Jayesh Natwarlal Shah v. The State of Maharashtra

1. Jayesh Natwarlal Shah, Age 32 years, Occu. Business, Resident of 43, Sunbean, 6th Floor, Peddar Road, Mumbai- 400 026

2. Nawaz Samsuddin Pathan, Age 31 years, Occu. Service, Resident of A-6, Rajan Apartment, S.V. Road, Dahisar (East), Mumbai - 400 068.. Applicants

VERSUS

The State of Maharashtra.. Respondent....................  Ms. Brenda D'Souza (Legal Aid Counsel) for Applicants.  Ms. Manisha R. Tidke, APP for State.................... CORAM: MILIND N. JADHAV, J. DATE: DECEMBER 2, 2024.

O R A L JUDGMENT:

1. Heard Ms. D'Souza, learned Appointed Advocate for the Applicants and Ms. Tidke, learned APP for the State.

2. The present Criminal Revision Application takes exception to the twin judgments of the learned Trial Court and the learned Appeal Court convicting and sentencing the Revision Applicant - Original Accused No.1 for offence punishable under Section 420 r/w. 34 of Indian Penal Code and sentencing him along with the Original 1 of 6 ANIL TIKAM Accused No.2 to suffer Rigorous Imprisonment for three months and pay a fine of Rs.5,000/- each and in default to undergo R.I. for one month.

3. The facts in the present case are narrow, but relevant. Revision Applicant- Jayesh Natwarlal Shah along with his partner in crime viz. Nawaz Samsuddin Pathan, were charge-sheeted as Accused Nos.[1] and 2 for the offence punishable under Section 420 r/w. 34 of IPC. Both accused Nos.[1] and 2 prior from 13 June, 1994 started a partnership firm called Vishakha Investments & Financiers by publishing newspaper advertisements in Gujarati Newspaper called as 'Gujarat Samachar' and Marathi Newpaper 'Deshdoot' in the name and style of Vishakha Investments & Financiers, calling upon the public at large to deposit advance money in their firm so that the firm can advance loans at the reasonable rate of return by interest. Insofar as the present Complainant is concerned, he approached the accused some time on 20 January, 1995 and expressed his desire to avail a loan of Rs.5,00,000/- He was called upon to deposit an amount of Rs.35,000/- as advance amount to process his loan. He deposited an amount of Rs.35,000/- and issued receipt dated 20 January, 1995, which was in the name of Vishakha Investments. When the Complainant went to the office of Vishakha Investments in February, 1995 for inquiring about his loan amount, he found that the accused had shut their firm and the said office premises was occupied by some 2 of 6 third party. The First Informant-Complainant then filed a complaint with the V.P. Road Police Station on 22 February, 1995.

4. Prosecution led the evidence of three witnesses viz. PW-1the First Informant- Complainant, who was duped for Rs.35,000/- and PW-2 one Mr. Jayesh Ulhani, who was similarly duped by the accused like the Complainant for depositing several amounts. In fact, insofar as PW-2 is concerned, he has made multiple investments with the accused i.e. with the Accused's Firm - Vishakha Investments and he was issued three separate sets of receipts by Vishakha Investments along with a declaration and an agreement. PW-3 is the Investigating Officer. The evidence of PW-1 pertained to the transaction in question for Rs.35,000/- but the evidence of PW-2 was in much detail highlighting the role of accused by inducing him to investment money in Vishakha Investments, but without giving him any returns. The learned Trial Court on the basis of the above facts and the investigation done by the prosecution, answered the case of the prosecution in the affirmative and held that the prosecution has proved its case beyond all reasonable doubts, holding the accused having committed offence under Section 420 r/w. 34 IPC.

5. When the reasons given by the learned Trial Court in paragraph 6 onwards are perused, it is seen that evidence of the twin prosecution witnesses viz. PW-1 and PW-2 has been accepted by the 3 of 6 learned Trial Court in indicting and convicting the accused. The fact of accused having received the amount from PW-1 and PW-2 as delineated in the prosecution case has not been denied by him. Neither the receipts issued by the accused (Revision Applicants) in the name of Vishakha Investments are not denied and all receipts are produced in evidence. The evidence of PW-2 Mr. Jayesh Ulhani has been accepted by the learned Trial Court, inter alia, on the basis of the receipts issued by accused on behalf of the Vishakha Investments & Financiers as also the multiple documents relating to loan proposals which were all taken on record and marked as Exhibits P-1 to P-3. On the basis of the aforesaid documents exhibited below PW-1 to PW-3, learned Trial Court opined that prosecution proved the guilt of the accused. The ingredients of cheating as envisaged under Section 420 IPC stood fully proved on the basis of prosecution evidence which was duly corroborated by substantial documentary evidence placed on record. The original accused filed Criminal Appeal No. 148 of 2001 before the Sessions Court, which considered the case of the prosecution. It relied heavily on the documentary evidence viz. documents exhibited at P-5 to P-8 which form part of the evidence considered by the trial Court and upheld the adjudication and conviction awarded by the trial Court and rejected the defence case.

6. I have perused both the judgments with the able assistance of the learned appointed Advocate Ms. D'Souza and learned 4 of 6 APP. Though Ms. D'Souza has made submissions to consider the case of the Revision Applicants and show leniency, I am not inclined to accept the said submissions, in view of the fact, the Revision Applicant along with his partner in crime viz. Original Accused No.2 was fully involved in various transactions carried out by them between 11 June, 1994 and the date of filing of the present complaint on 22 February,

1995. Further substantial oral and documentary evidence has been placed on record which is found to be adequate enough to indict and convict the Accused for the offence committed under Section 420 IPC.

7. Learned APP has in support of the twin judgments submitted that, both the Courts below have made a reasonable approach in deciding the matter by considering the oral and documentary evidence on record which proves the guilt of the accused and hence, no interference is warranted under the revisionary powers of this Court under Section 397 Cr.P.C.

8. Unless there is any illegality or perversity in the decisions passed by the Courts below, the power under Section 397 Cr.PC cannot be utilized for disturbing the said judgments. On reading of both the judgments passed by the Courts below, I am of the opinion that a disciplined exercise has been undertaken by the Courts in adjudicating the case of the prosecution. Rather this is one such case where the prosecution has proved its case beyond all reasonable 5 of 6 doubts on the basis of oral evidence of two prosecution witnesses viz. PW-1 and PW-2 who were the victims of the crime first hand and the documentary evidence produced on record.

9. In that view of the matter and in view of the above observations and findings, I do not see any reason for disturbing the twin judgments passed by the Courts below. The judgment and order dated 11 September,2002 passed by the Sessions Court in Criminal Appeal No. 148 of 2001 is upheld. Conviction of both the Applicants stands upheld. Their Bail bonds stand cancelled.