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2011 Supreme(Bom) 514

2011 ALL MR (Cri) 2185
High Court of Judicature at Bombay
J.H. BHATIA
Dina Chetan Shah
Versus
Government of U.S.S.R. & Another
CRIMINAL APPLICATION NO. 492 OF 2009
Decided on : 02-05-2011

Advocates Appeared:
For the Applicant:Amit Desai Senior Counsel, i/b. P.D. Desai, Advocate.
For the Respondents: R1, A.P. Mundagi, Senior Counsel, i,b. A.V. Jain & Associates, R2, D.R. More, APP.

Headnote:Limitation Act, 1963 - Section 5-Criminal Procedure Code, 1973, Section 468-Condonation of delay-Administration of justice-Question of substantial justice pitted against technical considerations-Cause of substantial justice deserves to be preferred- Matter cannot be thrown at threshold.-In the present case, the property involved is situated in Malabar Hill, which is one of the costliest area in Mumbai City. The value of the property may be running into several crores and it appears that a fraud was committed by some persons and two employees of a company and they disposed of the immovable property of the Russian Government. Whether the accused persons, who were discharged under Section 169 really deserves to be discharged or not is a question which can be dealt with while entering into the merits of the case. But if the application of condonation of delay is rejected, the case will be thrown out at the threshold against the Russian Government. Such attitude will not be in the interest of justice and will not enhance the prestige of Indian Judicial System in the international community. When question of substantial justice is pitted against the technical consideration, the cause of substantial justice deserves to be preferred and the matter should not be thrown at the threshold.

       Criminal Procedure Code, 1973-Section 169-Discharge of accused-Order under Section 169 of Code passed by Magistrate discharging certain accused-Complainant, be afforded an opportunity of being heard before passing of such order by Magistrate.

Judgement Key Points

Certainly. Based on the provided legal document, here are the key points:

  1. The case involves a property situated in Malabar Hill, Mumbai, which is of significant value and was allegedly involved in a fraud scheme by certain individuals and employees of a company, leading to the disposal of the Russian Government's immovable property (!) (!) .

  2. The order under Section 169 of the Criminal Procedure Code (Cr.P.C.) discharging certain accused persons was passed without giving the complainant an opportunity to be heard, which is a procedural requirement (!) .

  3. The Russian Federation, through its Consul General, filed a revision application along with an application for condonation of delay, explaining that the delay was due to the need for approvals and sanctions from various departments of the Russian Government, which took considerable time (!) (!) (!) (!) (!) .

  4. There was a delay of approximately 245 days in filing the revision application after the complainant became aware of the order discharging the accused, which was explained as caused by procedural formalities and the need for government approvals (!) (!) (!) .

  5. The opposing party argued that the explanation for the delay was vague and insufficient, citing legal principles that emphasize the importance of showing specific and genuine causes for such delays, especially when the delay is substantial (!) (!) .

  6. The court considered the principles that favor a liberal approach to condoning delays to serve substantial justice, particularly when technical considerations would otherwise result in the rejection of a meritorious case (!) (!) (!) (!) (!) (!) (!) .

  7. The court noted that, although the order under Section 169 was passed without the opportunity for the complainant to be heard, the delay in filing the revision was sufficiently explained, and the reasons related to procedural and administrative formalities of the Russian Government were accepted as valid causes (!) (!) (!) .

  8. Ultimately, the court decided to reject the challenge to the order condoning the delay but set aside the order that allowed the revision application, emphasizing that the substantial justice principle should prevail over strict technicalities (!) (!) .

Please let me know if you need further analysis or specific legal advice regarding this case.


Judgment :

1. Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties. Perused the record and proceedings.

2. To state in brief, Government of erstwhile U.S.S.R. owned Marine House situated on plot C.S. Nos. 2/332 and 3/332, Bhausaheb Hire Marg, Malabar Hill, Mumbai 400 006. It was a property of the U.S.S.R. since 1969 and certain officers of Sovfracht, a joint stock company of the Government, were allowed to occupy for residence and office purposes. In the year 1992, US.S.R. disintegrated into several countries and Russian Federation Government came into existence. As per the Presidential Order dated 18.2.1993 issued by the President of Russia, the property of the U.S.S.R. abroad stood vested in the Russian Federation Government and the new Government allowed the said officers of Sovfracht company to continue to occupy the Marine House for the same purposes. In December, 2005, the Consul General of the Russian Federation visited Marine House and found that the watchman was changed and he was not allowed to enter into the premises by the watchman on duty. Therefore, the Consul General lodged a complaint with the Protocol Division of Mantralaya, Mumbai, on the basis of which an offence was registered and investigation was carried. It was revealed during the investigation that two officers of Sovfracht had, on the bass of forged documents, represented that the Marine House was the property of the said company and had sold it to one Mohiuddin Mohd. Shaikh Dawood, for consideration of One Million U.S. Dollars. It was revealed that the consideration amount was telegraphically transferred by Mohiuddin from his account at Dubai to the account of the vendors at Petro Commerce Branch in Moscow. Two separate sale deeds of 5 Lac U.S.Dollars each were executed and registered and on that basis the said property was handed over to Mohiuddin. It was alleged that Mohiuddin Mohd. Shaikh Dawood, Anand Praful Vohra, Dina Chetan Shah, Lohit Somappa Kankadi and Pravinkumar Somnath Sukla were also involved in the conspiracy and commission of offences.

3. On 21.3.2007, the Senior Police Inspector, Malabar Hill Police Station, submitted a report under Section 169 of Cr.P.C. before the learned Magistrate stating that charge-sheet against the absconding accused, who were the officers of Sovfracht company, was being filed under Sections 465, 467, 468,471 and 429 read with Sec.34 of IPC, but there was no evidence against the remaining accused named above and, therefore, they be discharged. The learned Magistrate, after hearing the concerned Police Inspector, immediately passed the order and discharged five accused persons, namely,

(1) Mohiddin Mhd. Shaikh Dawood, (2) Andnd Vohra, (3) Dina Chetan Shah(4) Lohit Kankadi and (5) Pravinkumar Sukla.

4. Being aggrieved by the said order, the Government of Russian Federation through its Consul General at Mumbai, filed a revision application along with an application for condonation of delay in filing the revision application. By the order dated 15.10.2008, the learned Addl. Sessions Judge allowed the Misc. Application No.1238 of 2008 and condoned the delay in filing the revision application. That order was initially challenged by accused Mrs. Dina Chetan Shah in the present application under Section 482 of Cr.P.C. It was contended that there was no sufficient and satisfactory cause for condonation of delay of 465 days in filing the revision application. In this application, on 16.2.2009, this Court granted ad-interim relief in terms of prayer clause (b) i.e. pending the hearing and final disposal of the revision application, the impugned order dated 15.10.2008 shall remain stayed. It appears that inspite of the said order, due to oversight, the learned Addl. Sessions Judge continued to hear the Revision Application No.1115 of 2008 filed by the original complainant and also allowed the same by order dated 5.3.2009. After that the present application was amended and the said order dated 5.3

































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