Z.K. Saiyed, J. (CAV) - Rule. Learned PP Mr. Mitesh Amin waives service of Rule on behalf of the respondent-State.

In the instant Revision Application, the challenge of the petitioner is to the order dated 15.11.14 of the Chief Judicial Magistrate at Surat, passed for taking cognizance of the offence alleged under Sections 420, 465, 467, 468, 471, 477-A, 120-B 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 Article 14 and 21 of the Contitution of India.

3. Learned Counsel for the Respondent raised preliminary objection on the maintainability of the Revision Application and also argued on merits of the application. A Counter Affidavit was also filed.

4. It was argued by the Ld. Counsel for the Respondent that -

4.1. The Petitioner could have invoked remedy under section 482 of CrPC, 1973 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. He relied on the judgment of the Honble Supreme Court in U.P. Pollution Control Board v. Mohan Meakins Ltd., (2000) 3 SCC 745 [LQ/SC/2000/561] , 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 Honble Supreme Court in Nupur Talwar v. CBI, (2012) 11 SCC 465 [LQ/SC/2012/517] in which challenge was by the Complainant against a detailed Order taking cognizance against the 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 Honble 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 account 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 may be to the tune of 15-16 crores. This remains unexplained satisfactorily and in all probability this is a commission that has been received by the present petitioner towards the hawala scam.

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 officer have put their signatures 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 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 send 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 under way 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 Counsel for the Respondent and it was prayed that the petition may be dismissed in limine.

5. The Learned Counsel for the petitioner filed detailed written submissions on maintainability as well as merits of the petition.

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 24.3.2017.

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 Honble Supreme Court in Urmila Devi v. Yudhvir Singh, (2013) 15 SCC 624 [LQ/SC/2013/1189] , 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, 1973 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 Pandelg 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 200 to 204 CrPC, 1973 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, 1973 can always be subject-matter of challenge under the inherent jurisdiction of the High Court under section 482 CrPC, 1973.

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, 1973 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."

23. Therefore, the position has now come to rest to the effect that the revisional jurisdiction under section 397 CrPC, 1973 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 Honble 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 Honble Supreme Court had observed as follows-

(i) Suresh v. Mahadevappa Shivappa Danannava, (2005) 3 SCC 670 [LQ/SC/2005/203 ;] ">(2005) 3 SCC 670 [LQ/SC/2005/203 ;] [LQ/SC/2005/203 ;]

"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, 1973. 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, 1973 praying the High 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, 1973 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 [LQ/SC/2001/2064] :

"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:

"I have also gone through the order of the Honble 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 120-B/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 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 aside the cognizance order and for quashing the criminal proceedings... .............."

10. The Honble Supreme Court in Nupur Talwar v. CBI, (2012) 2 SCC 188 [LQ/SC/2012/18] , 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 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 [LQ/SC/1997/1443] , wherein the Honble 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 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 [LQ/SC/1997/112] it was observed by a three Judge Bench of the Honble 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....."

13. Moreover, the Honble Supreme Court in Mohit v. State of U.P., (2013) 7 SCC 789 [LQ/SC/2013/632] held that 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. The Honble Supreme Court observed that-

"27. In our considered opinion, the complainant ought to have challenged the order before the High Court in revision under section 397 CrPC, 1973 and not by invoking inherent jurisdiction of the High Court under section 482 CrPC, 1973. Maybe, in order to circumvent the provisions contained in sub-section (2) of Section 397 or Section 401, the complainant moved the High Court under section 482 CrPC, 1973. In the event a criminal revision had been filed against the order of the Sessions Judge passed under section 319 CrPC, 1973 the High Court before passing the order would have given notice and opportunity of hearing to the appellants.

28. So far as the inherent power of the High Court as contained in section 482 CrPC, 1973 is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, 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. It is well settled that the inherent power of the Court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged."

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 11.04.2014 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 under section 420, 465, 467, 468, 471, 477- A and 120-B 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, 9/19 B, 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 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 JEWELLRY (LLC) LTD., HONGKONG in between the period from 13-12- 2013 to 24-02-2014, 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 Sections 420, 465, 467, 468, 417, 477-A, 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 Trading (Hk) Ltd., Hongkong; (4) Al Almas Fze Ltd., Hongkong; (5) Al Saba General Trading Fze, Dubai; (6) Daimur Gems Jewellry (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 Hongkong, 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 is 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 Mumbai 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 accounts of our Company in ICICI and AXIS Bank. For the same, you will get commission of 10 paise against 100 paise......"

This statement shows what is claimed to be stated by Madanlal Jain, as heard and understood by Shri Prafulbhai Patel. It does not thereafter makes any allegation of any act or omission by the petitioner. It does not refer to any role of the petitioner in the alleged offence of forgery, cheating, conspiracy, hawala, giving cash to Shri Prafulbhai Patel etc. Even the reference to the petitioners business and 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.

15.7. It is not in dispute that the Petitioner is the Director of one M/s. Nile Industries Pvt. Ltd., in which several consignments of diamonds were imported by the Petitioner during the period 2012 by filing proper customs declarations in the prescribed Bill of Entry. The importation or trading of diamonds by the Petitioner is however not the subject matter of the instant case. No fraud relating to forged Bills of Entry and remittances on the basis thereof, is even alleged in the imports of diamonds in the petitioners company M/s Nile Industries Pvt. Ltd, nor is there any allegation of any transaction of his Company with any of the the seven companies which made remittances on the basis of forged Bills of Entry.

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 20.08.2014, was therefore shown only as "suspect", as the Respondent presumably did not find the statement of Shri Praful Patel sufficient to try the accused for the alleged offence.

15.9. In the Second Supplementary Charge Sheet dated 15.11.2014, the Petitioner was shown as Accused No.1 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 refers and relies upon the statements of various further witnesses named as follows, and also refers to certain banking transactions -

(i) Shri Babubhai Kanjibhai Patel Partner of S. Babulal Angadia - statement dated 11.08.2014;

(ii) Shri Pravinbhai Jethabhai Patel, Manager of S. Babulal - statement dated 11.08.2014;

(iii) Shri Jatin Dilipkumar Shah, Manager of P. Umeshchandra & Co. - statement dated 22.08.2014;

(iv) Shri Ashwinbhai Haribhai Patel, Manager of P. Umeshchandra & Co. - statement dated 23.08.2014;

(v) Shri Kalidas Natverlal Patel, Branch Manager in S. Babulal & Co. - statement dated 24.08.2014;

(vi) Shri Urvish Dilipbhai Shah, Partner of P. Umeshchandra & Co. - statement dated 24.08.2014;

(vii) Shri Harshad Maganlal Modi, cheque discounter - statement dated 27.09.2014;

(viii) Shri Amrutbhai Navratanlal Patel, owner of Gujarat Angadia Service - statement dated 09.10.2014;

(ix) Shri Jafar Mohammed hasanfatta, elder brother of petitioner - statement dated 11.10.2014;

(x) Shri Samir Jiker Godil manager of Nile Industries Pvt Ltd - statement dated 18.10.2014.

15.12. In his statement dated 11.08.2014, Shri Babubhai Kanjibhai Patel, Partner of S. Babulal Angadia stated that:-

".......Sir, you asked me about Prafullbhai Patel, Madanlal Manikchand Jain, Afroz Fatta, Sunil Dipak Agrawal, Narendera Jain, Mithalal Jain, Ratan Dipak Agarwal, Sunil Jain etc. I state that I know none of them because I do not sit at the Angadiya office ......"

15.13. In his statement dated 11.08.2014, Shri Pravinbhai Jethabhai Patel, Manager of S. Babulal 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. ....."

15.14. In his statement dated 22.08.2014, Shri Jatin Dilipkumar Shah, Manager of P. Umeshchandra & Co. stated that:-

"......I have never met with Madanlal Manekchand Jain, Afroz Fatta. I have never met Prafullbhai in person, but I had talked with him on phone ......"

15.15. In his statement dated 23.08.2014, Shri Ashwinbhai Haribhai Patel, Manager of P. Umeshchandra & Co. stated that:-

"......On being asked about Madanlal Manekchand Jain and Afroz Fatta and Narendra Jain and Mithalal Jain, I state that I do not know them......"

15.16. In his statement dated 24.08.2014, Shri Kalidas Natverlal Patel, Branch Manager in S. Babulal & Co. stated that:-

"........I do not know the full address of Rajabhai. I do not know Afroz Mohamed Hasan Fatta nor his payment has been received in our Angadiya firm. But as name of Afroz Fatta came in news papers and T.V. I came to know about it ......"

15.17. In his statement dated 24.08.2014, Shri Urvish Dilipbhai Shah, Partner of P. Umeshchandra & Co. 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."

15.18. In his statement dated 27.09.2014, Shri Harshad Maganlal Modi, cheque discounter stated that:-

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

15.19. In his statement dated 09.10.2014, Shri Amrutbhai Navratanlal Patel, owner of Gujarat Angadia Service stated that:-

".....On being asked regarding Madanlal Manekchand Jain, Aforz Mohamed Hasanfatta, Bilal Harun Gilani, Sarfaraj, Narendera Badrichand Jain and others I state that I do not know any of them. I came to know about them by reading in news papers regarding the Hawala Scandal. ....."

15.20. In his statement dated 11.10.2014, Shri Jafar Mohammed hasanfatta, elder brother of petitioner stated that:-

"...... In March 2014, when the officers of the office of Enforcement visited the house of my brother Afroz for search and inspector, at that time, for the first time I came to know through the officers of Enforcement in regard to the involvement of my brother Afroz in this offence, and after some time, Enforcement Department had arrested Afroz Hasan Fatta. As the offence is also registered in Crime Branch, Surat city in regard to this offence, Crime Branch also had arrested Afroz..."

"....Here, on being asked by you sir in regard to the credit entry of Rs. 1 Crore on date 6-1-2014 and Rs. 2 Crores on date 31-1-2014 in my aforesaid Current Account of Natural Trading Company with Union Bank, Nanpura branch, I state that...."

"...... I do not have any information with regard to the fact that, in January, 2014 as there was necessity of certain money in the business of purchase and sale of shares, I asked my younger brother Afroz to get me loan amount on interest from somewhere, and so, Afroz had got credited Rs. 3 Crores in my account through R.T.G.S.. I do not have any information as regards Natural Trading Company belongs to whom and what business carried on by that company. I do not know the Director or employee of Natural Trading Company, nor I am in contact with the. On the arrest of Afroz, I came to know from Enforcement office and your office that, Natural Trading Company is of the person namely Madanlal Manekchand Jain, who is also arrested in this offence....."

".... I have used Rs. 3 Crores for the purpose of my business which were got deposited by Afroz bhai in my account. Out of which I have purchased shares from the share market, and have made payments for certain business transactions. As there is a credit amount of Rs. 1,63,00,000/- in my Demat Account, Enforcement Department had freeze my Demat Account. No any transaction is being made in this account since some time. There is a credit of about Rs. 30,00,000/- in my Current account. That account is also freeze by Enforcement Department. Angel Broking Account Code is J38713 and Demat Account number is 1203320008361734.

15.21. In his statement dated 18.10.2014, Shri Samir Jiker Godil manager of Nile Industries Pvt ltd , stated that:-

"..... I had obtained an unsecured loan of Rs. 1 Crore 15 Lakhs from Afrozbhai in the month of February, Year 2014. The said amount was given to me by crediting the same in the account of my wife Foziya Samir Godi with Union Bank of India, Nanpura Branch from the bank account of his company viz. Nile Trading Corporation (Proprietorship) with H.D.F.C. Bank, Ghod-dod Road, branch. I had taken this money from him for doing business in share market. The account for doing the business of shares is in the name of my wife Foziya in Angel Broking Ltd. bearing Account No. F2993 since the month of June-July of Year 2013, and in trade Bulls Limited bearing Account No. F430 since the month of December of Year 2013. After taking this loan from Afrozbhai, I had repaid Rs. 91 lakhs towards the loan paikee in March, 2014. I had deposited the said amount in the bank account of another two persons as per the say of Afrozbhai from the aforementioned bank account of my wife Foziya through R.T.G.S. At present, I do not know in whom account the said amount was deposited. Thereafter, on 21-04-2014, the aforesaid account of my wife Foziya was freeze by Enforcement Department. Hence, there is a credit balance of Rs. 59 lakhs in this bank account. I also have my bank account in Union Bank of India, Nanpura branch, bearing Account number 3641020100055539. ."

Xerox copy of Statement from dated 06/01/2014 to up to 26/03/2014 of Personnel account No.364101010011163 of Union Bank Nanpura Branch of Afroz Mohammad Hasanfatta, has been submitted.

15.22. None of these statements however allege anything incriminating against the petitioner. Neither the angadiyas nor the cheque discounters who admittedly were recipients of huge cash payments for further transfer to other companies, alleged any dealing or transaction with the petitioner, much less any incriminating transaction. Representatives of S. Babulal Angadia and P. Umeshchandra & Co. whose names are appearing in the statement of Shri Prafulbhai Patel, also did not reveal any such transaction with the petitioner herein in their statements.

16. I have seen that the said Second Supplementary Charge Sheet refers to certain banking transactions evidencing receipt of certain amounts by the petitioner and his brother from the firms/companies of one Shri Pukhraj Anandmal Mutha, namely - (i) M/s. Natural Trading Co., in which said Shri Mutha is partner, and (ii) Gangeshwar Mercantile Pvt. Ltd, wherein said Shri Mutha is director. However, it is not in dispute that neither the said partnership firm M/s. Natural Trading Co. and the company M/s. Gangeshwar Mercantile Pvt. Ltd., nor the said Shri Mutha, are amongst accused in the said Second Supplementary Charge Sheet or any other Charge Sheet filed in the instant case. In my opinion, 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 amounts to the tune of total about Rs. 16 Crores through banking channels from these two entities of Shri Mutha, cannot be a ground sufficient to subject the Petitioner to any trial. Even if the said two companies from whom amounts were received through banking channels are presumed to be operated by Shri Madanlal Jain, it would not in these circumstances impute any culpable knowledge or mens rea, sufficient to subject the petitioner to the rigors of trial. I have seen the statements of Shri Jafar Mohamed Hasanfatta, brother of the Petitioner and of Shri Samir Jiker Godil, Manager of M/s. Nile Industries Pvt. Ltd., recorded in this behalf. However, I find that even these statements are also totally exculpatory qua the Petitioner. Transfer of funds from the account of the petitioners company to his relatives or arranging any loan in the account of his brother does not show commission of any offence alleged against the petitioner, even on prima facie basis.

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.

18. The case therefore rests solely 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 goals 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 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 Honble Supreme Court in Bhairon Singh v. State of M.P., (2009) 13 SCC 80 [LQ/SC/2009/1364] , was pleased to observe as under-

"11. The only evidence to bring home the charge under Section 498-A 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 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 where under 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 Wigmores 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.

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 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 Honble Supreme Court was dealing with a case involving Section 304-B 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 01.08.2014 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 01.08.2014 of Shri Prafulbhai Patel, and 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 420, 465, 467, 468, 471, 477- A and 120-B 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, dealing of the petitioner in cash with cheque discounters or angadiyas to arrange for 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 Counsel for the Respondent to show from the entire record in the charge sheets, any other statement of any cheque discounter or angadiya or any bank officer 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. Counsel 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,

(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) arranging cash payments with angadiyas or cheque discounters or with Prafulbhai Patel,

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

(l) payment of commission to the Financiers,

(m) creating balance in the bank through RTGS/NEFT transfers in different accounts,

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

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

26. The Learned Counsel 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 hand writing 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 hand writing 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, the said statement dated 1.8.2014.

27. I am unable to agree with the stand taken by the Respondent. Infact, 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 now, there is no prima facie material showing petitioners 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 rigors of trial. I am satisfied that there is no prima facie material against him.

28. The judgment of the Honble Supreme Court in Kalyan Kumar Gogoi v. Ashutosh Agnihotri, (2011) 2 SCC 532 [LQ/SC/2011/110] 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 01.08.2014 of Shri Praful Patel are concerned, are only hearsay in nature, and a "hearsay evidence" is inadmissible. The Honble 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 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

(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, which is inadmissible evidence qua the Petitioner herein, is not sufficient to proceed against the Petitioner for subjecting him to a criminal trial. I have noted the fact that despite this statement dated 01.08.2014 of Shri Prafulbhai Patel even the Respondent themselves did not added 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. It is a matter of record that neither any of the cheque discounters or the Angadias, who are named as witnesses for having received huge cash amounts and for making RTGS payments against such cash receipts to various firms/companies which were ultimately used for effecting the outward foreign remittances from the accounts of Indian Entities, have leveled any accusation against the Petitioner, nor has any such Angadia/cheque discounter shown even any acquaintance much less transactions in the relevant period with the Petitioner, which can be considered as sufficient enough to subject the Petitioner to rigors 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.

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, 477- A and 120-B 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 Rukmini Narvekar v. Vijaya Satardekar, (2008) 14 SCC 1 [LQ/SC/2008/2029] , and the Honble 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 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 468/471/420/120-B 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 judgment of the learned Single Judge of the High Court dated 3-82007. 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 120-B 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 Honble 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 prosecution to show that the wife Vijaya Stardekar 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 Honble 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. 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 leveled 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 credit opus is thus squarely applicable in the instant case. In view of the above, the petitioner cannot be subjected to go through the rigors of 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.

FURTHER ORDER:

40. After pronouncement of this judgment, learned PP Mr. Mitesh Amin appearing for the State, requests to stay the same.

41. Request is rejected.