High Court

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CRWP 2070 19.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 2070 OF 2019WITHCRIMINAL APPLICATION NO. 1145/2022Mr. Nandkishore s/o Gapalrao Palkar,Age 65 years, Occ. Retired from GovernmentService, r/o. 11-C, Suyog Hsg. Society,N-8, CIDCO, Aurangabad…Petitioner.VERSUS1)The State of Maharashtra,Through CIDCO, MIDC, Police Station,Dist. Aurnagabad.2)Anil Kumar s/o Sunil Jaiswal,Age 29 years, Occ. Business,R/o. Anil Niwas, Ganesh Colony,Sillod, Aurangabad. …Respondents…Advocate for Applicants : Mr. S.N. MenchirelA.P.P. for Respondent no.1/State : Mr. A.V. LavteAdvocate for Respondent no. 2 : Mr. R.B. DhakaneCORAM: MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.DATE: 15.03.2024PER COURT : Criminal Application No. 1145/2022 seeking amendment in theprayer clause ‘B’ and ‘C’ so as to include the Special Case number is allowed.Amendment to be carried out forthwith. 2.We have heard both the sides finally at their request.3.By way of this petition, by resorting to Article 226 of the Constitutionof India and Section 482 of the Code of Criminal Procedure, the petitioner,1/5 CRWP 2070 19.odtwho is one of the accused in Crime No. 184/2019, registered with CIDCOMIDC, Police Station, Aurangabad, for the offences punishable underSections 406, 420, 120B read with Section 34 of the Indian Penal Code andunder Section 3 and 4 of the Maharashtra Protection of Interest ofDepositors (In Financial Establishments) Act, 1999, (hereinafter ‘MPID Act’),is seeking quashment of the crime, the charge-sheet and the Special CaseNo. 311/2021, pending in the Special Court.4.The respondent no. 2 lodged the F.I.R. on 03.05.2019 with theallegations, which in sum and substance are to the effect that all the accusedhaving hatched a conspiracy, induced him and 41 other witnesses to makeinvestment in firms styled as ‘Commodity Trade Arts (CTA)’ and ‘TruptiFinance Limited’, promising them handsome returns on the investment,dishonestly and fraudulently and duped them in aggregate to a sum of morethan Rs. 3.5 crore.5.Since, the charge-sheet has also been filed, the role attributed to thepetitioner is to the effect that he was one of the partners in CTA and haddirectly participated in soliciting and obtaining investments from therespondent no. 2 and witnesses Shivkumar Bharatrao Khogare, BharatUttam Patil, Jayshree Rajesh Jaiswal and Ramesh Bansilal Panchal.6.The learned advocate for the petitioner would vehemently submit thatno specific role is attributable to him in dishonestly and fraudulentlyinducing the investors to make the investment. Those allegations areagainst the main accused. He is a senior citizen and a pensioner. There isabnormal delay in lodging the F.I.R. of more than two years. He was neithera partner or a director in the establishments. He was not responsible inmanaging the affairs or conducting the business. The main accused PrashantDhumal is his distant relative. Apart there from he had no role in runningthose establishments much less in the alleged fraud. It is abuse of process oflaw to make him face the trial. His case is covered by State of Haryana and2/5 CRWP 2070 19.odtOrs V/s. Bhajan Lal and Ors.: AIR 1992 Supreme Court, 604.7.Per contra, the learned A.P.P. and the learned advocate for therespondent no. 2 would oppose the petition. They would point out thespecific statements from the aforementioned witnesses recorded underSection 161 of the Code of Criminal Procedure, attributing specific andprecise role and the manner in which the petitioner had dealt with them bypromising handsome returns and inducing them to make the investments.They would also point out that main accused Prashant Dhumal is nearrelative of the petitioner and would also point out from the charge-sheet asto how, from time to time, money was transferred from the account of mainaccused in petitioner’s account and even in the accounts of his wife anddaughter. They would submit that it is not a matter of false implication.There is sufficient material revealing complicity of the petitioner inperpetrating the crime.8.Lastly, the learned A.P.P. and the learned advocate for the respondentno. 2 would submit that quashment of crime is an extraordinary relief. ThisCourt has inherent limitations in exercising it and may not be exercised infavour of the petitioner when it is a matter under the MPID Act, involvingfraud of more than Rs. 3.5 Crores, siphoned off by the accused persons frommore than 40 individuals.9.We have considered the rival submissions and perused the charge-sheet. This a request for quashment of the crime that too by hatching aconspiracy and particularly an offence under the MPID Act. The offence ofthis kind shake confidence of public. Apart from causing great lossfinancially and making them suffer mentally, who are small investors, whoinvest their hard earned money. In our considered view, this in itself wouldbe a strong circumstance, which weighs against the petitioner.10.So far as the actual participation of the petitioner in inducing theinvestors, there are several witnesses who are the investors themselves. The3/5 CRWP 2070 19.odtpetitioner is a maternal uncle of the main accused Prashant Dhumal. Posinghimself to be the agent of CTA, he had lured them to make investments. Hisname specifically appears in the F.I.R. and the amounts have been creditedto his account from the account of main accused Prashant Dhumal from timeto time and even in the accounts of his wife Amruta and daughter Pallavi.11.Besides the allegations in the F.I.R., expressly attributing him with therole in perpetrating the crime there are several witnesses. WitnessShivkumar Bharatrao Khogare, in his statement has stated that when he waspursuing with the main accused for getting the money back, main accusedPrashant Dhumal had issued a cheque in his name for a sum of Rs. 10 lakh.Since it was dishonoured, he went to the office of Prashant Dhumal, whereinapart from other accused persons, the petitioner was present and wherefrom he was driven out. Witness Jayshree Jaiswal has stated that when shewent to the office of Prashant Dhumal, even the petitioner was presentthere, who told her that since the account was freezed they were unable tomake monthly returns. She was given a cheque for an amount of Rs.14,50,000/-, which was subsequently dishonoured. Similar is the version ofwitness Rajesh Jivan Jaiswal.12.Pertinently, witness Ramesh Bansilal Panchal has expressly stated thatwhen he had been to the office of Prashant Dhumal and enquired as to howwas he supposed to make the investment, either by cheque or in cash, thepetitioner suggested to him that if the payment was made by cheque, 10%TDS would be charged and suggested him to make the investment in cash.13.Witness Shivkumar Bharatrao Khogare has also stated that he was inneed of loan and has approached Prashant Dhumal. He was made to makepayment of Rs. 5 lakh but was not extended any loan. When Prashantstopped picking up his phone calls, he went to the office where even thepetitioner was present and some how made him return back. He has statedthat he had made an investment to the tune of Rs. 17 lakh, which was never4/5 CRWP 2070 19.odtreturned.14.Witness Vikrant Vijaykumar Waghule has stated inter alia thatwhenever he had been to the office of CTA and met Prashant Dhumal, eventhe petitioner used to be always present in that office.15.Apart from the role attributed to the petitioner by these witnesses, thecharge-sheet contains the bank statements of M/s. Commodity Trade Art(CTA) being operated by the main accused Prashant Dhumal. There areseveral entries, wherein moneys have been credited to the account of thepetitioner, his wife as well as daughter. Considering the amounts credited inthe name of all the three family members of the petitioner during therelevant period, this would be additional material revealing petitioner’scomplicity in the crime, which is alleged to be a product of a conspiracy.16.In our considered view, this is not a fit case where the extraordinarypowers can be exercised for quashing the crime and the criminal case.17.The Criminal Writ Petition is dismissed. ( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)mkd/-5/5