IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3256 OF 2008 Abhay Tarachand Shah .. Applicant Versus Prachi Abhay Shah & Anr. .. Respondent Mr.R.M.Nakhwa i/by Mr.Vasant Dhawan for the applicant. Mr.Hetal Thakare i/by Mr.Pranav Sanpai i/by Thakore Jariwalla & Associates for the respondent No.1. Ms.A.T.Jhaveri, A.P.P for the State. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 21st March 2009. : 21st March 2009. : 21st March 2009. P.C.: . Heard learned counsel appearing for the applicant in support of this application under sub-section 4 of section 378 of the Code of Criminal Procedure, 1973. The applicant complainant is the husband of the respondent accused. The applicant filed a complaint against the 1st respondent alleging commission of offence under sections 417 and 420 of the Indian Penal Code. The process was issued by the learned Magistrate on the said complaint for the said offences. By the impugned order, the 1st respondent has been acquitted. (2) 2. The case of the applicant made out in the complaint is that from 1992 onwards the relationship between the applicant-husband and 1st respondent-wife started deteriorating and ultimately the marriage broke down. From December 1999 both of them have been residing separately. According to the applicant they had jointly started business of cable TV network under the name and style of M/s.Vikrant Enterprises of which the 1st respondent was the proprietress. In the year 1992 the applicant and the 1st respondent floated a private company by the name the Vikrant Cable Systems Pvt Ltd. The said company was carrying on business of dish-antenna and cable TV network in a particular area. It is stated that the said company commenced business in the vicinity of Neelayam talkies at Pune. It is contended that the control room of the said business was set up in nearby Neelayam talkies which was owned by the father of the applicant. It is stated that the business carried on under the name and style of M/s.Vikrant Enterprises was being carried on in the vicinity of Erandwane area of Pune city with a control room in Rajmayur Society where the applicant and 1st respondent were then residing. The case of the applicant is that in December 1992 the cable network system of M/s.Vikrant (3) Enterprises in the Erandwane area was transferred to the said company while the control room of the said company at Neelayam talkies was transferred to M/s.Vikrant Enterprises. The contention of the applicant is that from December 1992 M/s.Vikrant Enterprises of the 1st respondent became owner of both the control rooms and the said company became the owner of the entire cable network systems in both the aforesaid areas. The allegation is that there was an arrangement to the effect that the said company would take feed signals from the control room of M/s.Vikrant Enterprises and further transmit the same to the subscribers. According to the applicant in May/June 1997, the applicant shut down the control room in Erandwane area and the control room at Neelayam talkies continued to be in operation. Thereafter the applicant and the 1st respondent got separated. The case of the applicant is that M/s.Vikrant Enterprises shut down its control room at Neelayam talkies in October 1998 and therefore the said company started taking feed signals from a multinational company. The contention of the applicant is that after the shut down of control room of M/s.Vikrant Enterprises in October 1998, neither the said M/s.Vikrant Enterprises nor the 1st respondent had anything to do with the business of Cable TV network in both the areas. (4) It is stated that a sum of Rs.6,00,000/- towards payment of entertainment tax was paid by the said company. 3. Reliance has been placed on a civil suit filed by a subscriber of the said company against the said M/s.Vikrant Enterprises and the 1st respondent where the grievance was regarding disconnection of the cable network of the said customer. Reliance has been placed on the written statement filed by the 1st respondent in the said suit. 4. It is pointed out in the complaint that from 1992 onwards M/s.Vikrant Enterprises was not providing cable network services to the subscribers of the said company. It appears that in the year 2001, the 1st respondent submitted an application to the collector for registration. A list of subscribers was submitted alongwith the application and her affidavit was tendered stating that the 1st respondent was providing cable network services to the said subscribers through her proprietary concern M/s.Vikrant Enterprises. It is alleged that on the basis of false information furnished by her, the 1st respondent induced the collector to issue registration certificate. Reliance was placed on application made by the applicant as a director of the (5) said company for registration. The case of the applicant is that though registration was issued to the 1st respondent on 13th June 2001, by her letter dated 12th June 2001 addressed to the directors of the said company, the 1st respondent contended that M/s.Vikrant Enterprises had acquired right to collect subscriptions from the subscribers. In fact the 1st respondent gave threat of taking action against the applicant. 5. The most material allegations in the complaint are in clause (e) of paragraph No.8 of the complaint which read thus: "(e) Thereafter, the accused, either by herself and through her agents and servants started contacting the subscribers of the said company showing them the registration certificate and circulating a printed circular and falsely representing that by virtue of the said registration certificate only M/s.Vikrant Enterprise was entitled to collect subscribers for the cable network service. Many such subscribers, by such deceitful representation were fraudulently and dishonestly induced by the accused to pay the subscription charges. Many (6) such subscribers are residents of Karve Road and Earndwane and its vicinity." In paragraph No.9, an allegation has been made that the 1st respondent by practising a deception induced the concerned authorities to issue her a registration certificate. 6. The learned counsel appearing for the applicant invited my attention to the oral and documentary evidence on record. He pointed out that though the documents at Exhibits 30 to 37 were exhibited, the learned trial Judge has not appreciated the said documents. He invited my attention to the findings recorded by the collector in the order at Exhibit 38 by which the registration granted to the 1st respondent was cancelled. He pointed out the finding recorded by the collector in the said order that in the list of customers submitted by the 1st respondent alongwith an affidavit, the names of customers of the said company were included and in fact by furnishing false information, the registration was obtained by the 1st respondent. He invited my attention to the receipts on record showing the collection of amounts in the name of M/s.Vikrant Enterprises from the customers. He also (7) invited my attention to the list of customers filed by the 1st respondent with the Collector. He submitted that documents clearly prove the case made out by the applicant. He submitted that the 1st respondent did not step into witness box and failed to offer herself for cross-examination, though initially the 1st respondent had expressed a desire to adduce evidence. He, therefore, submitted that the impugned order is perverse. 7. I have carefully considered the submissions. The process was issued and charge was framed for offence punishable under section 420 read with section 417 of the Indian Penal Code which is punishable under section 417 of the said Code. The dishonest inducement by the accused is an essential ingredient of offence under section 420. The finding recorded by the learned Magistrate is that the applicant has not examined any customers/subscribers for showing that the 1st respondent dishonestly induced them to pay subscription to M/s.Vikrant Enterprises. Admittedly, no subscriber or customer has been examined by the applicant. As pointed out earlier, as process was issued under section 420 of the Indian Penal Code, it will be necessary to refer to the charge framed against the 1st respondent. (8) The charge framed against the 1st respondent reads thus: "That you from 18.5.2001 and 13.6.2001 from time to time I specially when you were not concerned with the business of T.V.Cable Network in the area in Erandwane and Neelayam Talkies as sole proprietor, fraudulently and dishonestly induced to the concern authorities to deliver the certificate to you and on the basis of said certificate induced the subscribers to deliver the subscription charges to you as the proprietress of Vikrant Enterprises. You have also induced the police inspector Swargate police station to issue notice to the complainant Abhay Shah and thereby committed an offence punishable under section 420 read with section 417 of the Indian Penal Code and within my cognizance." 8. The first charge is of fraudulently and dishonestly inducing the authorities to issue certificate. The second charge is of inducing the subscribers to deliver subscription charges to the 1st respondent and the third charge is of inducing police (9) inspector of Swargate police station to issue notice to the applicant. As far as the allegation regarding inducing the authority to issue registration certificate is concerned, the authority or the officer allegedly induced to issue registration certificate has not been examined. Even an officer working in the office of the authority has not been examined. The police officer who was allegedly induced by the 1st respondent to issue a notice under section 149 to the applicant has not been examined. 9. Assuming that the documents produced by the applicant at Exhibits 30 to 38 are true, at highest the said documents will prove that certain customers/subscribers have paid certain amounts to M/s.Vikrant Enterprises and that names of some of the subscribers of the said company were shown in the list of subscribers submitted by the 1st respondent at the time of applying for registration. In absence of examination of the persons who have been allegedly induced, the essential ingredient of the section of dishonest inducement cannot be established. That is precisely the finding recorded by the learned trial Judge while passing order of acquittal. (10) 10. If the entire evidence of the applicant is considered and accepted as it is, in absence of examination of material witnesses, the conclusion of the learned Judge that the guilt of the 1st respondent is not established, is certainly a possible conclusion which could have been recorded on the basis of evidence on record. Even assuming that it is possible to take another view, there is no ground to interfere in an appeal against the acquittal. It is well settled that presumption of innocence is further strengthened by an order of acquittal in favour of the accused. Hence, no case is made out for grant of leave. Application is rejected. 11. It is, however. made clear that observations made in this order are for the limited purposes of considering the prayer for grant of leave. None of the observations made herein shall be construed as any finding recorded by this Court on rights and liabilities of the applicant and the 1st respondent. It is obvious that the rights and liabilities will be determined by the appropriate Court in appropriate proceedings. (A.S.Oka,J)