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Bilal Haroon Galani vs State Of Gujarat on 22 March, 2018

R/CR.RA/63/2018 CAV JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL REVISION APPLICATION NO. 63 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE Z.K.SAIYED

1 Whether Reporters of Local Papers may be allowed to
see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the
judgment ?

4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?

BILAL HAROON GALANI
Versus
STATE OF GUJARAT

Appearance:
MR SANJAY AGRAWAL with AMIT LADDHA(9492) for the PETITIONER(s)
No. 1
MR HARDIK P MODH(5344) for the PETITIONER(s) No. 1
MR KL PANDYA, APP for the RESPONDENT(s) No. 1

CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED

Date : 23/03/2018

CAV JUDGMENT

Rule. Learned APP waives service of Rule on behalf of the
respondent – State.

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In the instant Revision Application, the challenge of the petitioner
is to the order dated 15-11-2014 of the Chief Judicial Magistrate at
Surat, passed for taking cognizance of the offence alleged under
Sections 420, 465, 467, 468, 471, 477A, 120B of Indian Penal Code
1860, and issuing process against the petitioner in Case No. 62851 of
2014. The short impugned Order reads as follows-

“Exhibit – 1

Criminal Case No. 62851/2014

Order

I take in consideration Charge Sheet/Complaint for the
offence of IPC Section 420, 465, 467, 468. etc.

Summons to be issued against the accused.

Sd/-

Chief Judicial Magistrate, Surat”.

2. It is the case of the petitioner that the impugned order qua the
petitioner is not only cryptic, but also totally mechanical, taking
cognizance and issuing process without any application of mind and
without there being any such material against the petitioner, which can
be considered as sufficient to subject him to face the rigors of trial. As
per the petitioner, it is limited but necessary pre-requisite for taking
cognizance and issuing process, to arrive at prima facie satisfaction
regarding existence of such evidence on record which may be sufficient
to proceed against the petitioner for the alleged offences. According to
the petitioner, there is no such evidence in the entire charge sheet filed
by the respondent and in absence thereof the impugned order is liable
to set aside, or else it would cause substantial injustice and would be
abuse of process of law on the vice of Articles 14 and 21 of the

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Constitution of India. On behalf of the petitioner it was submitted that
the arguments and findings recorded in the case of co-accused Shri
Afroz are squarely applicable and hence adopted in the case of the
petitioner.

3. Learned APP Mr.K.L.Pandya for the respondent raised
preliminary objection on the maintainability of the Revision Application
and also argued on merits of the application.

4. It was argued by the Ld. APP for the respondent that –

4.1 The petitioner could have invoked remedy under Section 482 of
CrPC but not under the Revisionary Jurisdiction under Section 397 read
with 401 of CrPC, that too after considerable delay.

4.2 He submitted that even otherwise, the challenge to an order taking
cognizance has no merits as there is no requirement to record reasons
for taking cognizance and issuing process. He relied on the judgment of
the Hon’ble Supreme Court in U.P. Pollution Control Board v. Mohan
Meakins Ltd., (2000) 3 SCC 745, wherein it was observed that –

“6. In a recent decision of the Supreme Court it has
been pointed out that the legislature has stressed the need to
record reasons in certain situations such as dismissal of a
complaint without issuing process. There is no such legal
requirement imposed on a Magistrate for passing detailed
order while issuing summons vide Kanti Bhadra Shah v. State
of W.B……”

4.3 He also relied upon the judgment of Hon’ble Supreme Court in
Nupur Talwar v. CBI, (2012) 11 SCC 465 in which challenge was by
the Complainant against a detailed Order taking cognizance against the

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Complainant, whereby the closure report filed by the police as well as
the protest petition filed by the Complainant, were both rejected by the
Trial Court with a detailed judgment. The Hon’ble Supreme Court inter
alia observed that –

“11. Undoubtedly, merely for taking cognizance and/or
for issuing process, reasons may not be recorded…”

4.4 He further argued that the matter involves significant revenue and
some complexity. It requires careful examination of document of
enquiry/investigation carried out so far. Total hawala is likely to be more
than 5000 crores INR. Bogus bill of entry is the genus of the scam. Total
861 entries were under scrutiny by Custom Department out of which at
least 454 bill of entries have been found to be bogus amounting to Rs.
2846 crores (Rs. 28,46,51,58,616/-).

4.5 He submitted that out of these bogus bill of entries, FIR for 17 bill
of entries to the tune of 104 crores transferred by Hawala is under
question. This transfer has been carried out through 7 companies
operating 9 accounts with ICICI bank, Ring Road, Surat. This is not the
only transacting agency. Other branches of ICICI bank itself at
Athwalines is also having some hawala. This is also under investigation
(DCB I-Cr. No. 17/2014).

4.6 He submitted that the modus operandi is a complex one. From
whatever material that is collected so far, there is prima facie evidence
against the present petitioner. Unless satisfactory explanation is coming
forth from the present petitioner as regards the various sum deposited
in the company, wherein the present petitioner has direct/indirect
involvement it is literally impossible to say that there is no role played by
the present petitioner. The amount of Rs. 43 Lakhs received from M/s

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Centre Point Gems Pvt Ltd remains unexplained satisfactorily and in all
probability this is commission that has been received by the present
petitioner towards the hawala scam. His role has come out in the
statements of three witnesses namely Shri Prafulbhai Patel (statement
dated 01.08.2014), Shri Ramesh @ Bala Laxmanbhai Bagtaria
(statement dated 05.08.2004) who was employee of said Shri Praful
Bhai Patel and Shri Surajnath Bhimnath Siddh (Statement dated
28.10.2014) who is a cheque discounter. The petitioner’s role in
obtaining cash amounts from said Shri Surajnath, and sending it
through Aangadiya S. Babulal and P. Umeshchandra Co., to Shri
Praful Patel, has come out on record. Shri Praful Patel was making
further RTGS from such cash amount through others.

4.7 He submitted that as the investigation is still going on about
various entries wherein there are probably involvement of the present
petitioner.

4.8 He submitted that the hand writing of the bogus bill of entries are
required to be scrutinized as regard the writing of the same.
Involvement of the present petitioner in that also is to be ascertained.
As stated earlier there are 454 bill of entries under scrutiny by the
Custom Department. This is stated because in this 454 bill of entries
there are different Custom Officers who were discharging the duties at
relevant time and whose signatures might have been copied for
preparing bogus bill of entries. Process of collecting the bill of entries
wherein different Custom Officers have put their signatures on genuine
bill of entries in day to day transaction is about to be collected. It is only
after collecting all these specimen signature of the Custom Officers,
along with this specimen signature the other document collected like

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specimen signature of the accused, bogus bill of entries having
signature etc., are to be collected and to be sent to FSL for opinion of
hand writing expert. As comparison of this is to be made out as a single
event and cannot be done in piecemeal manner, right now sending
whatever specimen signature with document containing other signature
being sent for opinion and then as and when other signature of the
Custom Officers are made available being sent for comparison is
impractical reality. This has to be done, at a stretch.

4.9 He submitted that few of various Custom Officers who are involved
in signing the bill of entries during relevant period some of them have
been promoted, few have retired and hence process of calling them and
collecting their signature is underway but because of their status of
either preoccupied with union level at Central Government or status of
being retired, timely completion of task is likely to take time.

4.10 On these grounds grant of any relief interim or final was opposed
by the learned APP for the respondent and it was prayed that the
petition may be dismissed in limine. It was also submitted that the
judgment in the case of Shri Afroz has been impugned before the
Hon’ble Supreme Court, and hence may not be considered as having
precedent value. It was also suggested that the matter can be taken up
after final disposal of the SLP by the Hon’ble Supreme Court. He
however fairly admitted that there is no stay against the said judgment.

5. The learned Counsel for the petitioner relied upon the earlier
judgment dated 03.05.2017 in Criminal Revision Application No. 264 of
2017 on maintainability as well as merits of the petition, in which similar
objections were raised by the Respondent in the matter of Shri Afroz

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Mohammed Hasanfatta, who was co-accused in the same case and
had impugned the same Order taking cognizance and issuing process
qua him. He submitted that on all fours the said judgment applies in the
instant case. He pointed out that the said judgment has not been stayed
in the challenge by the Hon’ble Supreme Court.

6. Delay in invoking Revisionary jurisdiction has already been
condoned in the interest of justice after hearing both sides on that
aspect vide Order dated 5.2.2018.

7. I have considered the detailed arguments advanced by both the
sides and have carefully considered the record placed before me with
able assistance from both the sides.

8. I am not persuaded by the preliminary objection raised by the
learned Counsel for the respondent. The Hon’ble Supreme Court in
Urmila Devi v. Yudhvir Singh, (2013) 15 SCC 624, has clearly
declared the legal position in regard to maintainability of a Revision
Petition against an order taking cognizance and issuance of summons
under Sections 200 to 204 CrPC as follows –

“21. Having regard to the said categorical position
stated by this Court in innumerable decisions resting with the
decision in Rajendra Kumar Sitaram Pande as well as the
decision in K.K. Patel, it will be in order to state and declare
the legal position as under.”

21.1 The order issued by the Magistrate deciding to
summon an accused in exercise of his power under Sections

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200 to 204 CrPC would be an order of intermediatory or quasi-
final in nature and not interlocutory in nature.

21.2 Since the said position viz., such an order is
intermediatory order or quasi-final order, the revisionary
jurisdiction provided under Section 397, either with the District
Court or with the High Court can be worked out by the
aggrieved party.

21.3 Such an order of a Magistrate deciding to issue
process or summons to an accused in exercise of his power
under Sections 200 to 204 CrPC, can always be subject-
matter of challenge under the inherent jurisdiction of the High
Court under Section 482 CrPC.

22. When we declare the above legal position without
any ambiguity, we also wish to draw support to our above
conclusion by referring to some of the subsequent decisions.
In a recent decision of this Court in Om Kumar Dhankar v.
State of Haryana, the decisions in Madhu Limaye v. C. Shukla,
K.M. Mathew, Rakesh Kumar Mishra v. State of Bihar ending
with Rajendra Kumar Sitaram Pande, was considered and by
making specific reference to para 6 of the judgment in
Rajendra Kumar Sitaram Pande, this Court has held as under
in para 10 : (Om Kumar Dhankar case, SCC p. 255)

“10. In view of the above legal position, we hold, as it must
be, that revisional jurisdiction under Section 397 CrPC was
available to Respondent 2 in challenging the order of the
Magistrate directing issuance of summons. The first question
is answered against the appellant accordingly.”

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23. Therefore, the position has now come to rest to the
effect that the revisional jurisdiction under Section 397 CrPC is
available to the aggrieved party in challenging the order of the
Magistrate, directing issuance of summons.”

9. I have also considered the following judgments of the Hon’ble
Supreme Court in the matters concerning challenge in a Revision
Petition to the order taking cognizance and issuing process. When the
concerned High Court had declined to interfere in Revision Petition, the
Hon’ble Supreme Court had observed as follows –

(i) Suresh v. Mahadevappa Shivappa Danannava, (2005) 3
SCC 670

“2. The present appeal was filed against the final
judgment and order dated 17-2-2004 passed by the High
Court of Karnataka at Bangalore in Criminal Revision Petition
No. 932 of 2000 dismissing the said petition filed by the
appellant herein (Accused 1).”

“6. ……… On 4-8-2000 the IVth Additional Chief
Metropolitan Magistrate passed the following order :

ORDER

Perused the record. Cognizance of the offence alleged
against the accused is taken under Section 190(1)(b) CrPC.
Office to register the case in CC register and issue SS to
accused by 30-9-2000.”

“7. Aggrieved by the order dated 4-8-2000 passed by
the IVth Additional CMM, the appellant-accused preferred a
criminal revision under Section 401 CrPC praying the High

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Court to set aside the said order. The said revision was
dismissed by the High Court by the impugned order dated 17-
2-2004.”

“11 ….. In our view, the complaint does not disclose the
ingredients of Section 415 CrPC and, therefore, we have no
hesitation to set aside the order passed by the Magistrate
taking cognizance of the offence alleged. It is also not clearly
proved that to hold a person guilty of cheating, it is necessary
to show that he had a fraudulent or dishonest intention at the
time of making the promise. The order of the Magistrate and of
the High Court requiring Accused 1- appellant herein to face
trial would not be in the interest of justice. On the other hand,
in our considered opinion, this is a fit case for setting aside the
order of the Magistrate as confirmed by the High Court for
issuance of process and the proceedings itself.”

(ii) Indseam Services Ltd. v. Bimal Kumar Kejriwal (HUF),
(2001) 8 SCC 15 :

“2. M/s. Indseam Services Limited, an accused in
Complaint Case No. C-1628 of 1996 pending before the
Metropolitan Magistrate, XlIth Court, Calcutta, has filed this
appeal assailing the order dated 10-7-2000 of the Calcutta
High Court dismissing the revision petition filed by it for
quashing the order of the Magistrate taking cognizance of the
offence under Section 420 of the Indian Penal Code, and
issuing process to the accused.”

“4 …………..The order passed by the Magistrate is
quoted hereunder :

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“I have also gone through the order of the Hon’ble High
Court. On careful scrutiny of the materials on record, I find that
there is sufficient ground to proceed against the accused
persons under Sections 120B/420 IPC.”

Issue summons against all the accused persons under
Sections 120B/420 IPC; requisites are to be put in at once.”

“5. The appellant filed a revision petition in the High
Court assailing the said order………”

“8. On a perusal of the order under challenge it is clear
that the learned Single Judge disposed of the revision petition
filed by the appellant for setting aside the cognizance order
and for quashing the criminal proceedings without entering
into the merits of the case. The learned Single Judge did not
consider the nature of the contract between the parties, the
arrangement for payment of dues by the accused persons to
the complainant, nor did he record a finding that the
ingredients of the offence of cheating defined under Section
415 IPC were prima facie made out from the averments in the
complaint petition and the statement on oath by the
complainant before the learned Magistrate……………While
judging the question whether the cognizance order passed by
the learned Magistrate was sustainable in law it was
incumbent for the learned Single Judge to go into the question
whether the complainant has been able to make out a prima
facie case for the offence of cheating on the averments in the
complaint petition and his statement on oath. The matter
should have been examined in the light of the contentions

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raised by the accused petitioner in the revision petition and
finding recorded….”

“9. We are constrained to observe that there has been
an avoidance of the function of judicial determination of the
question of acceptability or otherwise of the plea raised by the
accused persons for [setting aside] the cognizance order and
for quashing the criminal proceedings………”

10. The Hon’ble Supreme Court in Nupur Talwar v. CBI, (2012) 2
SCC 188, observed as follows –

“15. Now the question is: what should be the extent of
judicial interference by this Court in connection with an order
of taking cognizance by a Magistrate while exercising his
jurisdiction under Section 190 of the Code?

16. Section 190 of the Code lays down the conditions
which are requisite for the initiation of a criminal proceeding.
At this stage the Magistrate is required to exercise sound
judicial discretion and apply his mind to the facts and materials
before him. In doing so, the Magistrate is not bound by the
opinion of the investigating officer and he is competent to
exercise his discretion irrespective of the views expressed by
the police in its report and may prima facie find out whether an
offence has been made out or not.

17. The taking of cognizance means the point in time
when a Court or a Magistrate takes judicial notice of an
offence with a view to initiating proceedings in respect of such
offence which appears to have been committed. At the stage
of taking of cognizance of offence, the Court has only to see

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whether prima facie there are reasons for issuing the process
and whether the ingredients of the offence are there on
record.”

“19. The correctness of the order whereby cognizance
of the offence has been taken by the Magistrate, unless it is
perverse or based on no material, should be sparingly
interfered with. In the instant case, anyone reading the order
of the Magistrate taking cognizance, will come to the
conclusion that there has been due application of mind by the
Magistrate and it is a well-reasoned order. The order of the
High Court passed on a criminal revision under Sections 397
and 401 of the Code (not under Section 482) at the instance of
Dr. Mrs. Nupur Talwar would also show that there has been a
proper application of mind and a detailed speaking order has
been passed.”

11. The ld. Counsel for the petitioner has rightly relied upon the
judgment in Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998)
5 SCC 749, wherein the Hon’ble Supreme Court delineated the duties
and obligations cast while summoning of an accused in a criminal case
as follows –

“28. Summoning of an accused in a criminal case is a
serious matter. Criminal law cannot be set into motion as a
matter of course. It is not that the complainant has to bring
only two witnesses to support his allegations in the complaint
to have the criminal law set into motion. The order of the
Magistrate summoning the accused must reflect that he has
applied his mind to the facts of the case and the law applicable

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thereto. He has to examine the nature of allegations made in
the complaint and the evidence both oral and documentary in
support thereof and would that be sufficient for the
complainant to succeed in bringing charge home to the
accused. It is not that the Magistrate is a silent spectator at the
time of recording of preliminary evidence before summoning of
the accused. The Magistrate has to carefully scrutinise the
evidence brought on record and may even himself put
questions to the complainant and his witnesses to elicit
answers to find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima facie
committed by all or any of the accused.”

12. Further, in Krishnan v. Krishnaveni, (1997) 4 SCC 241 it was
observed by a three Judge Bench of the Hon’ble Supreme Court that –

“7 ………..The revisional power of the High Court merely
conserves the power of the High Court to see that justice is
done in accordance with the recognised rules of criminal
jurisprudence and that its subordinate Courts do not exceed
the jurisdiction or abuse the power vested in them under the
Code or to prevent abuse of the process of the inferior criminal
Courts or to prevent miscarriage of justice.

8. The object of Section 483 and the purpose behind
conferring the revisional power under Section 397 read with
Section 401, upon the High Court is to invest continuous
supervisory jurisdiction so as to prevent miscarriage of justice
or to correct irregularity of the procedure or to mete out
justice……”

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13. Moreover, generally inherent power of the Court can be exercised
when there is no remedy provided in the Code of Criminal Procedure for
redressal of the grievance. Here Revision is an effective remedy
available to the petitioner.

14. In view of the above, I am satisfied that the preliminary objection of
the respondent has no merits and the petitioner has rightly invoked
statutory remedy under Section 397 read with 401 of Cr.P.C., rather
than invoking inherent jurisdiction. In view of the above binding
precedents, I also have no hesitation in holding that it is not only within
the jurisdiction, but is an obligation of this Court to look into as to
whether the taking of cognizance and issuance of process was
mechanical without there being any prima facie case for bringing home
the charge of the offences alleged against the petitioner. I shall now
ascertain whether duties and obligation cast on the ld. Chief Judicial
Magistrate were duly discharged while taking cognizance and issuing
summons against the petitioner or whether the criminal law was set into
motion as a matter of course without applying mind to the facts, nature
of allegations, sufficiency of evidence both oral and documentary for
bringing charge home to the accused, and the law applicable in context
of the facts for proceeding against the accused.

15. The brief facts of the case as pointed out by both sides, which led
to issuance of the impugned order are as follows –

15.1 FIR No. I 16 of 2014 dated 11-4-2014 was registered with the
DCB Police Station, Surat City, Gujarat against M/s. R.A. Distributor
and its Directors by the Manager of ICICI Bank, Surat u/s. 420, 465,

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467, 468, 471, 477A and 120B of IPC. The petitioner is not named in
the FIR.

15.2 The gist of the FIR as recorded in the Charge Sheet is as under –

“…Shri Utpal Devendrabhai Dave, Resident of : B-104,
Sarjan Complex, near TGB Restaurant Circle, L.P. Savani
Road, Adajan, Surat, on behalf of complainant ICICI Bank Ltd.
has given a written complaint to the effect that, “(1) Shailesh
Rameshbhai Patel, Resident of : Room No. 32, Second floor,
9/19B, Dr. Vagam Street, Kavel Cross Lane, MUMBAI – 400
002; and (2) Aniket Ashok Ambedkar, Res. of 872, G.S.
Subedar Ramji Ambedkar Nagar, A.G. Khan Road, Worli,
Mumbai – 400 018 – the Directors of M/s. R.A. Distributors Pvt.

Ltd. having registered office at : 6/1943, Office No. 303, Cabin
No. 1, Third floor, Navkar Building, Opposite Kabir Mandir,
Mahidharpura, Surat, have hatched a conspiracy of
committing cheating against the Government of India, and as
a part of that conspiracy, stating that, their Company is
engaged in importing rough diamonds and cut polished
diamonds from foreign country, and selling the said diamonds
in the local markets of Surat and Mumbai, and by stating this,
opened a Current Account in ICICI Bank, Shyam Chambers,
Opp.: Sub-Jail Surat branch in the name of R.A. Distributors
Pvt. Ltd., prepared 17 different Bill of Entries (BOEs) in
respect of their company having imported rough diamonds and
cut polished diamonds from different companies stationed at
Dubai and Hongkong, made false and bogus seals and
signatures of Custom Authorities and inspite of knowing that
the same are bogus and fabricated, submitted the same as

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being true in ICICI Bank, situated in Shyam Chambers,
opposite Sub-Jail, and sent the total amount of Rs.
104,60,99,082/- to (1) MABROCK TRADING FZE, DUBAI; (2)
NIPPON INCORPORATION LTD., HONGKONG; (3)
CORNELL TRADING (HK) LTD., HONGKONG; (4) AL ALMAS
FZE LTD., HONGKONG; (5) AL SABA GENERAL TRADING
FZE, DUBAI; and (6) DAIMUR GEMS JEWELLERY (LLC)
LTD., HONGKONG in between the period from 13-12-2013 to
24-2-2014, and thereby has committed cheating with the
Government of India etc….” and on lodging this complaint with
DCB Police Station, the same was registered at DCB Police
Station vide I C.R. No. 16/2014 for the offence under Secs.
420, 465, 467, 468, 417, 477A, 120(b) of Indian Penal Code.

The complainant has stated in his further statement, the
fact that, “during the course of investigation in this offence, the
Directors of M/s. R.A. Distributors Pvt. Ltd. and M/s. Ridhdhi
Exim Pvt. Ltd. produced another three Bill of Entries bearing
the seal and signature of the Custom Officials in ICICI Bank of
Rs. 18,69,67,187/- and the Directors of (1) M/s. Trinetra
Trading Co. Pvt. Ltd.; (2) M/s. Ramshyam Exports Pvt. Ltd.;
(3) M/s. Maa Mumbadevi Gems Pvt. Ltd.; (4) M/s. Hem
Jewellers Pvt. Ltd.; (5) M/s. M.B. Offshore Distributors Pvt.
Ltd.; and (6) Ridhdhi Exim Pvt. Ltd. prepared bogus Bill of
Entries, and by affixing false seals and forged signatures of
Custom Officials, and by stating them as true, produced before
the complainant bank i.e. ICICI, sent in all Rs. 305,06,58,081/-

to (1) MABROCK TRADING FZE, DUBAI; (2) NIPPON
INCORPORATION LTD., HONGKONG; (3) CORNELL

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TRADING (HK) LTD., HONGKONG; (4) AL ALMAS FZE LTD.,
HONGKONG; (5) AL SABA GENERAL TRADING FZE,
DUBAI; (6) DAIMUR GEMS JEWELLERY (LLC) LTD.,
HONGKONG; (7) BIN SABT JEWELLERY L.C.C. LTD.,
HONGKONG; (8) COMET CORPORATION LTD.,
HONGKONG; and (9) AL MIGHAS FZE LTD., HONGKONG in
an unlawful manner.

The complainant has stated in his complaint as well as in
his Statement that, “accordingly, the accused in this offence,
hatched a criminal conspiracy, deposited in all 71 bogus and
fabricated Bills of Entries in ICICI Bank in the name of 7
different companies, sent a total amount of Rs.
428,37,24,350/- towards Hawala to different companies at
Dubai and Hong Kong, and thereby, has committed cheating
with Government of India….”

15.3 The allegations in the case concern hawala, total amount of
which as alleged now is likely to be more than Rs. 5000 crores. Bogus
bill of entry is the genus of the scam. Total 861 Bills of Entry were under
scrutiny by Custom Department, out of which at least 454 bill of entries
have been found to be bogus amounting to Rs. 2846 crores (Rs.
28,46,51,58,616/-). Out of the bogus bill of entries, FIR for 17 bill of
entries to the tune of 104 crores transferred by Hawala is under
question. This transfer has been carried out through 7 companies
operating 9 account with ICICI bank, Ring Road, Surat. This is not the
only transacting agency. Other branches of ICICI bank itself at
Athwalines are also having some hawala. This is also under
investigation in (DCB I-Cr.No. 17/2014). The seven companies in
question, are namely – (1) R.A. Distributors Pvt. Ltd.; (2) Maa Mumba

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Devi Gems Pvt. Ltd.; (3) Hem Jewellers Pvt. Ltd.; (4) Ridhdhi Exim Pvt.
Ltd.; (5) M.B. Offshore Distributors Pvt. Ltd.; (6) Trinetra Trading
Company Pvt. Ltd.; and (7) Ramshyam Exports Pvt. Ltd., which remitted
the funds out of India by presenting forged Bills of Entry.

15.4 The petitioner is neither director nor any authorized person for
any of these seven companies, and there is neither any allegation that
any of these companies were formed and controlled by the petitioner,
nor that the bank accounts of any of these companies were managed
by the petitioner.

15.5 Statements of various persons were recorded on different dates
during the course of investigations.

15.6 On 1-8-2014, a statement of one Shri Prafulbhai Mohanbhai
Patel was recorded. This statement of Shri Praful Patel scribed in
Gujarati is to the effect that –

“……..One day Shri Madan Lal Jain called me in his office.
He introduced me to two persons named Afroz Hasan Fatta
and Amit @ Bilal Gilani, and Madan Lal Jain told me that –
“Afroz Fatta and Amit @ Bilal Gilani are residing at Surat.
We all together are doing the business of Import and
Export of Diamonds. As my entire work is being handled by
Narendra Jain, similarly, all the work of Afroz Fatta is being
handled by Amit @ Bilal Gilani. For the Import and Export
business, we are having accounts of our Company in ICICI
and AXIS Banks at Surat. If I, my man Narendra Jain, Afroz
or Amit @ Bilal Gilani, gives you any cash, you have to
arrange from the Financiers RTGS/NEFT remittance in the

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accounts of our Company in ICICI and AXIS Bank. For the
same, you will get commission of 10 paise against 100
paise. Due to my business at Surat, many small and huge
financiers are known to me and hence, I became ready to
do this business with them….”

” After that, on behest of Madanlal Jain and Amit @ Bilal
Gilani working for Afroz Fatta, between September 2013 to
February 2014, I had deposited about 500 Crores Rupees
by RTGS/NEFT in ICICI Bank and Axis Bank. I used to
deduct 10 paise commission from whatever cash I received
and then used to give them to the financer through whom I
did RTGS/NEFT and paid them 5 paise, 8 paise and 10
paise commission to them and whatever difference amount
remained was my commission. In this way I got in all about
Nine Lakh Rupees of commission in this business.”

“The cash amount given by me through financers in ICICI
Bank and Axis Bank by RTGS/ NEFT some were sent by
Madanlal Jain through Narendra Jain and some were sent
by Afroz Fatta through Amit @ Bilal Gilani sometimes by
Angadiya P. Umesh and sometimes by Angadiya S.
Babulal……”

This statement inter alia shows what is claimed to be stated by
Madan Lal Jain, as heard and understood by Shri Prafulbhai Patel. It
does not refer to any role of the petitioner in the alleged offence of
forgery, cheating, conspiracy, hawala, etc. Even the reference to the
petitioner as doing work for Shri Afroz and regarding business and

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accounts, is only hearsay in nature. The instant case is not relating to
any import or export of diamonds, but relating to submitting forged Bills
of Entry for making remittances. In this statement, he never stated that
he had directly or indirectly dealt with the petitioner for submitting
forged Bills of Entry. No culpable knowledge to the petitioner is imputed
by this statement. He claims regarding receipt of cash amounts by him
at the behest of Shri Madanlal Jain and the petitioner. He thereafter
reveals that he himself was giving the cash to financers and made
RTGS / NEFT and earned commission in the same.

15.7 Shri Ramesh @ Bala Laxmanbhai Bagtaria, doing diamond
brokerage work in the name of “Abhi Enterprises”, inter alia, stated in
his statement dated 05.08.2014 that:-

“…..As I remember, from Shubh Gems and Jewellery,
Prafulphai has called for diamond three times. I used to
visit to relieve those diamonds from customs. For making
payment of imported goods, Prafulphai used to visit ICICI
Bank, Ring Road Branch for producing Bill of Entries.”

“……… On asking about Amit @ Bilal Gilani I state that my
boss Prafulbhai Many times talk at Mumbai on phone
wherein he used to talk with Amitbhai and Anagadia of
cash of Amitbhai arrived in P.Umesh Angadia firm and
S.Babulal Angadia firm. To bring that cash sent by
Amitbhai from Angadia firm Prafulbhai used to inform me
many times and so in this manner I know Amitbhai. I do not
know his full name and address and I have not seen him
personally. To day you have informed me and I came to
know that original name of Amit is Bilal Gilani. I do not

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know a person name Jhon.”

“……. In RTGS Commission business of Prafulbhai some times
Madanlal Jain and Amit used to send cash money from Mumbai
through Angadia and Prafulbhai used to inform me to bring those
money and I used to bring that money from respective Angadia……..”
“……. I have heard the names of some of the above company’s as
Prafulbhai used total on phone for the cash sent from Mumbai by
Madanlal Jain or Amit and from financer Harshad Mody and Deepak
Suchak.”

His statement shows that the petitioner was not known to him and he
had never seen or dealt with the petitioner. At the most the statement
show that he collected cash from angadia firm, some of which he
believed to be sent by Shri Amit on the basis of telephonic
conversations of his boss Shri Prafulbhai Patel. Later on in investigation
he was informed that Shri Amit was the petitioner.

15.8 In the Charge-sheet dated 18-8-2014 and First Supplementary
Charge Sheet dated 30-9-2014, the petitioner who was arrested on 29-
8-2014, was therefore shown only as “suspect”, as the respondent
presumably did not find the statements of Shri Praful Patel and Shri
Ramesh sufficient to try the petitioner for the alleged offence.

15.9 In the Second Supplementary Charge-sheet dated 15-11-2014,
the petitioner was shown as Accused No. 2 in the array of accused.

15.10 On this second Supplementary Charge-sheet cognizance was
taken vide the impugned Order and process was issued against the
petitioner.

15.11 With reference to the petitioner herein, the said Second
Supplementary Charge-sheet apart from the said statement of Shri
Prafulbhai Mohanbhai Patel and Shri Ramesh @ Bala Laxmanbhai

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Bagtaria refers and relies upon the statements of various further
witnesses named as follows, and also refers to certain banking
transactions –

(i) Shri Pravinbhai Jethabhai Patel, Manager of S. Babulal
Angadia – statement dated 11-8-2014;

(ii) Shri Urvish Dilipbhai Shah, Partner of P. Umeshchandra Co.

– statement dated 24-8-2014;

(iii) Shri Harshad Maganlal Modi, cheque discounter – statement
dated 27-9-2014;

(iv) Shri Deepak Bhai Vithaldas Suchak, Prop. Of Shri Ganesh
Enterprises. – statement dated 27-09-2014;

(v) Shri Ambar Surendra Dhareva, doing profession as Chartered
Accountant – Statement dated 02-10-2014;

(vi) Shri Amrutbhai Narottamdas Patel – statement dated 9-10-

2014;

(vii) Shri Jafar Mohammed Hasanfatta, elder brother of petitioner –

statement dated 11-10-2014; and

(viii) Shri Surajnath Bhimnath Siddh, working as cheque
discounter – statement dated 28-10-2014.

15.12 In his statement dated 11-8-2014, Shri Pravinbhai Jethabhai
Patel, Manager of S. Babulal, inter alia, stated that:-

“……On being asked about Madanlal Manekchand Jain,
Afroz Fatta, Sunil Dipak Agrawal, Narendra Jain, Amit @
Bilal, Mithalal Jain, Ratan Dipak Agrawal, Sunil Jain, etc. I
state that I do not know any them…….”

15.13 In his statement dated 24.08.2014, Shri Urvish Dilipbhai Shah,

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Partner of P. Umeshchandra Co. inter alia, stated that:-

“….On being asked about Afroz Mohamed Hasanfatta and
Amit @ Bilal Gilani, I state that I do not know both of them,
nor I have contacted them till today.”

15.14 In his statement dated 27.09.2014, Shri Harshad Maganlal
Modi, cheque discounter inter alia, stated that:-

“……I do not know Afroz Fatta, Bilal Gilani, Madanlal Jain,
John, Sarfaraj, Sunil Agrawal, Ratan Agrawal, Narendra
Jain, Mithalal…..”

15.15 In his statement dated 27.09.2014, Shri Deepakbhai Vithaldas
Suchak, proprietor of Shree Ganesh Enterprises, inter alia, stated that:-

“…. In our business, if there is no clarification about any
entry, then Prafulbhai was use to talk on phone with a
person namely Amitbhai in my presence. I came to know
about this because of discussion on phone was done with
him”

15.16 In his statement dated 09.10.2014, Shri Amrutbhai Narottamdas
Patel, inter alia, stated that:-

“….On being asked regarding Madanlal Manekchand Jain,
Afroz Fatta, Bilal Harun Gilani, Sarfaraj, Narendra
Badrichand Jain and others, I state that I do not know any
them……Madanbhai about Afroz Mohamed Hasanfatta
and Amit @ Bilal Gilani, I state that I do not know any of
them………”

15.17 In his statement dated 11.10.2014, Shri Jafar Mohammed

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Hasanfatta, elder brother of Afroz stated that:-

“I do not know Madanlal Manekchand Jain, Sunil Agrawal,
Ratan Agrawal nor have I seen them at anytime. I am not in
contact with them in anyway. Bilal Harun Gilani is of our
community and his father was my friend. As we lived as
neighbours in Aman Society, Udhna, I know Bilal very well. I
do not know what business Bilal was doing. Afrozbhai also
knows Bilal. I do not have exact knowledge, whether Afroz
and Bilal were doing business together or not.”

15.18 In his statement dated 28.10.2014, Shri Surajnath Bhimnath
Siddh, working as cheque discounter, inter alia, stated that:-

“On asking about Bilal Harun Gilani, I state that my friends
Maheshbhai Biyani and Rafikbhai are doing business of
buying and selling properties in Manish Market on last
floor, three years back from today they have introduced me
with Bilal Gilani in their office and since Bilal was doing
business of cloth and property and by introducing him with
me in this manner have informed me that he is trust worthy
person and there is no harm in doing business with him.
Thereafter as I remember since October 2013 he started
doing business with me wherein some times he used to
give cheque and RTGS and used to take cash from me. As
per my information Bilal has done business of 25 to 30
crores with me. The cheques and RTGS given by Bilal to
me are deposited in my above different bank account and I
do not know those cheques and RTGS are of which party I
can tell it after seeing bank statement I have obtain 8 paise

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on Rs. 100/- by way of commission from Bilal.”

” By taking above RTGS/Cheques some times Bilal or his men Asfaq
and Jager used to come. Once Bilal’s men Jhon also came. Some times
Bilal used to come and some times he and Jhon used to send Asfaq
and Jafer by calling me on phone.”

” Bilal used to talk with me from mobile phone and he used to talk with
different mobile numbers. I do not remember all those mobile numbers
but I have one mobile number from which he used to talk more and in
the said number 44 is coming and other numbers I will investigate and
inform. Jhon is having two mobile numbers an done land line number
which I do not remember right now but will inform after investigation.”

15.19 None of these statements however allege anything incriminating
against the petitioner. Representatives of S. Babulal Angadia and P.
Umeshchandra Co., whose names are appearing in the statement of
Shri Prafulbhai Patel and his employee Shri Ramesh, did not allege any
dealing or transaction with the petitioner, much less of any incriminating
transaction. Except one cheque discounter Shri Surajnath Bhimnath
Siddh, none of the other witnesses revealed any transaction with the
petitioner herein in their statements. It cannot be overlooked that the
person who claims to have given cash i.e. Shri Surajnath Bhimnath
Siddh, the person who claims to have received cash i.e. Shri Prafulbhai
Patel as also the angadias who are alleged to have transferred cash,
are only made witnesses, and are not considered by the prosecution
itself as involved in any conspiracy despite the alleged activity for
earning commission. In such admitted position, in absence of any other
evidence, these statements would not be sufficient even on prima facie
basis to subject the petitioner to face trial.

16. I have seen that the said Second Supplementary Charge Sheet
refers to certain banking transaction evidencing receipt of an amount of
Rs. 43 Lacs by the petitioner in his bank account, which is alleged as
possible commission for his role. The Ld. PP has pointed out that bank

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statement showing this payment is also on record and the Manager of
the Bank has been made a witness. The said payment is received by
the petitioner from M/s Center Point Gems Pvt Ltd. It is alleged that this
commission is received from main accused Shri Madan Lal Jain.
However, it is not in dispute that neither the said M/s Center Point
Gems Pvt Ltd., nor any of its Directors, are amongst accused in the said
Second Supplementary Charge Sheet or any other Charge Sheet filed
in the instant case. In my view, in such glaring circumstances and in
absence of any material whatsoever to suggest any mens rea or
culpable knowledge of the petitioner regarding the alleged fraud, merely
receipt of amount to the tune of Rs. 43 Lacs through banking channels
from such entity which is not amongst accused, and not amongst the 7
companies from which remittances are sent abroad on the strength of
bogus bills of entry, cannot be a ground sufficient to subject the
petitioner to any trial. Even if the said company from whom amount was
received through banking channels is presumed to be operated by Shri
Madan Lal Jain, it would not in these circumstances impute any
culpable knowledge or mens rea, sufficient to subject the petitioner to
the rigors of trial.

17. There is no material to show any transaction whatsoever of the
petitioner with the seven companies in question, namely – (1) R.A.
Distributors Pvt. Ltd.; (2) Maa Mumba Devi Gems Pvt. Ltd.; (3) Hem
Jewellers Pvt. Ltd.; (4) Ridhdhi Exim Pvt. Ltd.; (5) M.B. Offshore
Distributors Pvt. Ltd.; (6) Trinetra Trading Company Pvt. Ltd.; and (7)
Ramshyam Exports Pvt. Ltd., which remitted the funds out of India by
presenting forged Bills of Entry.

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18. The case therefore rests mainly on the said statement dated 1-8-
2014, of Shri Prafulbhai Patel. However, to satisfy myself before
reaching to any final conclusion, I raised a specific query to the learned
Counsel for the petitioner to throw light on the issue of applicability or
otherwise of the “rule of res gestae” which is an exception to
admissibility of a hearsay evidence.

19. In response to my specific query, the learned Counsel for the
petitioner invited my attention to the Section 6 of the Evidence Act,
1872, which reads as under –

“6. Relevancy of facts forming part of same transaction.

– Facts which, though not in issue, are so connected with a
fact in issue as to form part of the same transaction, are
relevant, whether they occurred at the same time and place or
at different times and places.

Illustrations

(a) A is accused of the murder of B by beating him.
Whatever was said or done by A or B or the by-standers at the
beating, or so shortly before or after it as to form part of the
transaction, is a relevant fact.

(b) A is accused of waging war against the Government
of India by taking part in an armed insurrection in which
property is destroyed, troops are attacked and gaols are
broken open. The occurrence of these facts is relevant, as
forming part of the general transaction, though A may not have
been present at all of them.

(c) A sues B for a libel contained in a letter forming part
of a correspondence. Letters between the parties relating to

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the subject out of which the libel arose, and forming part of the
correspondence in which it is contained, are relevant facts,
though they do not contain the libel itself.

(d) The question is, whether certain goods ordered from
B were delivered to A. The goods were delivered to several
intermediate persons successively. Each delivery is a relevant
fact.”

20. The learned Counsel for the petitioner submitted that in the
context of the said Section 6 of the Evidence Act, 1872, the Hon’ble
Supreme Court in Bhairon Singh v. State of M.P., (2009) 13 SCC 80,
was pleased to observe as under –

“11. The only evidence to bring home the charge under
Section 498A IPC, is that of PW 4 and PW 5. In their
deposition PW 4 and PW 5 stated that their sister told them
that the accused was torturing her as he wanted that her
brothers should arrange a job for him or the house at Ganj
Basoda be given to him or a cash of Rs 1 lakh be given to
enable him to do some business. They deposed that as and
when their sister came to their house, she would tell them that
the accused used to insert cloth in her mouth and give
beatings for dowry.”

“18. The learned counsel for the State, however, invited
our attention to Section 6 of the Evidence Act and referred to a
decision of this Court in Sukhar v. State of U.P.

19. Section 6 of the Evidence Act reads thus :

“6. Relevancy of facts forming part of same transaction. –

Facts which, though not in issue, are so connected with a fact

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in issue as to form part of the same transaction, are relevant,
whether they occurred at the same time and place or at
different times and places.”

20. In Sukhar case, this Court noticed the position of
law with regard to Section 6 of the Evidence Act thus :

(SCC pp. 511-12, paras 6-7)

“6. Section 6 of the Evidence Act is an exception to the
general rule whereunder the hearsay evidence becomes
admissible. But for bringing such hearsay evidence within the
provisions of Section 6, what is required to be established is
that it must be almost contemporaneous with the acts and
there should not be an interval which would allow fabrication.
The statements sought to be admitted, therefore, as forming
part of res gestae, must have been made contemporaneously
with the acts or immediately thereafter. The aforesaid rule as
it is stated in Wigmore’s Evidence Act reads thus:

‘Under the present exception [to hearsay] and utterance is by
hypothesis, offered as an assertion to evidence the fact
asserted (for example that a car brake was set or not set),
and the only condition is that it shall have been made
spontaneously i.e. as the natural effusion of a state of
excitement. Now this state of excitement may well continue to
exist after the exciting fact has ended. The declaration,
therefore, may be admissible even though subsequent to the
occurrence, provided it is near enough in time to allow the
assumption that the exciting influence continued.’

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7. Sarkar on Evidence (15th Edn.) summarises the law
relating to applicability of Section 6 of the Evidence Act thus:

1. The declarations (oral or written) must relate to
the act which is in issue or relevant thereto; they are
not admissible merely because they accompany an
act. Moreover the declarations must relate to and
explain the fact they accompany, and not independent
facts previous or subsequent thereto unless such facts
are part of a transaction which is continuous.

2. The declarations must be substantially
contemporaneous with the fact and not merely the
narrative of a past.

3. The declaration and the act may be by the
same person, or they may be by different persons e.g.
the declarations of the victim, assailant and
bystanders. In conspiracy, riot c the declarations of
all concerned in the common object are admissible.

4. Though admissible to explain or corroborate,
or to understand the significance of the act,
declarations are not evidence of the truth of the
matters stated.”

21. The rule embodied in Section 6 is usually known as
the rule of res gestae. What it means is that a fact which,
though not in issue, is so connected with the fact in issue “as
to form part of the same transaction” becomes relevant by
itself. To form a particular statement as part of the same
transaction utterances must be simultaneous with the incident

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or substantially contemporaneous that is made either during
or immediately before or after its occurrence.

22. Section 6 of the Evidence Act, in the facts and
circumstances of the case, insofar as admissibility of the
statements of PW 4 and PW 5 about what the deceased had
told them against the accused of the treatment meted out to
her is concerned, is not at all attracted.”

21. Thus, the Hon’ble Supreme Court was dealing with a case
involving Section 304B and 306 IPC, where PW 4 and PW 5 stated that
their sister told them that the accused (husband) was torturing her as he
wanted that her brothers should arrange a job for him or the house be
given to him or a cash of Rs. 1 lakh be given to enable him to do some
business. They deposed that as and when their sister came to their
house, she would tell them that the accused used to insert cloth in her
mouth and give beatings for dowry. However, it was held on the said
test laid down that rule of res gestae was not at all applicable.

22. Learned Counsel for the petitioner pointed out that even in the
instant case, the hearsay oral evidence in the form of statement dated
1-8-2014 of Shri Prafulbhai Mohanbhai Patel is neither
contemporaneous, nor covered by any of the illustrations mentioned in
Section 6 for application of the “rule of res gestae” which is an exception
to the normal rule of inadmissibility of hearsay evidence.

23. I have carefully perused the statement dated 1-8-2014 of Shri
Prafulbhai Patel, and the other statements mentioned above. I find merit
in the submission of the learned Counsel for the petitioner. I also find
that the allegations of offences which are in issue are under Sections

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420, 465, 467, 468, 471, 477A and 120B of IPC. The said statement
nowhere shows role of the petitioner in any cheating, forgery,
falsification of accounts, conspiracy, making foreign remittance on the
strength of fake Bills of Entry, arranging for RTGS in the accounts of the
said 7 companies for making remittances against forged Bills of Entry
etc. I have also seen that regarding the forged bills of entry, the said
statement of Shri Prafulbhai Patel shows that he himself was submitting
Bills of Entry to the bankers after receipt of the same from Mumbai
Office of Shri Madanlal Jain. There is no evidence oral or documentary
or circumstantial, to suggest any concern of the petitioner with the
forging or in submitting forged Bills of Entry or instructing bank or any
other person to make remittances on the basis thereof, enough to even
raise such suspicion against the petitioner, which can be sufficient to
subject him to a criminal trial.

24. In view of the above, a specific query was posed to the learned
APP for the respondent to show from the entire record in the charge
sheets, any other statement naming the petitioner herein, or any other
direct or indirect admissible evidence against the petitioner, to support
the commission of alleged offences by him.

25. Despite my specific query, the ld. APP for the respondent could
not show any direct or indirect admissible evidence on record in the
entire charge sheet to show the role of the petitioner in the alleged
fraud, even on prima facie basis, in –

(a) forging Bills of Entry,

(b) submitting forged Bill of Entry to the banks,

(c) fabricating seals of Custom Department,

(d) affixing false and fabricated seals of Custom Department,

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(e) putting forged signatures,

(f) criminal conspiracy,

(g) sending amounts towards Hawala in any unlawful manner to
different companies at Dubai and Hongkong,

(h) any dealing with the concerned bank officials,

(i) opening bogus accounts,

(j) depositing cash payments in banks for the alleged
transactions,

(k) payment of commission to the Financiers,

(l) creating balance in the bank through RTGS/NEFT transfers in
accounts of the said 7 companies,

(n) any falsification of accounts in terms of Section 477A of IPC,

(o) any commission of fraud against the Government of India.

26. The learned APP for the respondent submitted that there is a
suspicion that the petitioner has received commission towards the
hawala scam, and the investigation is still going on. The handwriting of
the bogus bill of entries are yet to be scrutinized to ascertain role of the
petitioner, after collecting all specimen signature of the Custom Officers
and sending them to FSL for opinion of handwriting expert which is
likely to take considerable time for various reasons. Therefore, the
petition shall be dismissed and no relief shall be granted by taking into
consideration, inter alia the said statement dated 1-8-2014.

27. I am unable to agree with the stand taken by the learned APP for
the respondent. In fact, from this stand taken by the respondent at this
belated stage that FSL reports would be obtained to ascertain
involvement of the petitioner, if any, in the forgery, itself shows that till

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now, there is no prima facie material showing petitioner’s involvement in
the forgery. Neither there is any allegation or material to show that the
petitioner was fraudulently sending abroad his undisclosed income by
the alleged modus operandi, nor is there any iota of allegation or
material to show that he was receiving cash from any person
whatsoever to fraudulently send the same abroad i.e. for hawala to earn
any commission. In absence of any such tangible material, there is no
strong and reasonable basis for such degree of suspicion, that the
petitioner may have received commission towards the hawala scam,
which can be considered sufficient for proceeding against the petitioner
and subjecting him to rigours of trial. I am satisfied that there is no prima
facie material against him.

28. The judgment of the Hon’ble Supreme Court in Kalyan Kumar
Gogoi v. Ashutosh Agnihotri – (2011) 2 SCC 532 has been rightly
relied upon by the learned Counsel for the petitioner to show that so far
as imputations against the petitioner herein, in the statement dated 1-8-
2014 of Shri Praful Patel are concerned, are only ‘hearsay’ in nature,
and a “hearsay evidence” is inadmissible. The Hon’ble Supreme Court
clearly in unambiguous terms held as follows –

“37. Here comes the rule of appreciation of hearsay
evidence. Hearsay evidence is excluded on the ground that it
is always desirable, in the interest of justice, to get the person,
whose statement is relied upon, into court for his examination
in the regular way, in order that many possible sources of
inaccuracy and untrustworthiness can be brought to light and
exposed, if they exist, by the test of cross-examination. The
phrase “hearsay evidence” is not used in the Evidence Act
because it is inaccurate and vague. It is a fundamental rule of

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evidence under the Indian Law that hearsay evidence is
inadmissible. A statement, oral or written, made otherwise
than a witness in giving evidence and a statement contained
or recorded in any book, document or record whatever, proof
of which is not admitted on other grounds, are deemed to be
irrelevant for the purpose of proving the truth of the matter
stated. An assertion other than one made by a person while
giving oral evidence in the proceedings is inadmissible as
evidence of any fact asserted. That this species of evidence
cannot be tested by cross-examination and that, in many
cases, it supposes some better testimony which ought to be
offered in a particular case, are not the sole grounds for its
exclusion. Its tendency to protract legal investigations to an
embarrassing and dangerous length, its intrinsic weakness, its
incompetency to satisfy the mind of a Judge about the
existence of a fact, and the fraud which may be practiced with
impunity, under its cover, combine to support the rule that
hearsay evidence is inadmissible.”

“38. The reasons why hearsay evidence is not received
as relevant evidence are :

(a) the person giving such evidence does not feel any
responsibility. The law requires all evidence to be given under
personal responsibility, i.e., every witness must give his
testimony, under such circumstance, as expose him to all the
penalties of falsehood. If the person giving hearsay evidence
is cornered, he has a line of escape by saying “I do not know,
but so and so told me”,

(b) truth is diluted and diminished with each repetition and

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(c) if permitted, gives ample scope for playing fraud by
saying “someone told me that….”.

It would be attaching importance to false rumour flying
from one foul lip to another. Thus statement of witnesses
based on information received from others is inadmissible.”

29. I am of the firm view that the statement of Shri Praful Patel, his
employee and one cheque discounter are not sufficient to proceed
against the petitioner for subjecting him to a criminal trial. I have noted
the fact that despite some statements even the respondent themselves
did not add the petitioner in the array of accused in the First
Supplementary Charge-sheet dated 30-9-2014, presumably in view of
the settled position of law in regard to such hearsay evidence.

30. There is no material whatsoever either direct or circumstantial, to
point out any connection of the petitioner with the alleged offences of
forgery, cheating, conspiracy, etc. Similarly, there is nothing to suggest
any abetment by the petitioner in any of the alleged offences much less
in creation and submission of forged bills of entry, or of instructing
directly or indirectly the concerned bankers to make remittances out of
India on the strength of such forged bills of entry, which can be
considered as sufficient enough to subject the petitioner to rigours of
trial.

31. Similarly, none of the Directors/Partners of various companies/
firms referred in the Charge-sheet have alleged any role against the
petitioner.

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32. There is nothing in the Charge-sheet/Supplementary Charge-
sheets to even remotely suggest any role of the petitioner in setting up
of any of the foreign companies who were recipient of the amounts
fraudulently sent abroad or any Indian Entity which fraudulently remitted
the amounts out of India, or suggesting controlling of any such foreign
or Indian entities, or of having sent or having received the remitted
amount out of India directly or indirectly. There is no tangible admissible
evidence which can prima facie make out or satisfy the basic
ingredients of the offences alleged under Sections 420, 465, 467, 468,
471, 477A and 120B of IPC, sufficient enough to even subject the
petitioner to any trial on basis thereof.

33. I am satisfied that the trial Court has committed manifest error in
taking cognizance and issuing process against the petitioner for
proceedings against him for the alleged offence vide the impugned
order, when there is no prima facie material sufficient to proceed
against him. I record my appreciation for the able assistance given by
the learned Counsels appearing for both the sides.

34. The learned Counsel for the petitioner has rightly pointed out that
the judgment in Pepsi Foods Ltd. (supra), was applied in Rukmani
Narvekar v. Vijaya Satardekar, (2008) 14 SCC 1, and the Hon’ble
Supreme Court while upholding the Order passed by the High Court
which allowed a petition against dismissal of Criminal Revision Petition
filed against order taking cognizance and issuing process, observed in
favour of respondent accused Smt. Vijaya Satardekar as follows –

“7. The allegation in the FIR was that Ranjit Satardekar
had falsely misrepresented to the complainant and her
husband that the document which was being executed by

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them was for enabling Ranjit to represent them in the
inventory proceedings in progress on the death of Andre
Andrade, although what was actually executed by them was a
power of attorney. This power of attorney was used by the
accused for executing a sale deed in favour of his wife Vijava
Satardekar and Sadiq Sheikh in the year 1991, but the said
sale deed was presented for registration only in the year 2001.

It is alleged that the complainant came to know only in August
2001 for the first time about the execution of the sale deed in
1991. Thus it is alleged that the property of the complainant
was purported to have been sold away by Ranjit Satardekar,
Advocate, by deceit and misrepresentation for which he
deserved to be punished under Sections 409, 420 and other
provisions of IPC.

8. On the basis of the aforesaid FIR, the police
investigated the case and filed a charge sheet against both
Ranjit Satardekar and Smt Vijaya Satardekar as well as two
others. Thereafter, cognizance was taken of the offence
alleged in the charge-sheet and process was issued by the
Judicial Magistrate, First Class, Panaji under Sections
468/471/420/120B read with Section 34 of the Penal Code,
1860.

9. Against the order taking cognizance and issuing
process against the accused, they filed a criminal revision
before the Sessions Judge, Panaji, which was dismissed by
his judgment dated 19-6-2007. Against that order a writ
petition was filed which was allowed by the impugned

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judgment of the learned Single Judge of the High Court dated
3-8-2007. Hence this appeal.”

“26. As regards the other criminal appeal in which Smt.
Vijaya Satardekar, wife of Ranjit Satardekar, is the
respondent, we are of the opinion that there is no material
whatsoever either mentioned in the FIR or produced by the
prosecution to show that Vijaya Satardekar was in any way
involved in the alleged criminal offence committed by her
husband Raniit Satardekar. The only allegation against her is
that the sale deed was in her favour. In our opinion this does
not prima facie make out any offence. In our opinion,
therefore, the criminal proceeding against Vijaya Satardekar
was rightly quashed by the High Court and the criminal appeal
in which Vijaya Satardekar is the respondent is dismissed.”

“39. However, as indicated by my learned Brother, the
complaint made does make out a prima facie case against
accused Ranjit Satardekar and the cognizance taken by the
learned Magistrate cannot be faulted and the appeal as far as
he is concerned, must be allowed. However, even prima facie,
none of the offences referred to in the charge-sheet can be
made out against accused Vijaya Satardekar and she has
been roped in only with the aid of Section 120B which is also
not substantiated. The appeal as far as she is concerned,
must be dismissed.”

35. Thus, in a case of executing sale deed in favour of wife by deceit
and misrepresentation, the Hon’ble Supreme Court upheld interference
with the cognizance order in Revision Jurisdiction as there was no
material whatsoever either mentioned in the FIR or produced by the

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prosecution to show that the wife Vijaya Satardekar was in any way
involved in the alleged criminal offence committed by her husband
Ranjit Satardekar. The only allegation against her was that the sale
deed was in her favour, which in the opinion of the Hon’ble Supreme
Court did not prima facie make out any offence.

36. The same test is applicable in the facts of the instant case. The
cognizance was taken without even prima facie material in the FIR or
the Charge Sheet/Supplementary Charge Sheets, in the form of any
tangible evidence, or even any circumstantial material to show
existence of any ‘mens rea’ or to impute culpable ‘knowledge’ on the
petitioner, so as to subject him to trial for the alleged offences. The
petitioner was also roped in only with the aid of Section 120B which is
also not substantiated with any prima facie material. No material to
show any agreement with culpable knowledge regarding the remittance
against forged bills of entry could be pointed out by the Respondent.
Therefore, I find merit in the submissions made by the learned Counsel
appearing on behalf of the petitioner and I have no hesitation in holding
that the impugned Order was passed mechanically and deserves to be
set aside in the interest of justice.

37. I find that the entire fulcrum of the allegations levelled against the
petitioner is around the said inadmissible hearsay evidence, and it
forms the foundation of the case alleged against the petitioner. I am
persuaded to agree with the contention of the learned Counsel for the
petitioner that if this foundation is removed from consideration, the
entire structure would fall. The legal maxim sublato fundamento cadit
opus is thus squarely applicable in the instant case. In view of the
above, the petitioner cannot be subjected to go through the rigours of

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trial when the case against him rests on such hearsay evidence, which
is not only an ex facie inadmissible evidence, but is also not even prima
facie sufficient to proceed against the petition for the alleged offences.

38. The revisional powers of this Court are to see that justice is done
in accordance with the recognised rules of criminal jurisprudence and
that its subordinate courts do not exceed the jurisdiction or abuse the
power vested in them under the Code or to prevent abuse of the
process of the inferior criminal Courts or to prevent miscarriage of
justice. Since, even on prima facie basis no material is available on
record to show that any alleged offence is made out qua the petitioner
to subject him to trial, the instant Revision Petition deserves to be
allowed to prevent miscarriage of justice.

39. In view of the above, the instant Revision Petition is accordingly
allowed and the impugned order dated 15-11-2014 in Case No. 62851
of 2014 qua the petitioner is set aside with consequential reliefs. Rule is
made absolute to the aforesaid extent. Bail bond shall stand cancelled.

(Z.K.SAIYED, J)

After pronouncement of the judgment Mr.K.L.Pandya, learned
APP has requested to stay this order for a period of six weeks.
Mr.Amit Laddha, learned advocate for the petitioners has strongly
objected the same. Looking to the facts of the case and
circumstances of the case, operation and implementation of the
present order shall stand stayed for a period of three weeks from
today.

(Z.K.SAIYED, J)
K.K. SAIYED

Page 42 of 42

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