Bombay High Court -Decision

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Subject: Bombay High Court -Decision
  Dear All,

As I told you in my last comment that I & other people lodged FIR against Amey Worldwide Int.Pvt.Ltd in Pune
And Mr.Satish Nandre went for quashing of FIR in Bombay High Court and his petition dismissed by Hon.Bombay High Court

Here is copy of the Decision

Case No--WP.2819.2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.2819 OF 2014
Satish Narayan Nandre Petitioner
versus
Senior Inspector of Police, Bandgarden
Police Station, Pune and others Respondents
Mr.Dinesh P. Adsule with Mr.Ganesh M. Mohite for Petitioner.
Dr.F.R.Shaikh, APP, for State.
Mr.Prashant M. Patil with Mr.Hrishikesh Giri for Respondent no.4.
CORAM : S.C.DHARMADHIKARI AND
PRAKASH D. NAIK, JJ.
DATE : 29th March 2017
PC :
1. By this writ petition under Article 226 of the Constitution of
India, the Petitioner seeks quashing of a first information report
registered against him at Bundgarden Police Station, Pune. The FIR
No.187 of 2013 was registered on 19th October 2013 alleging
offence punishable under Sections 420, 406 and 34 of Indian Penal
Code.
2. The contention of Mr.Adsule appearing for the Petitioner is
that the Petitioner is conducting a lawful activity. That lawful
activity is, that on due authorisation and permissions from countries
abroad, he could have assured the parties like the Petitioner that on
payment of certain charges and completion of certain procedural
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requirements, they can migrate to those countries from India.
Having been duly authorised to represent those countries in India, it
is the Petitioner who accepted requisite monies, documents and other
details from the Petitioner. From his side, the Petitioner made all
arrangements so as to enable him to migrate to Canada. After due
receipt of papers, documents and monies, eventually it was the
Republic of Canada which conveyed alteration in its migration policy.
It is, therefore, apparent that once that Government did not permit
migration of citizens of India, then, it is not a case of cheating by the
Petitioner. The Petitioner merely acted on behalf of the country
abroad. Reliance is placed on the judgment of Hon´ble Supreme
Court in the case of International Advanced Research Centre for
Powder Metallurgy and New Materials (ARCI) and others Vs.
Nimra Cerglass Technics Pvt.Ltd. and another1.
3. Upon a perusal of the statement of the complainant and
reading it as a whole, we are unable to agree with Mr.Adsule. What
the complainant projected was a specific grievance and based on that
an allegation. He invited attention of the concerned Police official to
an advertisement published in the year 2003. That was published by
a company styled as Amey Worldwide (International) Services
Pvt.Ltd. The complainant visited its office, met the marketing head
and Asia region director of said Amey Wordwide. They took his biodata,
other details and informed him that he is eligible to migrate to
Canada. They, therefore, collected a nominal fee of Rs.300/and
forwarded it to Amey Worldwise, Canada office. Then complainant
was directed to attend certain seminars. He attended those
1 (2016)1-SCC-348
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seminars. That seminar was arranged and conducted by said Amey
Worldwide and its owner Satish Nandre. At such seminars
interested citizens would remain present. The complainant was one
of them. The allegation is that Satish Nandre would by his
mannerism and polite speaking style, invite lot others as well to
attend such seminars on migration and used to obtain from them all
immigration details. The complainant also after attending such
seminar, handed over Rs.25,000/by
cheque to Amey Worldwide
Services. He has specifically registered himself for migration to
Canada. There is an agreement on the stamp paper of Rs.20/which
was executed. The agreement incorporated the terms and conditions
on which the services were to be provided. Then a further cheque of
Rs.47,000/as
per the agreement was handed over to Sujit Varpe. In
the year 2004, the complainant appeared for an examination viz.
English Language Testing System (IELTS) conducted by British
Council. That examination was conducted in Pune. The
complainant cleared that examination. The marks obtained by him
in IELTS examination, the educational qualifications, work
experience etc. were communicated to Canadian High Commission,
office at New Delhi by said Amey Worldwide. The complainant was
awaiting further communication. In the meanwhile, he also cleared
French Language examination. Then on 8th October 2004, one file
number was communicated by Canadian High Commission to said
Amey Worldwide office. The complainant mentions the file number.
That was communicated to the complainant in person by said Amey
Worldwide at its office. The Canadian High Commission had
informed that the request in the letter would be processed in 33
months. At that time Satish Nandre obtained from the Petitioner in
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dollars a sum of Rs.50,000/.
That was also paid by cheque. That
was also handed over to Sujit Varpe. The complainant has all the
receipts against payments made to Amey Worldwide. Thereafter
from time to time he made inquiries. Since the period of 33 months
expired, the complainant was anxious and made inquiries in the
office of Amey Worldwide, at Pune. When he made inquiries, he
realized that entire set up of Amey Worldwide has changed. One
Jeevan Samgir was the person and employed by Amey Worldwide
who he contacted and he informed the complainant that processing
is still going on and no communication has been received from
Canadian Government. It is in these circumstances that after waiting
for considerable time and also making further payments as narrated
in the complaint which have been collected in the name of Canadian
High Commission, it is alleged that the said Amey Worldwide and its
staff were dodging the requests and questions of the complainant.
Their evasive answers to the pointed queries revealed that they were
not inclined to adhere to their commitment made to the complainant
from time to time. After that on 15th May 2013, a further enquiry
was made but on that day the complainant found that the office of
Amey Worldwide is closed. There was a lock placed on its doors.
The office was closed even at a further inquiry. Then some time in
June2013,
the complainant received a packet from Amey
Worldwide. In that, the Canadian Government is stated to have
returned visa processing fee by cheque. This was an annexure to the
letter of Amey Worldwide and sent by Manisha Londhe. Then the
complainant tried to contact the officials of this company and with a
view to obtain refund of the monies which were paid and which was
accepted on the specific assurance to the complainant that said Amey
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Worldwide (International) Services Pvt.Ltd was authorised and duly
represented the Republic of Canada in the process of migration of the
complainant from India to Canada. Having realized that all these
monies were collected on the above specific assurances, now that
assurance is not going to be honoured, that the promise and
assurance based on which monies have been paid but not returned,
would constitute an act of cheating. That is how the FIR has been
registered.
4. We have gone through the FIR and the entire statement of
complainant.
5. In the judgment of Hon´ble Supreme Court, the facts were that
there was a private limited company involved in the manufacturing
and marketing of scientific devices and equipments. The
Respondents before the Supreme Court filed a complaint against that
company and its officers alleging that they represented that they are
possessed of technology for manufacture of extruded ceramic
honeycombs which is used in manufacturing of catalytic converters
which are used in automobiles for controlling emission. On that
representation, the respondent entered into an agreement dated 18th
June 1999 with the Appellant for transfer of technology for the
manufacturing process of extruded ceramic honeycombs inclusive of
transfer of extrusion die fabrication technology which is an integral
part of the manufacturing process for a consideration of Rs.10 lakhs
in installments exclusive of royalty amount. The allegation is that in
pursuance of the agreement, the Respondent was permitted to
establish its industrial unit within the campus of Appellant. For that,
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Rs.1.30 crores were spent for purchasing and installing the
comprehensive machinery. Thereafter trial runs were taken and the
technology handed over was found not efficient and adequate for the
purpose for which the agreement was executed. It is in these
circumstances that the allegations revealed a further act on the part
of complainant. These allegations are noted in paragraphs 2 and 3
of the judgment of Hon´ble Supreme Court. Thus, the allegations are
that accused company and its officers did not perfect the honeycomb
technology sufficient for commencing commercial production and by
their false representations induced the complainant to spend high
amounts and that is how they have committed an offence of
cheating. It is on such complaint that the investigating officer upon
investigation submitted final report stating that the dispute is purely
of civil nature. No criminal offence was made out. The complainant
protested and argued before the Magistrate that the report of the
investigating officer should not be accepted. The Magistrate took
cognizance of the offence under Section 420 read with Section 34 of
IPC and passed an order summoning the accusedcompany.
That is
how the petition under Section 482 of the Code of Criminal
Procedure, 1973 (`the Code´) was filed before the High Court to
quash the proceedings. That also was dismissed. The order of High
Court was challenged in the Supreme Court. The Supreme Court
noted these basic and undisputed facts. It noted that the accusedcompany
was a grantinaid
research and development institute
under the Ministry of Science and Technology, Government of India.
It carries out research work to be used in various fields. It is a part
of its development work that it developed technology for
manufacture of extruded ceramic honeycombs which is used in
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manufacturing of catalytic converters which are used in automobiles
for controlling emission. The accusedcompany
is said to have held
intellectual rights of the process for extruded ceramic honeycombs
and extrusion die fabrication technology. The technology transfer
agreement with the complainant to transfer the knowhow
related to
the process for extruded ceramic honeycombs as per specification
indicated thereon in the annexure to the agreement. The agreement
details the modalities of the terms and conditions for grant of license.
Eventually, it was a technology transfer agreement. The further
processes as undertaken and conducted or carried out revealed that
the technology which was styled as perfect honeycomb technology,
was an imperfect technology and the targeted specification of the
end project could not be achieved. That means that there was from
inception a inducement and dishonest, being essential ingredient of
cheating was not established. That is how highlighting the essential
ingredients, that the observations relied upon by Mr.Adsule have
been made. These observations in paragraph 15 and 16 of the
judgment of Supreme Court are settled legal principles and essential
ingredients to establish an offence of cheating. There is, therefore, a
clear distinction in law between a mere breach of contract and the
offence of cheating. However, application of these settled principles
to the facts and circumstances in each case is what is relevant for us.
The tests are too well settled. If it is established that the intention of
the accused was dishonest at the very inception when he made a
promise and entered into a transaction with the complainant to part
with property/money, then the liability is criminal and the accused is
guilty of offence of cheating. On the other hand, if all that is
established is that a representation made by the accused has
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subsequently not been kept, criminal liability cannot be fastened on
the accused and the complainant is required to adopt the remedy for
breach of contract in a civil Court.
6. It is equally well settled that power under Section 482 of the
Code is exceptional in nature and is to be exercised sparingly. It is
only to quash a complaint read as a whole on the face of it does not
disclose commission of a offence. These tests even if applied to the
present facts and circumstances, the complaint before us cannot be
quashed. The Petitioner, prima facie, from inception assured the
Respondent no.4 that he can arrange his migration to Canada.
Monies and funds/fees were collected from him. The complainant
was made to go through the whole process as if the Petitioner and his
agency represent the Republic of Canada in India and all
applications for migration to that country be routed through the
Petitionr´s agency. The Petitioner´s company was a private limited
company and totally controlled by him. Prima facie, therefore, from
inception there was a dishonest intention and hence a promise and
assurance was given to Respondent no.4 that on payment of monies
to the Petitioner, he can migrate to Canada. Now, it is urged that
everything was dependent upon that country´s policies. If that is so,
then, why the said aspect was not clarified and if everything fell
through because of Republic of Canada´s immigration policies, how
the promise in the first instance can at all be given, prima facie,
reveals the criminal intent.
7. We do not see how at this stage the argument of learned
advocate for Petitioner on the change in policy of Canadian
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Government resulted in cancellation of complainant´s migration to
Canada, satisfies the tests referred above. We do not think that this
line of defence is enough to hold that the complaint read as a whole
does not disclose commission of the offence of cheating. We find
that essential ingredients are spelt out. Suffice it to state that these
ingredients attracting the offence can be culled out from the
complaint and which we do not find can be interpreted otherwise at
this stage. We are unable to agree with the advocate for the
Petitioner.
8. As a result of these observations the application fails and is
dismissed. All adinterim
and interim orders stand vacated
forthwith.
9. At this stage Mr.Adsule states that on 15th September 2014
this Court restrained the Respondents 1 to 3 from filing a chargesheet,
if not already filed. He states that charge sheet is yet to be
filed and this order may be continued for a reasonable period to
facilitate the applicant to approach a higher Court. The request is
opposed by learned advocate for the complainant. Having noted this
request but finding that we are not in agreement with Mr.Adsule on
his primary contention, then, there is no warrant to continue this
interim direction. The request in that behalf is rejected.
(PRAKASH D. NAIK, J.) (S.C.DHARMADHIKARI, J.)
MST
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