1 Cri.Appln.283-287.11 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL APPLICATION NO. 283 OF 2011 Omprakash Badrinath Maheshwari ... Applicant Versus The State of Maharashtra ... Respondent WITH CRIMINAL APPLICATION NO. 287 OF 2011 Ashok Mundada ... Applicant Versus The State of Maharashtra ... Respondent Mr. Adhik Shirodkar, Sr. Counsel i/by Mr. Ashish S. Chavan for the applicant in APL No. 283 of 2011. Mr. Satish Mane-Shinde for the applicant in APL No. 287 of 2011. Mr. A.S. Shitole, A.P.P. for State. Mr. A.S. Tungare along with Mr. A.R. Surve and Mr. R.M. Thakkar, advocates for complainant/First Informant. CORAM : K.U. CHANDIWAL,J. DATED : SEPTEMBER 07, 2011 P.C. Heard finally. 2 Cri.Appln.283-287.11 2. By these two applications, applicant Omprakash Maheshwari and Ashok Mundada seek discharge from Sessions Case No. 120 of 2009 pending before the learned Sessions Judge at Mumbai. 3. Both the petitioners claim that they belong to well reputed family having no prior adverse antecedents. They are engaged in several activities. Omprakash Maheshwari is engaged in business of sale and purchase of flats and enjoy good reputation and high standing amongst the members of his fraternity. While Ashok Mundada claims to be businessman of high repute and having his business transactions at abroad and in the case he was required to attend the police station or sessions court on at least 200 times from abroad. 4. The complainant alleged that he was dealing in manufacture, import and export of diamonds under the name and style M/s. Jimit diamonds which is a proprietary firm. His wife Varsha Gosalia was also engaged in the activities of manufacture and import-export of diamonds under the name and style M/s. JVC Star. The complainant Chetan had financial problem. He approached one of the accused Mukesh Bhadiadra on 31.5.2000 and thereafter on 1.6.2000 accused Rajesh Jogani who was known to him called the complainant at his office. The 3 Cri.Appln.283-287.11 complainant claims that he and his wife were made to transfer their shares in demat account at ABN Amro Bank of the said accused Rajesh Jogani. He was allegedly kidnapped and abducted by the present two applicants. Several statements of the witnesses are recorded to show complicity and the role of two applicants. Read statements of Smt. Varsha Gosalia, Mr. Paras Bhutanbhai Kothari, Smt. Chitradevi Balkrishna Jhunjhunwala, Smt. Babita Sanjay Agrawal, Shri. Inderkumar Bulalichanda Nahata, Shri. Surendrakumar Vijaykaran Maheshwari, Shri. Kamal Gyanchand Kevalramani, Shri. Govindnarayan Ramniwas Malpani, Shri. Amit Arvind Gunderia, Shri. Nilesh Mahendra Popat. Mr. Kamal Kevalramanik, in his statement says that he was not knowing the person who desired to open new account i.e. the complainant. Shri. Surendrakumar Maheshwari, the bank employee says he prepared pay order. Mr. Govind is cousin of Ashok and on 9.6.2000 Ashok made phone call that account of complainant was to be opened. In the statement of Babita who is daughter of Chitradevi, she informs as to how the complainant with his wife was staying in their flat for nine days. Chitradevi says the complainant and his wife had no curtail movement and they were freely using the telephone, however, their appearance was felt by herto be under 4 Cri.Appln.283-287.11 pressure. From the house of Chitradevi the complainant and his wife moved to J.B. Nagar. 5. The reading of the statements, keeping them in juxtaposition, it is more than clear barring facilitating opening of bank account or requesting the bank officers to come down in a car to coordinate the complainant or his wife to sign the account opening forms of the bank, no role could possibly be attributed to these two applicants. It is curious that neither Omprakash nor Ashok in the past had any transaction with the complainant or that the complainant owed them. In the scenario of the matter, primarily coordination of these applicants prima facie leans to ensure timely help to complainant to come out of his troubled time. This would not invite to attract that the complainant was kept in captivity or that he was under confinement or that his movements were restricted. It is informed and not disputed that the mobile phone which the complainant was using calls having made from different places even at abroad. The mobile calls illustrate, having contacted the business tycoons of the complainant. The persons to whom contacts were made had no remote nexus to Omprakash or Ashok. It certainly demonstrate 5 Cri.Appln.283-287.11 that the majority of such calls were in respect of business transaction of the complainant. Therefore, it can not be said that the mobile of the complainant was also taken charge by either Omprakash or Ashok or it was misused by them. During the period of so called confinement, the complainant had business dealings with others as emerged in statements of witnesses. 6. The another feature in the matter is one of the accused applicant Rajesh Jogani have allegedly played major role in the affairs of the so called kidnapping. He moved Misc. Application at Exh. 37 in the said Sessions Case No. 120 of 2009 and by order dated 6.5.2010 the learned 1st Ad hoc Sessions Judge, of Greater Mumbai allowed the application and said accused Rajesh Jogani was discharged from the said sessions case. The challenge to the said order in this court, being Criminal Revision Application No. 354 of 2010 by original complainant, did not yield any result as on 5.8.2011 this court rejected the complainant's revision upholding order of discharge dated 6.5.2010. The State felt aggrieved by the very discharge and it too filed Criminal Revision Application being Criminal Revision Application No. 374 of 2010 in which by order dated 7.1.2011 this court negatived the contentions as raised by the State by observing thus: 6 Cri.Appln.283-287.11 "It is not clear as to what propelled the prosecution to needlessly waste time of this court by filing this revision". 7. As stated earlier, the principal role that can be said in the affairs of so called abduction or kidnapping could possibly be pointed to Rajesh Jogani who had to recover some amount from the complainant. However, in view of the above referred two orders, since he has been discharged, the role attributed to the present applicants is minimal and trifle in its nature. 8. In view of the above feature of the matter, the divergent stand of the complainant calls for his behavioral pattern in dealing with the applicants. He made an application to the Assistant Commissioner of Police on 4.7.2000 in which in unmistakable terms he informs that he nursed threat perceptions from one Devashibhai Khimjibhai Bhadvadra of Pankaj Diamonds and Narshibhai and Mr. Mukesh Bhadyadra who were giving him life threats and he submits to the A.C.P. thta because of threats he was taking shelter at other places as due to insecurity, he has not been able to go to his house. This latter dated 4.7.2000 could not be said to be under any duress or pressure as it addressed to Assistant Commissioner of Police and also its copy was served to the Senior 7 Cri.Appln.283-287.11 Inspector of Police at Malad (West), and that apart copy of the said letter was served to Additional Commissioner of Police, North West Region, Mumbai. Prior thereto, on 11.6.2000 statement was made by the complainant giving his business history and as to how he has suffered loss in diamond business and names of his creditors. He named few other persons as to who were exerting threats to him. He has stated on 6.6.2000, at around 8.00 hrs. he telephoned his parents, his brothers that presently he was at Mumbai and in safe position and told them not to worry about he himself and his wife though his parents were asking him about his whereabouts or stay at Mumbai. It is pertinent, the complainant informed that he had such telephonic communications with his parents on 3/4 occasions and he urged them not to worry about him or his wife. He even freely, without iota of threat, phoned his parents on 7.6.2000 on 3/4 occasions. Had it been a case of extortion or abduction, he was not prevented to get help from his brother or parents. He withered the situation. The theory that on 7.6.2000 complainant, his wife and servant were shifted from house of Ashok Mundada to Lokhandwala Complex and Omprakash Accompanied, will not display of any fraudulent act to pressure the complainant, as the transfer of shares was through Broker and then Pay Order was received. 8 Cri.Appln.283-287.11 Complainant was mentally and physically free to take his own decision. Considering these aspects, it hardly is indicative that these two applications were anywhere involved in the act of abduction or kidnapping of the complainant. Taking survey of the above facts, applicant Ashok and Omprakash are discharged from the prosecution in Sessions Case No. 120 of 2009. Both the applications are allowed in the above terms. (K.U. CHANDIWAL,J.)