HASMUKH BALUBHAI SHAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The whole foundation of ventilating the grievance by the petitioner claiming privilege for not being examined as prosecution witness in a criminal case is obviously misconceived having regard to the facts and circumstances of the case. The learned Magistrate while negativing the said contention has assigned cogent reasons on application of mind. All the facts considered in proper perspective make it clear that there is no reason whatsoever to upset the impugned order in this proceeding initiated under Article 227 of the Constitution of India and under the inherent powers under section 482 of the Code of Criminal Procedure, as also the revisional jurisdiction under section 397 of the Code of Criminal Procedure.

(2.) On the basis of a report by the Investigating Officer, the Company Law Board, Bombay a formal complaint came to be lodged by the Regional Director, Company Law Board, Bombay, one Shri Rajagopalan, in September 1972 under section 154 of the Code of Criminal Procedure wherein four persons were arrayed as accused persons. On that basis offence under sections 120-B, 402 and 477-B of the Indian Penal Code and section 7 of the Essential Commodities Act came to be registered and investigation was taken up by the then Deputy Superintendent Police of Shri Karnik, who unfortunately is no more. The gravamen of the allegations is quite serious in nature and contents. In substance it mentions that it was revealed through the inspection of books of accounts and record of M/s. New Standard Engineering Company Limited, Bombay, a public limited company having its operational area in this metropolis of which accused Nos. 1 and 2 claimed to be the Directors, that an attempt was made to co-relate the delivery of pig iron and mild steel plates delivered by the said company to different parties whose names figured in their record. On enquiry it transpired that the company had effected the delivery of large quantities of the said commodity during the years 1964 to 1966 totally valued at Rs. 16 lakhs to different persons, though the sales were not accounted for and it further revealed that the said commodity being the controlled one could not have been disposed of in such unauthorised manner as the motive is suggested that it was done for the purpose of securing wrongful profits, out of such sales. The details of the said allegations need not detain us since the question posed in this proceeding falls in a narrow field.

(3.) During the progress of the investigation statements of various persons came to be recorded. There are in all six accused persons who are sought to be placed in the dock, the other three being the purchasers. The factory premises as also residential premises of the Directors were searched and certain documents came to be seized. It appears that the Officers of the Sales Tax Department were also on the scene though they had their own enquiry restricting to the violation of the provisions of Sales Tax Act on account of which a proceeding was initiated and the Company has been assessed accordingly with which we are not concerned in this proceeding. It is clear that this investigation was taken up, carried and ultimately concluded by the Central Bureau of Investigation, which was obviously an investigation under the provisions of the Code of Criminal Procedure. As stated, various witnesses were examined obviously under section 164 of the Code of Criminal Procedure. Then comes in the picture the present petitioner, who at some part of the material time was employed in the said company in the capacity as Electrical Engineer. He was initially looking after the Sales Department of Factory Equipment and Electrical Induction Licences and in that capacity he was required to work in the companys factory at Carole Road and also at Goregaon. He was, however, shifted to different branches of the company though during some period he was sent to Japan for special training. It also appears that some dispute arose between the company and the petitioner which prompted the petitioner to leave the services of the company. The record also reveals that the dispute between the parties about the outstanding dues was going on which ultimately was settled not before the criminal prosecutions were launched between the parties. It is thus claimed that the petitioner was very much in the picture in his capacity as an employee of the Company and thus was not a stranger to the entire episode. During the course of investigation the Investigating Officer Shri Karnik recorded his statement obviously under section 164 of the Code of Criminal Procedure on 9th January, 1973. It is after completing entire investigation that a charge-sheet was filed in the Court of the learned Additional Chief Metropolitan Magistrate, Court No. 38, Ballard Estate, Bombay, which is the subject matter of Criminal Case No. 9/P of 1981 for the said offences against the said six persons.