1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application [APPLN] No. 355 of 2010 (Sanjay S/o. Pannalal Bora Vs. State of Maharashtra and another) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. S.V. Akolkar, Advocate for the applicant. Mr. J.B. Jaiswal, APP for the State/non-applicant no.1. Mr. S.G. Jagtap, Advocate for non-applicant no.2. CORAM : Prasanna B. Varale, J. DATE : 23 rd August, 2011. Heard. By the present application, the applicant/accused is seeking challenge to the order, dated 18/11/2009, passed by the learned Ad-hoc Additional Sessions Judge-5, Nagpur, in Criminal Revision Application No. 107/2005. Brief facts giving rise to the application can be summarized as follows : A complaint was lodged on 08/05/2001 by non- applicant no.2 against the applicant and one Ishwar Bora. The sum and substance of the allegations against the applicant is that the applicant issued an advertisement in the local newspaper for appointment of franchisee for distribution of C.D. Roms. It was published in the said advertisement that the C.D. Roms are specially designed and useful for educating the children, women, businessmen, for preparing C.Ds. Library and for computer institutes. It was 2 stated in the complaint that the applicant visited the office of non-applicant no.2 and impressed upon him that his multimedia club has prepared the C.Ds. and also made an arrangement for distribution of C.Ds. in the market. As non- applicant no.2 was an entrepreneur, he was impressed upon by the assurances given by the applicant and offered franchisee for Vidarbha Region. An agreement was entered between the applicant and non-applicant no.2. Non- applicant no.2 paid advance amount as well as the amount of initial expenses to the tune of Rs.6,00,000/-. Non- applicant no.2 also invested amount for a shop on rental basis in the commercial area. On the assurance given by the applicant, a shop was opened and the C.Ds. were stored in the shop for distribution. It was then came to the knowledge of non-applicant no.2 that the similar type of C.D. Roms are available in the market at a cheaper rate than the C.Ds., kept for distribution in the shop of non-applicant no.2. It was found that the C.Ds. supplied to non-applicant no.2 are not genuine C.Ds. and they were prepared by committing breach of Copy Rights Act. On detail enquiry, non-applicant no.2 arrived at conclusion that he was deceived and a huge loss was caused to him. It was also found by non-applicant no. 2 that the other accused viz. Ishwar Bora, who was referred as an arbitrator in the agreement, was brother of the applicant 3 and with an intention to deceive non-applicant no.2, all these facts were not disclosed to the applicant. On the complaint lodged by non-applicant no.2 and on conclusion of investigation, charge-sheet was filed by the investigating agency. Thereafter, the applicant had filed an application under Section 239 of the Code of Criminal Procedure for discharge before the learned Chief Judicial Magistrate, Nagpur. The learned Chief Judicial Magistrate found that there is sufficient material against the applicant to proceed with and ultimately the said application was rejected. Being aggrieved by the said order passed by the learned Chief Judicial Magistrate, the applicant filed revision application, but the Revisional Court also did not find favour with the applicant and the revision application was also rejected. Being aggrieved by the order, dated 18/11/2007, passed by the learned Ad-hoc Additional Sessions Judge-5, Nagpur, the applicant is before this Court. Learned Advocate for the applicant submitted that the dispute between the parties is purely of civil in nature. The parties have entered into an agreement and at the most this can be termed as a breach of agreement and as such the learned Court below has not considered this aspect of the matter. The second ground raised by learned Advocate for the applicant is that the application, which was filed by other 4 accused viz. Ishwar Bora for seeking discharge, was allowed by the learned Ad-hoc Additional Sessions Judge, and as such the applicant was also entitled for the same relief. Learned Advocate for the applicant further submits that non- applicant no.2 has also initiated civil proceedings and as such the applicant is entitled for discharge. Learned APP submitted that the investigating agency has carried out detailed investigation and could able to collect sufficient evidence, which reveals that the applicant, with an intention to deceive non-applicant no.2, gave false assurances. He further submitted that there are statements recorded by the investigating agency. The investigation carried out by the investigating agency prima- facie shows that the applicant has cheated the applicant. He, therefore, prayed for rejection of the application. Learned Advocate for non-applicant no.2 submitted that with a designed motive, the applicant deceived non- applicant no.2 and ultimately put to him huge loss. He further submitted that on the assurances given by the applicant, non-applicant no.2, who was an entrepreneur, invested large amount for rented premise and also deposited huge amount with the applicant. He further submitted that a civil suit is filed by non-applicant no.2, but that is for the 5 recovery of the amount of losses, which was caused due to breach of agreement. Whereas the complaint lodged by non- applicant no.2 is specifically for the offences under Sections 420, 409, 410, 405 and 406 read with Section 34 of the Indian Penal Code, against the applicant. After hearing learned Advocates for the parties and on perusal of the material before this Court, I am of the opinion that the learned Ad-hoc Additional Sessions Judge has considered the material in proper perspective. The investigating agency has collected sufficient material, which at least prima facie suggests that the applicant has given false assurances. The material on record also discloses that non- applicant no.2 has collected the genuine C.Ds. from the market, which were available at the lower rates, and the C.Ds. provided to non-applicant no.2 by the applicant were not genuine. In so far as the ground raised by learned Advocate for the applicant, that the application for seeking discharge filed by other accused viz. Ishwar Bora was allowed and as such the application of the applicant ought to have been allowed, is devoid of merits. Perusal of the order passed in the application filed by the other accused-Ishwar Bora shows that there are no allegations in the complaint about any assurance given by the other accused Ishwar Bora nor 6 there is any compromise/settlement between Ishwar Bora and non-applicant no.2 about supply of any material. Ishwar Bora was referred to as an arbitrator in the agreement and that is the only role played by Ishwar Bora. On considering that material, the learned Ad-hoc Additional Sessions Judge allowed the application of other accused-Ishwar Bora. On perusal of the material, I find considerable merit in the submissions of learned A.P.P. as well as learned Advocate for non-applicant no.2. Perusal of the order, passed by the learned Ad-hoc Additional Sessions Judge, shows that the order is passed on considering the material and no fault can be found with the order. The application is devoid of merits and deserves to be rejected. In the result, the application is rejected. JUDGE *sdw