Allowed

Sunil Devtanath Upadhyay and Ors. v. the State of Mah and Anr.

Bombay HC26 Sept 2013APPLN/740/2009

Case brief

AI extract

What is this about?

The High Court of Judicature at Bombay Bench at Aurangabad quashed criminal proceedings initiated under FIR No.I-233 of 2008. The court held the FIR was a concoction aimed at extorting money to avoid cheque repayment, accepting the applicants' alibi and finding the complaint fabricated.

What did the court decide?

The proceedings/F.I.R. bearing Crime No.I-233 of 2008 is quashed and set aside. Rule made absolute.

Sunil Devtanath Upadhyay and Ors. Vs the State of Mah and Anr. — Quashing and FIR | Bombay HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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BENCH AT AURANGABAD

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CRIMINAL APPLICATION NO.740 OF 2009

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1) Sunil s/o Devtanath Upadhyay, Age-35 years, Occu:Private Service, R/o-Agrawal House, 5, Yeshwant Colony,

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Indore, MP.,

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2) Jayprakashsingh Laxmising Rajpoot,

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Age-50 years, Occu:Private Service, R/o-Agrawal House, 5, Yeshwant Colony, Indore, MP.,

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3) Sanjaykumar Ramkumar Agrawal, Age-42 years, Occu:Business, R/o-Agrawal House, 3rd Floor,

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5, Yeshwant Colony,

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Indore, MP.

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...APPLICANTS

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 VERSUS

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1) The State of Maharashtra,

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2) The Police Inspector, Local Crime Branch, Ahmednagar.

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...RESPONDENTS

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...

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 Shri.R.N. Dhorde, Senior Counsel i/b. Shri.
 V.R. Dhorde Advocate for Applicant.
 Shri.K.G. Patil A.P.P. for Respondent Nos.
 1 and 2.

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...

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CORAM: K.U. CHANDIWAL AND
 A.I.S. CHEEMA, JJ.

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 DATE : 26TH SEPTEMBER, 2013

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ORAL JUDGMENT [PER K.U. CHANDIWAL, J.] :

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1.Heard extensively. Rule was issued on

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26th March, 2009 and ad-interim relief in terms of
prayer clause (C) was granted in favour of the
Applicants, which reads as under:

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"(C) Pending hearing and final
disposalofthisCriminal
Application grant stay to the
further investigation of the C.R.
No.I-233/2008registeredon
24.12.2008 with M.I.D.C. Police
Station under Section 341, 342,
363/364, 324, 323 r/w 34 of the
Indian Penal Code and Section 3, 25
of the Arms Act now transferred to
Local Crime Branch, Ahmednagar and
for that purpose issue necessary
orders."

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2.The Applicants question legality of Crime

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No.I-233 of 2008 registered with M.I.D.C. Police
Station, Ahmednagar for the offences punishable
under Section 341, 342, 363/364, 324, 323 read
with 34 of the Indian Penal Code and under
Section 3 and 25 of the Arms Act.

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3.Learned senior counsel Shri. Dhorde says,
Applicant No.3 is a director in financial company,
Applicant No.1 is finance manager while Applicant
No.2 is in-charge of legal department. They have

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several branches in India, one of the branch is
located at Ahmednagar. Based on an application by
Sirajkhan, to nominate him as recovery agent for
seizingthehypothecatedvehicles,such

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authorisation was extended to him. The local
officials of the Applicants were unaware of
criminal antecedents of either Sirajkhan or his
team members. Said Sirajkhan was involved in Crime
No.188 of 2004. He was arrested on 15th September

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2004, in Sessions Trial No.1 of 2005, after trial
he was acquitted on 20th March, 2007. State has
questioned the same, in which appeal is admitted
and action under Section 390 of the Code of
Criminal Procedure was directed on 15th January,
2008.

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4.The subsequent incident, quoted by

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learned senior counsel is of a writing by
Sirajkhan in respect of availing loan from
Applicant No.1 Sunil Upadhyay. He was forced to
release cheque of Rs.5,50,000/- (Rupees Five Lakh
Fifty Thousand).

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5.The incident in question allegedly has

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taken place on 24th December, 2008 at 10.15 a.m.
The case projected in the F.I.R. No.I-233 of 2008

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is, Aiyazkhan and Sirajkhan were traveling on a
new Pulser motorcycle from Ahmednagar to Waluj. On

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the way, at Imampur Ghat, a four wheeler, golden
coloured, without number plate, of Innova or

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Tavera make, intercepted them. Two persons
alighted, one of them was having fire arm, which
he held against Sirajkhan. They were communicating
in Hindi. Altercation ensued between complainant
Aiyazkhan and those persons. Chili powder was

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sprinkled, resultantly the resistance was
deflated. Sensing the situation, his brother
Sirajkhan yelled Aiyazkhan, those persons to be
from the financier Sanjay Agrawal and asked
Aiyazkhan to sneak. One of the two persons asked
to take Sirajkhan in the vehicle and consequently
they forced Sirajkhan in the vehicle and took
towards Aurangabad side. These events were
conveyed by Aiyazkhan to his friend Sarfraj
Jamanbhai on a mobile phone. He lodged F.I.R.,
gave description of two suspects which were of
approximate height and age.

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6.Learned senior counsel says, the entire

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event is concocted, a manipulation and

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unfortunately a named police officer of Ahmednagar

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Police Station was co-ordinating with said
Aiyazkhan and Sirajkhan. The mute reason for false
F.I.R., according to the learned senior counsel
is to extract booty from the financier and to
avoid the payment of cheque for Rs.5,50,000/-
(Rupees Five Lakh Fifty Thousand), entered into by
Applicant No.1.

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7.Certified copies of the Court record,

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illustrates that on 24th December 2008, Applicant
No.2 Jayprakashsingh was at Indore Court in
Criminal case Nos. 91 of 2008, 219 of 2005 and
2868 of 2005. This is supported from Court notice.
An affidavit of the local Advocate Mohd. Altaf
Khan dated 2nd January 2009, who subscribes
presence of Applicant No.2 Jayprakashsingh at
Indore, is tendered. That apart, the Applicant
No.2 has also attended proceedings with income tax
department, for which documents are tendered. It
is pointed that Applicant No.1 Sunil Upadhyay
received income tax notice dated 24th December

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2008 and the proceedings culminated in an order by
the authorities. Such order is shown to us.

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8.The learned senior counsel pointed about
conduct of Sirajkhan to be a hard-core named
criminal who has threatened to Abhay Dattatray
Shelke of Shirdi, the events were even witnessed
by Superintendent of Police, Ahmednagar and
consequently Sirajkhan, his brother Aiyazkhan and
other team members were arrested for extortion.

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9.Normally, plea of alibi is not

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entertained at the stage of quashment of
proceedings under Section 482 of the Code of
Criminal Procedure. However, on going through the

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F.I.R. and perusal of track record of said
Aiyazkhan and Sirajkhan, we are leaning to accept

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plea of alibi. This is more so, the official
record of the Court at Indore, makes us to believe

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that indeed Applicant No.2 Jayprakashsingh
attended the Court proceedings in three cases at

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Indore, which is far away from either Ahmednagar

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or from Aurangabad. We may not subscribe to
attendance of Applicant No.1 with income tax
authorities, as this could be later creation. The

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fact illustrates, that by virtue of early
agreement with Applicant No.1 Sunil Upadhyay,
Sirajkhan was knowing Sunil Upadhyay very well. He
could not skip his identity, had it been an
interception or kidnapping of said Sirajkhan by
Applicant No.1. The role attributed to Applicant
No.3 is that those two persons were his employees.
Apparently, he was not seen at the scene, no other
record to show sharing common intention or
hatching conspiracy.

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10.Record demonstrate to believe that

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Sirajkhan went tangent to ensure squeezing the

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Applicants for illegal demands and one of the
naive way discovered was theory of abduction of a

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criminal. A person having criminal track record,
moving on Pulser motorcycle near the Ghat could

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not be believed not to be noticed to be
kidnapped, if indeed the incident has taken place,
by passers by. When Aiyazkhan primarily could
contact his friend on mobile, which suggest that
he had mobile, then there was no inhibitation for
him, to have contacted to police or to make aware
police at Aurangabad side as he was purportedly
visiting Waluj to call on his wife Reshma. Thus,
the incident gives several spices of its
fallaciousness and attempted to create indignation
of the Applicants.

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11.The subsequent event of extortion dated

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8th September 2010, also illustrate mind-set of
said Sirajkhan and his brother. The Applicants
have not left any stone unturned to put their
grievance or redress, by communication, persistent
correspondence was made with highest authorities
of the police, even lastly complaint dated 6th
February, 2009 was lodged with Superintendent of
Police, Ahmednagar, to appraise him about the

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perpetrated role played by investigator Pathan of
M.I.D.C. Police Station.

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12.On 13th January 2009, when Advocate of

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the Applicants had been to Ahmednagar Court, while
Applicants with Advocate were leaving, they were
threatened. This was immediately brought to the
notice of the police. It is informed, even the
call details of extortion were furnished to

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investigator well in advance, to appraise the
impending threat looming large faced by the
Applicants.

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13.Taking survey of above facts, we find
that the F.I.R. questioned is a concoction of

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facts and therefore calls interference as
indicated by Hon'ble Supreme Court in celebrity

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Judgment in the matter of State of Haryana vs.

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Bhajan Lal, 1992 Supp.(1) S.C.C. 335 and also the

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Judgment of the Hon'ble Supreme Court in the
matter of R.P. Kapur vs. State of Punjab, A.I.R.

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1960 S.C. 866. The proceedings/F.I.R. bearing
Crime No.I-233 of 2008, qua the Applicants, is
quashed and set aside.

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14.Rule made absolute in the above terms.

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[A.I.S. CHEEMA, J.] [K.U. CHANDIWAL, J.]

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asb/SEP13

Sunil Devtanath Upadhyay and Ors. v. the State of Mah and Anr.

Case brief

What is this about?

What did the court decide?

Sunil Devtanath Upadhyay and Ors. v. the State of Mah and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

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