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2013 DIGILAW 1316 (BOM)

Dayanand G. Narvekar v. State

2013-07-15

R.C.CHAVAN

body2013
Oral Judgment: These four criminal applications by accused nos.1 to 3 and 9 in Criminal Case No.161/S/2001/D before the learned JMFC (III) at Margao can be disposed of by this common judgment because they raise factual issues which are similar. 2. Accused no.1 Dayanad Narvekar was the President of Goa Cricket Association, accused no.2 Ramanath Shankerdas was its Treasurer, accused no.3 Vinod Phadke was the Secretary and accused no.9 Eknath Naik is stated to be related to Dayanad Narvekar, who is alleged to have received some tickets from Dayanand Narvekar for sale. The case arose out of sale of fake and excess tickets for the One Day International Cricket match at Pandit Jawaharlal Nehru Stadium, Fatorda, Margao on 6/04/2001. Long before the match could start, the stadium was full and there were a number of persons holding tickets waiting for being admitted to the stadium. The crowd was unmanageable and the police had to indulge in a mild lathi charge after breaking tear gas shells to disperse the mob. On 5/04/2001 one of the applicants Vinod Phadke had informed the police that he had come across a fake ticket of Rs.200/-. Police Inspector Uttam Dessai filed report on 6/04/2001 that several fake tickets were issued, which led to admission of wrong persons in the stadium and problems arose out of such fake tickets. An offence was registered and after completion of investigation police charge sheeted in all 9 persons including the four applicants before this Court. The applicants sought their discharge before the learned Magistrate, who rejected their applications. They questioned this order by preferring revision application before the Court of Sessions, but even the Court of Sessions rejected their revision applications and therefore they are before this Court seeking quashing of the proceedings by invoking inherent powers under Section 482 of the Criminal Procedure Code. 3. As already adverted, three petitioners are the President, the Treasurer and the Secretary of the Goa Cricket Association (hereinafter referred to as the 'trio') and the fourth, accused no.9, is stated to be related to the then President of the Goa Cricket Association. The first three accused persons were virtually running the entire show. 3. As already adverted, three petitioners are the President, the Treasurer and the Secretary of the Goa Cricket Association (hereinafter referred to as the 'trio') and the fourth, accused no.9, is stated to be related to the then President of the Goa Cricket Association. The first three accused persons were virtually running the entire show. They allegedly called for meetings of the association, wrote whatever they pleased in the minutes of the meeting which were drawn up and acted upon such minutes making it appear that they were acting pursuant to the decisions taken in the meetings, when in fact, no such decisions were taken or meetings held. This is particularly highlighted in the material collected by the prosecution from the statements of some of the members including Joint Secretary which were recorded in course of investigation. It was sought to be shown that the Managing Committee had approved all the acts which the trio indulged in. Though the stadium has a capacity of 27,300 persons, the trio placed order for printing of 29,000 tickets with a printer from Hyderabad. Thus, about 1700 tickets were printed in excess in the beginning itself. The trio decided to award contract for sale of all these tickets to accused no.4 Chinmay Fallary for a sum of Rs.68 lacs. The copy of contract which is placed for my perusal does not show any details of number of tickets to be allotted to Fallary for sale. The treasurer Ramnath Shankardas placed an order for 760 more tickets with the printer at Hyderabad stating that those tickets were to be given to Pepsi who were the sponsorer of the entire one day series. Now, if Pepsi was to be given 760 tickets and when 29,000 tickets were already printed there was no need to order 760 extra tickets. As if this was not enough, the trio appears to have got a resolution passed in a meeting which was shown to have been held on 4/04/2001 to have about 1700 tickets cum passes to be printed from a local computer firm run by one Kankonkar. This was done by scanning an original ticket which was received from the printer from Hyderabad and then getting the tickets printed without the barcode. Mercifully, Kankonkar could not deliver the entire consignment and delivered only 700 tickets. 4. This was done by scanning an original ticket which was received from the printer from Hyderabad and then getting the tickets printed without the barcode. Mercifully, Kankonkar could not deliver the entire consignment and delivered only 700 tickets. 4. Investigations also revealed that the President Dayanand Narvekar retained 3000 tickets which were in fact to go to Chinmay Fallary accused no.4 for sale. Now, when everybody was making merry, Chinmay Fallary also felt that he should not lag behind and, therefore, through one Jayram of Shivakashi placed an order with Guruswami of Shivakashi for printing whooping 21,000 tickets. The printer at Shivakashi could not bind those tickets into books and, therefore, delivered them loose i.e. unbound to Chinmay Fallary. In course of investigation, it also transpired that the Treasurer Ramnath Shankardas received a sum of Rs.4,64,000/-from Pepsi for delivering 1650 tickets to Pepsi by a cheque drawn in his name. He then asked Pepsi to take the cheque back and obtained the said cheque in one Phondekar, who is cited as witness. Phondekar collected the cheque in his account and obtained the amount from Vividh Urban Co-operative Bank Ltd. and handed over the cash to the treasurer Ramnath Shankardas, who is alleged to have given a sum of Rs.60,000/- to Phondekar. Further, police recovered the entire sum of Rs.4,60,000/-from the house of treasurer Ramnath Shankardas in course of investigation. 5. Some tickets were found to have been sold from the shop of accused no.9 Eknath Naik by his wife, who is shown as a witness. After collecting all this evidence, the Investigating Officer charge sheeted the applicant and others alleging that fake tickets were printed and that the applicants forged the minute books of the meetings of Association and that the applicants thus indulged in forgery and cheating. 6. I have heard the learned Counsel for the applicant as well as the learned Public Prosecutor for the State. The learned Counsel for the applicant Vinod Phadke, the then Secretary of the Association stated that it was in fact his client who had first reported to the police about sale of fake tickets and, therefore, he could not be said to be involved in the conspiracy to sell such tickets. The learned Counsel for the applicant Vinod Phadke, the then Secretary of the Association stated that it was in fact his client who had first reported to the police about sale of fake tickets and, therefore, he could not be said to be involved in the conspiracy to sell such tickets. He also submitted that since he had given the report on 5/04/2001 that report would be the First Information Report on which the police should have acted and there was no warrant for any further First Information Report to be recorded. He also submitted that the entire material collected does not show his involvement in printing of any fake tickets at Shivkashi in the printing press of Guruswami, which was entirely done by accused no.4 Chinmay Fallary. He also states that his client had nothing to do about printing of any additional tickets either from the printer at Hyderabd or the computer printer by name Kankonkar at Panaji. He also submitted that his client had nothing to do with the sale of tickets at the shop of wife of accused no.9 or retention of tickets by Dayanand Narvekar and, therefore, there was absolutely no material to charge sheet him. He relied on a number of judgments on the question of requirements for framing of charge and what constituted on conspiracy. The said judgments are as under: 1) Yogesh alias Sachin Jagdish Joshi V/s. State of Maharashtra, (2008) 10 SCC 394 , 2) Dilawar Balu Kurane V/s. State of Maharashtra, (2002) 2 SCC 135 , 3) State of Bihar V/s. Ramesh Singh, (1977) 4 SCC 39 , 4) Union of India V/s. Prafulla Kumar Samal & Anr., (1979) 3 SCC 4 , 5) Arun Gulab Gawli V/s. State of Maharashtra, 2007 Cri.L.J. 3622, 6) Avinash J. Mahale V/s. Sate of Maharashtra, 2006 Cri.L.J. 3123, 7) Govind Sakharam Ubhe V/s. State of Maharashtra, 2009 All.M.R. (Cri.) 1903, and 8) State of U.P. Through CBI V/s. Dr. Sanjay Singh & Anr., 1994 Supp. (2) SCC 707. 7. I have gone through the judgments and shall be considering the material on record with reference to the parameters laid down by the Supreme Court in the above judgments, namely that for charging a person for conspiracy mere suspicion is not enough and that there has to be material which would justify a presumption that the accused is guilty. 8. I have gone through the judgments and shall be considering the material on record with reference to the parameters laid down by the Supreme Court in the above judgments, namely that for charging a person for conspiracy mere suspicion is not enough and that there has to be material which would justify a presumption that the accused is guilty. 8. The learned Counsel for the accused no.1 Dayanand Narvekar adopted the arguments advanced by the learned Counsel on behalf of accused no.3 Vinod Fadke. No separate arguments were advanced on behalf of accused no.9 Eknath Naik, who too was represented by advocate for accused no.3. 9. On behalf of Treasurer accused no.2, it was submitted that the case principally is about printing of fake tickets from the printer at Shivakashi, which was entirely done by accused no.4 Chinmay Fallary. It was stated that the accused no.2 Ramnath Shankardas was a Treasurer of the Association and acted in accordance with resolutions passed by the Managing Committee from time to time. The learned Counsel submitted that Ramnath Shankardas had not received any amount in cash from Pepsi. He had in fact received cheque for Rs.4,56,000/-towards the delivery of tickets which Pepsi demanded. He submitted that if the prosecution comes up with the case that out of this amount sum of Rs.60,000/- was paid to Phondekar, then it is not clear as to how prosecution could seize Rs.4,60,000/-from Ramnath's house and shop in course of investigation. He submitted that the Association had in fact resolved to retain some tickets with the office bearers of the Association for being distributed to the office bearers, club members, sponsorers, VIPs, etc. and it is only these tickets cum passes which the Treasurer Ramnath had dealt with and therefore there was absolutely no misappropriation or any forgery on his part. The learned Counsel pointed out that, in fact, none of the accused persons have been charge sheeted for any misappropriation. He pointed out that the statements of representatives of Pepsi, Sudin Gaonkar, would show that accused no.3 Vinod Fadke was also with the applicant Ramnath when Sudin Gaonkar was asked to give the cheque first in the name of Ramnath and then replace it by cheque in the name of Phondekar. Therefore, the learned Counsel submitted that the applicant was also entitled to be discharged. 10. Therefore, the learned Counsel submitted that the applicant was also entitled to be discharged. 10. On the other hand, the learned Public Prosecutor submitted that even the arguments advanced by the learned Counsel for the applicants should be sufficient to order them to be put to trial. The Association had ordered printing of 29,000 tickets, which were in excess of the capacity of the stadium. The learned Public Prosecutor further submitted that even if it is taken for a while that there could be a few excess tickets required to be printed because of damage or because of invitees who may not turn up, still the number is far in excess of the capacity of the stadium. The learned Public Prosecutor next pointed out that there was no question of getting 760 more tickets printed from the printer at Hyderabad since Pepsi could have been given 760 tickets from those printed. As if this was not enough an order for about 1700 tickets to be printed by scanning the original ticket was placed by treasurer Ramnath with Kankonkar and Kankonkar delivered 700 tickets. He submitted that all the three applicants were responsible office bearers of the Association and, therefore, should have seen that the Association was not required to retain any tickets once the Association entered into an agreement with accused no.4, giving exclusive rights to sell the tickets, but cunningly the agreement does not mention how many tickets accused no.4 Chinmay fallary was supposed to sell. Thus, virtually the applicants were free to retain any number of tickets they wanted. The learned Public Prosecutor, therefore, submitted that the contentions of the applicants that the applicants have been needlessly prosecuted has to be rejected, first, because they were parties to the decision to print excess tickets in the beginning; secondly, they got more excess tickets printed from printer at Hyderabad; and thirdly, they forged minutes of meeting dated 4/04/2001 which was in fact not held. As if this was not enough, they made Kankonkar print tickets by scanning the original ticket minus the barcode. The learned Public Prosecutor submitted that the complicity of Dayanand Narvekar, the President of the Association is clear from the fact that he gave to accused no.9, who is his brother-in-law, some excess tickets for being sold and, Sugandha, who is sister of Dayanand Narvekar, herself states that she sold the tickets. The learned Public Prosecutor submitted that the complicity of Dayanand Narvekar, the President of the Association is clear from the fact that he gave to accused no.9, who is his brother-in-law, some excess tickets for being sold and, Sugandha, who is sister of Dayanand Narvekar, herself states that she sold the tickets. Apart from Sugandha, there are witnesses, who state having purchased the tickets from Sugandha. The question naturally is what is the source of these tickets, if the tickets were to be given for sale to Chinmay Fallary, accused no.4. 11. Now, ordinarily the argument of accused no.3 Vinod Phadke that he having given the report about fake tickets on 5/04/2001 and so was not a party to the conspiracy could have held good, but for the fact, as pointed out by the learned Counsel appearing for Ramnath, that Vinod Phadke was with him when a sum of Rs.4,65,000/-was received from Pepsi for sale of 1800 tickets, therefore Phadke also cannot escape his complicity in the entire story. At the cost of repetition, it has to be pointed out that the charge is not only about printing fake tickets, but is about printing excess tickets and selling them when such tickets could not have been printed or sold. The charge is also about fabricating minutes of the Association and therefore applicants have not made out a case for invocation of inherent jurisdiction of this Court for quashing the proceedings against them in the trial Court. The judgments on which the learned Counsel for the applicant Vinod Phadke relied are unhelpful because of the peculiar facts unfolded in this case. As a principle, there can be no doubt that the prosecution has to make out a case of high order for framing charge i.e. the evidence collected has to be such as to raise presumption that the accused would be convicted if no evidence in rebuttal is tendered. But here the material collected is indeed of such high order. 12. In view of this, the applications are rejected. It is further made clear that the learned trial Judge may not be influenced by any of the observations made in this judgment, at the trial. The learned trial Magistrate would forthwith commence the trial considering that the case is of the year 2001.