Research › Search › Judgment

Gujarat High Court · body

2019 DIGILAW 1184 (GUJ)

Mahendra Chimanlal Vakharia v. State of Gujarat

2019-12-23

UMESH TRIVEDI

body2019
JUDGMENT : Umesh Trivedi, J. RULE returnable forthwith. Learned APP as also learned advocate Mr. Kodekar, waive service of notice of rule for and on behalf of the respective respondents. 1. By way of this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Code"), the applicant, who is original accused No. 4 in C.B.I. Criminal Case No. 97 of 2004, challenges the order passed by the learned Additional Chief Judicial Magistrate, C.B.I., Court No. 2, Ahmedabad (Rural), Mirzapur dated 07.05.2016 rejecting the application Ex-293 filed by the applicant under Section 319 of the Code to arraign as an accused 6 persons named in column No. 2 of the charge sheet, who are not sent up for the trial as also 2 of the persons named in the charge exhibit-175 as accused in the case. 2. One Shri Peter Joseph Parmar, who happens to be the Officer of the Bank of India, on 06.11.1992 filed an FIR for the offences punishable under Sections 379, 465, 467, 468, 511 and 114 of the Indian Penal Code (hereinafter referred to as "IPC"). Pursuant thereto, an offence came to be registered at C.R. No. I-381 of 1992 with Karanj Police Station, Ahmedabad. As coming out from the memo of the application, it was registered against one Salim Salauddin Shaikh and one person resident of Mumbai. On the strength of which, investigation commenced. Thereafter, investigation came to be transferred to C.I.D. (Crime) and it was lastly transferred to C.B.I., BS. & FC., Bombay. 3. The case of the prosecution is that in October, 1992 about 12 MICR drafts with printed numbers purported to have been drawn by Bank of India, Kalyan Branch, each of Rs. 9 lakhs aggregating to Rs. 1.08 crore were paid in clearing through their Ahmedabad Regional Collection Center to Bank of Baroda, Ashram Road Branch. The Bank, upon noticing irregularities in respect of serial numbers of the Demand Drafts received for payment, sought to verify the genuineness of the said drafts with their Kalyan Branch. Upon inquiry with Kalyan Branch, the said demand drafts were not issued by them and subsequently, the FIR was lodged. During the course of investigation, it was revealed that all the accused persons conspired with each other to cheat the Bank. Upon inquiry with Kalyan Branch, the said demand drafts were not issued by them and subsequently, the FIR was lodged. During the course of investigation, it was revealed that all the accused persons conspired with each other to cheat the Bank. During the course of investigation, it was found that the applicant obtained one blank demand draft book of TL series of Bank of India and two pads of Advices of Drawing (AOD), which were later on found missing from the Bank of India, Kalyan Branch. One accused Nasirullah Afzal Shaikh, who is accused No. 6, also got forged 19 demand drafts of Rs. 9 lakhs each favouring M/s. P. Kanubhai & Co. purporting to have been issued by the Bank of India, Kalyan Branch. Out of these 19 demand drafts, the accused got encashed 12 demand drafts of Rs. 9 lakh each by opening the account in the name of M/s. P. Kanubhai & Co. in the Bank of Baroda, Ashram Road Branch and encashing the demand drafts from each accounts, the funds were transferred to three different fictitious accounts opened in the names of Mahendrakumar Shah & Co. and Mukesh K. Shah & Co. and Pravinbhai Kothari & Co. in the same branch. The amount so defrauded was subsequently remitted to Hong Kong on the false pretext of remittances towards import of diamonds from these three accounts. 4. After the investigation conducted by C.B.I., as aforesaid, a charge sheet came to be filed on 01.12.1998 against the applicant and other 5 persons whereas, (1) Rameshbhai Shah (Non existing person) (2) Smt. Renu Kishore Vatchani (3) Sharad Vishnu Sathaye (4) Sadiq Ali Sadruddin Chunara (5) Vishnu Damodar Bhobaskar (6) Vithal Anant Ambre, these 6 persons have been shown in column No. 2 of the charge sheet as accused not sent for trial for want of evidence. It appears that on constitution of C.B.I. Court, case has been transferred to it and it has been numbered as C.B.I. Criminal Case No. 97 of 2004. It appears that while the investigation was conducted by C.I.D. (Crime), Mahendra Chimanlal Vakharia (present applicant), Sharad Vishnu Sathaye and Smt. Renu Kishore Vatchani came to be arrested. It appears that the present applicant was remanded to the Police custody and further remand was also sought by the then Investigating Officer. However, it came to be rejected vide order dated 20.07.1994. It appears that the present applicant was remanded to the Police custody and further remand was also sought by the then Investigating Officer. However, it came to be rejected vide order dated 20.07.1994. However, Sharad Vishnu Sathaye and Smt. Renu Kishore Vatchani were not granted police custody remand, over and above other grounds, copy of case diary was not submitted with the remand application. Thus, the Trial Court concluded that there is no valid ground to grant remand of those two accused. Further, it appears that Vithal Anant Ambre came to be arrested by C.B.I. and police custody remand was granted upto 27.02.1997. However, for the charge sheet submitted before the Court in a case where charge came to be framed on 12.04.2013 vide exhibit-175. It appears that thereafter, case proceeded further and deposition of PW-4-Arun Ramchandra Sant came to be recorded on 19.02.2015 vide exhibit-248. Thereafter, vide exhibit-273 without quoting provisions in the title, an application was filed by the present applicant requesting the Court to amend the charge and include 2 of the persons namely Suresh Vadecha and Vithal Anant Ambre (V.A. Ambre) as an accused, considering the charge itself. It is further prayed in that very application that witnesses Smt. Renu Kishore Vatchani and Sharad Vishnu Sathaye, who have been called for recording of their depositions, were arrested during the course of investigation by Karanj Police Station and therefore, they are also required to be joined as an accused and thereafter, only the said witnesses should be examined. The said application exhibit-273 came to be filed on 10.06.2015. However, the learned Magistrate vide order dated 23.09.2015 rejected the said application. 5. Feeling aggrieved by the said order, the very applicant preferred Special Criminal Application No. 6153 of 2015 before this Court, which also came to be disposed of vide order dated 20.10.2015 by confirming the order passed by the learned Magistrate below exhibit-273 but reserved the liberty to the applicant herein to file an appropriate application under Section 319 of the Code with a prayer to arraign 2 witnesses as an accused in the Trial. 6. It would be profitable to quote paragraph-4 of the said order passed by this Court: "4. I am of the view that no error could be said to have been committed by the C.B.I. Court in passing the impugned order. 6. It would be profitable to quote paragraph-4 of the said order passed by this Court: "4. I am of the view that no error could be said to have been committed by the C.B.I. Court in passing the impugned order. However, I reserve the liberty for the petitioner herein to file an appropriate application under Section-319 of the Code of the Criminal Procedure, 1973 with a prayer to arraign the two witnesses as accused in the trial. If such application is filed, the trial Court shall immediately look into the same and pass an appropriate order on the said application. It will in the fitness of things that the two persons be examined as witnesses after the application under Section-319 if at all filed is disposed of. I clarify that I have otherwise not gone into the merit of the matter." Thereafter, present applicant-original accused No. 4, preferred application exhibit-293 titled as application under Section 319 of the Code praying therein that all the 6 persons, who are not sent up for trial for want of evidence shown in column No. 2 of the charge sheet as also Maneklal Shah and Suresh Vadecha, whose names have been referred in charge exhibit-175, be arraigned as an accused and Court may take cognizance against them as ample evidence appearing against them. However, after hearing the applicant as also the prosecution agency, the learned Magistrate vide order dated 07.05.2016 below exhibit-293 rejected the said application. 7. Being aggrieved and dissatisfied by the said order, the applicant-accused has preferred this Criminal Misc. Application before this Court under Section 482 of the Code for impleadment of persons named in the application exhibit-293. 8. Before recording the arguments of the learned advocates for the appearing parties, it would be profitable to mention that not only charge sheet is filed in the year 1998, a case was also registered in the year 1998 in the Court of learned Chief Metropolitan Magistrate, Ahmedabad. Subsequently, on constitution of C.B.I. Court, it came to be transferred in the year 2004. Not only that, a charge has also come to be framed against the applicant and other accused on 12.04.2013. As coming out from the papers annexed with this application, first application vide exhibit-273 came to be filed on 10.06.2014. Subsequently, on constitution of C.B.I. Court, it came to be transferred in the year 2004. Not only that, a charge has also come to be framed against the applicant and other accused on 12.04.2013. As coming out from the papers annexed with this application, first application vide exhibit-273 came to be filed on 10.06.2014. However, by 19.02.2015, four of the witnesses were already examined, it is only when 2 witnesses, who are shown as witness Nos. 16 and 18 respectively in the charge sheet, summoned and called for examination before the Court, the application exhibit-273 came to be filed. The said application was not only praying amendment in the charge but also requesting the Court to join other persons as an accused, considering the particulars mentioned in charge. In the said application at page No. 61, more particularly, paragraph No. 4, it is mentioned that C.B.I. has not sent up for trial certain persons, though they were accused and arrested by the Karanj Police Station prior to the investigation taken over by C.B.I., which is an irregularity. It is further said in it that under Section 169 of the Code, the C.B.I. Officer should have made a report and after conducting hearing in it, those accused could be discharged. In short, the applicant-accused contended that it is an irregularity. Bringing that irregularity to the notice, they requested for amendment in the charge and arraigning certain persons as accused also. 9. The order passed by the learned Magistrate below exhibit-273 came to be challenged before this Court earlier and vide order dated 20.10.2015, as aforesaid, this Court confirmed the order passed by the learned Magistrate. However, considering the paragraph-4 of the said order, as referred hereinabove, this Court reserved the liberty for the applicant to file an appropriate application under Section 319 of the Code with a prayer to arraign 2 witnesses as accused in the trial. Thus, it is clear that the application appears to be for amending the charge and for joining certain persons as an accused, more particularly, 2 witnesses, who were present before the Court the day on which application exhibit-273 came to be filed being witnesses Smt. Renu Kishore Vatchani as also Sharad Vishnu Sathaye. Thus, it is clear that the application appears to be for amending the charge and for joining certain persons as an accused, more particularly, 2 witnesses, who were present before the Court the day on which application exhibit-273 came to be filed being witnesses Smt. Renu Kishore Vatchani as also Sharad Vishnu Sathaye. Not delving much into it, suffice it to say that for all the 6 persons who have not been sent up for trial and 2 of the persons Maneklal Shah and Suresh Vadecha have been requested to be arraigned as an accused under Section 319 of the Code vide application exhibit-293 filed on 30.10.2015, which came to be rejected by the impugned order. 10. Mr. K.B. Anandjiwala, learned Senior Counsel assisted by Mr. Vishal K. Anandjiwala, learned advocate for the applicant, vehemently submitted that the persons, who have been arrested as an accused in the case itself, arrest must be based on some material before the Investigating Authority, therefore without following due procedure under the law, could not have been exonerated. In substance, the Investigating Authority has accorded pardon, which is an ultimate function of the Court. According to the submissions of the learned Senior Counsel, if at all, the Investigating Authority submits charge sheet and not sending certain persons, though they were arrested in the very case, to face the trial for want of evidence, there should be at least some reasons mentioned in a report filed under Section 173 of the Code. It is further argued that merely by showing accused, who were arrested during the course of investigation, in column No. 2 of the charge sheet as persons not sent for trial for want of evidence, the investigating authority is not absolved from assigning reasons for reaching that conclusion. The said conclusion is required for the purpose of Court, who is ultimately to decide on the fate of them. It is further submitted that, if the Court agrees with the reasons assigned, that too, after issuing notice to the aggrieved persons, their bail bond, if accused are on bail, shall be cancelled by the Court. If after considering the reasons assigned by the Investigating Authority, the learned Magistrate is not satisfied, considering the report submitted, he can still take cognizance of the offence and they can also be arraigned as an accused or process can be issued against them to stand the trial. 11. If after considering the reasons assigned by the Investigating Authority, the learned Magistrate is not satisfied, considering the report submitted, he can still take cognizance of the offence and they can also be arraigned as an accused or process can be issued against them to stand the trial. 11. It is further vehemently submitted that considering the charge framed, it is clear that V.A. Ambre, who is not sent up for trial, had stolen one demand draft book TL series containing 100 forms. Not only that C.B.I. itself found involvement of him into the offence, but arrested also. Thus, according to him, C.B.I. should have charge sheeted him along with the applicant. It is further submitted that even other persons, who were arrested by the C.B.I. and 2 summoned witnesses-Smt. Renu Kishore Vatchani and Sharad Vishnu Sathaye, who were arrested by Gujarat Police could not have been shown in column No. 2 of the charge sheet in the list of persons, who are not sent up for trial for want of evidence. In short, the submission of the learned Senior Counsel is that considering the papers of investigation, the persons named in the application exhibit-293 i.e. 6 persons shown in column No. 2 of the charge sheet as the persons not sent for trial and 2 of the persons mentioned in the charge being Maneklal Shah and Suresh Vadecha, should be arraigned as an accused under Section 319 of the Code. 12. Mr. Anandjiwala, learned Senior Counsel relied on a decision in the case of Jamilaben Hanif Manek Versus Sama Jusab Jasraya reported in (2012) 5 GLR 3712 for the proposition that the accused, who have been named in the FIR, the Investigating Officer is bound to submit appropriate report as per Bombay Police Manual against the accused not charge sheeted. He has further relied on the very same decision for the proposition that the learned Magistrate is not bound to accept the report submitted by the Investigating Officer and he can decide of his own, on the basis of material available on record. It is further concluded in it that if learned Magistrate agrees with the report, he is required to issue notice upon the complainant/first informant. 13. Mr. It is further concluded in it that if learned Magistrate agrees with the report, he is required to issue notice upon the complainant/first informant. 13. Mr. Anandjiwala, learned Senior Counsel further relied on a decision in the case of L.D. Additional Principal Judge Versus State of Gujarat reported in 2008 (2) G.L.H. 232 for the proposition that powers to tender pardon are vested in the Court prior to charge sheet and subsequent to charge sheet or during the course of investigation or after completion of the investigation. The Investigating Officer cannot give pardon to the accused. He has further relied on the very same decision for the proposition that the Court has all power under Section 193 of the Code, while taking cognizance of the offence to join a person as an accused, if the accused is, prima-facie, found to have committed an offence from the material on record. 14. As against that, Mr. R.C. Kodekar, Special Public Prosecutor for C.B.I., submitted that the investigation is the exclusive domain of the investigating authority. If during the course of investigation no material is found against any person, may be an accused, sufficient to send him for trial, it is within its right to mention their names in column No. 2 of the charge sheet as a person not sent up for trial for want of evidence. He has further submitted that while showing 6 of the persons in the present case in column No. 2 of the charge sheet as not sent up for the trial during the course of investigation, it is revealed that there is no material evidence against them to put them for trial. However, it is further submitted by him that reasons for not sending them for trial, howsoever brief, should have been placed by the investigating authority in the report submitted to the Court. However, he has fairly conceded that the reason/s are missing in the case. On conclusion of investigation, there was no legally admissible material evidence found against the persons named in the column No. 2 to forward them before the Court. Therefore, merely because brief reasons are not mentioned in the report, it is merely an irregularity and not an illegality, which would vitiate the trial or hold them responsible to stand trial with the accused. 15. Mr. Therefore, merely because brief reasons are not mentioned in the report, it is merely an irregularity and not an illegality, which would vitiate the trial or hold them responsible to stand trial with the accused. 15. Mr. Kodekar, learned Special Public Prosecutor has relied on a decision in the case of Abdul Razak Abdul Gani Dunge Versus. State of Maharashtra and Ors. reported in 2008 Criminal Law Journal 133, for the proposition that for release of accused under Section 169 of the Code on the ground that evidence against him was not sufficient, notice to complainant before passing order was not necessary. It is further held in it that such notice would be necessary only when Magistrate though report was sent to him under Section 173 does not deem it proper to take cognizance against him. He has further relied on a decision in the case of Laxmipat Choraria and Ors. Versus State of Maharashtra reported AIR 1968 SC 938 for the proposition that testimony of a self-confessed criminal as a witness against Former Associates is admissible, without that witness pleads guilty, convicted and sentenced for that offence or prosecution against that witness is withdrawn, over and above not sending up a person for trial with sole object of taking accomplice evidence is said to be legal. Relying on the said decision Mr. Kodekar, submitted that this application, which is filed with a sole purpose to delay the trial against the accused, who is prime accused in this case, as mentioned in the charge sheet, be rejected. 16. Learned Additional Public Prosecutor Ms. Moxa Thakkar for the respondent-State adopting the arguments advanced by the Special Public Prosecutor Mr. R.C. Kodekar for C.B.I. and submitted that this application has been filed with a view to further delay the proceedings and the same be rejected. 17. Having heard the learned advocates for the appearing parties and having gone through the materials available on record, it is clear that this is nothing but an attempt to delay the trial against the accused. Though charge sheet came to be submitted in the year 1998 and charge is framed in 2013, trial in this case where in all 45 witnesses are mentioned in the case, such application is filed in 2015, that too, after examination of 4 witnesses and when 2 witnesses summoned for the deposition. Though charge sheet came to be submitted in the year 1998 and charge is framed in 2013, trial in this case where in all 45 witnesses are mentioned in the case, such application is filed in 2015, that too, after examination of 4 witnesses and when 2 witnesses summoned for the deposition. It would not be out of place to mention that accused No. 4, who is shown prime accused in this case, has alone filed application exhibit-273 at earlier point of time and at exhibit-293 on subsequent occasion. Before those applications, it is clear that, more particularly, 4 witnesses have come to be examined. Though learned Senior Counsel Mr. Anandjiwala, vehemently submitted that Mr. V.A. Ambre and other persons were arrested by the Investigating Authority, they have not been joined as an accused, while submitting report on conclusion of investigation and therefore, there is clearly an irregularity committed by the Investigating Authority. However, Mr. Anandjiwala, learned Senior Counsel, has failed to show any legally admissible material evidence appearing against them to implead those persons as an accused, that too, under Section 319 of the Code. An excuse has been shown that the Investigating Authority has suppressed material evidence against them. According to him, if there was no material evidence against them, they could not have been arrested by the Investigating Authority. Though argument appears to be impressive, it is hollow. To implead anyone as an accused during the course of trial, that too, at the instance of the co-accused, they must show legally admissible material evidence appearing against them from the papers of charge sheet or from the evidence of witnesses already examined. 18. The case of L.D. Additional Principal Judge (Supra.) relied on by the learned Senior Counsel for the applicant, is not of any help to the applicant as after referring to various statements of witnesses from the charge sheet, Court reached to the conclusion that Mr. Vijaykumar A. Rathod, who is shown as prosecution witness No. 166 in that case, be arraigned as accused. However, not a single statement of any witness shown to this Court or any material document, which would compel any Court to arraign those persons as an accused in this case under Section 319 of the Code. The only excuse shown is that without there being any material evidence on record, arrest of those accused could not have been made. However, not a single statement of any witness shown to this Court or any material document, which would compel any Court to arraign those persons as an accused in this case under Section 319 of the Code. The only excuse shown is that without there being any material evidence on record, arrest of those accused could not have been made. That is again no answer to the question that what is the material appearing against the persons to bring them as an accused in this case under Section 319 of the Code. Neither from the application made to the Court nor from the submissions made before even this Court any compelling necessity is shown to arraign those 8 persons, as named hereinabove in the earlier part of this order, to bring them as an accused in this case. 19. The another decision relied on by the learned Senior Counsel for the applicant in the case of Jamilaben Hanif Manek (Supra.), is no help to him, wherein original first informant submitted an application exhibit-5 requesting the concerned Court to arraign respondent Nos. 1 to 3 therein, who were original accused Nos. 2 to 4 named in the FIR as accused, in exercise of powers under Section 319 of the Code. The learned Sessions Judge rejected the said application by cryptic and non-speaking order, which appears to be the first reason to allow that application. Furthermore, the said application came to be filed by the first informant himself, who is aggrieved by conclusion of investigation where, though first informant named certain accused, they were not sent up for trial and no report was submitted against them. Over and above from the said decision, it is clear that even trial had not commenced. However, in the present case, not only charge sheet came to be filed in the year 1998 and copies thereof were furnished to them long back, they have not applied, if at all, they are entitled to do so to bring them as an accused under Section 319 of the Code till 4 of the witnesses have been examined. Prior thereto, charge has also been framed against all the accused named in the charge sheet at least 2 years prior of the application itself, more particularly, the day on which 2 of the witnesses summoned and present before the Court, who were not sent up for the trial. Prior thereto, charge has also been framed against all the accused named in the charge sheet at least 2 years prior of the application itself, more particularly, the day on which 2 of the witnesses summoned and present before the Court, who were not sent up for the trial. The present application has come to be filed with a view to delay the trial. If during the course of investigation, no material is found against any person, though named as accused, the Investigating Authority is not bound to send them up for the trial. However, there has to be some report, howsoever brief may be reasons must be stated in it. Absence of such reason supporting the conclusion would be merely an irregularity and not an illegality, which would vitiate the trial. Over and above that by such non inclusion of person as accused, the first informant would be the aggrieved person and not the co-accused. The attempt of the co-accused appears to be that no evidence must come on record against him. The only attempt on the part of the applicant appears to be that, witnesses, who had come to depose before the Court, be tried jointly with him, so that their testimonies might not be available to indict him in the case but he appears to be not interested in their separate trial. 20. The lapse of not submitting reasons along with the report under Section 173 of the Code, howsoever brief, and mentioning names of certain persons in column No. 2 of the charge sheet would be an irregularity and not the illegality, which would vitiate the trial, that too, at this stage where 4 witnesses have already been examined. It would be pertinent to note that at the time of taking cognizance or even thereafter at the time of framing charge, 15 long years have passed by, not only the Magistrate did not find any material to join them as an accused, even the applicant had not requested the Court at any time earlier. Over and above that no legally admissible material evidence pointed out by the applicant to join those persons as an accused in the case. Report is only one, which is envisaged under Section 173 of the Code. When Court takes cognizance it accepts the report. Over and above that no legally admissible material evidence pointed out by the applicant to join those persons as an accused in the case. Report is only one, which is envisaged under Section 173 of the Code. When Court takes cognizance it accepts the report. When Magistrate does not agree with the report filed in respect of the persons not sent up for trial, he may take cognizance based on material forwarded to him and issue process against them or direct further investigation in respect thereof. 21. From the material placed on record, it appears that Mr. V.A. Ambre a Peon working in the Bank of India where he is alleged to have stolen the demand draft book appears to be unmindful of the consequence thereof. Not only that no legally admissible material to indicate him as an accused found during the course of an investigation. However, there is no material on record to justify or could be shown by the learned Senior Counsel for the applicant to send him for the trial. In absence of any material successfully shown by learned Senior Counsel for the applicant against the persons sought to be arraigned as an accused, no Court can order it under Section 319 of the Code. The learned Senior Counsel for the applicant has miserably failed to show any material to prosecute all of them with the help of Section 319 of the Code, except that, they were arrested during the course of investigation. Arrest of an accused during the course of investigation is no proof of offence being committed by him, who is required to be sent for trial in absence of any other material even justifying the arrest subsequently. 22. Hence, this application has no merit and it fails. Interim relief granted earlier stands vacated. Rule is discharged.