1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION WRIT PETITION NO. 396 of 2011 Mr.Ashok Ramchandra Jain ...Petitioner Versus The State of Maharashtra & Anr. ...Respondents Mr. Shirish Gupte Sr. Counsel with A.M.Saraogi for Petitioners. Mr. Mahesh Jhethmalani Sr.Counsel a/w. Mrs. Revati Mohite-Dere & Mr.S.V.Gavand for Respondent No.2 Mr.V.B.Kondedeshmukh APP for State CORAM:- R.Y.GANOO, J. DATED:- 12th JULY, 2011. P.C. 1. Heard learned Counsels on both sides. The respondent no.2 has filed FIR at Dr. Bhadkamkar Marg Police Station being FIR No.44 of 2011, on 4th February, 2011 against the present applicant and other co-accused. In the said FIR it is alleged that the present applicant has committed offences punishable under Section 406, 409, 420 of the Indian Penal Code. Counsels on both sides stated that the investigation is in progress. No other document in the nature of 2 statement of other witnesses is produced before the court either by the applicant or by the police. So far as the present applicant is concerned, his anticipatory bail application is rejected by the learned Additional Sessions Judge for Gr. Bombay. The applicant has filed proceedings to challenge the said order. Since by this writ petition, the applicant is seeking quashing of FIR, I am not keeping myself concerned with the proceeding by which the applicant is trying to seek anticipatory bail. I am restricting myself with reference to the question whether FIR should be quashed. 2. The respondent no.2 has filed a complaint contending that she is a dealer in ornaments including diamond jewellery and one Mr. Bhupen Trivedi contacted her, gained her confidence and tried to have some deal with her, concerning her jewellery business. It is her case that in the beginning one lady by name Mrs. Anita Bhatia @ Lata was introduced to her and some transaction took place with her through Mr. Bhupen Trivedi. According to her, subsequently Mr. Bhupen Trivedi introduced the present applicant as one of the person dealing in jewellery and that is how said Bhupen Trivedi made the present respondent no.2 to believe that the present applicant Mr. 3 Ashok Jain could also be a good customer so far as respondent no.2 is concerned. The respondent no.2 has thereafter, in her FIR given circumstances under which she was made to belive that certain persons from Istabul have come to India and they would be interested in purchasing the jewellery and that the respondent no.2 should spare the ornaments and the transaction can be arrived at. The respondent no.2, in the FIR has stated the particulars of the various ornaments along with its value, its weight and the date and has stated as to which ornaments were handed over either to Bhupen Trivedi, Mrs. Anita Bhatia and the present applicant. In the said statement it is mentioned that Bhupen Trivedi / Ashok Jain were entrusted with the ornaments, more particularly stated in item nos.1 to 6 and that is how the name of applicant has figured in the FIR. The respondent no.2 has made specific grievance that despite repeated reminders neither Bhupen Trivedi, Anita Bhatira nor the applicant returned the respective ornaments and that is how at the time of lodging the FIR she has been duped to the extent of Rs.23 Crores and odd. 3. A letter has been addressed by the respondent no.2 dated 11th 4 December, 2010 to Additional Commissioner of Police, Mumbai, making a grievance about the transaction which respondent no.2 had with Mr. Bhupen Trivedi, Anita Bhatia and the present applicant. It is apparent that after writing this letter the police machinery went into action and that is how the concerned officer attached to Dr. Bhadkamkar Marg Police Station proceeded to record the FIR. 4. An effort was made by learned Senior Counsel Mr. Gupte to take me through the text of the FIR as well as letter dated 11th December, 2010 to point out that there are some discrepancies in the contents of the two documents. At this juncture, I am not inclined to look into the various discrepancies and I am inclined to look to the text of the FIR and ascertain whether a prima facie case is made out. Learned Sr. Counsel Mr. Gupte took me through the FIR and submitted that the respondent no.2 has not come out with a specific case that the ornaments were handed over to the applicant and according to him applicant was merely introduced to respondent no.2 as a dealer and no transaction has taken place between the applicant and the respondent no.1. According to learned Senior Counsel Mr. Gupte, the present applicant is sought to be involved without any 5 involvement of the present applicant in the entire transaction for which the FIR is filed. 5. It was also pointed out by the learned Senior Counsel Mr. Gupte that after the lodgment of the FIR and at the stage of hearing of the anticipatory bail application filed by the present applicant, items at serial nos.1 to 6 mentioned in the table are returned to the respondent no.2. This statement is disputed by the learned Counsel for the respondent no.2. In my view, return of certain quantity of ornaments to respondent no.2 after investigation has commenced and in particular at the stage of hearing of the anticipatory bail has no bearing on the question whether the F.I.R. should be quashed. 6. Learned Senior Counsel Mr.Gupte, across the bar stated that item nos.1 to 6 have been returned by Bhupen Trivedi and Mrs., Anita Bhatia and the said items have not been returned by the applicant. According to him as the ornaments have been returned by the other two persons, it is clear that the applicant was not entrusted with any of the said items. i.e. item nos.1 to 6. At this juncture, as to who has returned the ornaments is not material. Fact remains that in the FIR 6 it is specifically stated that Bhupen Trivedi and applicant were entrusted with the ornaments. 7. By now it is well settled that in order to ascertain whether the allegations made in the FIR disclose prima facie case for having committed any offence, it would be proper to read the text of the FIR. Little before the table, which the respondent no.2 has mentioned, there is specific allegation that all the three persons namely Bhupen Trivedi, Anita Bhatia and the applicant took away the ornaments as mentioned in the table. It is true that so far as the present applicant is concerned, he is joined along with Bhupen Trivedi and the name of the present applicant figures with Bhupen Trivedi so far as item nos.1 to 6 is concerned. Looking to the text of the FIR and the table, I hold that items at serial nos.1 to 6 were jointly entrusted to Bhupen Trivedi as well as the applicant. If this be so, the name of the present applicant rightly figures in the FIR as one of the person who had taken away the ornaments and had not returned the same to respondent no.2 despite repeated reminders. 8. Looking to the entire case, it is clear that as of today, on the basis of 7 the FIR, prima facie case is made out against the present applicant in as much as the ornaments of substantial value were entrusted to him with the hope that the present respondent no.2 would get price for the same as per the representation. Respondent no.2 did not receive the price of the same till the lodgment of the FIR. 9. It is to be noted that so far as the investigation is concerned it is in progress and in my view on the basis of the text of the FIR prima facie case is made out for having committed an offence punishable under Section 420 of the Indian Penal Code. Hence request to quash the F.I.R. cannot be granted. 10.In view of the above, application for quashing of FIR is rejected. 11.After the aforesaid order is passed, learned Senior Counsel Mr. Gupte pointed out that this Court, on 20th June, 2011 had ordered that till further orders no coercive steps be taken against the petitioner i.e. Ashok Jain. Since the application for quashing is rejected and since anticipatory bail application is posted for hearing on 14th July, 2011, till 14th July, 2011 the concerned police station shall not take any 8 coercive action against the present applicant. (R.Y.GANOO, J.)