NARENDRA PRANJIVAN DAVE Vs. CHUNILAL HINDUJI OSWAL

JUDGEMENT

(1.) BY this Writ Petition, the three accused (present three petitioners before me) invoke this Court's jurisdiction under Article 227 of the Constitution of India and Section 482 of the Criminal Procedure Code to quash the order passed by the learned Chief Judicial Magistrate, Kolhapur dated March 23, 1983 issuing process against all of them in pursuance of the complaint of the same date filed by respondent No. 1 as regards the offence committed by the accused against the complainant under Section 420 read with Section 34 of the Indian Penal Code.

(2.) THE accused who have not in any way participated in the proceedings before the learned Magistrate urge this Court to hold that the complaint filed by the respondent No. 1 (who will be referred to as the 'Complainant'), read as a whole along with the undisputable facts placed by them before this Court, would show that no offence is disclosed by the Complainant and that, in any event, the admitted factual position must give rise to the conclusion that the Criminal Court in Bombay and not the Criminal Court in Kolhapur would be having jurisdiction to entertain the Complainant's grievance against the accused, assuming that a case of any offence is made out against them.

(3.) THE substance of the complaint is as follows : (a) The Complainant is the sole proprietor of the concern M/s. Kohinoor Tarpauline Industries which is a small -scale industrial unit, at Kolhapur manufacturing tarpauline etc. In para 2 of the complaint, it is stated that accused No. 1 claims to be the proprietor of M/s. Supreme Corporation and accused No. 2 claims to be the proprietor of M/s. Citizen Finance. Accused No. 3 is their Legal Adviser. In the said para 2, it is further stated that the real business of the three accused consists of running a bogus business of cheating people all over India by giving advertisements to the effect that they would make available to needy persons huge finance on easy terms. .It is further stated in the said paragraph that with this aid, accused No. 2 pretends himself to be a broker and introduces the victim to accused No. 1 after charging the visit fees and travelling expenses. It is further contended that accused Nos. 1 and 2 thereafter induce the victim to pay to the accused No. 1 the expenses for the stamp duty, registration and other legal formalities requisite for the purpose of the mortgage to be given by the victim of his properties for the purpose of securing the loan to be advanced by accused No. 1. They receive the amount for this legal expenses of stamp duty etc., at the rate of 4% of the total loan promised to be advanced by accused No. 1. After receiving the said amount of 4% of the assured loan for the so called legal expenses requisite for the execution of the documents, accused No. 3 starts his role of the Legal Adviser of the other two accused. All the three accused, thereafter, jointly go on demanding and pestering the victim, who has been made to part with 4% of the amount assured to be given as loan, with one requirement after the other. Aimlessly irrelevant requests are made one after the other and the transactions protracted to such fatiguing extent that the poor victims get tired and exhausted and ultimately give up the attempt to pursue the transactions. (b) In para 3 of the complaint, it is stated that in the beginning of April 1981, Complainant read in Indian Express and Mumbai Samachar prominent advertisement given by accused Nos. 1 and 2 representing that requisite financial loan would be made easily available to needy persons against securities of immoveable properties and business assets. The complainant needed some additional finances for the purpose of expansion of his factory and expansion of his manufacture of his tarpauline goods in the ensuing monsoon season. (c) In para 4, it is stated that the Complainant informed accused No. 2 his need for finance. The gist of the further statements in the said paragraph 4 are as follows : 4. Accused No. 2 gave reply to the Complainant by his letter dated 17 -4 -1981 and stated that for the purpose of negotiating his transaction he was in fact visiting Kolhapur. Further, the accused in fact met the Complainant in Kolhapur on 22 -4 -1981. During the discussions there, accused No. 2 demanded Rs. 1500/ - as his visit charges along with the travelling expenses for the visit. Accused No. 2 also visited the factory premises, the machinery and other properties of the complainant at Kolhapur. He questioned the complainant exhaustively and inspected all the documents, files and records of the complainant's business. He collected all the relevant facts and information relating to the complainant's business including the fact that the complainant had already taken Joan from the State Bank of India, at Kolhapur on the mortgage of his factory premises. Accused No. 2 was satisfied that the total value of the complainant's assets was about Rs. 8,00,000/ - and it was a good security for the loan of Rs. 4,00,000/ -. According to the complainant, accused No. 2 had shown his complete satisfaction relating to the security for the loan of Rs. 4,00,000/ -. There are a number of averments made in said para 4 to the effect that accused No. 2 conveyed his reaction of having been profoundly impressed by the financial and credit -worthy position of the complainant and he mentioned the name of accused No. 1 stating that accused No. 1 is the financer with whom accused No. 2 had collaboration and that there would be no difficulty for accused No. 2 whatsoever to obtain a loan for the complainant from accused No. 1 for a sum of Rs. 4,00,000/ - and he represented that if he was paid his visit charges of Rs. 1500/ - he would arrange to secure the said loan for the complainant immediately. In fact for that purpose he prevailed upon the complainant to address to accused No. 1 two letters dated April 22, 1981 asking for financial accommodation. (d) In para 5 of the complaint, it is mentioned that being induced by the said representation of accused No. 2, the complainant parted with a sum of Rs. 1500/ - by .paying the same to accused No. 2 against a receipt dated April 22, 1981. It is stated further that he also paid him his travelling expenses. (e) In para 6 it is stated that after accused No. 2 left Kolhapur, he managed to send a telegram dated April 23, 1981 addressed by one of the accused to the Complainant inviting the Complainant to visit their office and to be in readiness for payment of the legal expenses. The complainant in fact visited the office of accused No. 1 who confirmed ail the representations made by accused No. 2. He stated that both of them were working as a syndicate and that having regard to the representations that he received from accused No. 2, accused No. 1 would have no difficulty in granting the said loan to the complainant. He further stated that only a few formalities, such as preparation of the Mortgage Deed for the second charges, remained to be complied with. It is further stated that at that time all the business documents, files and records of the complainant were minutely inspected by accused Nos. 1 and 2 with the help of accused No. 3 as their Legal Adviser. All the three accused thereupon called upon the Complainant to pay Rs, 16,000/ - for the legal charges for the purpose of preparing the legal documents, the amount being calculated at the rate of i% of the loan amount. (f) In para 7 of the complaint, it is stated that accused Nos. 1 and 2 even made the complainant sign a loan proposal form as per their directions. It is further stated in the said para that thereafter the complainant sent a cheque for Rs. 16,000/ - signed by the Bank of India, Mandvi Branch, in favour of the firm of accused No. 1.