M. S. Sonak, J
1. Heard Mr. S. D. Lotlikar, learned Senior Advocate for the Petitioner, Mr. M. Amonkar, learned Addl. Public Prosecutor for Respondent Nos.1 and
2.
2. Rule. Rule returnable forthwith. Heard finally with the consent of the learned counsel for the parties. Mr. M. Amonkar, learned Additional Public
Prosecutor waives notice on behalf of Respondent Nos.1 and 2.
3. The Petitioner seeks the following substantive relief in the present case.
“This Hon'ble Court be pleased to issue a writ of Certiorari, or any other writ, order or direction in the nature of Certiorari, or any other writ, order
or direction calling for records of the IPC Case No.90 of 2017 pending before the Judicial Magistrate First Class at Ponda Goa and consequently be
pleased to quash and set aside the chargesheet filed in FIR bearing No.284 of 2016 filed by the Ponda Police Station against the accused.â€
4. Mr. Lotlikar, learned Senior Advocate for the Petitioner submits that the present proceedings are an abuse of process of Court since, there is
absolutely no chance of the Petitioner being convicted of the offences alleged. He submits that the allegations in the complaint as now reflected in the
FIR are inherently improbable and on the basis of the same no FIR ought to have been registered against the Petitioner.
5. Mr. Lotlikar points out that the Petitioner is the owner of the garage premises which have been described as shop no.4, Damacian Apartment,
Upper Bazar, Ponda Goa. The allegation is that the Petitioner has broke open the locks of the said shop and decamped with IMFL, liquor stock,
furniture and other items valued at Rs.50 lakhs. Mr. Lotlikar submits that the complainant has now expired leaving behind no ascendants or
descendants. He submits that the complainant was called upon to produce any documents to establish her possession in the premises in question.
However, she failed to produce the same. He points out that no excise licence was also produced for allegedly storing IMFL bottles in the premises in
question. He points out that even the pancha witnesses have stated that they were empty bottles. He submits that based on such material, neither any
FIR nor any charge-sheet ought to have been filed against the Petitioner. He submits that this is a fit case to quash the charge sheet.
6. Mr. Amonkar, learned Additional Public Prosecutor points out that the complainant alongwith her complaint had produced a house tax receipt. He
submits that the panchanama was also carried out and the statement of the driver of the tempo by which the Petitioner is alleged to have decamped
the liquor bottles has also been recorded. Mr. Amonkar submits that all these material are sufficient to register an FIR and thereafter file a charge
sheet against the Petitioner. He submits that this is not a fit case for grant of any relief.
7. The rival contentions now fall for our determination.
8. We have perused the entire material on record. We have also heard the learned counsel for the parties and in our opinion, there is no point in
permitting the prosecution of the Petitioner any further. The complainant has already expired and even the statement is made that she has left behind
no ascendants or descendants. That apart the Investigating Officer had specifically called upon the complainant to produce documents like sale deed,
electricity bills, details of bills/vouchers regarding purchase of IMFL and liquor or any other documents to prove that she was indeed the owner of the
premises in question. It is possible to say that the issue of ownership was not most relevant issue but at least some documents were necessary to be
produced on the aspect of possession of the premises in question.
9. The record indicates that no documents were produced by the complainant. Despite this, the FIR came to be registered and charge-sheet came to
be filed. The prosecution, in the present case should have had with them at least some documents to establish the factum of possession of the
complainant, leave alone the character of such possession, if any. Besides, if it was the case of the complainant that she has stocked IMFL and liquor
valued at Rs.50 lakhs in the premises in question, then, the complainant on being called upon to do so, should have produced some excise licence or
some authorization for dealing with the IMFL or liquor on this scale. No such material was ever produced by the complainant or otherwise sourced by
the prosecution. The pancha witnesses have merely stated that there were some empty bottles in the premises. The driver of the tempo has also
stated that he was taken by the complainant to remove some bottles from the premises which he claimed belonging to the Petitioner. Admittedly, the
Petitioner, resides in U.K. All these aspects render any further prosecution utterly futile.
10. Only on the basis of the house tax receipt, for which again there is no proper explanation provided by the complainant, we do not feel that the
prosecution against the Petitioner should be permitted to continue. In this state of material, there is really no chance of the Petitioner being convicted
of the offences under Sections 454 and 380 of the Indian Penal Code. As noted earlier, even the complainant has already expired.
11. Therefore, taking into consideration all the aforesaid reasons cumulatively, Rule is made absolute in terms of prayer clause (a) of this petition.
There shall be no order as to costs.
