HC: [Section 227 of CrPC] Judge has the power to weigh the evidence to find out whether or not a prima-facie case against the accused has been made out

  

The Single Bench of the Bombay High Court consisting of Justice Sandeep K. Shinde while hearing an application, under Section 397 read with Section 401 of the Criminal Procedure Code questioning the propriety, correctness and legality of an order dated by which the learned Sessions Judge, refused to discharge the applicant from a CBI Special Case, held 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.

Facts

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 the Deputy General Manager of CBI, against M/s. Ashoka Property Developers and M/s. Ashish Communication Systems, its Directors/Guarantors and 13 others, including two bankers and the applicant-accused no.11.

Complainant alleged that the accused committed 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 mis-utilising the same.

The prosecution’s case is that M/s. Aashish Communication Systems, belonged to Ashish Singh (accused no.2), who 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 with malafide intent. 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 an amount of Rs.1,35,00,000/- was transferred in the account of the co-accused and remaining amount was withdrawn in cash and handed over to another co-accused.

Findings and Submissions

On investigation, it was found 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 Rane 5/8 Systems to the tune of Rs.80,80,000/-.

The learned Counsel for the applicant submitted that there was no evidence at all on record, disclosing or even implying complicity in the crime. It was 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 which reliance was placed on the judgment of this Court in the case of Laxmi Koli Babita vs. State of Maharashtra. Further it was submitted that in absence of an independent evidence, it cannot be said there is ground for proceeding against the applicant. Counsel therefore argued that the impugned order be quashed and set aside, and applicant be discharged.

Observations of the Court and Judgment

The Single Bench, while rejecting the Revision Application, observed that:

“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. Undisputedly, 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 Ahmedabad Sales Corporation and another, Hindustan Enterprises and would receive lacs and crore of rupees, soon after, 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.”

Case Name: Kalpesh Jayram Koshti vs Central Bureau of Investigation & Anr

Citation: Criminal Revision Application No. 6 OF 2020

Bench: Justice Sandeep K. Shinde

Decided on: 6^th December 2021 

Read Judgment ;

 

 

SOURCE ;  https://www.latestlaws.com

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