P.H. Jayani 908 REVN57.2003.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 57 OF 2003 Nitesh Pravinchandra Parekh …. Applicant v/s. The State of Maharashtra …. Respondent WITH CRIMINAL REVISION APPLICATION NO. 61 OF 2003 Dhirajlal @ Dhirubhai Thadeshwar …. Applicant v/s. The State of Maharashtra …. Respondent Mr. Meghshyam Kochrekar for the Applicants. Ms. Supriya Kak, APP for the Respondent – State. CORAM : SHYAM C. CHANDAK, J. DATED : 07th NOVEMBER, 2025 P. C. :- . Both these Revision Applications have challenged the Order dated 28/11/2002, passed by the learned Additional Sessions Judge, Greater Bombay thereby the said Judge rejected the Miscellaneous Application No.341/2002 seeking discharge of the applicants/original accused Nos.1 and 2 in Sessions Case No.565/1998. Additionally, the Revisions seeking quashing and setting aside of the charge of the alleged offences, framed against the Applicants on 16/01/2003, by the said Judge. 2) Heard Mr. Kochreker, the learned Counsel for the Applicants and Ms. Kak, the learned APP for the Respondent – State. Perused the investigation papers produced by them in support of their submissions. 1/9 P.H. Jayani 908 REVN57.2003.doc 3) On 01/06/1996, the first informant Mr.Pravin Premchand Shah filed an FIR bearing C.R.No.264/1996 with L.T. Marg Police Station, Mumbai for the offences of Sections 364, 365, 387 read with 120-B and 34 of the Indian Penal Code against the applicants and Accused No.3 Pratap Dhakan @ Soni. Initially, investigation was conducted by the L.T. Marg Police. Later on, DCB CID Crime Branch registered the said crime vide C.R. No.33/1997 and investigated the same. On completion of the investigation, charge-sheet was filed the against the Accused Nos.1 to 3. The Accused Nos. 4 - Anil Dhanak and Accused No.5 - Mohammedbhai were shown as absconding. 4) The prosecution case is that, at the relevant time, Himanshu, son of the first informant, was working as a salesman in Dubai in the jewellery shop of A-4. On 10/11/1995, Himanshu returned to India. At that time, Himanshu was carrying a briefcase containing 05 kg of gold ornaments. The said bag was given by A-4 to Himanshu with an instruction to hand it over to M/s. Chamunda Jewellers, Borivali. First, Himanshu landed at Ahmedabad Airport and after paying the custom duty for the carried gold, he flew to Mumbai. When Himanshu alighted at the Mumbai Airport, A-1 met him there and showed the visiting card of M/s. Chamunda Jewellers. Therefore, Himanshu handed over the briefcase containing the gold ornaments to Accused No.1. Thus, A-2, owner of M/s. Chamunda Jewellers had received the gold jewellery through his agent, i.e., A-1. However, A-2 falsely stated to A-4 that he had not received the 2/9 P.H. Jayani 908 REVN57.2003.doc valuables. Thereafter, A-4 asked the A-2 to arrange two tickets for a flight to Banaras. A-3 Pratap Dhanak then phoned Himanshu and told him that the A-4 has some work in Banaras and asked Himanshu to accompany him (A-3). Believing that representation by A-3, Himanshu went to Banaras along with A-3 on 14/11/1995. While leaving from Mumbai, Himanshu had told his mother that he would return to Mumbai in the evening on the same day. However, Himanshu did not return till the next day. Therefore, the first informant inquired with the wife of A-3, who told him that she had received a phone call that A-3 and Himanshu will return within two days as both are busy in some work. A-3 then returned to Mumbai on 17/11/1995, but Himanshu did not. Therefore, the informant inquired with the A-3 about Himanshu. In reply, A-3 told the informant that Himanshu would return on the next date. In the evening, the informant received a phone call from A-4 from Dubai, alleging that, his son Himanshu cheated him by causing a wrongful loss of gold worth Rs.40 Lakhs and, if he will not return the amount, he will kill Himanshu and the entire family. 5) During the course of inquiry by the police, the applicants claimed that they had not received the gold ornaments and they had received only photocopies of the documents related to that gold. However, later on, when A-1 was called for verification of his previous statement, he confessed to have received the bag containing the gold ornaments and that he had handed over it to the A-2. Then, pursuant to the disclosure made 3/9 P.H. Jayani 908 REVN57.2003.doc by A-1, the gold ornaments worth Rs.4,13,000/- were recovered from the shop of M/s Chamunda Jewellers. The briefcase was also recovered. As alleged, since A-2 had made a false statement to A-4 that the briefcase containing gold ornaments was not received, the accused persons abducted Himanshu. As alleged, A-2 used to supply gold ornaments to A-4 at Dubai from Mumbai, as per the A-4’s orders. Therefore, A-2 had arranged the air tickets for Himanshu and A-3 to travel to Banaras from Mumbai. But since then, Himanshu did not return nor he was seen or heard. Therefore, on completion of investigation, the police submitted the charge-sheet. 6) However, according to the applicants, they are innocent. There is no legal evidence against them to show that they had played some role in the abduction of Himanshu and his disappearance. Therefore, they filed the Misc. Appln. No.341/2002 for their discharge. The Application was opposed by the Respondent – State by filing the say. After considering the investigation material in the light of the rival submissions, the learned Judge of the trial Court held that there are grounds to presume that the applicants have committed the alleged offence. Therefore, the said learned Judge rejected their prayer for discharge and framed the charge. 7) Mr. Kochrekar, learned counsel for the Applicants took the Court through the investigation material and submitted that the case is based on circumstantial evidence. However, there is no sufficient evidence to link the applicants to the alleged offences. The entire case of the 4/9 P.H. Jayani 908 REVN57.2003.doc prosecution is based on surmises and conjunctures. Except the role of booking tickets by A-2, no other role has been attributed to him. There is no documentary evidence to substantiate the said role of A-2. The learned counsel, therefore, urged that the material produced against the applicants is not sufficient to frame the charge of the alleged offences and to put them on trial. However, according to the learned counsel for the applicants, the trial Court failed to consider the case put forward by the applicants and erroneously rejected their prayer for the discharge. 8) In contrast, the learned APP submitted that there is sufficient evidence which clearly indicates that at the relevant time, Himanshu was working in Dubai and that he had returned to India, carrying the gold ornaments to be handed over to M/s Chamunda Jewellers. Then as instructed by A-4, Himanshu handed over the said gold to A-1. However, A-2 falsely stated to A-4 that he did not receive the gold ornaments. She submitted that, just 4 days after returning to India, Himanshu travelled to Banaras at the instance of A-3, for which the tickets were arranged by A-2. She submitted that meanwhile, A-4 alleged that Himanshu had cheated him as above. She has submitted that, there were business relations between A-2 and A-4. Therefore, the applicants made Himanshu to travel to Banaras at the instance of A-3. Since then, Himanshu disappeared and was never found. Therefore, the offence was registered by the L.T. Marg Police Staiton. She submitted that, certain gold ornaments were recovered by the police from the applicants. Thus, there is a prima facie case against 5/9 P.H. Jayani 908 REVN57.2003.doc the applicants. Lastly, she submitted that, later on, the police submitted a supplementary Charge-Sheet adding an offence of Section 302 of I.P.C. against all the accused persons. 9) The learned counsel for the applicants, in his usual fairness, has conceded that on 10/11/1995, Himanshu had returned to India from Dubai; that, at that time he was carrying the gold ornaments; and that, A-2 was owner of M/s Chamunda Jewellers. The record indicates that, thereafter, Himanshu travelled to Banaras alongwith A-3 because it was impressed upon him that the trip to Banaras was related to the business of A-4. Since Himanshu was working with A-4, it was natural that he would agree to travel with A-3. Thus, in a very planned manner the accused persons caused Himanshu to travel to Banaras. Soon thereafter, Himanshu disappeared. However, A-3 assured the informant that Himanshu would return in a couple of days and the necessary arrangements were made for him to stay at the outstation. However, Himanshu never returned to Mumbai. Thereafter, the informant was continuously inquiring with A-4 about Himanshu, but except threats, he did not get any help from A-4. 10) It is significant to note that, although the applicants had received the gold ornaments from Himanshu, they falsely stated that the gold was not received by them. Admittedly, A-1 was working with M/s Chamunda Jewellers. As such, A-1 was expected to stick to the truth that the gold ornaments were received by him. However, it appears that A-1 6/9 P.H. Jayani 908 REVN57.2003.doc also supported the A-2 to claim that the ornaments were not received. Consequently, A-4 caused the abduction of Himanshu through A-3, for which, the applicants had arranged the flight tickets. Said travelling arrangement was not made in the normal course of the business but as a special one to hold Himanshu for the purpose of a ransom of Rs.40 lakhs. Since then Himanshu did not return home. Therefore, the trial Court held that it raises a presumption under the Evidence Act that Himanshu is no more alive. And, prima facie it appears that the applicants have aided in the abduction of Himanshu. It is significant to note that after Himanshu disappeared, the A-4 started alleging that Himanshu had cheated on him as aforestated. In the backdrop, the trial Court concluded that there was a conspiracy on the part of A-1 to A-4 to cause the disappearance of Himanshu by making him to travel to Banaras. 11) During the course of the investigation, the police recovered the gold ornaments from the applicants, but, they have not explained the source of that recovered gold. The police had no reason to foist that gold against the applicants. 12) The conspectus of the above discussion is that, there is a prima facie case against the applicants for abetting the other accused persons in commission of this offence. Needless to state that, a conspiracy to commit an offence is hatched in secrecy. The conspirators play different roles at different times to execute their conspiracy successfully. It is not necessary that an offender should actively participate in the designed 7/9 P.H. Jayani 908 REVN57.2003.doc crime from start till the end. As such, the direct evidence of such a conspiracy is rarely available. Therefore, it is for the Court to carefully look into the conduct of the accused persons before and after the commission of the offence to decide their complicity. 13) It is trite that at the stage of Section 227 of Cr.P.C., the trial Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the Court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge under Section 228 of Cr.P.C, if not, he will discharge the accused. This provision was introduced in Cr.P.C. to avoid wastage of public time when a prima facie case was not disclosed and to save the accused from an avoidable harassment and expenditure. 14) In the case in hand, on considering the material evidence against the applicants, it cannot be said that even if the said material goes unchallenged in the cross-examination, conviction of the applicants for the alleged offences is not possible. Therefore, it is difficult to maintain that there are not sufficient grounds to proceed against the applicants for the alleged offence. The careful perusal of the impugned Order indicates that the learned Judge of the trial Court has properly evaluated the investigation material while dealing with the discharge application and 8/9 P.H. Jayani 908 REVN57.2003.doc only then, rejected the same. Therefore, it cannot be concluded that the said Order is suffering from an infirmity or error so as to interfere with it. 15) In the wake of above, there is no merit in the Revision Applications and the Revision Applications are liable to be rejected. 16) The Revision Applications are rejected, accordingly and stand disposed of. 17) The aforesaid observations of this Court are prima facie in nature. The trial Court to decide the said case on its own merits without being influenced by any of the aforesaid observations. 18) Since the offence is 30 years old, the trial Court to decide the said case within a period of one year. (SHYAM C. CHANDAK, J.) 9/9 PREETI HEERO JAYANI Digitally signed by PREETI HEERO JAYANI Date: 2025.11.18 12:41:26 +0530