1 WP 1705/10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1705 OF 2010 Mr. Motilal S/o. Gopilal Oswal .... Petitioner. V/s State of Maharashtra ..... Respondent. Mr. A.M. Saraogi for the Petitioner. Mr. A.S. Shitole, APP for the State. Ms. Roshani S. Bafna, original complainant appears in person. CORAM: V. M. KANADE, J. DATE : 25th October, 2010 P.C.:- 1. Heard the learned Counsel appearing on behalf of the Petitioner and Ms. Roshani S. Bafna, the original complainant who is appearing in person. 2. Petitioner by this Petition is challenging the order passed by the Trial Court in Criminal Case No.44 of 2006 whereby witness summons was issued to the Petitioner herein. 3. Brief facts are as under:- 2 WP 1705/10 4. The original complainant filed Criminal Application No. 221 of 2010 requesting that she may also be heard in the said Petition. Accordingly, she was permitted to file her affidavit in reply. She has filed her affidavit in reply dated 24/6/2010. 5. Shri Saraogi, the learned Counsel appearing on behalf of the Petitioner submitted that the Petitioner is carrying on business in the name and style of Motilal Oswal Securities Ltd. He submitted that the company of the Petitioner is in the business of trading shares either through direct dealings with client or through sub-brokers who are appointed by the company. It is submitted by the learned Counsel for the Petitioner that no reasons have been assigned by the learned Magistrate before issuing witness summons to the Petitioner herein. It is further submitted that the Petitioner being a Chairman of the Company, it is not necessary for him to appear before the Magistrate for the purpose of production of documents and this work could be deputed to any other person working in the Company. Petitioner, thereafter filed affidavit in rejoinder dated 23/8/2010. In the affidavit in rejoinder, it is alleged that though the complainant has stated in her reply that she has invested necessary amount with the Branch Office of the Petitioner, in fact Petitioner did not have any Branch Office at Dahanu. It is further submitted that the said Bafna Stocks & Securities was an independent firm and the Company of the Petitioner 3 WP 1705/10 had no control over the said business and nor could be held responsible for any business activities alleged to be carried out by the complainant with the said firm. It is then submitted that the complainant was trying to black-mail the Petitioner and a transcript of the tape recorded conversation was annexed to the said affidavit in rejoinder. A further affidavit dated 21/9/2010 was filed by the original complainant and this fact was denied. 6. The learned Counsel for the Petitioner then produced xerox copies of the two applications which were filed by the complainant and one of the two applications was for production of documentary evidence. The original accused filed his say and raised an objection for permitting the complainant to file documentary evidence. The learned Judicial Magistrate, First Class, Dahanu by his order dated 8/6/2009 permitted the complainant to produce the said documents. Thereafter, an application was filed under section 242 of the Cr.P.C. for examining the Petitioner as prosecution witness and, upon summons being issued, present Petition has been filed by the Petitioner. 7. The learned Counsel for the Petitioner firstly invited my attention to the FIR which was filed by the complainant. He submitted that it was alleged that the complainant received about Rs 16 lacs from the matrimonial proceedings filed by her in June 2004. He submitted that in the complaint it is alleged that between July 2004 to August, 2004, the accused 4 WP 1705/10 Jaykumar Bafna has taken about Rs 15 lacs from her. Then it is submitted that in the affidavit in reply filed by the complainant, she has stated that in the year 2002-2003, she had purchased various shares of different Companies from the Petitioner and that on account of dispute between the Petitioner and Jaykumar Bafna, the Petitioner had sold the entire shares belonging to her without her permission. It is submitted that there is therefore contradiction in the complaint and in the application which was made. In the FIR, it is alleged that she has received money in July, 2004 whereas in the affidavit in reply, she has stated that she had purchased the shares in the year 2002-2003. It is, therefore, submitted that the complainant had not established relevancy for the purpose of examining the Petitioner in her case and, secondly, it is submitted that if the intention was to get the documents produced, the same could have been produced through one of the employees of the Company. 8. On the other hand, the complainant, who is appearing in person, submitted that there was a typographical error regarding the date in the complaint and the said date was being corrected by the learned Magistrate. She submitted that she wanted to examine the Petitioner as her witness and also was seeking production of documents at his instance. 9. After having heard the learned Counsel for the Petitioner and the complainant who is appearing in person, 5 WP 1705/10 in my view, no case is made out by the Petitioner for interfering with the order passed by the Magistrate at the stage of issuance of witness summons in view of the submission of the complainant that she wants to examine the Petitioner as her witness. Therefore, witness summons is not only a summons for production of witness but, in my view, complainant is also entitled to examine him as her witness in support of her case. At this stage, it will not be possible to rely on some other material such as transcript of CD on which reliance is sought to be placed by the Petitioner. In my view, a case is made out by the complainant regarding relevance and necessity to examine the Petitioner as her witness. So far as documents are concerned, it is always open for the Petitioner to file reply and point out whether he is in possession of the said documents or not. 10. Initially, when the Petition was filed, the application at Exh-53 which was filed by the complainant in the Trial Court was not annexed. Similarly, the application at Exh-63 under section 242 of the Cr.P.C for examining the Petitioner as prosecution witness was also not annexed and only after this Court has directed the Petitioner to tender copies of the said two applications, they are tendered today. Perusal of the two applications clearly discloses that complainant had given adequate reasons why she wants to examine the Petitioner as her witness. She has stated that the Petitioner is the main broker of the accused through whom accused have 6 WP 1705/10 sold shares of the complainant and misappropriated the amount. She has further stated that therefore Books of Account bearing Code No. AA/10RB01 of the year 2002-2003 pertaining to the transaction was very relevant and this evidence was necessary to demolish the defence of the accused that the complainant was not holding Pan Card and was not having demat account. In my view, the complainant has established relevance of examining the Petitioner as her witness. The learned judge, below the said application at Exh-63, has passed the following order which reads as under:- “Perused the application and say filed by the Accused. In the interest of justice, the application stands allowed under sec 311 of Cr.P.C. Issue w/s as prayed returnable on 4/2/2010.”. Surprisingly, this order is not challenged by the Petitioner in this Petition and the only relief claimed in prayer clause (a) is as under:- “a) That this Hon’ble Court be please to pass appropriate writ order and direction directing the quashing of witness summons issued against the Petitioner in connection with case No.44/2006 pending before Dahanu 7 WP 1705/10 Court with a permission to depute any authorized person to appear before the Court and on such terms as this Hon’ble Court may deem fit and proper.” It is, therefore, obvious that the material document were not annexed by the Petitioner to this Petition viz application of the complainant at Exh.53 and at Exh.63 and the orders passed thereon dated 08/06/2009 and 04/02/2010 respectively. 11. In my view, therefore, no case is made out for interfering with the aforesaid orders. Writ Petition is dismissed. (V.M. KANADE, J.) 8 WP 1705/10