TaxTMI 
TaxTMI 
2022 (2) TMI 1396
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....S. Chauhan, Advocate. JUDGMENT (PER NITIN JAMDAR, J.) : These criminal applications arise from the same First Information Report, and they have been argued together and as they involve common questions of facts and law, they are being disposed of by this common judgment. 2) The Applicants in these Applications are accused in First Information Report No.389/2020 lodged at Police Station, Risod, District Washim. The First Information Report is lodged by the Respondent No.2-Complainant under Sections 406, 408 and 420, read with Section 34 of the Indian Penal Code. The FIR is in respect of the affairs of Janshikshan Sanstha, Washim and Mahila Utkarsh Pratisthan, Risod of which the Respondent no.2- Complainant is the chairperson, which runs various educational institutions. 3) Applicant Vinod Pandhare in Criminal Application No.599/2020 was working as an Office Superintendent in a D-Pharma College. 4) Applicant Santosh Somani in Criminal Application No.600/2020 was working as an Accountant in the Ayurved College, Hospital and Research Centre run by the Mahila Utkarsh Pratishthan, which runs B.A.M.S. Courses. 5) Applicant Bharat Deogire in Criminal Application No.601....
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....tant documents, such as Registration Certificate, etc. and threatened Bhagwat Chhagan Pedhe. Ashok Gandole was accompanied by Varsha Helaskar, Dinesh Dorsetwar, Bharat Deogire, Mahesh Deogire and other unknown persons. It was further stated that Ashok Gandole was working as a Secretary, and before he resigned, he misappropriated the amount of Rs.9,92,01,067 from Ayurvedic BAMS College, Risod, which was run by Mahila Utkarsha Pratisthan, Risod. The Complainant gave details of the amounts misappropriated, i.e. Rs.4,60,69,000/- by Ashok Gandole through cheque and Rs.4,87,82,067/- by cash, i.e. total Rs.9,48,51,067/-, Varsha Helaskar misappropriated amount of Rs.37,00,000/- and Dinesh Dorsetwar misappropriated amount of Rs.6,50,000/-. The Complainant further stated that these persons misused the important documents of the Trust and misappropriated the amounts. It was stated that their activities substantially impacted the financial health of the Trust and, therefore, Respondent No.2- Complainant, who is President of the Trust, established an Enquiry Committee, which called for all the details from Ashok Gandole, but he did not give satisfactory answers. It was further stated that Ashok....
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....ation to quash the FIR has to be made sparingly. In the case of State of Haryana vs Bhajan Lal [1992 Supp (1) SCC 335] the Supreme Court has laid down certain parameters where the courts could consider prayer for quashing the FIR; however, it cautioned that the High Court should not embark upon merits and demerits of the allegations contained in the FIR and scuttle the further investigation. There is one more angle to exercise of power under Section 482 of the Code regarding quashing of the FIR, i.e. statutory right on the part of the Police to investigate the circumstances of the alleged cognizable crime. Therefore, if a cognizable offence is disclosed from the FIR, the Court will normally not interfere with the investigation and will permit investigation into the offence to be completed. Further, the Court will have to keep in mind that the FIR is not an encyclopedia, and when the investigation is in progress, the Court should not look into the merits of the allegations in the FIR. The Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and others [2021 SCC Online SC 315], has observed that the power of quashing should be exercised sparingly w....
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....ent of 7 July 2019 wherein Ashok Gandole, and others have allegedly taken away Rs.7,00,00,000/- and the essential documents, such as Registration Certificates, Project Reports, Annual Reports, etc. by threatening the Director. The learned Senior Advocate for the Applicants contended that these allegations are inherently improbable and absurd for the reason that if such an incident involving a considerable sum of money had taken place, the Respondent No.2-Complainant would not have waited till 2 February 2020 for filing a complaint and consequently, the FIR. The delay on the part of the Respondent No.2 makes the incident highly improbable. Secondly, it was contended that the call detail records would show that the Applicants were not at Risod when the incident took place and, therefore, the Court should peruse the call detail records. 17) The learned Special Counsel for the State has placed the extract of the call detail records before us. It is pointed out that Ashok Narayan Gandole used cell phone Nos.9130814441 and 9423173777 between 11 a.m. and 12 noon at Washim. Varsha Ashok Gandole/Helaskar used cell phone No.9822058608 between 11 a.m. and 12 noon at Washim. As regards Sama....
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....ash and documents together, which would be a pre-planned activity that they will leave behind their cell phones or use other cell phones so that their movements are not tracked. Therefore, it cannot be said that the incident is improbable on that ground. Not being present on the spot when the incident took place would also be a defence of alibi of the Applicants, which needs to be proved. 20) The learned Special Counsel for the State also submitted that in the supplementary statement filed by Respondent No.2-Complainant, she has explained the position further and has specified the time and place where the incident of snatching cash and documents took place. To counter, the learned Senior Advocate for the Applicants submitted that this is an improvement, and it was done after the interim order of this Court. According to us, it is not necessary even to go to the supplementary statement as in the FIR itself, it could be read as the incident has taken place at Washim and, therefore, at this stage, it cannot be said that there is an improvement. Furthermore, the FIR need not contain all the details and it is not an encyclopaedia as stressed by the Apex Court in various decisions. ....
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....ore, the FIR does state that Ashok Gandole and others threatened the Director not to disclose the incident to Police or any other person. This also cannot be considered an impossibility considering the dominant position Ashok Gandole and his associates had in the affairs of the Trust. These factors, therefore, will have to be further investigated. The FIR also mentions the constitution of the Enquiry Committee and, after submission of its report, filing of the FIR. 24) It also needs to be kept in mind that the FIR is to be read in totality, and the gist of the allegations is an abuse of the position of trust by Ashok Gandole and others in misappropriation of funds of the Trust and the Educational Institutes, which are receiving public funds. The FIR is a composite FIR, and this is not the case of stand-alone theft, but part of the design as alleged to misappropriate the amounts. Therefore, the Applicants' contention to sever the incident of 7 July 2019 and read it differently from other allegations in the FIR cannot be considered even assuming that case is made out by the Applicants qua the incident of 7 July 2019. 25) In respect of the allegations in the FIR of misapprop....
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.... for the State submitted that for any amount above Rs.20,000/-, the transaction would have to be by cheque, and it has to be investigated as to how such huge amounts running into crores of rupees were withdrawn on simple vouchers and how such amounts came to be deposited in the Bank Accounts of the Applicants. 29) We have also been shown a chart with reference to Upendra Mule as regards the Accounts from 2013 to 2018, which, according to the learned Special Counsel for the State, show irregularities, which need to be investigated. The reply of the State Authorities discloses that during the investigation, Applicant No.7 Haribhau Deogire was apprehended on 9 July 2019, and he was found in possession of gold ornaments worth Rs.48,20,728/- and cash of Rs.15,00,284/-. It is pertinent to note that incident of 7 July 2019 of taking away the cash of Rs.7,00,00,000/- and of 9 July 2019 are in proximity. During the investigation, it is also revealed that Applicant Ashok Gandole deposited Rs.1,56,18,000/- in his personal Account. He has also obtained a gold loan worth Rs.57,75,000/-. He has also purchased immovable properties for valuable consideration of Rs.2,32,94,455/-. The Investigati....
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....e offence, the Court should ordinarily permit Investigating Agencies to investigate. If no offence is disclosed, the Police Authorities can always file a closure report. 33) The next head of challenge of the Applicants is based on the complaint filed by the Enforcement Directorate under Section 45(1) of the Act of 2002 in the Designated Court at Mumbai. This complaint is placed on record by way of an additional affidavit dated 11 January 2022. The complaint was filed on 25 November 2021. The learned Senior Advocate for the Applicants, on a query as to what would be sequitur of the statements made in this complaint of the Enforcement Director on the case for quashing this FIR, submitted that the statements made in the complaint would make the present FIR suspicious. 34) The complaint filed by the Assistant Director of the Enforcement Directorate refers to the present FIR as the predicate offence. It states that Respondent No.2, who is Chairperson of the Mahila Utkarsh Pratisthan, has filed the present FIR against the Applicants herein for misappropriation. Reference is also made to the incident of 7 July 2019. The learned Senior Advocate for the Applicants contended that the E....
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.... investigation operates in an entirely different area. The learned Special Counsel submitted that the Enforcement Directorate, which is an Authority under Section 48 of the Act of 2002, can only investigate the offence of Money Laundering as defined under the Act. The learned Special Counsel submitted that the offence of Money Laundering is defined under Section 3 of the Act of 2002, which is based on the offences enumerated in the Second Schedule to the Act of 2002. The learned Special Counsel further submitted that the Enforcement Directorate could not investigate the scheduled offences, which are referred to as predicate offences and, therefore, observations made in the complaint filed by the Enforcement Directorate are entirely irrelevant. It is submitted that even Enforcement Directorate is continuing further investigation, and the statements made in the complaint of the Enforcement Directorate cannot form the basis for quashing the present FIR. According to the Applicants, the Enforcement Directorate can investigate even the predicate offences. It was also pointed out that the accused in the complaint and the present FIR are different. 36) Firstly, as stated earlier, the s....
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.... incident of 7 July 2019, the learned Senior Advocate contended that the allegation of snatching away of Rs.7,00,00,000/- on the face of it is untenable. 38) The learned Special Counsel for the State, in response, submitted that the incident of 7 July 2019 cannot be seen in isolation and as per allegations in the FIR, siphoning off the money by Applicant Ashok Gandole and others started much before 7 July 2019, and a large sum of money has been withdrawn as seen from vouchers, which is revealed during the investigation and substantial amount is deposited in the Bank Accounts of the Applicants, and they have purchased properties, and it is likely that it is the balance amount of Rs.7,00,00,000/- which was lying in the cupboard of the office of Trust and it is precisely for this reason that investigation is necessary. The learned Senior Advocate for Respondent No.2 also submitted that it is the case of Respondent No.2 that misappropriation was over a substantial period of time and the amount of Rs.7,00,00,000/- was proceeds of this misappropriation. 39) According to us, once it is revealed in the investigation that a huge sum of cash was withdrawn on vouchers and for a correspo....
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....y right and duty to investigate the cognizable offence, and the Court would not stop any investigation into cognizable offence. Only in the case where no cognizable offence of any kind is disclosed in the FIR, the Court will not permit an investigation to go on. 42) As regards the facts at hand are concerned, Applicant Ashok Gandole was in-charge of the affairs of the Trust. Other Applicants have been shown as connected with him. The Trust in question conducted various Colleges, which were grant-in-aid, and public money was received. The Investigating Agency has stated that money was siphoned off from the Accounts of the Trust on cash withdrawal. Applicant Ashok Gandole and others are alleged to have deposits in their personal Accounts and have substantial properties. Therefore, at this stage, when the investigation is in progress, and all facts are not before the Court, the Court will have to allow the Police Authorities to carry on the investigation as cognizable offences stand disclosed. 43) The learned Senior Advocate for the Applicants has made an alternate submission that the interim order passed by the Division Bench of this Court that no coercive steps be taken and no....