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TMI Blog2023 (7) TMI 1436X X X X Extracts X X X X X X X X Extracts X X X X ..... February, 2022 in terms of section 173(2) of the Code of Criminal Procedure ("Cr. PC", hereafter) under sections 420, 406, 506, 379, 120B and 180 of the IPC, inter alia, against the petitioner. 4. Perusal of the charge-sheet, however, does not reveal any role of the petitioner in respect of the offence under section 379 of the IPC which was added in the FIR, on the complaint of the second respondent, as far back as on 4th August, 2020. 5. To put it briefly, the FIR stems from allegations levelled by the second respondent of she being allured by the principal accused (who happens to be the sister of the petitioner) to part with Rs. 45 lakh in all (paid partly in cash and partly by RTGS) for the purpose of establishment of a pharma company which would be engaged in the manufacture of Ayurvedic medicines. Mainly, allegations of cheating and of fraud practiced on her have been levelled by the second respondent against the principal accused, her husband and various other co-accused. It was also alleged that all the accused including the petitioner had assured the second respondent, with the objective of carrying out the criminal conspiracy, that the principal accused was a very hard w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereby, the unsuccessful petitioner before the High Court is in appeal before us. 10. We have heard the parties as well as perused the charge-sheet and the other materials on record. 11. The charge-sheet sets out the contents of the FIR and refers to the materials that were collected in course of investigation. The Investigating Officer obtained the Call Details Record (CDR) and Customer Acquisition Form (CAF) of the cell phones of the second respondent and the petitioner and had also attempted to obtain certificate under section 65B of the Indian Evidence Act by approaching the relevant service providers but failed in his attempt. He was informed that the conversations were quite old, hence, the requisite certificate could not be issued. The charge-sheet also recorded that the principal accused and the co-accused were yet to be arrested and after their arrest, separate supplementary challan would be prepared and presented before the court; nevertheless, sufficient evidence on the file to prepare challan against the petitioner was available. 12. In the course of hearing of this appeal, the petitioner sought for and was granted permission to file additional documents. Soon thereaf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l accused, her husband, the petitioner and the other accused together have cheated her in a sum of Rs. 45 lakh in the manner described therein. 16. The charge-sheet contains a list of 27 (twenty-seven) witnesses who are proposed to be examined by the prosecution in support of the charges framed against several accused including the petitioner. Apart from the second respondent and others, this particular list includes Indu, the sisterin-law of the second respondent, who is said to have been present at House No. 620 when allegedly the money changed hands. 17. This is a case where the charges have been framed and the accused are awaiting trial. Having regard to the totality of the facts and circumstances, noticed above, we are of the considered opinion that the investigation and the follow-up steps are not so patently and unobtrusively defective or erroneous (except to the extent we propose to mention before concluding our judgment) that allowing the trial to progress might cause a miscarriage of justice. This is also not an appropriate stage to delve deep into the records. It is no part of the business of any of the courts to ascertain what the outcome of the trial could be, ~ conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence." 18. Applying the broad principles as enunciated by this Court, we hold that it is not one of those rare cases where the uncontroverted allegations appearing from the materials on record notwithstanding, it can successfully be contended that even no prima facie opinion can be formed pointing to commission of any offence by the petitioner. It is trite that the conspiracy to commit an offence is by itself distinct from the offence to do which the conspiracy is entered into and that such an offence, if actually committed, would be the subject-matter of a separate charge. The allegations that the petitioner was found counting the cash received by the principal accused from the second respondent in the presence of a listed witness and that she conspired with her sister, the principal accused, to cheat and defraud the second respondent, persuade us to record that involvement of the petitioner, howsoever limited, cannot be ruled out at this stage and, therefore, the trial ought to be permitted to proceed and she obliged to stand t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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