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 CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO. 1769 OF 2007. WRIT PETITION NO. 1769 OF 2007. WRIT PETITION NO. 1769 OF 2007. Vishwanath Vithal Shete. ..Petitioner. versus Meerabai Sudam Padwal & Ors. ..Respondents. .... Mr. P.N. Joshi, for the Petitioner. Mr. Shriram S. Kulkarni, for Resopndent Nos. 1 & 2. Mr. J.P. Yagnik, APP, for Respondent-State. .... CORAM CORAM CORAM : A.S. OKA, J. : A.S. OKA, J. : A.S. OKA, J. DATE DATE DATE : 25TH JULY,2008. : 25TH JULY,2008. : 25TH JULY,2008. P.C. 1. Submissions of the learned counsel appearing for the petitioner were heard in the morning session. The petitioner filed a private complaint against the first and the second respondents alleging commission of offences under sections 406, 415, 417, 420 and section 34 of the Indian Penal Code. 2. The case of the petitioner in the private complaint is that in the year 1984, the first and the second respondents approached the petitioner and suggested that they should carry on the business of selling onions in partnership. The first and the second respondents demanded contribution of - 2 - Rs.5,000/- by way of capital from the petitioner. The petitioner expressed that he was not having sufficient funds. The first and the second respondents thereupon suggested the petitioner that he should hypothecate the ornaments held by his younger brother’s wife and raise necessary amount. The first and the second respondents represented that the ornaments can be taken back after repaying the loan amount by appropriating the profits earned in the business. According to the case of the petitioner, he hypotheticated ornaments of his brother’s wife with a bank and obtained an advance of Rs.5,000/- and handed over the same to the first respondent. After couple of years, the first and the second respondents demanded a further amount of Rs.10,000/- from the petitioner. Relying upon the allegations made by the first and the second respondents, the petitioner paid the further amount of Rs.15,000/- to the first respondent by obtaining a sum of Rs.15,000/- on hypotheticating ornaments held by his brother’s wife. It is the case of the petitioner that when he demanded the repayment of the amount from the first and the second respondents, the first and the second respondents gave an evasive - 3 - reply. It is alleged that the first respondent got the ornaments released by approaching the bank and mis-appropriated the ornaments. When the petitioner questioned the first and the second respondents, they declined to return the ornaments and money. A demand notice was issued by the petitioner to the first and the second respondents. It is stated that the petitioner also filed a complaint to the police station, but no action was taken on the said complaint. 3. It appears that the learned Judicial Magistrate passed an order calling for a report under section 202 of the Code of Criminal Procedure, 1973 and after considering the report, he issued process. Thereafter, evidence before the charge was recorded. The petitioner examined himself and one more witness Narayan Bhausaheb Kshatriya and an order was passed on 4th January 2006 by the learned Magistrate holding that a prima-facie case was made out for framing charge for offences under sections 406, 417, 420 read with section 34 of the Indian Penal Code. In a revision application preferred by the first and the second respondents, the learned Additional Sessions - 4 - Judge has interfered and has set aside the order dated 4th January 2006. 4. The learned counsel for the petitioner invited my attention to the deposition of the witnesses and submitted that there was more than sufficient material on record to proceed against the respondent nos.1 and 2 and there was no warrant for interference at this stage. He submitted that the petitioner could have adduced further evidence and substantiated allegations made by him if an opportunity was granted to the petitioner to lead further evidence. 5. I have carefully considered the submissions. In the cross-examination, the petitioner has admitted that he was unable to provide the date he had paid money to the first and the second respondents. He expressed inability to tell the date on which the first and the second respondents allegedly threatened him. Though he stated that he had made complaint with the police station, he specifically stated that he was not willing to produce a copy of the complaint before the Court. The second witness examined by the - 5 - petitioner had deposed that the petitioner had paid the amount of Rs.5,000/- and Rs.15,000/- to the first and the second respondents. He had also given some ornaments to them. He further stated that he was not aware of the hypothication of the ornaments. In the cross-examination, he stated that he knew the petitioner and the accused persons from 1979. However, he could not disclose the address of the petitioner. 6. After considering the said evidence, the learned Additional Sessions Judge observed that the evidence was very vague and the petitioner was not in a position to produce documentary evidence. 7. On plain reading of the complaint and the evidence of the complainant, it is obvious that there is no material whatsoever to show that there existed an intention to deceive on the part of the first and the second respondents on the date on which the parties entered into the transactions. The case made out by the petitioner seems to be that certain assurances were given by the first and the second respondents to pay the amount, but the assurances - 6 - were not complied with. Therefore, the learned Additional Sessions Judge was of the view that none of the ingredients of sections 406, 417 and 420 were established. 8. No case is made out for interference in this petition under Article 227 of the Constitution of India and hence, the petition is rejected. [ A.S.OKA, J.] A.S.OKA, J.] A.S.OKA, J.]