1 Cri.Appln.No.3855/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3855 OF 2009 Miss Ashita B. Chokshi ...Applicant vs. The State of Maharashtra & Anr. ...Respondents Mr.M.S. Mohite for the Applicant. Smt.V.R. Bhosale, APP for Respondent No.1. Ms.Sonal Parab for Respondent No.2. CORAM : J.H. BHATIA, J. DATED : AUGUST 13, 2010 P.C. :- 1 Rule. 2 Heard the learned Counsel for the parties. 3 On the FIR lodged by the respondent no.2 on 23rd March, 2007, D.B. Marg Police Station registered FIR No.86/2007 for the offences 2 Cri.Appln.No.3855/2010 punishable under Sections 406, 420 read with Section 34 of the IPC against two accused persons viz. Ashish Bharatbhai Chokshi and Ashita Bharatbhai Chokshi. In the FIR, it was contended by the complainant/respondent no.2 that accused no.2 Ashita, who is the applicant before this court, was a friend of his son Aditya for last about four years. Due to that friendship, her brother accused no.1 Ashish also got acquainted with Aditya for last about one year. Aditya and the accused no.1 Ashish used to meet in the office of the complainant. Both the accused were running the business of jewellery in the name of M/s.Star Jewels. According to the FIR, both the accused had made a proposal to Aditya sometime in March 2006 that Aditya should enter into the business of diamonds as it could be very profitable. Aditya told his father about this proposal and expecting the huge profit in the business, the complainant accepted the proposal. Thereafter, the complainant began to supply diamonds 3 Cri.Appln.No.3855/2010 to the accused in the name of M/s.Star Jewels on condition that the payment would be made within 45 days. On three different occasions i.e. On 16th September, 19th September and 20th September, 2006, diamonds worth Rs.23,11,475/- were supplied to the accused. On the vouchers, Ashish put his signatures. However, the payment was not made. In spite of repeated attempts to contact with them, there was no response. Therefore, finally FIR was lodged on 23rd March, 2007. The police investigated the case and filed the charge sheet. Accused no.2 filed an application for discharge which was rejected. Her revision application was also rejected. Hence, she has filed this application under Section 482 of the Cr.P.C. According to her, she was not party to the said transaction nor the diamonds were supplied to her and she has been falsely implicated in this case. 4 On perusal of the FIR, it appears that the 4 Cri.Appln.No.3855/2010 alleged proposal to enter into the business of diamonds was made by the applicant and her brother Ashish to Aditya and Aditya conveyed that message to his father relying on which the complainant entered into further transactions. Therefore, Aditya would be the most important witness to show complicity of the present applicant in the alleged cheating. Though the Investigating Officer informed this court and stated in the affidavit dated 6th August, 2010 that the statement of Aditya was recorded during the investigation but admittedly, statement of Aditya was never filed along with charge sheet. On the last date, this Court had directed the prosecution to take instructions and clarify as to why statement of Aditya was not filed in the court if it was recorded. However, no such clarification has come from the Investigating Officer even in his affidavit. From the Case Diary, which is made available at the time of hearing of this application, it does not appear that the statement 5 Cri.Appln.No.3855/2010 of Aditya was recorded. If statement of Aditya was recorded and was not produced before the court, naturally adverse inference could be drawn against the prosecution that Aditya might not be supporting the prosecution against the present applicant. If his statement would be against her, there would be no reason why his statement could not be filed along with the charge sheet. 5 Except the word of the complaint, there is no material against the present applicant. Even though the complainant stated in his FIR that the diamonds were supplied to both the accused, but the documents do not support this contention. The invoice dated 16th September, 2006 about the supply of diamonds on the first occasion revealed that the diamonds were supplied to Ashish Bharatbhai Chokshi of M/s.Star Jewels. It also purports to have been signed by Ashish. It is conceded by the prosecution as well as by the learned Counsel for respondent no. 6 Cri.Appln.No.3855/2010 2 that there is no evidence to show that the present applicant was partner or was concerned with M/s.Star Jewels. It appears that accused No.1 Ashish, having cheated and having received the diamonds worth more than Rs.23 lakhs from the complainant, has absconded from the country. However, merely because accused no.1 Ashish had committed the offences, his sister cannot be implicated as an accused in the offence of cheating. Taking into consideration the material on record and after taking instructions from the complainant  respondent no.2, who is present before the court, his Counsel fairly conceded that the respondent no.2 will have no objection to quash the proceedings against the present applicant. 6 In view of the above circumstances, the application is allowed. The proceedings as against the present applicant stand quashed. The trial court shall take necessary steps to secure the presence of the absconding accused No.1 Ashish so that he may be 7 Cri.Appln.No.3855/2010 required to face the trial. (J.H. BHATIA, J.)