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2024 DIGILAW 533 (GUJ)

Jay Chandrakant Joshi v. State Of Gujarat

2024-03-14

CHEEKATI MANAVENDRANATH ROY

body2024
JUDGMENT : 1. In this application filed under Section 482 of the Criminal Procedure Code, 1973 (CrPC), the applicant challenges the legal validity of the order dated 21.09.2019 of the learned Additional Sessions Judge, Ahmedabad passed in Criminal Revision Application No. 460 of 2018 dismissing the said revision and confirming the order of the trial Court dismissing the application filed by the applicant under Section 239 of CrPC seeking discharge from the criminal case that is filed against him. 2. Heard, the learned counsel for the applicant and the learned Additional Public Prosecutor for the respondent – State. 3. The facts leading to the lis in this application may briefly be stated as follow: 3.1 As per the prosecution version, the accused No. 1 has been residing in England. The accused No. 2 has earlier visited England to pursue his studies. At that time, he stayed as Paying Guest with the accused No. 1. So, they got acquaintance with each other. Thereafter, the accused No. 2 came back to India and he has been residing in Ahmedabad, which is his hometown. The accused No. 1 came to India and visited Ahmedabad, which was his hometown earlier. 3.2 At that time, it is stated that on 25.09.2010, at about 9:45 p.m., both, the accused Nos. 1 and 2 together visited Central Mall in Ahmedabad. They purchased goods worth Rs.7,631/-. They have presented “Your E Top-up Card”, to make the payment at the cash counter. The Manager of the said mall entertained a doubt relating to the genuineness of the said card presented by the accused and which was swiped by the accused No. 1. Therefore, he contacted the Assistant Manager of the Axis Bank to verify the genuineness of the said card. It is stated that the Assistant Manager of the Axis Bank informed that the said card is a fake card and a cloned card, which means it is a card of somebody else and duplicate of the said card is obtained in a fake manner and being used. 3.3 Therefore, the Manager of the mall informed about the same to the Cyber Crime Cell of Crime Branch, Ahmedabad City. The concerned officer from the said Cyber Crime Cell visited the mall and collected the details from the accused Nos. 1 and 2. A Panchnama was prepared at that time. 3.3 Therefore, the Manager of the mall informed about the same to the Cyber Crime Cell of Crime Branch, Ahmedabad City. The concerned officer from the said Cyber Crime Cell visited the mall and collected the details from the accused Nos. 1 and 2. A Panchnama was prepared at that time. One Apple cell phone, the said credit card and cash of Rs.25,000/- approximately, were recovered from the accused No. 1 and one mobile phone of Sony Ericson worth of Rs.4,000/- was recovered from the accused No. 2. The bill relating to the said shopping made by them was recovered from the accused No. 1. 3.4 Thereafter, as it was found that a fake and cloned credit card was used for the purpose of purchasing the said goods in the shopping mall, police registered a case against both, the accused Nos. 1 and 2 for the offences punishable under Sections 420, 465, 471, and 114 of the Indian Penal Code, 1860 (IPC) and Sections 65 and 66 of the Information Technology Act, 2000 (IT Act). 3.5 The crime was investigated and eventually, after completion of investigation, Charge-sheet was also filed in the trial Court against both the accused for the aforesaid offences. 3.6 While so, the accused No. 1 died and the case against him stood abated. 3.7 When the case has come up for framing the charge before the trial Court, the applicant herein, who is accused No. 2, has filed an application under Section 239 CrPC seeking discharge from the said case. Before filing the application for discharge, it is relevant to note here that, he has filed an application under Section 482 CrPC before this Court to quash the FIR and the criminal prosecution launched against him thereon. But, he has subsequently withdrawn the said application. So, the said application was dismissed as withdrawn. Thereafter, he has filed the application for discharge before the trial Court. 4. But, he has subsequently withdrawn the said application. So, the said application was dismissed as withdrawn. Thereafter, he has filed the application for discharge before the trial Court. 4. The applicant sought discharge from the case before the trial Court on the ground that the main culprit, who used the said fake and cloned credit card in the shopping mall, is accused No. 1 and the applicant, who is accused No. 2, only accompanied him on his request, to the shopping mall and he does not know that the accused No. 1 has been using a fake and cloned credit card and the credit card is also recovered from the custody of the accused No. 1 itself and accused No. 1, who is the main culprit, is now no more as he passed away and also on the ground that there is no evidence produced by the prosecution to prove the complicity of the applicant, who the is accused No. 2 in commission of the said offences and he cannot be prosecuted for the said offence only because he accompanied the accused No. 1 on his request. 5. Therefore, reiterating the aforesaid contentions, it is vehemently contended by the learned counsel for the petitioner that there is no sufficient material on record or valid grounds to presume that the applicant, who is the accused No. 2, has committed any such offences and the charges would wholly be groundless against him if they are framed and no useful purpose would be served even if he is prosecuted by way of conducting a trial against him. Therefore, the learned counsel for the applicant submits that both, the trial Court and the revisional Court grossly erred in rejecting the request of the applicant to discharge him from the case and the impugned orders of both, the trial Court and the revisional Court are not sustainable under law and thereby, prayed to set aside the said orders and to discharge the applicant from the said case. 5.1 In support of his contentions, he relied on the judgments of this Court as well as of the Apex Court rendered in i) Vinodbhai @ Valjibhai Bhagvanbhai Rabari v. State of Gujarat, 2017 (0) AIJEL-HC 238511, ii) Nilesh Kantilal Sindhava v. State of Gujarat, 2012 (0) GLHEL-HC 229003, iii) State of UP v. Sanjay Singh, 1994 (0) GLHEL-SC 30295, iv) K. Ramakrishna v. State of Bihar, 2000 (0) GLHEL-SC 13492, v) Savitaben Manilal Nayak v. State of Gujarat, 2016 (0) AIJEL-HC 237064; vi) Chimanbhai Khengarbhai Maheria v. State of Gujarat, 2017 (0) AIJEL-HC 237112, and vii) Pushpendra Kumar Sinha v. State of Jharkhand, 2022 (0) AIJEL-SC 69723, which will be dealt with later on. 6. Per contra, the learned Additional Public Prosecutor for the respondent – State submits that the material on record shows that both, the accused Nos. 1 and 2 got acquaintance with each other in London when the applicant herein visited London to pursue his studies and their friendship continued subsequently also and when accused No. 1 came to Ahmedabad, that both of them together went to the shopping mall and the said fake credit card was used in the shopping mall and as such, both of them are equally liable for using the said fake credit card. He vehemently contended that the applicant, who is accused No. 2 got knowledge that the accused No. 1 has been possessing the fake credit card and has been using the same and that, he cannot plead ignorance of the said fact. It is denied by him that the accused No. 2 only accompanied the accused No. 1 without knowing that the credit card being used by him is a fake credit card. He then contends that about 17 witnesses are cited in the Charge-sheet and the credit card was also sent to the Forensic Science Laboratory (FSL) for examination and the concerned Scientific Officer also was cited as a witness in the Charge-sheet. Therefore, he submits that there is sufficient material on record to presume that the applicant herein is also guilty of commission of the said offences and it cannot be said that the charges that may be framed against him would be groundless and that, he is entitled for discharge from the case. Therefore, he submits that there is sufficient material on record to presume that the applicant herein is also guilty of commission of the said offences and it cannot be said that the charges that may be framed against him would be groundless and that, he is entitled for discharge from the case. He would submit that the matter requires trial to ascertain the truth or otherwise of the allegations ascribed against the applicant and that at this stage, he cannot be discharged. He strongly supported the impugned orders of the trial Court and the revisional Court and contends that as the two Courts have recorded concurrent finding that there is sufficient material to try the applicant for the said offences, that the present application is devoid of merit and prayed to dismiss the same. 7. At the very outset, it is significant to note here that admittedly, both, the accused No. 1 and the accused No. 2 got acquaintance with each other. They are originally the residents of Ahmedabad City. Accused No. 1 subsequently migrated to London and the accused No. 2 also visited London to pursue his studies and he stayed as Paying Guest with the accused No. 1. These facts are not disputed before the Court and they are incontrovertible facts in this case. 7.1 It is pertinent to note that the fact that the applicant herein, who is the accused No. 2 also went along with the accused No. 1 to the said Central Mall, is not disputed before this Court. So, admittedly, the applicant, who is the accused No. 2, went along with the accused No. 1 to the Central Mall. Now, the applicant only asserts, as can be seen from the contentions raised by the learned counsel for the applicant, that he only accompanied the accused No. 1 on his request made to come along with him for shopping and that, he does not know that the accused No. 1 has been possessing a fake credit card. Now, this is only the defence version of the applicant, who is accused No. 2. Now, this is only the defence version of the applicant, who is accused No. 2. Whether, he has accompanied the accused No. 1 only on his request without knowing that the credit card which is being used by him is a fake credit card or whether he has voluntarily accompanied the accused No. 1 knowing fully well that the credit card which is being used by him is a fake credit card is a disputed question of fact, which cannot be decided at the pre-trial stage either in a discharge petition or in this application filed under Section 482 of CrPC challenging the two orders of the trial Court and the revisional Court. The said defence has to be established during the course of trial and after considering the entire evidence that may be adduced by the prosecution and the accused, the said fact is to be ascertained in the final adjudication of the case, after trial is concluded. At this stage, there is no material before the Court to come to any definite conclusion that the applicant only accompanied accused No. 1 on his request without knowing that the credit card being used is a fake credit card or not. It is the prosecution version, as contended by the learned Additional Public Prosecutor now, that the accused No. 2 is aware of the fact that the credit card being used is a fake credit card. So, these facts are to be established during the course of trial. When admittedly the applicant went to the said shopping mall along with the accused No. 1 and when the said credit card was used which was a fake one, prima facie case is made out against the applicant who is the accused No. 2 also to prosecute him for the said offences. 7.2 The learned counsel for the applicant vehemently contended before the Court that it is the accused No. 1 who has swiped the card and the accused No. 2 did not swipe any such card and as such, no criminal liability can be fastened against him in the said facts of the case. It is difficult to countenance the said contention. When two persons visit the shopping mall, the credit card would be swiped only by one of them and it cannot be swiped by both the persons. It is difficult to countenance the said contention. When two persons visit the shopping mall, the credit card would be swiped only by one of them and it cannot be swiped by both the persons. Therefore, by accepting such contention, the applicant cannot be discharged from the said case. As noticed supra, whether both of them knowing fully well that it is a fake credit visited the shopping mall and used the same or not are all the material and relevant facts, which are to be established during the course of trial. The applicant being accused No. 2 has to explain the same during the course of trial. But, at this stage, it cannot be said that the charge that may be framed against the applicant, would be groundless in the facts and circumstances of the case when his presence in the said shopping mall along with the accused No. 1 is admitted and established. 7.3 In the judgments that are cited by the learned counsel for the applicant, the facts of those case, as rightly contended by the learned Additional Public Prosecutor, are very much distinguishable when compared to the facts of the present case. There is no dispute regarding the legal position that is enunciated in those judgments relating to discharge of the accused from the case. In all those cases, as it is found that no case is made out against the petitioners therein from the material placed on record and as there are no ground to presume that they have committed any such offences and as there is no sufficient ground to proceed against them further to prosecute them for the said offences, this Court and the Apex Court held that they are entitled for discharge. 7.4 In the present case, after considering the material placed along with the Charge-sheet, the trial Court recorded a finding in its order that there is sufficient ground to presume that the accused has committed the offence and that there is sufficient ground to proceed further against him in the case. The revisional Court also confirmed the said order and it was also of the same opinion and thereby, dismissed the revision. The revisional Court also confirmed the said order and it was also of the same opinion and thereby, dismissed the revision. It is well settled law that in a petition filed seeking discharge, the Court has to see only whether there a prima facie case made out against the accused to prosecute him for the said offence and whether there is ground to presume that he has committed the said offence and to proceed against him further or not and the Court cannot scan the said evidence and subject the same to judicial scrutiny at the pre-trial stage and appreciate the said evidence. If some evidence is available, which prima facie establish that there is a ground to presume that the accused has committed the said offence, it is sufficient to frame a charge. When such material is available, the accused is not entitled for discharge from the case. The relevant charge has to be framed and the trial has to take place to ascertain the truth or otherwise of the allegations made against him. As can be seen from the judgments of the Apex Court which was cited above, relied on by the learned counsel for the applicant, when the facts of the case even if they are taken at their face value do not satisfy the ingredients of the offences for which the accused is sought to be prosecuted, then it may be a ground for discharge. In the instant case, it is not the case of the applicant that the facts of the case or the allegations set out in the FIR or in the Charge-sheet, do not satisfy the ingredients of the offences for which he is sought to be prosecuted as per the Charge-sheet laid against him. 7.5 Therefore, the impugned orders of both, the trial Court and the revisional Court are perfectly sustainable under law and they warrant no interference in this application filed under Section 482 of CrPC. 8. In fine, the application is dismissed. Rule is discharged. 7.5 Therefore, the impugned orders of both, the trial Court and the revisional Court are perfectly sustainable under law and they warrant no interference in this application filed under Section 482 of CrPC. 8. In fine, the application is dismissed. Rule is discharged. 8.1 As it is an old case of the year 2010, as the trial Court proceedings are stalled because of the interim order that was obtained by the applicant himself, the trial Court shall make an endeavour to frame appropriate charges and proceed with the trial and conclude the same as expeditiously as possible and preferably within a period of six months from the date of this order. 8.2 The trial Court shall independently arrive at a final decision after conclusion of trial in the final adjudication of the case, without being influenced by any of the observations which are incidentally made in this application dealing with the discharge petition.