bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 1360 OF 2007 PETITION NO. 1360 OF 2007 PETITION NO. 1360 OF 2007 1. Ashish Sharad Nemani 2. Sharad K. Nemani 3. Ritu Sharad Nemani ... Petitioners v/s 1. State of Maharashtra 2. Vishwanath B. Goenka 3. Shanta V. Goenka ... Respondents Mr.S.V.Marwadi for the petitioners. Mr.P.A.Pol, A.P.P. for the Respondent No.1. Mr.V.V.Goenka in person for respondent Nos.2 and 3. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 2ND JUNE, 2008 2ND JUNE, 2008 2ND JUNE, 2008 P.C. P.C. P.C.: 1. This petition has been filed by the accused challenging the order passed by the J.M.F.C., 3rd Joint Court, Bhiwandi, refusing to discharge the accused and directing that the trial should proceed. The petition also challenges the order passed by the Additional Sessions Judge, Thane, confirming the order of the trial Court. 2. Respondent Nos.2 and 3 are the complainants who contend that the accused i.e. the petitioners herein, 2 have committed offences under Sections 406, 420, 504, and 506 read with Section 34 of the Indian Penal Code. According to respondent Nos.2 and 3, M/s.K.M.Nemani was a firm of share brokers which transacted the business of purchase and sale of shares on their behalf. They contend that between 11.3.1994 and 17.6.1994 they had entrusted certain shares to the petitioners who were to trade those shares on the Bombay Stock Exchange. However, after the sale of the shares, the amount received was not returned by the petitioners - accused to respondent Nos.2 and 3. The matter was therefore reported to the police and an enquiry under Section 156(3) was ordered by the learned Magistrate. A charge-sheet was then filed by the police. All these events occurred prior to 2001. A discharge application was filed by the accused Nos.1 and 3 being application at Exh.4 before the learned J.M.F.C. and Application No.73 was the discharge application filed by the respondent No.2. Respondent Nos.1 and 3 are the son and daughter of accused No.2 who claims to be the proprietor of M/s.K.M.Nemani. 3. The learned Magistrate has decided the discharge applications by his order dated 22.9.2006. The Sessions Court has later confirmed the order on 2.7.2007. Both the Courts below have held that all the accused were 3 equally involved in the transactions and, therefore, there is no question of discharging them from the proceedings. 4. It is submitted by Mr.Marwadi on behalf of the petitioners - accused that, even assuming that accused No.2 is involved in the transactions, accused Nos.1 and 3 had no direct concern with the transactions. He submits that, in any event the accused No.2 also had no intention to cheat the respondent Nos.2 and 3 since the inception of the transactions. In fact, submits the learned advocate, as the accused could not return the amount after the sale of the shares, the account of respondent Nos.2 and 3 held with M/s.K.M.Nemani was transferred to a loan account. He submits that the respondents have been paid interest on the loan amount for a considerable period and, therefore, the question of cheating or there being any evidence to cheat the respondents does not arise. As regards accused No.1, the learned advocate submits that he was merely helping his father - accused No.2 in the business and had no direct concern with the transactions involved in the complaint. Mr.Marwadi has then submitted that accused No.3 who is the married daughter of accused No.2 has no connection with the transactions. She was merely attending the office and dealing with the correspondence 4 with the clients of M/s.K.M.Nemani. 5. One Vikas Goenka, the constituted attorney of respondent Nos.2 and 3 has appeared in person before me to oppose the present writ petition. He submits that the shares which stood in the name of his parents i.e. respondent Nos.2 and 3 were sold by the petitioners and the money was transferred to the loan account without their consent. He points out that the money hasn’t been returned to respondent Nos.2 and 3 as yet and indicates that the petitioners have cheated them. He has drawn my attention to a letter written by respondent No.3, as an authorised signatory of the firm, to the Bombay Stock Exchange denying that any amount is payable to respondent Nos.2 and 3 pursuant to the share transactions. The constituted attorney of respondent Nos.2 and 3 has therefore submitted that all the petitioners are equally involved in the commission of the offences alleged in the complaint. 6. The learned advocate for the petitioners has relied on the judgment of the Supreme Court in the case of S.W.Palanitkar S.W.Palanitkar S.W.Palanitkar & ors. v/s State of Bihar and anr., & ors. v/s State of Bihar and anr., & ors. v/s State of Bihar and anr., reported reported reported in (2002) 1 SCC 241, in (2002) 1 SCC 241, in (2002) 1 SCC 241, to submit that there must be an act which constitutes cheating from the inception of the transaction. It must be shown that there was an 5 intention to cheat from the beginning and a mere failure to keep up a promise subsequently cannot be presumed as an act amounting to cheating. 7. In my opinion, there is no need to interfere with the orders passed by both the Courts below. There is material on record which would indicate prima facie that offences have been committed by all the accused. The adequacy of the material or evidence on record need not be considered at this stage. The Magistrate must prima facie be satisfied that there are sufficient grounds to frame the charges. In such a situation I see no reason to take a different view from the one taken by the Trial Court and Sessions Court. 8. The writ petition is, therefore, dismissed. 9. The demand drafts which are deposited with the Registrar General be returned to the petitioners.