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IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD945 CRIMINAL APPLICATION NO.2761 OF 2023Shivkant Ramesh Biradar,Age 28 yrs., Occ. Labour,R/o Sangnal, Tq. Aurad Barhali,Dist. Bidar (Karnataka). … Applicant… Versus …1The State of MaharashtraThrough Police Station, Udgir (Rural), Dist. Latur. 2Dnyaneshwar Kishor Pandilwar,Age 35 yrs., Occ. Business,R/o Nai Abadi, Udgir,Tq. Udgir, Dist. Latur. … Respondents...Mr. S.K. Shaikh, Advocate for applicantMr. A.V. Lavte, APP for respondent No.1Mr. N.K. Tungar, Advocate for respondent No.2...WITHCRIMINAL APPLICATION NO.2762 OF 2023Ismail Nabisab Chaus,Age 44 yrs., Occ. Labour,R/o Dongaraj, Tq. Chakur,
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2945_Cri.Appln_2761_2023+1Dist. Latur. … Applicant… Versus …1The State of MaharashtraThrough Police Station, Udgir (Rural), Dist. Latur. 2Dnyaneshwar Kishor Pandilwar,Age 35 yrs., Occ. Business,R/o Nai Abadi, Udgir,Tq. Udgir, Dist. Latur. … Respondents...Mr. S.K. Shaikh, Advocate for applicantMr. A.V. Lavte, APP for respondent No.1Mr. N.K. Tungar, Advocate for respondent No.2...CORAM :SMT. VIBHA KANKANWADI &R.W. JOSHI, JJ.DATE:12th NOVEMBER, 2024ORDER :( PER : SMT. VIBHA KANKANWADI, J. )1Both these applications are filed initially for quashing the FirstInformation Report vide Crime No.146/2023 dated 10.03.2023 registeredwith Police Station, Udgir (Rural), Tq. Udgir, Dist. Latur and later on by way 3945_Cri.Appln_2761_2023+1of amendment for quashing the charge sheet No.168/2023 i.e. proceedings inRegular Criminal Case No.198/2023 pending before learned JudicialMagistrate First Class, Udgir, for the offence punishable under Section 381read with Section 34 of the Indian Penal Code, 1860. 2Heard learned Advocate Mr. S.K. Shaikh for applicant, learnedAPP Mr. A.V. Lavte for respondent No.1 and learned Advocate Mr. N.K. Tungarfor respondent No.2, in both applications. 3Perusal of the First Information Report and the charge sheetwould show that respondent No.2 had filed First Information Report statingthat he runs Toor Pulse Mill by name “Vinayaka Agro Industries” at Lohara,Tq. Udgir, Dist. Latur. He has employed 10 workers in his factory/mill andthere are other workers as ‘Hamal’. Therefore, in all there are 20 workersworking with him. He does not visit the mill for 24 hours but by visiting themill/factory periodically he monitors the work. Applicant in CriminalApplication No.2761 of 2023 is the Manager in the mill since last about sevenyears. Then he says that he had come to know from other workers that since08.00 a.m. of 15.10.2022 there is theft of Toor pulse from his mill.Thereafter, he made inquiry as to who is committing the theft. At that time,he came to know that the present applicants are doing that work and he says 4945_Cri.Appln_2761_2023+1that around 9.50 p.m. on 06.03.2023 around 149 quintal Toor i.e. around 50k.gs. in each gunny bag, such 298 bags worth Rs.16,39,000/- have beenstolen and since then the Manager and his two associates have not reported.Thus, it can be seen that the First Information Report is based on hearsayinformation. 4Now, the charge sheet is filed and, therefore, it is required to beseen as to what is the material that has been collected by the InvestigatingOfficer. It appears that some monthly summary of the factory has beencollected. If it is the case in the First Information Report that the theft isfrom 15.10.2022, still the monthly statements from year 2017 have beencollected. We would restrict ourselves to the period. But it is to be notedthat the last document of monthly statement is from 01.04.2022 to31.03.2023. That means, the monthly statement from 15.10.2022 to06.03.2023 was not collected or produced by respondent No.2. He has alsoproduced certain receipts, but that is not sufficient, because it was requiredto be shown by him that what was the stock on or before 15.10.2022 andhow it went fluctuating till 06.03.2023. In fact, his First Information Reportis not clear. When he had learnt about the theft on 15.10.2022, then aftergathering the information, why he had not lodged the report immediately, isa question. Whether then he intended to restrict about the incident dated 5945_Cri.Appln_2761_2023+106.03.2023, is also a question and for that purpose to show that there were298 gunny bags containing around 149 quintal Toor was available in hisfactory ought to have been shown by him. There is a supplementarystatement of the informant, wherein he says that he had given the FirstInformation Report hurriedly stating that there is theft of only Toor pulse tothat extent, but then he says that after thorough inquiry there were 180 bagsof Toor pulse (around 90 quintal) worth Rs.9,50,000/-, 180 bags of wholeToor (90 quintal) worth Rs.5,85,000/- and 40 bags of green gram (around 14quintal) worth Rs.1,15,000/-. But still he has not supported it bydocumentary evidence. There are statements of father and brother of theinformant, which are hearsay in nature. Then, there is statement of onePavan Muttepawar, who is the cousin brother of informant, which is alsohearsay. There is statement of one Satish Bansode, who is the Watchman,working with the informant. His statement would show that when theinformant asked him on 09.03.2023, he told that he wants to say somethingto informant. When assurance was given, he told that since last 5-6 monthsthe Manager is taking the material at night time in vehicles and, therefore, heshould get it confirmed. Thus, according to him, he had told the fact to hisemployer for the first time on 09.03.2023. Then the question arises, fromwhom the informant received information on 15.10.2022 and what stoppedthis witness from disclosing the fact to his employer or in other words, what 6945_Cri.Appln_2761_2023+1made the Watchman to withhold the information for about 5 to 6 months.Statements of one Sugriv Ghute, who was working as Driver with informantstates that informant asked him on 20.03.2023 as to whether he hasknowledge about the theft. When he said ‘No’, then the informant told himabout the theft. In fact, when the First Information Report was filed on10.03.2023, the subsequent information by the informant itself to this personwill not help the prosecution in any manner. There is also statement of oneNandkishor Kalani. When it is stated that he had purchased the Toor pulsefrom one Shashank Kulkarni and Shivkant Biradar (presentapplicant/Manager) it is stated that this witness has regular transactionbetween himself and informant. It appears that he had no suspicion inrespect of the transaction and then says that he had purchased 15 quintal ofToor pulse from those two persons a month prior to his statement i.e. on22.03.2023. He has not produced any documentary evidence to support hiscontention before the police authority. Similar is the case of one ParmeshwarTiprale. It cannot be said that there is sufficient evidence for proceeding withthe matter. Under such circumstance, this is a fit case where we shouldexercise our inherent powers under Section 482 of the Code of CriminalProcedure to quash the First Information Report and the proceedings asagainst both the applicants. Hence, following order. 7945_Cri.Appln_2761_2023+1ORDERi)Both Criminal Applications stand allowed.ii)Regular Criminal Case No.198/2023 pending before learnedJudicial Magistrate First Class, Udgir, Tq. Udgir, Dist. Latur arising out of FirstInformation Report vide Crime No.146/2023 dated 10.03.2023 registeredwith Police Station, Udgir (Rural), Tq. Udgir, Dist. Latur, for the offencepunishable under Section 381 read with Section 34 of the Indian Penal Code,1860 stands quashed and set aside as against applicant viz. Shivkant RameshBiradar in Criminal Application No.2761 of 2023 and applicant viz. IsmailNabisab Chaus in Criminal Application No.2762 of 2023. ( R.W. JOSHI, J. )( SMT. VIBHA KANKANWADI, J. )agd