Section 227 CPC – Indisputable Authority of Judge to sift and weigh the Evidence: Bombay High Court

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 6 OF 2020 KALPESH JAYRAM KOSHTI 1. CENTRAL BUREAU OF INVESTIGATION 2. THE STATE OF MAHARASHTRA Mr. B.B. Tiwari i by. BBT Legal Advocate for the applicant Ms. Ameeta Kuttikrishnan Advocate for respondent no.1 Mr. A.D. Khamkhedkar APP for State respondent no.2 Coram : Sandeep K. Shinde J Judgment Reserved on : 2nd December 2021 Judgment Pronounced on : 6th December 2021 This application under Section 397 read with Section 401 of the Criminal Procedure Code questions the propriety correctness and legality of the order dated 27th September 2019 by which the learned Sessions Judge CBI Greater Mumbai refused to discharge the applicant from the CBI Special Case No.4 2018 Prosecution case is that Central Bureau of Investigation Economic Offences Wing Mumbai registered the FIR under Section 120B read with Sections 420 465 467 468 471 of the Indian Penal Code on 31st August 2017 on the basis of written complaint of Shri. D.G. Kallatti Deputy General Manager of CBI against M s. Ashoka Property Developers and M s. Ashish Communication Systems its Directors Guarantors and thirteen others including two bankers and the applicant accused no.11 Complainant would allege that accused entered into criminal conspiracy in the year 2011 to cheat the Central Bank of India Peddar Road Branch Mumbai to the tune of Rs.17 crores by creating false and fabricated documents and further dishonestly suppressing material information in respect of the immovable properties which were offered as collateral security either by its over valuation or otherwise for availing credit facilities and misutilising the same In so far as the applicant is concerned it is prosecution’s case that he is the owner of M s Ahmadabad Express Newspaper. His Press is at Ahmedabad where eight employees were working with him. One Ravikumar Ashokkumar Bhil was working as a Office Boy in the Press The accused with the malafide intentions instructed Ravikumar Bhil to open bank accounts to manipulate the transactions for making accommodation entries. Afterwhich Ravikumar Bhil opened two bank accounts in the name of M s. Ahmedabad Sales Corporation in ING Vyasa Bank and M s. Hindustan Enterprises. Under the instructions of the applicant Ravikumar Bhil used to transfer money in various bank accounts withdrew cash and hand over to various angadiyaswho malafidely availed cash credit limit to the tune of Rs.2.25 crores overdraft Rs.5 crores and Rs.5 crores as a term loan from the complainant bank. M s. Aashish Communication Systems transferred huge amount of money to the various accounts one being the Account opened by Ravikumar Bhil at the instructions of the applicant. Money was transferred from the account of M s Aashish Communication Systems in the account of M s Ahemdabad Sales Corporation in ING Vyasa Bank. In all Rs.3 23 75 641 were transferred within a month from the loan amount disbursed to M s Aashish Communication Systems in the account of M s Ahemdabad Sales Corporation. In furtherance of the conspiracy on 21st December 2012 amount of Rs.1 35 00 000 was transferred in the account of the co accused Janardhan Pandey and remaining amount was withdrawn in cash and handed over to Satish Sahu a co Investigation has unfolded that the applicant had directed Ravikumar Bhil to open another bank account in the name of M s. Hindustan Enterprises in Indusind Bank. The said amount was used for siphoning the crime proceeds from M s. Aashish Communication Systems to the tune of Rs.80 80 000 . In that way in investigation four facts were disclosed i)that though crime proceeds were credited in the bank accounts of M s Ahemdabad Sales Corporation and M s. Hindustan Enterprises these accounts were opened and operated by Mr Bhilas per the directions of the applicant. ii) statement of Ravikumar Bhil recorded under Sections 169 and 164 of the Criminal Procedure Code would disclose the said fact iii)statement of Ganesh Mokal Assistant Manager of Kotak Mahindra Bank confirms that money was transferred to the Account of M s. Ahemdabad Sales Corporation from the account of M s. Ashish Communication System and that amount of Rs.1 35 25 000 was transferred to the account of M s. Flextough Metal in IDBI Bank which belongs to the co accused iv) no business transactions were held between M s. Ashish Communication Systems and M s Ahemdabad Sales Corporation M s. Hindustan Now the question is whether these were grounds for proceeding against the applicant accused The learned Counsel for the applicant submitted that there is no evidence at all on record disclosing or even implying complicity in the crime. Counsel would submit that the amount allegedly credited in the two bank accounts of M s. Ahemdabad Sales Corporation and M s Hindustan Enterprises in Indusind Bank were admittedly operated by Ravikumar Bhil. It is submitted that although Ravikumar Bhil was the employee of the applicant yet except the statements of Ravikumar Bhil under Sections 161 and 164 of the Criminal Procedure Code there is no material on record to validate the statement of Ravikumar Bhil. In support of his contention learned Counsel has relied on the judgment of this Court in the case of Laxmi Koli Babita V s. State of Maharashtra 2005 All MR (Cri 571. In the cited case as it appears from the facts narrated therein that there was absolutely no evidence against the petitioner except the statement of the co accused that was pressed into service on behalf of the prosecution. The learned Counsel therefore argued the facts of the case and the facts in the cited judgment were almost identical. It is therefore submitted that in absence of an independent evidence it cannot be said there is ground for proceeding against the applicant. Counsel would therefore argue that impugned order be quashed and set aside and applicant be discharged It is settled law that the Judge while considering the question of framing the charges under Section 227 of the Criminal Procedure Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out The statement of witness recorded under Section 164 of the Code is not substantive evidence and though it can be used only to corroborate or contradict that witness the fact remains that applicant is owner of Ahmedabad Express Newspapers. Indisputedly Mr. Bhil was his employee. If that be so it is inconceivable that Mr Bhil would open two Bank accounts one in the name of Ahemdabad Sales Corporation and another Hindustan Enterprises and would receive lacs and crore of rupees soonafter the accounts were opened. Therefore in view of the facts of the case and attendant circumstances there is no reason to discard and disbelieve the statement of Mr Bhil which indeed discloses applicant’s complicity in the crime. Revision Application therefore deserves no consideration. It is rejected Sandeep K. Shinde J

Summary: When assessing whether or not to charge the accused under Section 227 of the Criminal Procedure Code, the Judge has indisputable authority to sift and weigh the evidence for the limited purpose of determining whether or not a prima-facie case against the accused has been established. This was held in a judgement passed by Hon’ble Shri Justice Sandeep K. Shinde in the matter of Kalpesh Jayram Koshti Vs Central Bureau Of Investigation And Anr (Criminal Revision Application No. 6 Of 2020) on 06/12/2021. On the basis of a written complaint filed by Shri. D.G. Kallatti, Deputy General Manager of CBI, against M/s. Ashoka Property Developers and M/s. Ashish Communication Systems, its Directors/Guarantors, and thirteen others, including two bankers and the applicant, the Central Bureau of Investigation, Economic Offences Wing, Mumbai registered a FIR under Section 120B read with Sections 420, 465, 467, 468, 471 of the Indian Penal. The complainant alleged that the accused engaged in a criminal conspiracy in 2011 to defraud the Central Bank of India, Peddar Road Branch, Mumbai, of Rs.17 crores by fabricating false documents and dishonestly suppressing material information in respect of immovable properties that were offered as collateral security either by overvaluation or otherwise for the purpose of obtaining credit and misusing the same. Prosecution is the owner of M/s. Ahmadabad Express Newspaper based in Ahmedabad, where he employs eight people. One of them, Ravikumar Ashok kumar Bhil, worked in the Press as an Office Boy opened two bank accounts in the names of M/s. Ahmedabad Sales Corporation and M/s. Hindustan Enterprises at ING Vyasa Bank. Ravikumar Bhil used to transfer money into various bank accounts, withdraw cash, and hand over to various angadiyas (cash couriers) on the applicant’s orders. The prosecution claims that M/s. Aashish Communication Systems, which belonged to Ashish Singh (accused no. 2), fraudulently obtained a cash credit limit of Rs.2.25 crores, an overdraft of Rs.5 crores, and a term loan of Rs.5 crores from the complainant bank. M/s. Aashish Communication Systems moved a large sum of money to numerous accounts, one of which was opened by Ravikumar Bhil on the applicant’s instructions. Learned Counsel has relied on decision in the case of Laxmi Koli Babita vs. Maharashtra State, 2005. All MR (Cri.) 571, as the facts given therein show, there was no evidence against the petitioner except the statement of the co-accused, which was forced into service on behalf of the prosecution. In the lack of credible proof, there is no basis for proceeding against the application. As a result, counsel argue that the contested order be quashed and set aside, and the applicant be discharged. Despite the fact that the witness statement recorded under Section 164 of the Code is not substantive evidence and can only be used to corroborate or contradict witness, the reality remains that the petitioner is the owner of Ahmedabad Express Newspapers and Mr. Bhil was his employee. Mr. Bhil open two bank accounts, one in the name of Ahemdabad Sales Corporation and the other in the name of Hindustan Enterprises, and would immediately receive lacs and crores of rupees. As a result, given the facts of the case and the surrounding circumstances, there is no reason to dismiss and doubt Mr. Bhil’s statement, which clearly reveals applicant’s involvement in the crime. Therefore, Revision Application deserves no consideration, hence, rejected. 
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Judgement reviewed by – Pooja Lakshmi