1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NOS. 2133/2009, 2134/2009, 2135/2009 AND 2136/2009 Date of decision: 5/9/2009 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? /No 3. Whether Their Lordships wish to see /No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? /No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the /No. Civil Judges ? 6. Whether the case involves an important /No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G.PARALIKAR), PS to Hon’ble Judge 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2133 of 2009 1. Mr. Kumarmangalam Birla B. Chairman, Idea Cellular Ltd., Plot No.18, Sector Gandhi Nagar 382011 ( Gujrat State). 2. Mr. Sanjiv Aga, Managing Director, Idea Cellular Ltd., corporate Office, 5th floor, Windsor, C.S.T. Road, Kalina, Santakruz, Mumbai - 98 3. P.Laxmi Narayana, Chief Operating Officer, Maharashtra and Goa Region, 11/A, Sharda Center, Irandwani (Off.), Karve Road, Pune 04 4. Mr. Rajat Mukharji, Idea Cellular Ltd., 1005/006, Kailash Building, 26, Kasturba Gandhi Marg, New Delhi. 5. The Idea Cellular Limited, Suman tower, Plot No.18, Sector Gandhi Nagar 382 011, (Gujrat State) ...APPLICANTS. VERSUS 1. Indrapalsingh s/o Bhupendrasingh Bindra, Age 40 years, Occ. Business, R/o. N-3, House No.323, CIDCO, Aurangabad, Proprietor of Simran Agencies, Aurangabad. 3 2. The State of Maharashtra, Through the Secretary, Home Department, Mantralaya, Mumbai 400 032 3. The Inspector General of Police, Aurangabad Range, Aurangabad. (Respondent nos. 2 and 3 to be served through the Public Public Prosecutor, High Court of Judicature at Bombay, Bench at Aurangabad.) (4. Shabbir Haryanwala, Zonal Manager, Idea Cellular Ltd., Adalat Road, Aurangabad. (5. Mr. Vishal Sharma, Idea Cellular Ltd., Adalat Road, Aurangabad. (6. Mr. Abhishek Mangili, Idea Cellular Ltd., Adalat Road, Aurangabad) (R.Nos. 4 to 6 deleted as per Court order dt.6.8.2009) ...RESPONDENTS ... Mr. Shirish Gupte, Senior Advocate, instructed by Mr.Jayant R.Shah ad Mr. Joydeep Chatterji, Advocates, for the applicants. Mr. M.N.Deshmukh, Adv., for respondent no.1. Mr.K.M.Suryawanshi, A.P.P., for respondent State. Respondent nos. 4 to 6 deleted. ... CRIMINAL APPLICATION NO.2134 of 2009 4 1. Mr. Kumarmangalam Birla B. Chairman, Idea Cellular Ltd., Plot No.18, Sector Gandhi Nagar 382011 ( Gujrat State). 2. Mr. Sanjiv Aga, Managing Director, Idea Cellular Ltd., corporate Office, 5th floor, Windsor, C.S.T. Road, Kalina, Santakruz, Mumbai - 98 3. P.Laxmi Narayana, Chief Operating Officer, Maharashtra and Goa Region, 11/A, Sharda Center, Irandwani (Off.), Karve Road, Pune 04 4. Mr. Rajat Mukharji, Idea Cellular Ltd., 1005/006, Kailash Building, 26, Kasturba Gandhi Marg, New Delhi. 5. The Idea Cellular Limited, Suman tower, Plot No.18, Sector Gandhi Nagar 382 011, (Gujrat State) ...APPLICANTS. VERSUS 1. Rajendrakumar s/o Girdharilal Gangwal, Age 45 years, Occ. Business, r/o Chintamani Communication, Main Road, Kannad, Taluka Kannad, District Aurangabad. 2. The State of Maharashtra, Through the Secretary, Home Department, Mantralaya, Mumbai 400 032 3. The Inspector General of Police, Aurangabad Range, 5 Aurangabad. (Respondent nos. 2 and 3 to be served through the Public Public Prosecutor, High Court of Judicature at Bombay, Bench at Aurangabad.) (4. Shabbir Haryanwala, Zonal Manager, Idea Cellular Ltd., Adalat Road, Aurangabad. (5. Mr. Vishal Sharma, Idea Cellular Ltd., Adalat Road, Aurangabad. (6. Mr. Sayyeed Samir, Idea cellular Ltd., Adalat Road, Aurangabad. (7 Mr. Yogesh Tiwari, Idea Cellular Ltd., Adalat Road, Aurangabad.) (R.Nos. 4 to 7 deleted as per Court order dt.6.8.2009) ...RESPONDENTS ... Mr. Shirish Gupte, Senior Advocate, instructed by Mr.Jayant R.Shah ad Mr. Joydeep Chatterji, Advocates, for the applicants. Mr. M.N.Deshmukh, Adv., for respondent no.1. Mr. K.M.Suryawanshi, A.P.P., for respondent State. Respondent nos. 4 to 7 deleted. ... CRIMINAL APPLICATION NO.2135 of 2009 1. Mr. Kumarmangalam Birla B. Chairman, Idea Cellular Ltd., 6 Plot No.18, Sector Gandhi Nagar 382011 ( Gujrat State). 2. Mr. Sanjiv Aga, Managing Director, Idea Cellular Ltd., corporate Office, 5th floor, Windsor, C.S.T. Road, Kalina, Santakruz, Mumbai - 98 3. P.Laxmi Narayana, Chief Operating Officer, Maharashtra and Goa Region, 11/A, Sharda Center, Irandwani (Off.), Karve Road, Pune 04 4. Mr. Rajat Mukharji, Idea Cellular Ltd., 1005/006, Kailash Building, 26, Kasturba Gandhi Marg, New Delhi. 5. The Idea Cellular Limited, Suman tower, Plot No.18, Sector Gandhi Nagar 382 011, (Gujrat State) ....PETITIONERS VERSUS 1. Mrs. Bhartibai w/o Sureschandra Jain, Age 45 years, Occ. Business, r/o Parag Traders, Fakirwadi, Aurangabad. 2. The State of Maharashtra, Through the Secretary, Home Department, Mantralaya, Mumbai 400 032 3. The Inspector General of Police, Aurangabad Range, Aurangabad. (Respondent nos. 2 and 3 to be 7 served through the Public Public Prosecutor, High Court of Judicature at Bombay, Bench at Aurangabad.) (4. Shabbir Haryanwala, Zonal Manager, Idea Cellular Ltd., Adalat Road, Aurangabad. (5. Mr. Vishal Sharma, Idea Cellular Ltd., Adalat Road, Aurangabad. (6. Mr. Abhishek Mangili, Idea Cellular Ltd., Adalat Road, Aurangabad) (R.Nos. 4 to 6 deleted as per Court order dt.6.8.2009) ...RESPONDENTS ... Mr. Shirish Gupte, Senior Advocate, instructed by Mr.Jayant R.Shah ad Mr. Joydeep Chatterji, Advocates, for the applicants. Mr. M.N.Deshmukh, Adv., for respondent no.1. Mr.K.M.Suryawanshi, A.P.P., for respondent State. Respondent nos. 4 to 6 deleted. ... CRIMINAL APPLICATION NO.2136 of 2009 1. Mr. Kumarmangalam Birla B. Chairman, Idea Cellular Ltd., Plot No.18, Sector Gandhi Nagar 382011 ( Gujrat State). 2. Mr. Sanjiv Aga, Managing Director, 8 Idea Cellular Ltd., corporate Office, 5th floor, Windsor, C.S.T. Road, Kalina, Santakruz, Mumbai - 98 3. P.Laxmi Narayana, Chief Operating Officer, Maharashtra and Goa Region, 11/A, Sharda Center, Irandwani (Off.), Karve Road, Pune 04 4. Mr. Rajat Mukharji, Idea Cellular Ltd., 1005/006, Kailash Building, 26, Kasturba Gandhi Marg, New Delhi. 5. The Idea Cellular Limited, Suman tower, Plot No.18, Sector Gandhi Nagar 382 011, (Gujrat State) ...APPLICANTS. VERSUS 1. Sitesh s/o Shrinarayan Sokiya, Age 34 years, Occ. Business, r/o N-11, Yadhavnagar, Aurangabad, Prop. Balaji Mobiles & Gift Shoppe, Phulambri. 2. The State of Maharashtra, Through the Secretary, Home Department, Mantralaya, Mumbai 400 032 3. The Inspector General of Police, Aurangabad Range, Aurangabad. (Respondent nos. 2 and 3 to be served through the Public Public Prosecutor, High Court of Judicature at Bombay, Bench at Aurangabad.) 9 (4. Shabbir Haryanwala, Zonal Manager, Idea Cellular Ltd., Adalat Road, Aurangabad. (5. Mr. Vishal Sharma, Idea Cellular Ltd., Adalat Road, Aurangabad. (6. Mr. Abhishek Mangoli, Idea Cellular Ltd., Adalat Road, Aurangabad) (7. Mr. Prajwal Variya, Idea Cellular Ltd., Adalat Road, Aurangabad. (R.Nos. 4 to 7 deleted as per Court order dt.6.8.2009) ...RESPONDENTS Mr. Shirish Gupte, Senior Advocate, instructed by Mr.Jayant R.Shah ad Mr. Joydeep Chatterji, Advocates, for the applicants. Mr. M.N.Deshmukh, Adv., for respondent no.1. Mr.K.M.Suryawanshi, A.P.P., for respondent State. Respondent nos. 4 to 7 deleted. ... CORAM : K.U.CHANDIWAL, J. DATE : 5/9/2009 *** ORAL JUDGMENT: 1. Heard learned Senior Counsel representing all the accused/applicants and Mr.M.N.Deshmukh, learned Counsel, representing complainants, in all the matters. 10 2. By consent of the parties, as agreed earlier, the matter is finally heard at admission stage. Rule. Heard forthwith. 3. The complainant filed a complaint on 13.5.2009 before the learned Sessions Judge and Special Court, Aurangabad, against the applicants herein under Sections 2(d) (e)(f), 3, 4 and 5 of Maharashtra Control of Organized Crimes Act, 1999 (hereinafter referred to as "MCOC Act"), Sections 406, 420, 466, 467, 426, 427, 424, 421, 422 and 34 of IPC, also under the provisions of Telecommunication Regulation Act, including Sections 150, 147 of Companies Act, 1956. 4. The basic allegation of the complainant in each of the case is: the accused persons approached the complainant through one of their employee and enticed of big dreams of profit and obtained security deposit without disclosing proper information to the complainants and the complainants were directed to go to Pune for collecting mobile cards; there was no written contract furnished to the complainants, the complainants paid octroi duty. According to the complainant, the petitioner/accused never used to give statements of the accounts and avoided to pay their claims, without any written contracts. Based on these allegations, the learned 11 Special Judge/Sessions Judge, by order dt.16th June, 2009, passed following order: " Copy of the complaint be sent to Special Inspector General of Police, Aurangabad Range, Aurangabad, who shall appoint a competent Police Officer who would be empowered to register the crime as well as carry out investigation under sec. 156(3) of Cr.P.C. for the offences under MCOC Act, Indian Penal Code, Telecommunication Regulation Act and Companies Act. Report be submitted within 3 months. " 5. It is contended by the applicants herein ( accused) that the order of the learned Special Judge is ab initio void, illegal, vitiated and bad in law. 6. The Apex Court, in the matter of Jamiruddin Ansari Vs. Central Bureau of Investigation & another, decided on 6th May, 2009, have set the law. Paragraph No.40 is reproduced hereinbelow: "40. Accordingly, in view of the bar imposed under Sub-Section (2) of Section 23 of the Act, the learned Special Judge is precluded from taking cognizance on a private complaint upon a separate inquiry under Section 156(3) Cr.P.C. The bar of Section 23(2) continues to remain in respect of complaints, either of a private nature or on a police report. In order to give a harmonious construction to the provisions of Section 9(1) and Section 23 of MCOCA, upon receipt of such private complaint the learned Special Judge has to 12 forward the same to the officer indicated in Clause (a) of Sub-Section (1) of Section 23 to have an inquiry conducted into the complaint by a police officer indicated in clause (b) of Sub-Section (1) and only thereafter take cognizance of the offence complained of, if sanction is accorded to the Special Court to take cognizance of such offence under Sub- Section (2) of Section 23." It is, thus, more than clear that the learned Judge could not have proceeded to direct and pass order in terms of Section 156(3) of Cr.P.C. The bar created by Section 23(2) of the MCOC Act continues to remain in respect of the complaints, there was no sanction as is mandatorily contemplated. 7. The learned Judge while initiating action, should have been reminded of Sections 2(d), (e) and (f) of the MCOC Act which read as under: "2(d): "continuing unlawful activity" means an activity prohibited by law for the time being in force, which is a cognizable offence punishable with imprisonment of three years or more, undertaken either singly or jointly, as a member of an organised crime syndicate or on behalf of such syndicate in respect of which more than one charge-sheets have been filed before a competent Court within the preceding period of ten years and that Court has taken cognizance of such offence; (e) "organised crime" means any continuing unlawful activiy by an individual, singly 13 or jointly, either as a member of an organised crime syndicate or on behalf of such syndicate, by use of violence or threat of violence or intimidation or coercion, or other unlawful means, with the objective of gaining pecuniary benefits, or gaining undue economic or other advantage for himself or any other person or promoting insurgency; " (f) "organised crime syndicate" means a group of two or more persons who, acting either singly or collectively, as a syndicate or gang indulge in activities of organised crime;" 8. In this scenario, it was obligatory on the part of the learned Judge to have analyzed as to what could be continuing of unlawful activity by the accused/applicants, either singly or jointly or, as to whether there was any chargesheet filed before a competent court within preceding period of ten years and that court has taken cognizance of such offense. The learned Judge obviously obliterated these provisions and it naturally amounts to abuse of powers and the process of the Court. 9. It is more than clear that the offenses under Section 2(3) of MCOC Act would not include the offenses like cheating or criminal breach of trust as it has been observed that the criminal breach of trust has an element of passivity but not of feeling of rendered helpless and thus, they cannot come within the sweep of activity covered in the expression, "by use of violence, etc. ". 14 10. During the course of submissions, Mr.M.N.Deshmukh, Counsel for the original complainants, contended, even if the prosecution for offense under MCOC Act are to be scrapped or dropped, this Court can exercise its discretion, directing learned Sessions Judge to continue with either 156(3) Cr.P.C. directions or to issue process or to call for police papers for the offenses covered by IPC. I do not agree to this proposition which in itself is hollow, without legal base. 11. Section 415 of IPC will have its paramount effect in the matter. It indicates as under: "415. Cheating.-- Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to" cheat". Explanation.- A dishonest concealment of facts is a deception within the meaning of this section." So, the ingredients for Section 415 of IPC are, deception of any person fraudulently or dishonestly inducing that person to (a) to deliver any property to any person, or (b) to consent that any person 15 shall retain any property; or intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. 12. That apart, there is nothing in the complaint that any property was entrusted to any of the applicants. There was no domain of applicants on property of complainant or that they have converted the same dishonestly to their personal use. It is apparent, there was alleged contract between the complainants with the Company as to get dealership to sell the SIM Cards of the Company. It was a purely contract of civil nature which will not by any indication invite the penal provisions. Record shows, prior to order on complaint, by letter dt. June 10th, 2009, the company had issued demand drafts covering the claims. Thus, even civil proceedings would not be tested in law. 13. The Hon'ble Lordships of the Apex Court in the matter of Inder Mohan Goswami and another V. State of Uttaranchal and others ( (2008) 1 SCC (Cri.) 259) have indicated scope of Section 482 of Cr.P.C. about quashing of proceedings. Hon'ble Lordships, in paragraph nos. 41 and 42 of the said judgment, have dealt with about cheating, ingredients of the same and intention. 16 "41.Section 415 IPC thus requires - 1. deception of any person. 2.(a) fraudulently or dishonestly inducing that person- (i) to deliver any property to any person; or (ii) to consent that any person shall retain any property; or (b) intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body mind, reputation or property. 42. On a reading of the aforesaid section, it is manifest that in the definition there are two separate classes of acts which the person deceived may be induced to do. In the first class of acts he may be induced fraudulently or dishonestly to deliver property to any person. The second class of acts is the doing or omitting to do anything which the person deceived would not do or omit to do if he were not so deceived. In the first class of cases, the inducing must be fraudulent or dishonest. In the second class of acts, the inducing must be intentional but need not be fraudulent or dishonest. Therefore, it is the intention which is the gist of the offence. To hold a person guilty of cheating it is necessary to show that 17 he had a fraudulent or dishonest intention at the time of making the promise. From his mere failure to subsequently keep a promise, one cannot presume that he all along had a culpable intention to break the promise from the beginning." The complainant has to basically inform the Court that the gist of the offense was the intention and it was running since inception. The complaint as a whole read will not be depicting such scenario. This Court, in view of the powers vested in it in terms of Section 482 Cr.P.C. can take recourse in the following situations: "(1) To give effect to an order under the Code. (2) To prevent abuse of process of Court. (3) To otherwise secure the ends of justice." 14. The Hon'ble Lordships of the Supreme Court, in the matter of State of Haryana Vs. Bhajanlal (AIR 1992 SC 604) have categorized following seven situations in which the recourse to Section 482 can be taken. "(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; 18 (b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (c) where the uncontroverted allegations made in the FIR or 'complaint and the evidence collected in support of the same do not disclose 265 the commission of any offence and make out a case against the accused; (d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; (f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party; (g) where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously 19 instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 15. The Hon'ble Lordships, in the matter of Janata Dal Vs. H.S.Chowdhary ( (1992) 4 SCC 305), in paragraph No.132 have observed as under: "132. The criminal courts are clothed with inherent powers to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles. " 16. In Inder Mohan Goswami's matter, the Apex Court, in paragraph no.46 has observed that the Courts must ensure that the criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressurize the accused. 17. The complainant has evolved a new device to force to settle the accounts on his terms. In fact, security deposits, if any, were part of a 20 distributorship showered on the complainant. 18. As stated earlier, the matter revolves to the civil contract or obligation between the complainants or the accused or the employees of the company. It will not have any colour or complexion to implicate them for criminal prosecution. None of the accused had direct or latent dealing with complainant. By mere status to be Directors or Chairman of a Public Limited Company would remotely attract any penal action against them, since they are not actively involved in day-to-day functions. Security deposits were subject to accounts, would not mean an Organized Crime Syndicate. Elements of Penal Code are hardly spelt out or projected to take recourse in Criminal Court. The order of learned Judge, in terms of Section 156(3) Cr.P.C. is apparently abject abuse of process and abuse of the powers vested in the said Court. Consequently, the impugned order dt. 16.6.2009, in each of the complaint, recorded by the learned Special Judge, at Aurangabad, is quashed. Rule made absolute in above terms. ( K.U.CHANDIWAL) JUDGE agp/2135-09craplgr