1 268508 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2685 OF 2008 Noshir Khory ] Aged 64 years, residing at 920, Sherman Road ] Glenview, Illinois 600 25, U.S.A., through ] his Constituted Attorney Ronald Louis Lobo ] ...Petitioner V/s. 1. Jessica Burgis Rabadi ] residing at G-89, Navroz Baug, Op. Ganesh Lane, ] Lalbaug, Mumbai 400 012 ] 2. The Senior Inspector of Police, ] Kalachowlki Police Station, Mumbai 400 012 ] 3. The State of Maharashtra ] ...Respondents WITH CRIMINAL WRIT PETITION NO. 2686 OF 2008 Roshni Khory ] Aged 56 years, residing at 920, Sherman Road ] Glenview, Illinois 600 25, U.S.A., through ] his Constituted Attorney Ronald Louis Lobo ] ...Petitioner V/s. 1. Jessica Burgis Rabadi ] residing at G-89, Navroz Baug, Op. Ganesh Lane, ] Lalbaug, Mumbai 400 012 ] 2. The Senior Inspector of Police, ] Kalachowlki Police Station, Mumbai 400 012 ] 3. The State of Maharashtra ] ...Respondents 2 268508 Mr. Subodh Desai with Ms. Vinita Hombalkar i/by M/s. Dhruve Liladhar & Co. for the Petitioners Ms. Shabana Shah for Respondent No. 1 Mrs. A.S. Pai, A.P.P., for Respondent Nos. 2 and 3 CORAM: A.M. KHANWILKAR AND P.D. KODE, JJ. DATE OF RESERVING: 14TH SEPTEMEBR, 2011 DATE OF PRONOUNCING: 28TH SEPTEMBER, 2011 JUDGMENT (Per AM. Khanwilkar, J.):- Both these petitions involve common questions. The former petition is filed by original accused No. 5, whereas the latter petition is filed by original accused No. 4. 2. In these petitions, it is prayed that the proceedings registered as C.C. No. 22/I&R/2005 before the Metropolitan Magistrate’s 7th Court, Mazgaon, Mumbai, for offences under Sections 406, 420, 409-A, 506(II) and 120-B of the Indian Penal Code, and MECR No. 1 of 2005 registered at Kalachowki Police Station against the petitioners herein be quashed and set aside. It is also prayed that the Look Out Notice and the All India 3 268508 Look Out Notice issued against the petitioners herein be quashed and set aside. 3. Respondent No. 1 in the respective petitions is the complainant. The said respondent No. 1 moved the Court of Metropolitan Magistrate’s 7th Court, Mazgaon, Mumbai, to issue direction under Section 156(3) of the Code of Criminal Procedure to the Senior Police Inspector, Kalachowki Police Station, Mumbai, to investigate her complaint. In the complaint, it has been alleged that the petitioners in these petitions, along with three other persons, have, by their acts of commission and omission, committed offence punishable under the abovereferred provisions of the Indian Penal Code. The Magistrate, upon receipt of the said complaint, issued direction to the Senior Inspector of Police, Kalachowi Police Station, to proceed in the matter on the basis of allegations contained in the said complaint. Accordingly, MECR No. 1 of 2005 came to be registered at the Kalachowki Police Station, Mumbai, against the petitioners and three others for the said offence. The petitioners have approached this Court for quashing of the said proceedings, inter alia, on the assertion that, even if each of the allegations contained in the complaint of respondent No. 1 is taken at its face value, it does not disclose commission of 4 268508 offence by the petitioners herein. The petitioners have been named in the complaint with ulterior motive in coercing and pressurising them so as to facilitate the oblique motive of respondent No. 1–complainant in her matrimonial proceedings with original accused No. 1. 4. The relationship between the parties is that the complainant is stated to have married on 29th February, 2004 with original accused No. 1. Original accused No. 2 is the mother of original accused No. 1 (mother-in-law of the complainant). Original accused No. 3 is the unmarried sister of original accused No.1 (sister-in-law of the complainant.) The petitioner in the latter petition, original accused No. 4, is also sister of original accused No. 1 (sister-in-law of the complainant). She is married to original accused No. 5 (petitioner in former petition). 5. It is the case of the petitioners herein that the petitioners have been named in the said complaint on the basis of false allegations. The complaint against them is a blatant abuse of law and proceedings. The allegations contained in the complaint qua them are, per se, frivolous. It is asserted by the petitioners herein that no role has been attributed to them for the commission of the alleged offence, and the 5 268508 complaint is completely silent as to in what manner, the petitioners subjected the complainant, respondent No. 1, to cruelty, as contemplated by Section 498-A of the Indian Penal Code. On the above basis, the petitioners have prayed for quashing of the abovesaid proceedings as well as the Look Out Notices issued against them. 6. Respondent No. 1, on the other hand, has supported the order passed by the learned Magistrate of having issued direction to the Senior Inspector of Police, Kalachowki Police Station, Mumbai, under Section 156(3) of the Code. Even the learned A.P.P. has opposed these petitions on the argument that, looking at the contents of F.I.R. and taking the same at its face value, it is not open to contend that the same does not disclose commission of alleged offence. The MECR has been registered on the basis of statements of respondent No. 1. It is argued that no case for quashing of FIR has been made out. Insofar as the argument that the complaint has been filed by respondent No. 1 with ulterior motive in coercing and pressurising the petitioners herein so as to facilitate the ulterior motive of the complainant in settling the matrimonial dispute between her and her husband, original accused No. 1, it is contended that the same is a matter of defence to be considered at the stage of trial. At present, the Court is required to 6 268508 consider as to whether the contents of the statement / complaint of respondent No. 1 discloses commission of cognizable offence or otherwise and more particularly, whether the allegations would disclose the complicity of the petitioners herein in the commission of the stated offence. 7. Accordingly, we may proceed to consider as to whether the contents of the complaint, and more particularly, the statement of respondent No. 1 recorded by the police officer, on the basis of which, MECR has been registered, discloses commission of cognizable offence and involvement of the petitioners herein in any manner. In the complaint filed before the Magistrate, respondent No. 1 has alleged that she knew the accused persons. She got married to accused No. 1 on 29th February, 2004 as per the Parsi Law. The said marriage was registered in Bombay High Court. After disclosing the relationship of the parties, she has alleged that the accused, including the petitioners herein, induced her to get married with accused No. 1. Further, she believed the accused persons, and, acting on their representations, entered into marriage with accused No. 1. It is her case that she was taken in confidence by the accused persons and they offered her moral support to migrate to America after the marriage. The specific case of 7 268508 respondent No.1-complainant is that, through one family friend, Yasmeen Kapadia, accused No. 3 contacted her. She spoke to respondent No. 1. Respondent No. 1-complainant was asked as to whether she would be interested in getting married to brother of accused No. 3. Subsequent thereto, in view of e-mail communication, respondent No. 1- complainant made enquiries about the status of the family of the accused persons, and came to know that said Rabadi Family was originally from Karachi, and then shifted to Dubai, whereafter, they have migrated to America. Further, accused No. 1 is a divorcee with a 10-year-old daughter, and he had lost his father in the year 1984. Accused No. 1 was, since last seven years, residing in America with his mother, accused No.2, and unmarried sister, accused No. 3. 8. Respondent No.1-complainant has then alleged that, on 15th December, 2003, the petitioners herein – accused No.4 and accused No. 5 – were to visit India and wanted to meet her. On meeting accused Nos. 4 and 5 (petitioners herein), respondent No. 1-complainant was very much impressed and pleased with their conduct, behaviour and representations. She has stated that she was allured by the said accused persons (petitioners herein) to be a part of the Rabadi Family, which has a status in America. Respondent No.1 has then alleged that she 8 268508 considered herself very lucky to get a proposal of this type, as accused Nos. 4 and 5 represented that they will extend all possible help to her in America, and they will take care of her in all respects. It is not the case of the petitioners herein that they did not visit India as alleged by the complainant or of having impressed her to accept the marriage proposal with accused No. 1. 9. It is then stated by respondent No.1 that, after the departure of accused Nos. 4 and 5 (petitioners herein), accused No. 1 alone travelled to India, as other family members were denied Visa. Accused No. 1 arrived in India on 22nd February, 2004, and was accommodated by her in a hotel at Bandra at her expenses. During that visit, accused No. 1 spoke of the marriage proposal to the brother of respondent No. 1- complainant, Mr. Kurush, and showed willingness to marry respondent No.1-complainant. Accordingly, the said proposal was discussed in the family and by relatives, and, after discussions, the marriage was fixed on 29th February, 2004. 10. It is further stated in the complaint that, after the solemnisation of marriage, accused No. 1 left India on 3rd March, 2004, representing to respondent No. 1-complainant that all arrangements will 9 268508 be made at the earliest to facilitate her travel to America. It is then stated that, in the third week of March, 2004, all the five accused persons arrived in India. On their arrival, respondent No. 1 was overwhelmed. Accused No. 2, mother-in-law of respondent No. 1, arrived on 22nd February, 2004, along with accused No. 3. The petitioner herein, accused No. 4, arrived on 25th April, 2004, and accused No. 1 arrived on 16th April, 2004. Accused No. 1 took respondent No. 1-complainant to American Consulate at New Delhi for complying with the formalities of immigration and Visa for U.S.A. They visited New Delhi on 19th April, 2004. 11. It is then stated that the Reception for the marriage between respondent No. 1-complainant and accused No. 1 was kept on 26th April, 2004. All the accused made respondent No. 1 believe that, as soon as they land in America, they will try to arrange for her (respondent No. 1- complainant’s) passage to America at the earliest. It is further stated that, on representations made that they are leaving on 27th April, 2004, the entire baggage, articles, jewellery and valuable stones of respondent No. 1-complainant were packed. They made respondent No. 1 believe that they would carry all the luggage of respondent No. 1. Respondent No. 1-complainant, being allured and impressed by their conduct and 10 268508 behaviour, packed all her belongings valued at more than Rs.7,00,000/-, and handed over the same to the accused persons, so that they would carry the same along with them to America, as she was told that, being American citizens, there will be no difficulties of the Customs. It is not the case of the petitioners that they did not visit India in April, 2004 and interacted with respondent No.1-complainant or carried her baggage containing valuables to America. 12. It is stated that respondent No. 1 handed over four bags of valuables, a list of which is produced by her along with the complaint and her statement. It is the case of respondent No. 1 that, after departure from India on 27th April, 2004, the accused persons started avoiding respondent No. 1-complainant. She kept on trying to get in contact with them between 28th to 30th April, 2004, but failed to get in contact with them. It is her case that, on 2nd May, 2004, she was able to contact accused No. 3 on telephone. She was, however, informed that accused No. 1 was not well. Once again, when respondent No. 1-complainant contacted accused No.1 on 3rd May, 2004, he briefly spoke of medical complications. Thereafter, the entire family was uncontactable. It is the case of respondent No. 1-complainant that the accused persons had a prior meeting of mind to commit illegal acts so as to cause wrongful loss 11 268508 to respondent No. 1 and wrongful gain to themselves; and, in furtherance thereof, they conspired to make false representations, and, in pursuance of the same, accused No. 3, initially, wrote her e-mail referring to Yasmeen Kapadia residing in Canada to instil confidence in her that the said marriage proposal is coming from family having good background. 13. It is the case of respondent No. 1 that, right from the very inception, the accused persons made her act on those representations, and, by acting on their representations, which those accused knew were dishonest representations, they made her (respondent No. 1) believe and allured her to fall in trap, and thus, committed criminal breach of trust with her. It is the case of respondent No. 1 that the accused persons have cheated her, and they have no intention of honouring the representations made by them that they would take her to America after the marriage. Had she known the intentions of the accused persons, she would not have accepted the marriage proposal, and would not have suffered mental agony after the marriage and reception. According to respondent No. 1, the accused persons, in collaboration with each other, played fraud upon her, and made false representations to her. Even after marriage, accused No. 3, who is the sister-in-law of respondent No. 1-complainant, treated her even in India in cruel ways, and slapped her in front of family 12 268508 members and relatives. This is the substance of the complaint of respondent No. 1. 14. After having gone through the complaint and the statement of respondent No. 1, it is not possible to countenance the argument that the same does not disclose commission of cognizable offence, especially one of cheating and criminal breach of trust. It is not as if no offence has been disclosed from the contents of the complaint / statement of respondent No. 1. The crucial question that needs to be addressed in these petitions is: Whether the contents of the complaint / statement of respondent No. 1 disclose the involvement of the petitioners herein in the commission of offence in any manner? In the first place, the contents of the complaint itself disclose the involvement of accused No. 4 and accused No. 5 (petitioners herein) in the commission of offence. According to respondent No. 1-complainant, the said accused Nos. 4 and 5 visited India and met respondent No. 1. They made certain representations, which resulted in alluring respondent No. 1 to commit herself to marry with accused No. 1. They represented to respondent No. 1-complainant that, after marriage, they would help respondent No. 1 to come over to America, and they would take care of her in all respects. On such representations, respondent No. 1 agreed to marry accused No. 1. The marriage was held on 29th February, 2004. After the 13 268508 marriage, the petitioners herein arrived in India on 25th April, 2004. The accused persons represented to respondent No. 1 that they would take her baggage along with them; and there would be no difficulties of the Customs. On that representation, she packed all her valuables, jewellery and articles and handed over the same to the accused persons in good faith. 15. On reaching America, however, the accused persons became uncontactable. As a result, respondent No. 1 stayed back in India and lost all her valuables and belongings, and has also suffered mental agony amounting to cruelty after marriage with accused No. 1. The complaint / statement of respondent No. 1 also alleges that the accused persons collaborated with each other right from the inception; and played fraud on her, as a result of which, they caused wrongful loss to her and wrongful gain to themselves. Going by these allegations, it is not possible to countenance the argument that the complaint / statement of respondent No. 1 does not attribute any role to the petitioners herein (accused Nos. 4 and 5) in the commission of the alleged offence. The petitioners, at best, may be justified in contending that the complaint / statement of respondent No. 1 does not clearly spell out the involvement of the petitioners herein in the offence under Section 498-A of I.P.C. However, that would not take the matter any further for 14 268508 the petitioners. Inasmuch as the MECR, as registered, would still continue to be on record, and the investigation of other offences against the petitioners may have to continue. It is not as if the entire complaint / MECR, as registered at the instance of respondent No. 1, can be quashed and set aside qua the petitioners herein. It is also not possible to countenance the argument that the entire complaint/MECR registered at the instance of respondent No.1 is, per se, frivolous, much less attributes no role to the petitioners herein for commission of the alleged offences or that it is replete with oblique motive. As the investigation will have to be proceeded on the basis of the MECR registered at the instance of respondent No. 1 depending on the information and material collected by the Investigating Officer, appropriate police report will be filed before the concerned Court. It is possible that the said report under Section 173 of the Code may be confined to some of the offences referred to in the MECR as registered or, for that matter, only against some of the accused persons depending on the quality of material collected during the investigation indicating complicity of the concerned accused in the commission of offence. Suffice it to observe that it is not possible to interdict the process of investigation of the case on the ground that no 15 268508 offence whatsoever is disclosed against the petitioners herein or, for that matter, the petitioners have been named out of ulterior motive by respondent No. 1. 16. As a result, the petitions ought to fail. Accordingly, both these petitions are dismissed by this common judgment. The Rule is discharged. Interim relief is vacated. 17. At the same time, we place on record that the opinion recorded in this judgment is only in the context of the issue that needs to be addressed for considering the relief of quashing of F.I.R.; and is not an opinion, either way, on the merits of the allegations or the defence available to the petitioners. 18. While parting, we may place on record the objection of the respondents that the petitioners should be non-suited at the threshold on the ground that the petitioners are not submitting to the jurisdiction of the Courts in India; for, they are residents of America, and, to secure their presence, even Look Out Notices have been issued. That, however, is a matter which should be brought to the notice of the concerned Court, where the proceedings are pending, which would be competent to deal with the situation so as to secure the presence of the petitioners, if and when required. We are not expressing any opinion in that behalf. P.D. KODE, J. A.M. KHANWILKAR, J.