1 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL WRIT PETITION NO. 2200 OF 2008 1. Seher Exim Pvt. Ltd. And anr. ..Petitioners Vs. 1. The State of Maharashtra and ors. ..Respondents Mr. S.V. Marwadi i/by M/s. S.D. Mali and Co. for petitioners. Mrs.M.M. Deshmukh, APP for respondent no.1. Mr. Y.A. Sakhare for respondent no.2. Mr. P.R. Dave for respondent no.3. Mr. Abad Ponda, Mr. S.A. Jabbar i/by K.C. Pandey for the Intervener. CORAM: B. H. MARLAPALLE & SMT. ROSHAN DALVI, JJ. Reserved on : August 13, 2009. Pronounced on : August 14, 2009. ORDER (Per B.H. Marlapalle,J.). 1. Petitioner No. 1 is a Private Limited Company and Petitioner No.2 is a Partnership Firm and the petition has been affirmed by Shri Prabhu Singh Walia, who is one of the Directors of Petitioner No.1 and partner of Petitioner No.2. The substantive prayer, which has been vehemently argued before us for consideration, reads as under:- By issuing appropriate writ, order and direction under Article 226 of the Constitution of India the Respondent No.5 be directed to 2 issue appropriate direction and held inquiry an enquiry into the complaint of the petitioners dated 1st May, 2008 and take the said application for action according to law. 2. The complaint dated 1/5/2008 addressed to Mr. Rakesh Maria, Joint Commissioner – Crime, Mumai states that the petitioner no.1 is in the textile export business and has three Directors, namely, Mr. Prabhu Singh Walia, Mr. Surinderpal Singh Walia and Mr. Ramesh Singh. A false complaint was lodged and FIR was registered against them by M/s. Bhavnisha Textiles through its proprietor Mr. Harikisan Mohanlal Zaveri and the said complaint was by planning to extort money with the help of the officers of the L.T. Marg Police Station. It was stated that the Company had never bought any goods from the complainant and the two Directors of the Company i.e. Mr. Surinderpal Singh Walia and Mr. Ramesh Singh were lifted from the office by 12 policemen and they were taken to L.T. Marg Police Station on 22/4/2008 at about 6 p.m. and were put inside the police lock-up. The complainant and his other associates also reached the police station and started abusing the arrested persons and demanding Rs.50 lacs as extortion money from them. At about 4 a.m. on 23/4/2008 Mr. Surinderpal Singh Walia was handcuffed and about 8-12 police officers took him to his residence at Thane and searched the premises. This was continued consecutively for two nights. On the same day the arrested persons were produced before the Metropolitan Magistrate, 47th Court for remand and Mr.Surinderpal Singh Walia was threatened that he would be handcuffed and taken to his sister’s place. On 28/4/2008 a settlement was brought about for Rs.20 lacs under force and duress and continuous threats and by torturing arrested persons mentally and physically. On the same day at 3 about 11.30 p.m. the cheques amounting to Rs.20 lacs were drawn and handed over to the complainant and these cheques were handed over under pressure. The arrested persons were released on bail 29/4/2008. The complaint states that the arrested persons lost their reputation in society and also in business/trade market. The complaint concluded with a request to take action against the L.T. Marg Police Station’s officers. Another complaint dated 10/5/2008 was also filed, followed by a third complaint dated 21/7/2008. 3. Respondent No.1 is the State of Maharashtra, respondent no.2 is the Cosmos Co- Op. Bank Ltd., respondent no.3 is Shri Anil Naik, API, L.T. Marg Police Station, respondent no.4 is Shri Rajendra More, API, L.T. Marg Police Station and the respondent no.5 is the Commissioner of Police, Mumbai. 4. It is clear from the record that the complaint dated 1/5/2008 addressed to the Joint Commissioner – Crime was received by his office on 8/5/2008 and in the meanwhile when the arrested persons were produced for remand before the learned Additional Chief Metropolitan Magistrate on 23/4/2008 the following order came to be passed, remanding them to police custody till 29/4/2008: “Accused Nos.1, 2 are produced before me at 1.10 p.m. No complaint of ill-treatment at the hands of police. Heard Ld. APP and I.O. and Adv. of accused at length, perused documents on record and case diary. Offences are of serious nature. It seems 4 that investigation is in progress. For recovery and for further effective investigation PCR appears necessary. Hence accused Nos.1, 2 are remanded to PCR till 29/4/2008.” On 29/4/2008 when the arrested persons were produced before the learned Addl. Chief Metropolitan Magistrate, following order came to be passed: “Accused Nos.1,2 are produced before me at 3.20 p.m. No compalint of ill-treatment at the hands of police. Perused report and case diary. Appears no proper grounds to extend PCR. Hence accused 1, 2 are remanded to MCR till 12/5/2008.” However, on the same day the arrested persons were released on bail. 5. The respondent no.3 has filed affidavits from time to time and it has been tated that on 23/11/2007 Shri Harkishan Mohanlal Zaveri had filed written complaint with the Economic Offences Wing of Crime Branch, Mumbai against four persons, namely, (1) Surinderpal Singh Walia @ Vinny, (2) Prabhusingh Walia, (3) Ramesh Singh and (4) Vinay Chaubal for having cheated him to the tune of Rs.35,54,328/-. It was stated that the complainant had supplied gray cotton to these persons as per their requirements during the period of 28/4/2007 to 07/05/2007 and the complainant was cheated in connection with the said transaction. On 19/1/2008 the Economic Offences Wing of Crime Branch, Unit – III forwarded the said complaint to L.T. Marg Police Station for 5 enquiry and necessary action as the amount involved was less than Rs.50 lacs. As such API Gore attached to L.T. Marg Police Station conducted an enquiry in the said complaint and submitted his report to the Deputy Commissioner of Police, Zone – II through proper channel, requesting for permission to register the complaint for offences under Sections 406, 420, 506 read with Section 34 of IPC. Such permission was granted to register an offence when API Gore was on sick leave and, therefore, respondent no.3 was directed to register an offence and investigate the same. Accordingly, on 21/12/2008 statement of Shri Jasmine Harkishan Zaveri was recorded and C.R. No. 112 of 2008 was registered for the offences punishable under Sections 406, 420, 506 read with Section 34 of IPC against three Directors of petitioner no.1 – Company and their employee Shri Vinay Chuabal. In the course of investigation, two of the Directors of the petitioner no.1 – Company were arrested on 24/2/2008 and they were produced for remand as noted hereinabove. The affidavit has denied all the allegations made against the police officials and it has been specifically pointed out that as and when the arrested persons were produced before the Metropolitan Magistrate, they did not complain of any ill-treatment at the hands of the police. It was pointed out that out of the 20 cheques of Rs.50,000/- each issued under the signatures of the arrested persons and in favour of the complainant, two of them have been dishonoured and this petition has been filed only to create a defence to defeat the complaint, if any, under Section 138 of Negotiable Instruments Act. 6. The only issue we are required to consider is, whether a case has been made out to direct the Commissioner of Police, Mumbai to conduct an enquiry into the complaint dated 1/5/2008. Undoubtedly, the aggrieved person or persons have an alternative and 6 more efficacious remedy to file a private complaint under Sections 190 and 200 of Cr. P.C. in the court of the Metropliltan Magistrate and set the process of investigation in motion. It was submitted by Mr. Marwadi, the learned counsel for the petitioners that such an alternative remedy will be of no relief to the petitioners as the police officials are involved. Mr. Marwadi also referred to the order passed by this court on 1/4/2009 and more particularly following observations: “.......Therefore, this Court prima facie feels that charges levelled against the respondent No.3 that he coerced the petitioner to get a cheque-book from the bank, so that the cheque could be issued, appears to be true.” Pursuant to the same order dated 1/4/2009, one of the Directors and arrested persons by name Shri Surinderpal Singh Walia has filed an affidavit and in para 4 therein has named the persons who were involved in extortion and they are, Sanjay Bhagat, Gopal Agarwal, Deepak Sarogi, Jasmin Zaveri, Manish Zaveri and their father Harikishandas Zaveri. He has also stated that during their police custody all the documents were brought to the police station which included the letter-heads of the Company and which were used for the purpose of issuing letter to the Bank but without making panchanama. He has also admitted that on 29/4/2009 they were produced before the learned Metropolitan Magistrate and bail was granted. He stated that while committing the offence of extortion and torture, the following persons participated in the action: 7 1. Police officers from L.T. Marg Police Station, names of those persons are not known to him. 2. Jasmin Zaveri, Manish Zaveri & their father Harikishandas Zaveri. 3. Sanjay Bhagat another friend of Jasmine Zaveri. 4. Dilip Pechriwal and one Mr. Gopal Agarwal. 5. Deepak Sarogi a friend of Jasmin Zaveri. 7. It is clear that the arrested person Surinderapal Singh Walia in his affidavit could not name the police officers from L.T. Marg Police Station who were party to the alleged offences while the affiant was in custody and despite the same, the petitioners- firms have impleaded respondent nos.3 and 4, Police Officers, by their names. 8. It is not known why the letter dated 1/5/2008 reached the office of the Joint Commissioner – Crime on 8/5/2008 rather than reaching the said office on 1st or 2nd May, 2008. It is also admitted that on 5/5/2008 Shri Prabhusingh Walia applied for anticipatory bail before the Sessions Court and in the said application no complaint of whatsoever nature, as has been set out in the complaint dated 1/5/2008, was whispered. Mrs. Namita Mandeo Damle, an officer with Cosmos Co-op. Bank, Vile Parle Branch has filed an affidavit and she has stated that on 28/4/2008 at about 7.15 p.m. to 7.20 p.m. a cheque book was issued in favour of the petitioner – company on its application which was brought by an office boy of the said Company and entry to that effect was made in the register at about 7.38 p.m. and cheque book charges of Rs.9/- were debited as service charges. Mr. Raju Rangnathan Iyer has filed an affidavit and he claims to be 8 a family friend of Shri Prabhusingh Walia. In paras 12 and 13 of his affidavit dated 30/3/2009 he has stated as under: “12. I say that accordingly, on 29/4/2008 when Shri Surendra Singh Walia and Ramesh Singh were produced by police in the court of MM 47th, Esplanade, Advocate Dhotre from the complainant’s side and Advocate Mali from Surendrasingh Walia’s side were present. Advocate Mali informed the Honourable 47th Court that his client i.e. Arrested accused Surendrasingh Walia intend to settle matter with the complainant. Complainant’s advocate Shri Dhotre also gave consent to the same. At this juncture, the Honourable Court informed both the advocates that the court is not going to take part in any kind of settlement and if both the parties intend to do the settlement then they are free to do outside court premises and then granted the bail to both the accused. 13. I say that after both the accused got bail we all including myself, the complainant Shri Jasmine Zaveri, his brother Manish Zaveri, Surendrasingh Walia’s mother and wife who were also present in the court alongwith both the advocates went downstairs and sat in the canteen situated in the compound of the Esplanade Court. There, as already 9 decided by way of settlement Shri Surendrasingh Walia and Ramesh Singh signed 40 cheques each amount Rs. 50,000/- in our presence from the cheque book which was brought by the mother and the wife of Shri Surendra Singh Walia and handed over the same to Advocate Shri Dhotre who in turn handed over it to the complainant Shri Jasmine Zaveri.” 9. We have also noted from the record that on 29/4/2008 an application came to be submitted before the learned Addl. Chief Metropolitan Magistrate for allowing the accused to settle the dispute regarding payment of money to the complainant and this application was signed by the complainant as well as by Shri Surinderpal Singh Walia (one of the arrested persons). The Advocates of all the parties i.e. the complainant, the accused and the APP were before the Court of the learned Addl. Chief Metropolitan Magistrate on 29/4/2008 and prima facie there does not appear to be any element of force, duress or undue pressure/influence on any of the arrested persons to settle the dispute with the complainant, having regard to the terms of settlement stated in the said application. 10. We are, therefore, satisfied that no case has been made out to entertain this petition under Article 226 of the Constitution for the relief prayed for i.e. to direct respondent no.5 to conduct an enquiry into the complaint dated 1/5/2008 and hence the petition is hereby dismissed. However, we make it clear that if the petitioners or any of 10 the Directors of petitioner no.1 or any of the arrested persons files a private complaint under Sections 190 and 200 of Cr.P.C. before the court of Metropolitan Magistrate, the same will have to be proceeded on its own merits and the rights and contentions of the respective parties are kept open. (SMT. ROSHAN DALVI,J.) (B.H. MARLAPALLE,J.)