Bombay High Court Passed Order ABA-1083.2012

Bombay  High  Court

sjs ABA-1083.2012

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE – CRIMINAL

ANTICIPATORY BAIL APPLICATION NO.1083 OF 2012

Ashok Bahirwani ....  Applicant

Vs.

State of Maharashtra ....  Respondent

S/Shri Ahmad Abdi with Satyaprakash 

Sharma and Awadhesh Mourya i/b Abdi

& Co. for the Applicant.

Ms R.M. Gadhvi, APP, for the State.

Shri Pradeep Gharat, Special PP for 

EOW.

Shri A.H.H. Ponda with Ms Jyoti Singh

and S.S. Rajan i/b Phoenix Legal for

for Speak Asia.

Shri Navniit K. Khosla, Original

Complainant, present.

     CORAM: R.C. CHAVAN, J.

     

DATED: JANUARY 09, 2013

P.C:

1. This is an application for anticipatory bail by one Ashok Bahirwani, who himself claims to be a victim of the activities of Speak Asia Online Pte. Ltd. (hereinafter called as “the Company”). The Company is registered in Singapore. 

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2. The learned counsel for the Company

was also heard and he stated that the Company

wanted to do away with intermediaries and bring

products to consumers directly from the

manufacturers. For this, the Company wanted to

undertake surveys in order to know the

requirements of consumers. Therefore, the

Company wanted to enlist panelists for

conducting such surveys. Now, since the

panelists were laymen, they had to be trained

into conducting such surveys. Therefore, they

were made to subscribe to an e-magazine, which

was mailed directly to those un-initiated

individuals in the art of conducting the

surveys. For this the panelists were required

to pay `11,000/- each to the Company. It seems

that if a panelist succeeded in enrolling

persons on the Panel List of the Company, such

panelist was to get some reward points. Also,

for every survey conducted, the panelist would

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get reward point. At this stage, the learned

counsel for the Company intervenes and points

out, and usefully in my view, that the

subscription for the e-magazine was to go to

Haren Ventures, a sister concern of the

Company. This is all the  more better since it

shows the ingenuous ways in which the Company

works. The panelists were to get their reward

points and it was also promised that every

panelist concerned would get a chance of

conducting two surveys in a week and in 52

weeks the panelist concerned would get

`52,000/- against his investment of `11,000/-. 

3. According to the estimate of the

learned Special PP, twenty lac panels were

created by twenty lac panelists, each of whom

must have invested a minimum of `11,000/-. The

payments, which were promised, stopped coming

and the panelists got restive and one of them,

who is also present before me today and wants

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to intervene in the matter, filed a report with

Nirmal Nagar Police Station, Mumbai, which was

eventually transferred to the EOW. 

4. The matter had been carried by some

115 persons to the Supreme Court directly under

Article 32 of the Constitution of India by

filing a petition being Writ Petition (C)

No.383 of 2011. In the said writ petition the

Supreme Court passed an order appointing

Hon'ble Shri Justice R.C. Lahoti, former Chief

Justice of India, as the mediator. It seems

that the Company had deposited US$ 10-million

in terms of the earlier orders passed by the

Supreme Court. Eventually, by the order dated

19-9-2012, the amount which was deposited suo

motu was allowed to be withdrawn because the

writ petition was disposed of as the

investigation by the EOW was going on.

5. The learned counsel for the parties

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also drew my attention to the orders passed by

this Court in Writ Petition No.3611 of 2011.

Initially, the prayer in Writ Petition No.3611

of 2011, which was filed by the applicant

amongst others, was to direct the respondent

not to take any action or carry out any

investigation against the panelists of the

Company. Subsequently, pursuant to the

observations of the Court, it seems that the

All India Speak Asia Panelists' Association, of

which the applicant is the Secretary, sought

relief of quashing of the FIR itself.

6. The learned counsel for the applicant

stated that the applicant is in fact a victim.

He has also suffered a loss of `64,000/-.

However, in order to avoid trouble, he took

lead in ensuring that the first informant was

paid `6,06,000/- by collecting it from various

sources, one of the sources being his own wife

Anju Agarwal. The learned counsel for the

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applicant points out that various blogs on

which the investigating officer seeks to rely

have been posted on a website created by the

All India Speak Asia Panelists' Association.

These blogs invariably end with a slogan, “Jai

Speak Asia”. Yet, the applicant repeatedly

states, and is at pains to state that, he is

not associating himself with the Company. He is

the victim of the designs of the Company and

therefore he should not be subjected to any

custodial interrogation.

7. The learned Special PP is of course of

the other view and submits that the applicant

and others like him are in fact the persons

behind the whole business of the Company and

therefore their presence in custody is required

for the purpose of investigation. Since the

learned counsel for Company wants to file an

affidavit explaining as to how the Company

works and since the first informant, in-person,

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also wants to file an intervention application,

list this application on 23-1-2013. Till then

the interim relief to continue.   

8. As I part with this matter for the

day, I faintly remember that the law as to

trial for offences, as laid down in Sections

218 and 219 of the Cr.P.C., is that for every

distinct offence there has to be a separate

charge and a separate trial in which maximum

three offences of the same kind committed

during an year can be clubbed together for

trial. Of late, tendency of the investigating

agencies to join all the people who have been

cheated into one investigation and file a bulky

charge-sheet is growing. This first delays the

filing of charge-sheet and secondly, the

commencement of trial, leave aside its

conclusion. The learned Special PP submits that

Section 223 of the Cr.P.C. permits joint trial

if several acts of cheating or misappropriation

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are committed in the course of the same

transaction. I am at a loss to understand as to

how cheating of the present first informant and

cheating of the other persons who also joined

as panelists can be said to be a part of the

same transaction. Each act of persuading each

individual to part with his money would be a

separate transaction. Let the investigating

agency not give an impression to the common man

by clubbing all these items of cheating

together and by over-loading the charge-sheet

to such an extent that the trial will never see

the light of the day, that the investigating

agency is also conniving with the fraudsters in

duping the common man.

9. The learned Special PP states that he

would explain to me the reasons by submitting

some confidential details.

(R.C. CHAVAN, J.)

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