be substituted as complainant vide order dated 17.2.2021. Thereafter, the case was transferred from the learned Magistrate 73rd Court, Vikhroli, to the learned Magistrate, 50th Court, Vikhroli. Thereafter, it appears that the learned Magistrate, 50th Court, Vikhroli, issued bailable warrant of Rs. 10,000/- as against the applicant vide order dated 11.7.2022. SQ Pathan/Wakodikar 51/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc IA/3375/2022 IN WP/2007/2016 (CC No.97/SW/2015 instituted before the learned Metropolitan Magistrate, 72nd Court, Vikhroli, Mumbai, (Now CC No.136/SW/2018) pending before the 47 th Court, Esplanade, Mumbai) ) 12 A complaint was filed by Navnit Mehta (complainant) as against the applicant, in the Court of the learned Magistrate, 72 nd Court, Vikhroli, Mumbai, alleging offences punishable under Sections 420, 464, 465, 467, 471, 474, 477A, 406, 418, 197, 198, 199 r/w 109, 120B and 34 of the IPC; Sections 66D and 72A of the Information Technology Act, 2000; Section 14 of the Foreigner's Act, 1946 and Section 3 r/w Section 12 of the Passports Act, 1967. 12.1 The allegations in this complaint are essentially of fraud, cheating, making false documents and Annual Returns of accused No.4 for the year 2013.
12.2 It appears that vide order dated 20.5.2015, Shri C. R. Lohar, the learned In-Charge Magistrate, 50 th Court, Vikhroli, passed an order under Section 156(3) as against the applicant. Pursuant to the SQ Pathan/Wakodikar 52/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc said order, the Tilak Nagar Police Station registered MECR No. 1/2015. Thereafter, MECR No.1/2015 was transferred from Tilak Nagar Police Station to EOW, Unit-IX, pursuant to an order passed by the High Court on 14.12.2017 in Criminal Application Nos. 530/2017 and 531/2017 instituted by Nazir Mussa (applicant's uncle). This Court, vide order dated 14.6.2018, directed the EOW to complete the investigation by February 2019. Till date, we are informed that investigation is in progress. Thereafter, the case was transferred from 72nd Court, Vikhroli to 47th Court, Esplanade and the case is re- numbered as CC No. 136/SW/2018.
12.3 In the present case also, in view of the demise of the complainant- Navnit Mehta, an application for substitution of the complainant was made and Shri Pulin Bole was allowed to be substituted as complainant vide order dated 27.3.2019. 12.4 We are informed that a look out circular was issued against the applicant on 12.8.2022, in the said proceeding. SQ Pathan/Wakodikar 53/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc IA/3376/2022 IN WP/2008/2016 (CC No.98/SW/2015 instituted before the learned Metropolitan Magistrate, 72nd Court, Vikhroli, Mumbai, (Now CC No.135/SW/2018 pending before the 47 th Court, Esplanade, Mumbai) 13 A complaint was filed by Navnit Mehta (complainant) as against the applicant, in the Court of the learned Magistrate, 72 nd Court, Vikhroli, Mumbai, alleging offences punishable under Sections 409, 420, 464, 465, 467, 468, 471, 474, 477, 477A, 406, 418, 419, 109, 201 r/w 120B and 34 of the IPC; Sections 66D, 72A, 84G and 85 of the Information Technology Act, 2000.
13.1 The allegations in this complaint are essentially of fraud, cheating, making false documents and Annual Returns for the period pertaining to 31.3.2000 - 31.3.2007.
13.2 It appears that vide order dated 21.5.2015, Shri C. R. Lohar, the learned In-Charge Magistrate, 50 th Court, Vikhroli, passed an order under Section 156(3) as against the applicant. SQ Pathan/Wakodikar 54/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 13.3 It appears that the complainant had filed applications for issuance of non-bailable warrant, against the applicant, however, the said applications were rejected by the learned Magistrate vide orders dated 24.11.2015 and 7.12.2016.
13.4 As the complainant-Navnit Mehta expired, Shri Pulin Bole's application seeking substitution was allowed. 13.5 In September 2018, the case was transferred from the 72 nd Court, Vikhroli to 47th Court, Esplanade, and the case is now re- numbered as CC No.135/SW/2018. It appears that again in May and June of 2022, applications have been filed by Shri Pulin Bole for issuance of non-bailable warrant, against the applicant and that the matter was put up for arguments on 21.9.2022.
REASONS :
14 Having heard learned counsel for the respective parties, for the reasons recorded herein, we are prima facie of the view that the SQ Pathan/Wakodikar 55/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc applicant is entitled to interim relief/protection on certain terms and conditions.
15 As agreed by the learned counsel appearing for either side and as noted, at the outset, the aforesaid applications were heard only to consider, whether the applicant is entitled to any interim reliefs as sought. In order to consider the same, we have set out in some detail the facts in each of the complaints hereinabove. 16 This Court vide order dated 27.7.2016, no doubt, refused interim relief to the applicant `at that stage', and that the applicant has not challenged the said order, however, the aforesaid applications have been filed pursuant to the liberty granted by the Apex Court (Coram : Surya Kant and Abhay S. Oka, JJ.) vide order dated 26.8.2022. The said order reads thus :
"The prayer in this I.A. is to grant interim protection to Appellant No.2 ('Applicant') and to secure safe passage to him to attend the final proceedings in the main case i.e. Civil Appeal No. 633/2016.SQ Pathan/Wakodikar 56/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc The aforesaid relief has been sought by the Applicant in the backdrop of some criminal cases registered against him, the details whereof is given in the Affidavit filed on behalf of the Economic Offences Wing ('EOW'), Unit-VIII of the State of Maharashtra. It is revealed from their Affidavit dated 24.08.2022 that the Applicant was declared 'untraceable' and in the charge-sheet it was stated that he was absconding. Consequently, 'look out notice' dated 12.08.2022 non- bailable warrants dated 20.08.2022 have been issued.
In the Counter Affidavit filed by the Applicant in Court today in response to the Affidavit, we find that the Applicant has already taken recourse to the law by instituting the following Writ Petitions in the High Court of Judicature at Bombay : (i) Writ Petition No.2110/2016, (ii) Writ Petition No.2009/2016, (iii) Writ Petition No.2010/2016, (iv) Writ Petition No.2007/2016 and (v) Writ Petition No.2008/2016.
All these Writ Petitions relate to different criminal cases, the genesis whereof is lies in the dispute regarding attaining ownership and control over the subject property at Saki Naka, Andheri (West) Mumbai.
In our considered view, the most appropriate remedy for the Applicant would be to seek interim relief(s) in the above-stated pending Writ Petitions and/ or to file fresh Writ Petitions, if so advised, in respect to other criminal complaints which have been filed/ pending against him.
Since the main case i.e. Civil Appeal No. 633/2016 is ripe for final arguments and the Applicant wants to be physically present at the time of hearing of the said case, we SQ Pathan/Wakodikar 57/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc request the High Court of Judicature at Bombay to take up the Applicant's above-stated Writ Petitions or any fresh Writ Petitions which may be filed by him at the earliest and pass appropriate orders in respect to the prayers for grant of interim relief within a period of two weeks.
It is made clear that we have not expressed any views in relation to the pending cases and the High Court will decide the interim relief on its own merits.
I.A. No.115062/2022 stands disposed of in above terms."
17 Initially, pursuant to the order passed by the Hon'ble Supreme Court, the applicant filed five separate petitions, however, during the course of hearing, learned counsel for the petitioner sought leave to amend to convert the four petitions into interim applications in the aforesaid writ petitions. Accordingly, leave to amend was granted, pursuant to which, the four petitions were converted into interim applications in the aforesaid petitions. As noted earlier, three petitions pertain to the assignment of the learned Single Judge, however, pursuant to the administrative order passed by the Hon'ble The Chief Justice, the said petitions have been assigned to this Court. SQ Pathan/Wakodikar 58/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 18 Although, Mr. Ponda, learned Senior counsel appearing for the respondent No.2 in all the applications submitted that the applicant has misconceived/misconstrued the order of the Hon'ble Supreme Court granting liberty to the applicant to move the High Court for interim relief, inasmuch as, liberty was granted to file fresh petitions and not the same reliefs as sought in the earlier petitions, we are afraid, we cannot accede to the said interpretation as urged by the learned counsel. A perusal of the order of the Apex Court reveals that indeed liberty was granted to the applicant to move the High Court for interim reliefs, however, the Court is to consider the reliefs sought, on its own merits.
19 Having said that, the question that arises is whether the applicant has made out a prima facie case for grant of any interim reliefs.
20 At the outset, we may note, that this Court had earlier refused interim relief in 27.7.2016, 'at that stage'. The subsequent SQ Pathan/Wakodikar 59/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc developments urged by the learned counsel for the applicant is, not only the liberty granted by the Apex Court, but (i) the order passed by the NHRC on 17.4.2018 awarding compensation of Rs.50,000/-, to the applicant and his wife, for the actions of the police in MECR 1/2013 (Khar Police Station, Mumbai, subsequently transferred to EOW, Unit-III, Mumbai and renumbered as MECR 11/2013) i.e. the mid-night raid conducted by the police of the Khar Police Station, Mumbai, at the behest of the respondent No.2 - Shobhit Rajan, in the Hotel, where the applicant and his wife were staying; (ii) the consistently favourable orders passed by an In-charge Court Judge, who was subsequently suspended from service. It was submitted that it is a matter of record that the applicant had also lodged a complaint as against the said Judge with the Registrar General of this Court; (iii) that all the five complaints which are now before this Court will show that there is a pattern in filing the same, i.e. similar allegations, but separate complaints filed deliberately and malafidely for different periods, the object being to ensure that the applicant, by hook or by crook, is unable to return to India, to deal with the property in SQ Pathan/Wakodikar 60/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc question, which is worth several hundred crores; and (iv) that till date, the applicant has not been declared as a proclaimed offender, by any Court of competent jurisdiction.
21 We most certainly are conscious of the fact, that earlier this Court vide order dated 27.7.2016 had refused interim relief to the applicant in MECR 11/2013, however, we today cannot be oblivious of certain developments that have transpired subsequent thereto. Today, all the five complaints filed against the applicant (out of which, two private complaints have culminated into two FIR's and in the other three private complaints, process has been issued under Section 204 of the Cr.P.C, are before us.
22 It is a matter of record, that prior to these five complaints being filed/lodged by the respondent/complainant, the applicant had lodged four complaints as against the respondent No.2 - Shobhit Rajan and others. Admittedly, post the said cases, the respondent No.2-Shobhit Rajan and Navnit Mehta filed five private complaints, SQ Pathan/Wakodikar 61/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc two resulting in a 156(3) order and in three complaints, process came to be issued.
23 It is a matter of record, that the police of the Khar Police Station had malafidely, without conducting any investigation, conducted a mid-night raid in the Hotel, where the applicant and his wife were staying. In the inquiry conducted by the DCP, the DCP noted that from the date of registration of the offence (MECR No. 1/2013, Khar Police Station), within two hours, without collecting evidence, on the directions of the complainant (Shobhit Rajan) and under the guidance of Assistant Police Commissioner-Shivajirao Kolekar, Bandra Division, Mumbai and Senior Police Inspector-Vikas Sonawane, Police Inspector-Chagan Jadhav and Police Squad at 11:20 p.m. went from Khar Police Station, in two private vehicles of the complainant (Shobhit Rajan), with two Advocates of the complainant, to Hotel Marine Plaza, for arresting Alnoor Jamal (applicant), a senior citizen, without any evidence. It was also noted that the said act was indecent, illegal and improper for the disciplined police department. SQ Pathan/Wakodikar 62/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc Accordingly, the DCP recommended awarding of strict punishment to the officers for their defaults.
24 It is also a matter of record, that the NHRC vide order dated 17.4.2018 awarded compensation of Rs.50,000/- each to the applicant and his wife, for the acts of the police i.e. for the illegal mid- night raid. The NHRC in its order dated 17.4.2018 has observed as under :
"............... The delinquent Police Inspector (since Retired) Chhagan Jadhav was awarded punishment of an amount equivalent to the amount that would have been due if two annual increments were given, Senior Police Inspector Sonawane and Police Sub-Inspector D'Mello were also given punishment of stoppage of increments for the period of two years without cumulative effect. It has been concluded that the said police officers have not followed due process of law and hence, they were punished departmentally. Therefore, it would not be fair to give monetary compensation to the complainant and his wife from the said officers for the same fault.
The Commission has considered the matter. The reply to the 'Show Cause Notice' is not based on merits. It is an admitted fact that the police officers have visited the petitioner and his wife in their hotel room past midnight along with an advocate of the opposite party. The presence of Advocate with the police party speak volumes of the motive on the part of the SQ Pathan/Wakodikar 63/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc delinquent police personnel in the instant matter. It is clear that the police party was acting under the influence of the other person. The lawyer has no business to go with the police party. The police action is totally unjustified, illegal and contrary to the basic principles of the rule of law. The petitioner and his wife who are senior citizens were made to suffer during odd hours for no cogent reasons. The police officers have exceeded their limits by way of colorable exercise of power and authority which has resulted in violation of human rights of the petitioner and his wife. In these circumstances, an amount of Rs.50,000/- each as interim relief is recommended to be paid to the petitioner and his wife. The Chief Secretary, Government of Maharashtra is asked to submit the compliance report together with the proof of payment within a period of eight weeks, without fail."
25 It is a matter of record, that respondent No.2-Shobhit Rajan filed a review application, however, the same was rejected/dismissed.
26 It is also a matter of record that a Division Bench of this Court vide judgment and order dated 23.10.2015 in Nazir Mussa vs. The Commissioner of Police & Ors. (supra), had quashed the FIR / Case i.e. MECR No. 11/2013 registered with the EOW, Unit-III, Mumbai (earlier registered as MECR No.1/2013 with the Khar Police SQ Pathan/Wakodikar 64/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc Station, Mumbai) qua co-accused-Nazir Mussa. The observations made in the said order quashing the said MECR qua Nazir Mussa, prima facie, to a great extent have a bearing on the allegations made even qua the applicant. The relevant paras are reproduced hereinunder;
"28. The net-worth certificate issued by the Petitioner does not fall under either of the three categories mentioned above. The Petitioner has issued the net-worth certificate and has taken full responsibility for the certificate in its entirety. The net-worth certificate, in our view, by no stretch of imagination can be termed to be false document within the meaning of section 464 of the Penal Code, 1860. Making of a false document is a condition precedent for forgery under section 463. The commission of forgery is a condition precedent for the offences punishable under sections 465, 467, 468, 471 and 474. Since the net-worth certificate issued by the Petitioner to Jamal is not covered by the definition of "false document" within the meaning of section 464 of IPC, no offence is made out against the Petitioner for proceeding under sections 465, 467, 468, 471 or 474 of IPC."
...........
"31. Perusal of the entire complaint does not disclose any allegation that the Petitioner put the Complainant or any other person in fear of any injury. In this regard, the allegations are that the Petitioner along with accused Nos. 1 and 6, have conspired in a preplanned manner to defraud and cheat the SQ Pathan/Wakodikar 65/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc Complainant and the accused have extorted the Complainant and other related to Pantheon to pay even for the share of accused no. 1. These allegation cannot be said to constitute the offence of extortion punishable under section 384 of IPC."
"32. In paragraph 19 of complaint, the allegations are that accused have prepared false, fabricated and forged accounts of accused no. 2 for the period 31st March 2000 to 31st March 2012. Admittedly, accused no. 2 is a company in which accused no. 1 is the majority stakeholder holding 99% shares. In order to attract the offence punishable under section 477A, following ingredients must be satisfied:
(1) That, at the relevant time, accused was clerk, officer or servant or employed or acting in either of that capacity, and (2) That, in that capacity he destroyed, altered, mutilated or falsified any book, paper, writing, valuable security or accounts which belonged to or in possession of his employer or has been received by from him for on behalf of his employer, and (3) That, he did so willfully and with intent to defraud."
"33. In the entire complaint, there is no allegation that accounts of accused no. 2 Akkadian Company were furnished by person or party in Akkadian to the Complainant or relied upon for asserting any claim to shareholding in Pantheon on that basis. On the contrary, the Complainant himself has stated in the complaint that he has downloaded these accounts from the public domain. Be that as it may, the Petitioner is a Chartered Accountant, who has only given the net-worth certificate to Jamal. He is not clerk, officer or servant of Akkadian of which Jamal is beneficial owner and the Petitioner SQ Pathan/Wakodikar 66/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc had only one share. Therefore, no offence punishable under section 477A of the Penal Code, 1860 can be said to have been attracted."
................
"36. The allegations in the complaint that because of the representation and inducement of accused no. 1, accused no. 3 (the Petitioner herein) and accused No. 6, the Complainant reduced his entitlement to the property from 100% ownership in his company Concord Infrastructure Pvt. Limited to 50% ownership company A-Class builders and developers Limited (Pantheon), which was subsequently reduced to 33% in pursuance of the joint venture agreement dated 23 rd June 2000 between TATA housing Private Limited and Pantheon and further reduced to 28.33% on account of giving of 15% share to Bharat Joshi for his contribution of Rs. 15 crores for the development of phase-I. Accused Nos. 1 and 2 in the year 2005 raised false claims before the Company Law Board to 13,923 shares (28% shares of Pantheon) and managed to obtain the custody of those shares to which accused Nos. 1 and 2 were not entitled and thereby acted in a fraudulent and have committed an the offence punishable under section 420 of IPC."
................
"37. It is settled law by the catena of decisions that for establishing the offence of cheating, the Complainant is required to show that accused had fraudulent or dishonest intention at the time of making promise or representation. From his failure to keep promise subsequently, such culpable intention right at the beginning, i.e., at the time when the promise was made, cannot be presumed. Reference can be SQ Pathan/Wakodikar 67/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc made to Hira Lal Hari Lal Bhagwati vs. CBI [(2003) 5 SCC 257], Suresh vs. Mahadevppa [2005 (3) SCC 670] and Indian Oil Corporation vs. NEPC [(2006) 6 SCC 736] and B. Suresh Yadav v. Sharifa Bee [(2007) 13 SCC 107]."
"38. Now on the basis of allegations made in the complaint, let us examine whether the same discloses that the Petitioner - accused no. 3 had fraudulent and dishonest intention at the time of making of representation that accused no. 1 was a rich businessman and was ready to invest his ready surplus funds jointly with the Complainant for the purchase of Sakinaka property. In paragraph 6 of the complaint, the Complainant has stated that agreement was entered into between himself and accused no. 1 on 23rd December 1999 whereunder it was inter alia recorded that the land-property in question would be purchased and developed through a joint venture company A- Class Builders and Developers, [now know as Pantheon Infrastructure Pvt. Ltd]. It is also stated in the complaint that the aggregate purchase price to be paid to Parke Davis was Rs. 49 crores and 10% earnest amount was to be paid on or before 15.1.2000. It is also stated that the Complainant had brought in Rs. 2.45 crores and accused No. 1 had brought in Rs. 2.46 crores towards his share of earnest amount into the Company [i.e., A-Class Builders and Developers] to be paid to Parke Davis. These allegations make it abundantly clear that even assuming accused Nos. 1, 3 and 6 made various representations that accused No. 1 was a rich businessman and was ready to invest his surplus funds with the Complainant-Rajan for the purchase of Sakinaka property, pursuant to the alleged representations not only accused no. 1 entered into agreement with Rajan on 23rd December 1999 and agreed to purchase the said property from Parke Davis for Rs. 49 crores but also paid an amount of Rs. 2.46 crores towards the earnest amount, i.e., SQ Pathan/Wakodikar 68/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc 10% of the purchase price. In paragraph 10 of the complaint, the Complainant has alleged that accused no. 1 in furtherance of his dishonest and ulterior motive to avoid payment towards balance purchase money suggested to the Complainant to raise funds from banks and financial institutions and supplementary agreement was required to be executed on 15.6.2000 between accused no. 1, Nilesh Parekh and the Complainant whereunder it was recorded that each party shall make payment of 1/3 rd of the consideration to Parke Davis, related costs of stamp duty and further amounts towards development cost."
"39. The case of the Complainant as reflected in the complaint is that despite promises and assurances, accused no. 1 did not pay his share of purchase money and towards the development of land and therefore loans were required to be raised from ICICI bank at the personal risk of the Complainant. It is also stated that accused no. 1 despite knowledge about the personal loan obtained by, and mortgages, collateral and personal guarantees given by the Complainant- Rajan, did not make promised payments and continued to deceive him by making fraudulent promises, as a result the Complainant was required to induct Mr. Bharat Joshi as a shareholder, who had agreed to contribute Rs. 15 crores for the development of Phase-I."
"40. Thus, it is the case of the Complainant that since accused no. 1 did not pay for his share in the purchase money and for the development of land, Mr. Nilesh Parekh and Mr. Bharat Joshi were included, to complete the project and thereby his share was reduced from 50% to 33% and thereafter to 28%. If the allegations in the complaint are taken as a whole, it would reveal that initially accused no. 1 as per the SQ Pathan/Wakodikar 69/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc alleged representations, contributed 50% of the earnest amount, i.e., Rs. 2.46 crores, however, he failed to contribute for the balance purchase money, related costs, stamp duty and development costs of the land. From these allegations it cannot be said that accused had dishonest and fraudulent intention at the time of making the said promise or representation. At the most it can be said that accused no. 1 failed to keep his promises leading the business transactions going awry. The allegations, in our opinion, make out a case of the breach of promise, giving rise to a civil liability. However, these allegations by no stretch of imagination, make out offence of cheating."
"41. The tenor of the complaint reveals that the Petitioner is made accused on the allegation that fraudulent and bogus net- worth certificate was given by him. It is alleged that this certificate was given to mislead and cheat the ICICI Bank and other banks and people that the declaration contained in the certificate was truthful. We have already held that the said networth certificate cannot be said to be a forged document within the meaning of section 463 of IPC. Admittedly, Accused No. 1 and the Complainant entered into an agreement on 23rd December 1999 thereby agreeing to purchase the Sakinaka property from Parke Davis through a joint venture Company for Rs. 49 crores. The Net-worth certificate was issued by the Petitioner in his capacity as chartered accountant on 1.6.2000, i.e., much later, and this was issued, as per the complainant's own case, to facilitate Pantheon in securing loans from the banks. This net-worth certificate is acted upon and used to obtain loan from ICICI bank. Neither the ICICI Bank nor any other bank claim this net-worth certificate to be forged one. The loans were availed by Pantheon and have been fully repaid. Not a single bank has brought any claim against Pantheon or SQ Pathan/Wakodikar 70/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc the Complainant. In these circumstances, we fell to understand how the offence of cheating is made out on the basis of net- worth certificate."
................
"43. In the present case accused no. 1 raised dispute before the Company Law Board as far as back in the year 2005 by filing Company Petition No. 106 of 2005 [Exhibit-C to the affidavit-in-reply filed by the Complainant himself]. This petition was disposed of on 8th June 2009. It would be relevant to see the stand taken by the Complainant in this proceeding. Paragraph 27 of the CLB's order makes reference to the stand taken by the Complainant. It was the stand of the Complainant that the intention of the parties was to organise funds for the project either by borrowing or otherwise and share the profits on the basis of funding by the parties and the intention was never to share the profits on the basis of shareholding. The agreement dated 23rd December 1999 between accused no. 1 and the Complainant is relevant. Clause-5 of the said agreement states that in the event of either group not providing partly or fully the amount required for completing the sale and same is provided by other group, then, the share of the group which has not funding will be reduced in proportionate to the amount not provided, i.e., the profits will be shared by the parties in the proportion in which they have contributed the capital. This stand of the Respondent is completely contrary to the allegations made in the complaint. The Complainant has annexed to his complaint copy of the agreement dated 23rd December 1992. In terms of Bhajanlal's case (supra), this agreement annexed to the complaint can be taken into consideration while considering the relief of quashment in exercising of powers under section 482 of the Code. We on careful consideration of the facts and circumstances of the case SQ Pathan/Wakodikar 71/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc within the limited permissible scope under section 482 of the Code, are of the considered view that complaint does not disclose commission of either of the offence under sections 417, 418 and 420 of IPC by the Petitioner. In the light of above discussion, the case for proceeding against the Petitioner for the offence punishable under sections 109, 114 and 120B cannot be said to have been made out."
................
"45. In the present case, the allegations of the forgery are based on the net-worth certificate and since the said net-worth certificate does not fall within the definition of "false document", offence cannot be said to have been made out. Likewise the complaint does not disclose offence of extortion as well as falsification of accounts by the Petitioner. So far as the allegations pertaining to cheating are concerned, the same are contrary to the Complainant's own stand before the Company Law Board proceedings as well as the recitals in the agreement dated 23rd December 1999 which is annexed to the complaint. This goes to the root of the matter. Hence, ratio in Rajesh Bajaj's case (supra) is of no help to Mr. Desai."
................
"50. Further, we must make reference to the submission of Mr. Desai that the Petitioner's name does not appear in the list of Members of Chartered Accountants as per the Directory of the Institute of Chartered Accountants of England and Wales for the year 2001 which listed members upto August 2000. We are unable to accept this submission. Firstly, the Complainant asserted in the complaint that the Petitioner is a Chartered Accountant. The Petitioner has also produced the Certificate of SQ Pathan/Wakodikar 72/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc Membership to that effect before the Investigating Officer and copy of the same placed on record. It is the stand of the Petitioner that he caused another to write out his name on the net-worth certificate. As submitted by Ms. Sethana, it is perfectly acceptable practice globally amongst the leading Chartered Accountants. The Petitioner has taken full responsibility for the contents of the said net-worth certificate in its entirety. It is also worth to mention that the net-worth certificate was given in the year 2001 and the dispute about its legality is raised after 13 years and that too during the course of hearing of this petition. We are, therefore, unable to accept the submission of Mr. Desai."
"51. Taking totality of the facts and circumstances of the case into consideration, we are of the considered opinion that as far as the Petitioner is concerned, there is no case made out for proceeding against him. The case of the Petitioner is covered by clause (1) of Bhajanlal's case (supra), which read thus:
"where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused."
.................
"52. In the backdrop of above discussion, we are of the view that this petition succeed as far as quashing of the proceedings as against the Petitioner is concerned. Hence, the proceedings of Complaint Case No. 234/SW/2013 and MECR No. 1 of 2013 registered with Khar Police Station which was later on SQ Pathan/Wakodikar 73/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc transferred to Economic Offences Wing and re-numbered as MECR No. 11 of 2013 by EOW, Unit-III, Mumbai are hereby quashed qua the Petitioner only and the look out circular issued against the Petitioner by the Commissioner of Police, Mumbai is hereby quashed and set aside."
27 It is a matter of record that the said Judgment and Order quashing the case qua Nazir Mussa, was challenged by the respondent No.2 - Shobhit Rajan before the Apex Court, by way of an SLP. The said SLP was dismissed and so was the review petition filed against the dismissal of the said SLP.
28 Apart from what is observed hereinabove, we may also note, that there is a common thread passing through all the five complaints. Prima facie, we find that the nature of allegations in all the complaints are more or less similar/identical, but the periods are different. Whether deliberately / malafidely, separate complaints have been filed, will have to be examined in some detail, when we finally hear the petitions. Prima facie, at this stage, we find some substance in the allegations made by the learned counsel for the applicant that SQ Pathan/Wakodikar 74/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc separate complaints have been malafidely filed to harass the applicant, so as to make it impossible for him to return to India. Details of the cases, at a short glance, are as under :
Sr. Date of CC No. Complainant's Orders
Nos Complaint Name
1) 16.8.2013 234/SW/2013 & Shobhit Rajan 156(3) Cr.P.C Order
(Now was issued by the
486/PW/2021) learned Magistrate,
9th Court, Bandra,
MECR 1/2013 Mumbai
Khar Police
Station/EOW, Unit- (Now pending
III-MECR No. before the learned
11/2013 Magistrate, 47th
Court, Esplanade,
Mumbai)
2) 6.5.2014 99/SW/2014 Navnit Mehta Learned In-Charge
(substituted by Magistrate, 50th
Pulin Bole) Court issued process
under Section 204
(Now pending
before the learned
Magistrate, 50th
Court, Vikhroli,
Mumbai)
3) 24.4.2015 88/SW/2015 Navnit Mehta Process under
(substituted by Section 204 was
Pulin Bole) issued by the learned
In-Charge
Magistrate, 50th
SQ Pathan/Wakodikar 75/84
1-IA-3375-2022- IN WP-2007-2016-GROUP.doc
Court, Vikhroli,
Mumbai
(Now pending
before the learned
Magistrate, 50th
Court, Vikhroli,
Mumbai)
4) 20.5.2015 97/SW/2015 Navnit Mehta 156(3) Cr.P.C Order
(Now CC No.136/ (substituted by was issued by the SW/2018) Pulin Bole) learned In-Charge Magistrate, 50th MECR 1/2015 Court, Vikhroli, Tilak Nagar Police Mumbai Station/EOW, Unit- (Now pending IX-MECR No. before the learned 1/2018) Magistrate, 47th Court, Esplanade, Mumbai)
5) 21.5.2015 98/SW/2015 Navnit Mehta Process under (Now CC No. (substituted by Section 204 by the 135/SW/2018) Pulin Bole) learned In-Charge Magistrate, 50th Court, Vikhroli, Mumbai (Now pending before the learned Magistrate, 47th Court, Esplanade, Mumbai) 29 Prima facie, we also find some substance in the submission of the learned counsel for the applicant, that despite some applications being refused/ rejected earlier by the regular Court, the SQ Pathan/Wakodikar 76/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc In-Charge Judge had passed orders within a few days, and allowed the applications, without assigning any reasons. We have noted the same whilst setting out the facts. It is a matter of record, that the In-Charge Judge, had also issued process in three complaints under Section 204 and one under Section 156(3) Cr.P.C. We, having perused the orders issuing process under Section 204 of the Cr.P.C., also do not find that the same are in conformity with the recent judgment of the Apex Court in the case of Lalankumar Singh & Ors. vs. State of Maharashtra2. In none of the orders issuing process, reasons have been recorded. The Apex Court in para 38 of the aforesaid judgment has observed as follows :
"38. The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion is required to be stated in the order itself. The order is liable to be set aside if no reasons are given therein while coming to the conclusion that there is a prima facie case against the accused. No doubt, that the order need not contain detailed reasons. A reference in this respect could be made to the judgment of this Court in the case of Sunil Bharti Mittal vs. Central Bureau of Investigation (2015) 4 SCC 609, which reads thus:
2 2022 SCC OnLine SC 1383 SQ Pathan/Wakodikar 77/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc "51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though SQ Pathan/Wakodikar 78/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."
30 We, prima facie, also find some substance in the allegations/submissions of the learned counsel for the applicant, that the respondent No.2-Shobhit Rajan and Navnit Mehta (since expired), substituted by Pulin Bole, have, in all, filed five cases as against the applicant, only to ensure that it becomes impossible for the applicant to come to India, to defend the property in question, which is worth several hundred Crores.
31 The facts, as set out in detail, hereinabove, are prima facie, a testimony of the same. Prima facie, the cases instituted at the behest of respondent No.2 also appears to have been instituted as a counterblast to the applicant and his Company instituting four cases against the respondent No.2-Shobhit Rajan and others. Prima facie, from a perusal of the FIR's/private complaints, the dispute appears to be civil in nature. No doubt, in a given case, the facts, can give rise to a criminal prosecution / civil / any other proceeding, however, prima SQ Pathan/Wakodikar 79/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc facie, we are of the opinion that no offences as alleged are disclosed in the FIRs/complaints. Infact, as noted hereinabove, the Division Bench of this Court had quashed the FIR as against co-accused Nazir Mussa (Applicant's uncle) vide judgment and order dated 23.10.2015, after observing that the dispute was civil in nature. Prima facie, the observations made in this order will have a bearing, vis-a-vis the applicant.
32 As noted above, no doubt, LOCs and non-bailable warrants have been issued, however, not a single Court has declared the applicant as a proclaimed offender, till date.
33 It is pertinent to note, that Section 482 of the Cr.P.C. recognizes the inherent power of the High Court to make such orders as are necessary to give effect to the provisions of Cr.P.C. or 'prevent abuse of the process of any Court `or otherwise to' secure the ends of justice'. Keeping in mind, the need to ensure proper enforcement of criminal law on the one hand and the need, on the other, of ensuring SQ Pathan/Wakodikar 80/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc that the law does not become an instrument of oppression or a tool for targeted harassment of people, by people having vested interests, we pass the following interim order, in the aforesaid applications/petitions;
ORDER
(a) As far as MECR No.11/2013 registered with the EOW, Unit III, Mumbai (earlier MECR No.1/2013 registered with the Khar Police Station) is concerned, in which charge-sheet has been filed, i.e. Case No.486/PW/2021, there shall be stay to the said proceeding pending before the learned Magistrate, 47 th Court, Esplanade, Mumbai, qua the applicant;
(b) As far as MECR No.1/2018 registered with EOW, Unit-IX, Mumbai, (earlier MECR No.1/2015 registered with the Tilak Nagar Police Station) is concerned, investigation to continue, however, charge-sheet not to be filed, qua the applicant, without the leave of this Court (CC No. 136/SW/2018, pending before the learned Metropolitan Magistrate, 47th Court, Esplanade, Mumbai);
(c) In the meantime, till the next date, no coercive steps be taken as against the applicant, in both the aforesaid SQ Pathan/Wakodikar 81/84 1-IA-3375-2022- IN WP-2007-2016-GROUP.doc MECRs i.e. MECR No. 11/2013, (MECR No. 1/2013- Khar Police Station) and MECR No. 1/2018 (MECR No.1/2015-Tilak Nagar Police Station), registered with the EOW, Unit III and IX, Mumbai, respectively;
(d) The applicant to appear before the concerned agency i.e. EOW, on any two days for two-three hours, before 30.12.2022, after giving 72 hours notice to the concerned I.O, in both the MECRs;
(e) In the meantime, till the next date, the proceedings, being CC No.99/SW/2014 and CC No.88/SW/2015, both pending before the learned Metropolitan Magistrate, 50 th Court, Vikhroli, Mumbai and CC No.98/SW/2015 (now CC No.135/SW/2018) pending before the learned Metropolitan Magistrate, 47th Court, Esplanade, Mumbai, are hereby stayed, till the next date;
(f) Consequently, all the LOCs (whether currently valid or auto-renewed) / bailable warrants / non-bailable warrants issued as against the applicant are stayed, till the next date;
(g) The applicant is permitted to travel to India from Africa and back to Africa, till 20.1.2023;
SQ Pathan/Wakodikar 82/84
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(h) The Officers of the EOW, Units-III and IX, Mumbai, to communicate the above order to the Immigration Authority within 72 hours, informing the said authority of the stay of the LOCs issued at their instance;
(i) The Immigration Authorities on all points of departure, will permit the applicant to pass through immigration and to board his flight or flights, irrespective of whether the immigration system has been updated and whether the Office of the EOW has informed the Immigration Authorities or not.
34 All Applications/Petitions be listed under the caption `for direction' on 20.1.2023 at 2:30 p.m. 35 All concerned to act on the authenticated copy of this order.
S. M. MODAK, J. REVATI MOHITE DERE, J.
SQ Pathan/Wakodikar 83/84
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36 After the order was pronounced, learned counsel for the
respondent No.2 seeks stay of the order. Request for stay is refused.
S. M. MODAK, J. REVATI MOHITE DERE, J.
SQ Pathan/Wakodikar 84/84