Bombay High Court
Mohan Nambiar & Ors vs The State Of Maharashtra on 7 October, 2019
Bench: S.S. Shinde
WP-290-2003 (J).doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 290 OF 20031. Mohan Nambiar, ] Adult, Indian inhabitant, aged 40 years ] residing at 2/21, Chembur Vaibhav ] Sahkar Nagar No. 5, Chembur ] Mumbai- 400 071. ] ]2. N. Janardanan Adult, Indian inhabitant, aged 33 years ] residing at 1/1, Chempazhanthi, ] P.L. Lokhande Marg, ] Chembur, Mumbai- 400 043. ] ]3. K.R. Subramniam ] 35, Shell Colony Chembur, ] Mumbai- 400 071. ] ]4. N.K. Pratapan ] 13, Om, Mangal Moorti Co-operative ] Housing Society, 4th Road, Pestom ] Sagar, Chembur, ] Mumbai 400 089. ] ]5. Mr. Kuttikattu Kochamy Madhavan ] Adult, Indian inhabitant, aged 49 years ] residing at 12/136, Shell Colony, ] Chembur, Mumbai- 400 071. ] ]6. Mr. Vadakkedath Inttimakotha ] Bhaskaran, Adult, Indian inhabitant ] residing at 504-C Wing, Meena Towers ] Swastik Park, Chembur, ] Mumbai- 400 071. ] ]7. Rajan Yohannan, ] Adult, Indian inhabitant, aged 43 years ] residing at Flat No. 23, ]Bhagyawant 1 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).doc Annapurna Co-op. Hsg. Society, ] Jai Hind Colony, G-Gupta Road, ] Dombivli (West). ] ]8. Smt. Gopika Janardhanan ] Adult, Indian inhabitant, aged 27 years ] residing at 1/1, Chempazhanthi, ] P.L. Lokhande Marg, Chembur, ] Mumbai- 400 043. ] ]9. Smt. Shobha Madhavan ] Wife of Shri. K.K. Madhavan ] 12/136, Shell Colony, ] Chembur, Mumbai 400 071. ] ]10. Smt. Mallika Bhaskaran ] Adult, Indian inhabitant, aged 42 years ] residing at 504-C Wing, Meena Towers ] Swastik Park, Chembur ] Mumbai 400071. ] ]11. Mr. Karunakaran Nair, ] Adult, Indian inhabitant, aged 49 years ] residing at 8, Yojana Apartments ] Near Amar Theatre, Chembur ] Mumbai 400 071. ] ]12. Mr. Pradeep K. Nair ] Adult, Indian inhabitant, aged 22 years, ] residing at Yojana Apartments, ] Near Amarn Cinema, Chembur ] Mumbai- 400 071. ] ]13. Smt. Ammini K. Nair ] Adult, Indian inhabitant, aged 42 years ] residing at 8, Yojana Apartments, ] Near Amar Theatre, Chembur ] Mumbai- 400 071. ] ]14. Mr. K.R. Unnikrishnan ] Adult, Indian inhabitant, aged 43 years, ] residing at 42, Pampa Co-op. Hsg. ] Society, Plot No. 81, Sector-29 ]Bhagyawant 2 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).doc Vashi, Navi Mumbai. ] ]15. Mr. A. Kannan Nair ] Adult, Indian inhabitant, aged 40 years ] residing at B-15, Kanchan Shetal ] Cheeda Nagar, Chembur ] Mumbai- 400089. ] ]16. Mr. Shanmukhan Rajan ] Adult, Indian inhabitant, aged 40 years ] residing at Chaitali Co-op. Hsg. Society ] Flat No. 10, Sector-16, Vashi ] Navi Mumbai. ] ]17. Mr. Ravi Nair ] Adult, Indian inhabitant, aged 47 years ] residing at 7/8, Om Mangal Murti ] 4th Road, Pestom Sagar, Chembur ] Mumbai- 400 089. ] ]18. Mario Fortes ] 13, Kaveri, Chedda Nagar, Chembur ] Mumbai- 400 071. ] ]19. Mr. Dholandas Gurumukhdas Hassani ] Adult, Indian inhabitant, aged 52 years ] residing at 802, Sainath Park Mulund (E) ] Opp. Neelam Nagar, Mumbai- 400 081. ] ]20. Ashit Mahabal Kukian ] aged: 37 years, Occu: Service ] residing at 14, Airoli, ] Cheeda Nagar, Chembur ] Mumbai 400089. ]…Petitioners Versus The State of Maharashtra ] (Through Tilak Nagar Polilce Station) ] L.A.C. No. 1705 of 1999. ]…RespondentBhagyawant 3 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).doc APPEARANCES- Mr. E.A. Sasi, Advocate for Petitioners. Mr. A.R. Patil, APP for Respondent-State. CORAM : S. S. SHINDE, J RESERVED ON : 12th JUNE 2019. PRONOUNCED ON: 7th OCTOBER 2019.JUDGMENT
1 This writ petition was heard at admission stage by this Court(Coram: J.A. Patil, J.) on 30th June 2003 and this Court was pleased to issueRule and ad-interim stay in terms of prayer clause (b). It appears that, on thesaid date none appeared for Respondent. The said ad-interim relief granted isbeing continued till date.
2 Background facts for filing the petition are as under:-
The Petitioners herein are arraigned as Accused No. 3 to 22respectively in L.A.C. No. 1705 of 1999 which was registered at the instance ofone Mr. Prince Augustine, through the Tilak Nagar Police Station for thealleged offences punishable under the provisions of Sections 3 and 4 of PrizeChits and Money Circulation Schemes (Banning) Act, 1978 read with Section34 of Indian Penal Code (hereinafter for sake of brevity referred to as “saidAct”).
3 It is the case of the Petitioners that, the investigation of the saidcrime is completed and the Police have filed the charge-sheet before theBhagyawant 4 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).doclearned Metropolitan Magistrate 34th Court, Vikhroli as far back in 2000 andthe case is numbered as C.C. No. 333/P/2000. The prosecution case in brief asreflected in the charge-sheet, more particularly in the statement of OriginalComplainant Mr. Prince Augustine is that the complainant, Prince Augustinehas been residing in Flat No. 3, Seagul Agnello Co-operative Housing Society,Pestom Sagar, Chembur, Mumbai, and that Flat No. 4 was purchased in hisname from one Mr. Kuttan Pillai on 8.9.1999 for a consideration of Rs. 12lakhs. The complainant was working with Castrol India Limited as a SeniorManager and that he took a loan from the company and purchased the saidflat. The said Mr. Kuttan Pillai and his son, Mr. Jayakumar Pillai i.e. theAccused No. 1 and 2 were residing in his neighborhood and therefore, he knewboth of them.
4 On 11.12.1999, at 11.00 pm, the complainant, Prince Augustinewas arrested by the Tilak Nagar Police in connection with C.R. No. 1 of 1998for the offences punishable under Sections 420, 421, 406 r/w. 34 of the IndianPenal Code. On 12.12.1999, the complainant was produced before the HolidayCourt at Bhoiwada, Dadar where he was released on bail in the sum of Rs. 1lakh cash. It is further the case of the Petitioner that, the complainant obtaineda copy of complete set of papers filed against him through his advocate andthat he came to know from his Advocate that, after his purchase of the Flat No.4, for Rs. 12 lakhs the aforesaid Kuttan Pillai alongwith his son wereBhagyawant 5 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).docabsconding. The complainant did not know as to where the said Kuttan Pillaiand his son were absconding and thereofre the Police, in that C.R. arrestred thecomplainant. In the aforesaid C.R. No. 1 of 1998, one Mario Fortes is thecomplainant and there were 19 witnesses. The complainant came to know thatKuttan Pillai and his son were running a scheme in their flat. In the saidscheme the Petitioners herein have allegedly participated and invested money.They also allegedly prepared affidavit in the Court.5 It is further the case of the Petitioner that, Mr. Kuttan Pillai and Mr.Jay Kumar Pillai by becoming a member in the aforesaid financial scheme haveinvested money with the expectation of making profits for them. On receipt ofthe complaint from Prince Augustine, the offence came to be registered beingLAC No. 1705 of 1999 under the provisions of Section 3 of the said Act readwith Section 34 of Indian Penal Code., and on completion of the investigationthe charge sheets came to be filed some time in the year 2000. The matter isnot pending before the learned Metropolitan Magistrate 34 th Court at Vikroli,Mumbai, and it is at the stage of framing of charge.6 As stated in the petition the circumstances leading for lodging LACNo. 1705 of 1999 are as under:-
The original Accused Nos. 1- Kuttan Pillai and Accused No. 2-Jaikumar Pillai were conducting a conventional chit fund at the aforesaid FlatBhagyawant 6 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).docNo. 4, Seagul Agnello Co-operative Housing Society, Pestom Sagar, Chembur,Mumbai. It was alleged that, all the Petitioners herein have invested money insaid conventional chit fund. An activities of investing into said conventionalchit fund was conducted in the middle of 1998. However, the Accused Nos. 1and 2 stopped returning the money to the Petitioners. Accused Nos. 1 and 2converted the said amount collected from the Petitioners and others, andmisappropriated the said amount for their own use. Said amount was usedmainly for the purpose of purchasing a huge bungalow at home town in Keralaof Accused Nos. 1 and 2. Thereafter, when the Accused No. 1 and 2 in thepresent LAC were traced, they made promises to the Petitioner that they willpay the money to the Petitioners after selling of his Flat No. 4, Seagul AgnelloCo-operative Housing Society. The Accused No. 1 and 2 however, thereafter, bya conspiracy hatched with the present complainant Prince Augustine, disposedof the said flat without the knowledge of the Petitioners. Thus, there had beena secret deal between the Accused No. 1 and 2 and the complainant PrinceAugustine in respect of the said flat, and the Accused No. 1 and 2 sold the saidflat at a very lower price than, what was then prevailing in the market, and thecomplainant herein has dishonestly and fraudulently purchased the saidproperty of the Accused No. 1 and 2 without adequate consideration knowinglyand intending thereby to prevent, or knowing it to be likely that he willthereby prevent the distribution of the proceedings of that property amongstthe creditors that is the Petitioners herein. The Petitioners therefore, throughBhagyawant 7 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).docPetitioner No. 18 Original Accused No. 20 in the present LAC has lodged acomplaint with the Tilak Nagar Police Station i.e. Respondent who initially wasreluctant to register a FIR. The Petitioners therefore, through the Petitioner No.18 has filed a private complaint being C.C. No. 646/MISC/1998 before thelearned Metropolitan Magistrate 34th Court at Vikhroli against the complainantherein and Accused No. 1 and 2, and the learned Metropolitan Magistrate on3.11.1998 was pleased to order an investigation under Section 156 (3) of theCode of Criminal Procedure (for short “Cr.P.C.”) and the matter wasaccordingly entrusted to the Respondent for investigation, who has registeredCR No. 1 of 1998 against them.
During the course of investigation of the case registered under thesaid C.R. on satisfying the role of the complainant herein viz. Prince Augustine,having committed an offence under Section 421 of IPC, the Respondent No. 1has arrested the present complainant Prince Augustine on 11.12.1998 in theC.R No. 1 of n1998 of the offences punishable under Sections 420, 421, 406and 34 of IPC. It was after coming out on bail, the complainant PrinceAugustine has lodged the said LAC as a counter blast to the aforesaid CR No. 1of 1998 against all the Petitioners herein stating that, the Petitioners hereinhave invested money in a finance scheme run by Accused No. 1 and 2. The saidcase later on came to be registered as LAC No. 1705 of 1999 for the allegedoffences punishable under Section 4 of the said Act. On completion of theinvestigation of the said case, the charge-sheet came to be filed some time inBhagyawant 8 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).docthe year 2000 and the case is numbered as CC No. 333/P/2000. Thereafter, thePetitioners herein have been attending before the learned MetropolitanMagistrate 34th Court at Vikhroli from time to time, for the last about threeyears. As far as the original complaint at instance of the Petitioners i.e. C.R. No.1 of 1998 is concerned initially one Mr. Kadam, Inspector was investigating thematter and he could make some progress in the matter and was able toapprehend the complainant herein who is one of the accused therein. However,the Petitioners came to know that, after the arrest of the complainant PrinceAugustan the said Inspector Kadam was got rid of the assignment ofinvestigation of the said C.R. No. 1 of 1998, and some other officer wasassigned the job of investigation of the said case. The Petitioner has also cameto know that, the aforesaid act of changing the investigating officer was doneat the instance of some senior police officer at the level of additionalcommissioner of police, who came all the way to Tilak Nagar Police Station toinfluence the then officer-in-charge of the said police Station so as to changethe investigating officer Mr. Kadam. The Petitioners also came to know that,the complainant and the senior police officer was having good personalrelation and that, it was on the advise of the said senior police officer that thecomplainant has lodged the said LAC to give counter blast to the FIR lodged bythe Petitioners against the Prince Augustine. Thereafter, the investigation intothe C.R. No. 1 of 1998 virtually came to a standstill for the reason best knownthe Respondent.
Bhagyawant 9 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).doc7 It appears that, on 02.02.2002 Petitioners preferred a jointapplication under Section 239 of Cr.P.C. for discharge before the learnedMetropolitan Magistrate 34th Court at Vikroli, Mumbai. There was prayer forexpediting the hearing of the said application. However, since the learnedMagistrate was not deciding the said application expeditously, the Petitionersapproached this Court by way of filing Criminal Writ Petition No. 1394 of2002. However, the said petition was withdrawn by the Petitioners with adirection to the learned Magistrate to dispose of the application for dischargefiled by the Petitioners. Learned Magistrate vide his judgment and order dated30.01.2003 was pleased to reject the application for discharge filed by thePetitioners. Hence, this petition.
8 Learned counsel appearing for the Petitioner made followingsubmission:-
a) It is submitted that, it is apparent on the face of the record that thepresent LAC has been registered against all the Petitioners by the complainantherein, Prince Augustine, as a counter blast to the C.R. No. 1 of 1998registered at the instance of the Petitioners herein against the complainant,Prince Augustine and others and thus the continuation of the criminalproceedings would be an abuse of process of the Court. The learnedMetropolitan Magistrate 34th Court at Vikhroli, while passing the impugnedBhagyawant 10 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).docjudgment and order after prolonged hearing of the application for discharge onmerits, has failed to point out prima facie case or any ingredients required toconstitute the offences alleged in the complaint. Though by the said applicationfor discharge, the learned Magistrate was only required to see as to, whetherthe process has been issued after due application of mind and after satisfyingthe presence of any of the ingredients required to constitute offences alleged.The learned Magistrate has rejected the application on the sole ground that theoffences under the said Act are triable by the Chief Judicial Magistrate therebythe learned Magistrate failed to appreciate the law laid down on this aspect bythe various High Courts as well as the Supreme Court to the effect that, if theMagistrate satisfied that the processes have been issued without having anyessential ingredients or prima facie case to constitute offences alleged, he canrecall the process and drop the proceedings for which no specific order isrequired from the Magistrate.
b) Learned counsel appearing for the Petitioners, without prejudice towhat is stated above further submits that, there is no averment in the entirecharge-sheet to constitute either the offences allege against the Petitioners orwith regard to any offences at all. The entire allegations made in the charge-sheet or the statement of the witnesses recorded in support of the same takenat their face value, make out absolutely no case against the Petitioners. Theentire charge-sheet along with the materials annexed thereto does not discloseBhagyawant 11 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).docthe offences alleged against the Petitioner under Section 3 and 4 of the said Actread with Section 34 of IPC or any other offence at all against any of thePetitioners.
c) It is submitted that, the allegations made in the complaint arepotentially absurd and inherently improbable as no prudent person can everreach a conclusion on the basis of said allegations that, there is sufficientground for proceeding against the Petitioners. The discretion exercised by thelearned Metropolitan Magistrate in issuing process against the Petitioners wasbased on no evidence or the materials which are wholly irrelevant. A perusal ofthe charge sheet itself clearly establishes the fact that the present complainthas been instituted at the instance of the original complainant PrinceAugustine as a counter blast for his having been involved in C.R. No. 1 of 1998,registered by the Tilak Nagar Police itself, against the said complainant andothers for the offences punishable under Section 420, 421, 406 read with 34 ofthe IPC. It is submitted that, the said LAC is instituted as a counter blast to thecomplainant filed by the Petitioners against the original complainant is nothingbut an abuse of the process of the Court.
d) It is further submitted that, assuming without admitting, the entirematerial on record as gospel truth and unrebuted by the defence, it does notdisclose any prima facie case or any of the ingredients required for the offencesBhagyawant 12 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).docas alleged or of any other offence at all, and thus the provisions of the said Actare not attracted to the present case. Thus putting the Petitioners for trial be anexercise in futility as well as abuse of the process of the Court. Perusal of theentire charge-sheet itself will disclose that the present complaint has beeninstituted by the complainant as a counter blast for his having been involved inC.R. No. 1 of 1998 as above and that, there is not at all a chance of an ultimateconviction of the Petitioners and therefore no useful purpose is likely to beserved by allowing the criminal prosecution to continue. The entire materialwhich the prosecution proposes to adduce to prove the case against thePetitioners even if fully accepted before it is challenged in cross examination orrebutted by the defence evidence, cannot show that the accused havecommitted any offence at all and thus, there is no sufficient ground forproceeding with the trial.
Therefore, learned counsel appearing for the Petitioners submitsthat, due to the continuation of prosecution against the Petitioners they haveundergone several hardships and mental agony without even the prima faciecase against them in the entire charge-sheet. Learned counsel appearing for thePetitioners in support of aforesaid contentions placed reliance on followingjudgments-
State of Haryana Vs. Bhajan Lal1, State of W.B. V/s. Swapan KumarGuha2, Sanchaita Investments and others V/s. State of West Bengal and others 3,1 1990 DGLaw (SC) 512 1982 DGLaw (SC) 2003 1981 DGLaw (Cal) 25Bhagyawant 13 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).docSmt. Badamo Devi and Another V/s. State And Another 4, K. Ramakrishna V/s.State of Bihar5, Ujjal Maitra and Ors. V/s. Kanchan Maitra 6 and JayamuruganDhanasekaran V/s. State Inspector of Police7.9 Learned APP appearing for Respondent-State relying upon theaffidavit in reply made following submission-
a) The names of all the accused are clearly mentioned in the FIR. It isfurther mentioned in the FIR on Page 4 that, all the accused invested theirmoney in the chit fund, in order to get the financial gains, which was contraryto the provisions of Section 3 and 4 of the said Act. It is admitted fact that, allthese accused had taken part in the chit fund which was run by Kuttan Pillaiand his son Jaykumar. Because the Advocate by name Sudhakar Shetty hadgiven one letter dated 12.09.1999 to the authority holders of Segal Society,Pestom Sagar, where the complainant resides and also purchased another flatin same building from its owner Kuttan Pillai with whom these accusedinvested the money. Advocate Shetty had filed this letter on behalf of all theseaccused persons and through their letter they admitted the investment ofmoney of all the accused in the financial scheme which was running by KuttanPillai. In this way all the accused were admitted their guilt.
4 (1981) ChdLR 2515 2000 DGLaw (SC) 13636 1997 DGLaw (Ori) 547 2010 DG Law (Mad) 3265.Bhagyawant 14 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).docb) It is submitted that, all the accused had admitted that they were
the members of that financial scheme run by one Kuttan Pillai & his son, andall the accused further admitted that they had invested the money in the saidscheme. This facts was admitted by all the accused in this Court by filingaffidavit in Writ Petition No. 1394/2002, and also admitted it by makingseparate affidavit on 31.08.1998. All these accused had filed the writ petitionin this Court for quashing the proceeding. But they were not succeeded toobtain the order of quashing, and this example itself shows that there issubstantial evidence against the accused persons. It is further submitted that,the evidence in the charge-sheet is more than sufficient against the accusedpersons. There are views of various High Courts that if there is slightestevidence against the accused, in such circumstances there will be no discharge.In this way, it is prima facie clearly disclosed involvement of the accusedpersons in the alleged offences. It is submitted that an accused had mislead thisCourt that, they are regularly attending Trial Court. But Court Roznama showsthere frequent absentee. Therefore, learned APP appearing for Respondent-State submits that, the writ petition may be rejected.10 Heard learned counsel appearing for the Petitioner and learnedAPP for Respondent-State at length. With their able assistance, perused thepleadings in the petition, grounds taken therein, annexures thereto, reply filedby Respondent-State, so also other documents placed on record. I haveBhagyawant 15 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).doccarefully perused the FIR placed on record at Exhibit-F at Page No. 58 to 61 ofthe compilation of the writ petition. It would be apt to reproduce herein belowthe gist of allegations in the FIR which reads as under:- ueqn rk- osGh o fBdk.kh ;krhyuewn blekauh] laxuerkus dqjV.k iRuh o R;kapk eqyxk t;dqekj fiYys pkyfor vlysY;k vkfFkZd ;kstuse;s ukao uksanowu lHkkln gksmu] vkfFkZd ykHk gks.;kP;k mn~ns’kkus iSls xaqroys Eg.kwu xqUgk dye 3] 4 izkbZe fiVl~] vW.M euh lD;qZys’ku Ldhe ¼nSfud½ vWDV 1978] lg dye 34 Hkk-n-fo-la- izek.ks vls-
11 In the entire FIR no where it is mentioned that the Petitionersinvested the money in a scheme for making easy or quick money. At thisjuncture it would be apt to reproduce herein below Section 2 (c) of the saidAct.
2. Definitions- In this Act, unless the context otherwise requires,-
(c) “money circulation scheme” means any scheme, by whatever name called, for the making of quick or easy money, or for the receipt of any money or valuableBhagyawant 16 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).doc thing as the consideration for a promise to pay money, on any event or contingency relative or applicable to the enrolement of members into the scheme, whether or not such money or thing is derived from the entrance money of the members of such scheme or periodical subscriptions;
12 An allegations against the Petitioners are that, the Petitionersbecame member of scheme run by one Mr. Kuttan Pillai and his son, and thatby becoming a member in the said chit fund scheme thereby investing moneycommitted an offence under Section 3 and 4 of the said Act. If the allegationsin the FIR, so also in the charge-sheet and statement of witnesses areconsidered in its entirety, an ingredientas of alleged offences do not getattracted, and consequently, an alleged offences are not disclosed.13 It appears that, the investigating officer has recorded statement ofone witness Mr. M.V. Sahadevan who stated that, “I came to know that Mr.Jaykumar and Kuttan Pillai was running a financial scheme. In this scheme Mr.Mario, Mr. Bhaskaran, Mr. Pratapan and others participated and expectingfinancial benefits have invested money”. There are statements of otherwitnesses also, but an allegation in their statement do not attract the definitionof “Money Circulation Scheme” defined under Section 2(c) and “Prize Chit”Bhagyawant 17 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).docdefined under Section 2(e) of the said Act.
14 Gist of the allegations in the statement of complainant PrinceAugustine is as under:-
“Kuttan Pillai and son were running a scheme in their flat. In thisscheme the Accused persons participated, invested money with expectation ofmaking profit for them”.
The above allegations do not attract the definition of “Price Chit”defined under section 2(e) and “Money Circulation Scheme” defined underSection 2(c) of the said Act.
15 Careful reading of the charge-sheet reveals that offence came to beregistered by Prince Augustine after his arrest and released on bail in criminalcase registered against him at the instance of present Petitioners for variousoffences punishable under Section 420, 421, 406 and 34 of IPC. Hence it isapparent on the face of charge-sheet that, the prosecution lodged against thepresent Petitioners by said Prince Augustine is out of vengeance since, thePetitioners registered offence against him.
16 The Hon’ble Supreme Court in the case of State of West Bengal(supra) in para 73 discussed about the requirements to be met to attractdefinition of “Money Circulation Scheme” or “Price Chit” is as under:-
73. XXXXBhagyawant 18 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).doc
(iii) the scheme must be for the making of quick or easy money on any event or contingency relative or applicable to the enrolemnt of members into the scheme or there must be a scheme for the receipt of any money or valuable thing as the consideration for a promise to pay money on any event or contingency relative or applicable to the enrolment of members into the scheme;
(iv) the event of contingency relative or applicable to the enrolment of members into the scheme will however not be in any way affected by the fact whether or not such money or thing is derived from the entrance money of the members of such scheme or periodical subscription.
17 In the facts of the present case on conjoint reading of allegationsin the FIR, charge-sheet so also statement of witnesses, it will have to be heldthat none of the above requirements are met in the present case. The Hon’bleSupreme Court in Para 75 in the case of State of West Bengal (supra)has laiddown that-
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75. For properly appreciating whether the offence of promoting or conducting a money circulation scheme is disclosed or not, it becomes necessary to consider whether the materials, even if they are all accepted to be correct, indicate that the business carried on by the firm satisfies the requirements of money circulation scheme And disclose an offence under the Act.
18 In para 80 and 81 of the aforesaid judgment, in the facts of thatcase the Hon’ble Supreme Court concluded that, element of chance in thematter of business carried on by the firm and that no offence under the Act, isat all disclosed and it will be manifestly unjust to allow the process of criminalcode to be issued or continued against the firm and to allow any investigationwhich will be clearly without any authority.
19 In the light of judgment of Hon’ble Supreme Court in State of WestBengal (supra), if the entire material brought on record by the prosecutionagainst the Petitioner is considered, the ingredients of Section 3 and 4 are notattracted. As already observed, requirement to be made for attracting thedefinition of “Money Circulation” or “Price Chit”, the prosecution has notbrought on record, the material showing that, the scheme in which thePetitioners alleged to have invested/deposited for quick or easy money.Bhagyawant 20 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).doc20 It is also relevant to mention that, the prosecution is not able totrace out the main accused Mr. Kuttan Pillai and his son. In the light ofobservations made herein above, this Court is of the opinion that, there is nomaterial/evidence collected by the prosecution agency which can form basis tocontinue further proceeding of conducting trial. As already observed thePetitioners registered Crime No. 1 of 1998 against Prince Augustine and itappears that, the complaint is filed with an ulterior motive for wreakingvengeance on the accused i.e. Petitioners, and with a view to spite them due toprivate and personal grudge. Therefore, the present case would be coveredunder the category No. 7 of the categories mentioned in the case of State ofHaryana Versus Bhajan Lal (supra) which reads as under- 1. XXXX 2. XXXX 3. XXXX 4. XXXX 5. XXXX 6. XXXX 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view toBhagyawant 21 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 ::: WP-290-2003 (J).doc spite him due to private and personal grudge.
21 In the light of discussion in forgoing paragraphs, I am of theopinion that, petition deserves to be allowed and accordingly, writ petition isallowed. Rule made absolute in above terms.
[S. S. SHINDE , J]Bhagyawant 22 of 22 ::: Uploaded on – 09/10/2019 ::: Downloaded on – 09/10/2019 20:25:23 :::