ASHISH KAMLAKAR TUNGAREversusTHE STATE OF MAHARASHTRA

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   CRIMINAL APPELLATE JURISDICTION

                  CRIMINAL WRIT PETITION NO. 3146 OF 2017

1. Shri. Ashish Kamlakar Tungare,
   Age :- 50 Years, Occ. :- Service
   R/at :- 901, Vashnavi Tower,
   Sector 44, Nerul, Navi Mumbai                              … Petitioner.

           V/s.

1. State of Maharashtra.
  (through Police Inspector
  Pantnagar Police Station, Mumbai )


2. Shri Anil Prabhakar Sathe
   Age :- 39 Years, Occ. :- Service,
   R/at :- 103, Bluebel, Bratimand,
   Phase No. 7, Godbundan Road,
   Thane (W), Thane.                                          … Respondents

                           ______________________
Mr. Pritam P. Runwal a/w Mr. Anil Khopde for the Petitioner.
Mr. Prashant Jadhav, APP for the Respondent-State.
PSI. Santosh Jadhav, Pantnagar Police Station, Mumbai is present.
                          ______________________

                           CORAM : RANJITSINHA RAJA BHONSALE, J.

                  RESERVED ON : 15th JULY 2026.
               PRONOUNCED ON : 22nd SEPTEMBER 2026.

JUDGMENT :-

1)          The present petition is filed under Article 227 of the Constitution

of India and Section 482 of the Code of Criminal Procedure (for short,

“CrPC”) and seeks to quash and set aside the Order dated 7 th December 2016


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passed by the Metropolitan Magistrate, 73rd Court, Vikhroli, Mumbai in C.C.

No. 232/PW/2010 and Order dated 7th July 2012 passed by the Additional

Sessions Judge, Greater Bombay in Criminal Revision Application No. 222 of

2017.

2)          Heard Mr. Pritam Runwal, learned Advocate for the Petitioner, Mr.

Prashant Jadhav, APP for the Respondent-State, and perused the entire record.

3)          This Court by Order dated 26 th February 2018 had granted liberty

to add the Original Complainant as Respondent No. 2. Notice was to be issued

to the Respondent No. 2 informing him that, the matter will be taken up for

final hearing at the admission stage. The said Court notice remained to be

served. The Petitioner served Respondent No. 2 by private notice and filed an

affidavit of service. None appeared for the Respondent No. 2.

3.1)        Considering the said facts, this Court by Order dated 8 th August

2018 issued fresh notice to Respondent No. 2 and granted stay to the

proceedings pending before the Trial Court. As none appeared for the

Respondent No. 2, this Court by Order dated 26 th February 2026 directed the

Investigating Officer to inform the Respondent-company about the pendency

of the present petition. The record indicates that, notice issued to Respondent

No. 2 was duly served. The matter pertains to the year 2017. Record indicates

that, the Respondent No. 2 has been served. Though served, as none appeared

for Respondent No. 2, hearing in the matter was proceeded with.

4)          The case as alleged in the FIR is as under:-


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4.1)        The FIR came to be lodged by Respondent No. 2, Regional

Manager of a company by the name of Manmachine India Pvt. Ltd (said

company). The Petitioner was working as the Corporate Manager in the said

company at Ghatkopar Division and was entrusted with the work of

recovering amounts due from the customers to whom the said company had

supplied machines/goods.

4.2)        A payment of Rs. 1,43,120/- was due and payable to the said

company by one Mr. Yogesh M. Parmar, Director of Fermatech Conferate

Solutions Company. That, it was the duty of the Petitioner to collect the said

cheque of Rs. 1,43,120/- in the name of the said company. The Petitioner

persuaded Mr. Yogesh M. Parmar to issue a cheque in the name of a company

known as Arvind Clean Line. That, believing the said representation, Mr.

Yogesh Parmar issued a cheque dated 13 th August 2009 of Rs. 1,43,120/- in

favour of Arvind Clean Line.

4.3)        As Mr. Yogesh Parmar became suspicious, he called the office of

the said company and inquired as to why the company had directed that the

cheque be issued in the name of Arvind Clean Line. That, only due to the

enquiries made, the said company came to know of the fact of the cheque

being issued in the name of Arvind Clean Line.

4.4)        It is alleged that, the Petitioner on 16 th September 2009 confessed

to the said wrongdoing and also admitted that he had given 4 more machines.

Based on the above said facts, C.R. No. 210 of 2009 dated 18 th September


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2009 came to be registered with the Pantnagar Police Station, Mumbai for the

offence punishable under Sections 420, 408 and 511 of the Indian Penal Code

(for short, “IPC”). Chargesheet has been filed in the said proceedings and has

been numbered as CC/232/PW/2010.

5)            On 17th December 2012, the Petitioner filed a discharge

application under Section 239 of CrPC below Exh. 5 before the Metropolitan

Magistrate, 73rd Court, Vikhroli, Mumbai. The Court, after hearing the parties,

by its Order dated 7 th December 2016 was pleased to reject the said

application. The Petitioner, being aggrieved by the said Order, preferred a

Criminal Revision Application No. 222 of 2017 before the Additional Sessions

Judge, Greater Bombay. The Sessions Court by Order dated 7 th July 2017

rejected the said discharge application. The Petitioner seeks to challenge the

Orders dated 7th December 2016 and 7th July 2017, hence the petition has

been filed.

6)            Mr. Pritam Runwal, learned Advocate appearing for the Petitioner

submitted that:-

6.1)          Perusal of the FIR would indicate that, there is no ground/basis to

proceed against the Petitioner. That, the Petitioner has been falsely implicated.

That, there is no evidence to connect the Petitioner with the alleged crime.

That, there is no recovery of any incriminating article or material from the

Petitioner.

6.2)          That, the Petitioner has resigned from the said company. That, the


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company had not entrusted any property to the Petitioner and, therefore,

allegation of offence under Section 408 of the IPC is completely groundless.

That, the company has not suffered any wrongful loss nor has the Petitioner

made any wrongful gain. That, the chargesheet comprises statements of

interested witnesses. That, no cheque is annexed or recovered from the

Petitioner or any witness to support the charge against the Petitioner.

6.3)        No prima facie case is made out against the Petitioner to make

out an offence under Section 420 of the IPC.

6.4)        Mr. Sachin Sharma is the friend of the owner of the company and,

therefore, has falsely implicated the Petitioner. Apart from the statement of

Mr. Sachin Sharma, there is no other evidence against the Petitioner.

Therefore, Section 511 of the IPC has been added to show an attempt.

7)          Mr. Prashant Jadhav, learned APP for the Respondent-State

submitted that, the offence against the Petitioner is clearly made out inasmuch

as the Petitioner sought, represented and got issued a cheque of Rs.

1,43,120/-, (which was due to Manmachine India Pvt. Ltd.) in the name of an

unrelated company by the name of Arvind Clean Line. That, only because of

cross-checking done by Mr. Yogesh Parmar, the said cheque was stopped and

payment was not made. That, the dishonest intention of the Respondent No. 2

to cheat is clearly made out.

8)          Perused the entire record. Perusal of the FIR would prima facie

indicate that, the duty of the Petitioner was to collect the money due to the


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said company in the name of the company i.e. Manmachine India Pvt. Ltd.

The Petitioner was an employee of the said company. The amount of Rs.

1,43,120/- which was to be collected, was due from Mr. Yogesh Parmar to

Manmachine India Pvt. Ltd. The Petitioner, prima facie appears to have made

false representations and mislead the creditor in issuing cheque in the name of

Arvind Clean Line i.e. a completely unrelated entity. The intention of the

Petitioner to commit the offence of cheating is prima facie made out.

9)          Perusal of the Order dated 7th December 2016 clearly indicates

that, the Metropolitan Magistrate, 73rd Court, has concluded that there is

prima facie material/evidence on record against the Petitioner. Only because

the creditor came to know of the fact that, it had been deceived and the

cheque was fraudulently got issued in the name of Arvind Clean Line Ltd., the

payment was stopped. The Trial Court has concluded that, prima facie

evidence is available on record and, therefore, the prosecution must be given

an opportunity to prove its case by adducing evidence. The Trial Court has

observed that it cannot be said that the charges are totally baseless and that

the accused has no concern with the alleged offence. Based on the said

observations, the discharge application has been rejected.

10)         Perusal of the Order dated 7th July 2017, passed by the Sessions

Court would indicate that the Revisional Court, has also observed that there

is material available on record to make out a prima facie case. The elements of

fraud and cheating present against the Petitioner. A prima facie finding has


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been recorded that, there appears to be good grounds to proceed against the

present Petitioner and there is enough material available to draw an

assumption against the Petitioner. I find that there is no reason or material

available on record to interfere with the findings. From the perusal of the FIR,

material, documents and chargesheet, it cannot be said or considered that the

charge against the Petitioner is groundless. Both the orders contain reasons

which prima facie indicate that there is material and evidence against the

present Petitioner.

11)          A useful reference can be made to the decision of the Hon'ble

Supreme Court in the case of Union of India Vs. Prafulla Kumar Samal,

reported in AIR 1979 SC 366. It is necessary and useful to refer to paragraph

10 of the said judgment which reads as under:-

        "10. Thus, on a consideration of the authorities mentioned above, the
        following principles emerge:
        (1)        That the Judge while considering the question of framing
        the charges under section 227 of the Code has the undoubted power
        to sift and weigh the evidence for the limited purpose of finding out
        whether or not a prima facie case against the accused has been made
        out:
        (2)        Where the materials placed before the Court disclose grave
        suspicion against the accused which has not been properly explained
        the Court will be, fully justified in framing a charge and proceeding
        with the trial
        (3)        The test to determine a prima facie case would naturally
        depend upon the facts of each case and it is difficult to lay down a
        rule of universal application. By and large however if two views are
        equally possible and the Judge is satisfied that the evidence produced
        before him while giving rise to some suspicion but not grave suspicion
        against the accused, he will be fully within his right to discharge the

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          accused
          (4)        That in exercising his jurisdiction under section 227 of the
          Code the Judge which under the present Code is a senior and
          experienced Judge cannot act merely as a Post office or a mouth-piece
          of the prosecution, but has to consider the broad probabilities of the
          case, the total effect of the evidence and the documents produced
          before the Court, any basic infirmities appearing in the case and so on.
          This however does not mean that the Judge should make a roaming
          enquiry into the pros and cons of the matter and weigh the evidence
          as if he was conducting a trial"

12)           The Supreme Court in the case of R.S. Nayak vs. A.R. Antulay and

Anr. reported in AIR 1986 SC 2045, while analyzing provisions of Sections

227, 239 and 245 of Cr.P.C., in unequivocable terms in Para 44 has held as

under:-

          "The Code contemplates discharge of the accused by the Court of
          Sessions under Section 227 in a case triable by it; cases instituted
          upon a police report are covered by Section 239 and cases instituted
          otherwise than on police report are dealt with in Section 245. The
          three sections contain some what different provisions in regard to
          discharge of the accused. Under Section 227, the trial Judge is
          required to discharge the accused if he 'considers that there is not
          sufficient ground for proceeding against the accused.’ Obligation to
          discharge the accused under Section 239 arises when "the Magistrate
          considers the charge against the accused to be groundless." The power
          to discharge is exercisable under Section 245(1) when "the Magistrate
          considers, for reasons to be recorded, that no case against the accused
          has been made out which, if unrebutted, would warrant his
          conviction.” It is a fact that Sections 227 and 239 provide for
          discharge being ordered before the recording of evidence and the
          consideration as to whether charge has to be framed or not is required
          to be made on the basis of the record of the case, including documents
          and oral hearing of the accused and the prosecution or the police
          report, the documents sent along with it and examination of the
          accused and after affording an opportunity to the two parties to be

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        heard. The stage for discharge under Section 245, on the other hand,
        is reached only after the evidence referred to in Section 244 has been
        taken. Notwithstanding this difference in the position there is no
        scope for doubt that the stage at which the Magistrate is required to
        consider the question of framing of charge under Section 245(1) is a
        preliminary one and the test of “prima facie” case has to be applied. In
        spite of the difference in the language of the three sections, the legal
        position is that if the trial Court is satisfied that a prima facie case is
        made out, charge has to be framed."


13)         A further reliance can also usefully be placed on the decision of

the Supreme Court in the case of State of Maharashtra Vs. Soma Nath Thapa

reported in (1996) 4 SCC 659 wherein, the Supreme Court has held that, if

there is ground for presuming that the accused has committed the offence, it

can be said that, a prima facie case has been made out against the accused. It

has been further held that even if the Court finds that the accused might have

committed an offence, it can frame charge. The Supreme Court has further

clarified in the said case that at the stage of framing of charge probative value

of the statements cannot be gone into.

14)         The Supreme Court in the case of Palvinder Singh Vs Balwinder

Singh and others reported in (2008) 14 SCC 504 while dealing with the

provisions of Section 227 of Cr.P.C., in para 13 has held that, the charges can

also be framed on the basis of strong suspicion. That marshaling and

appreciation of evidence is not in the domain of the Court at that point of

time.

15)         The Hon’ble Supreme Court in the case of State of T.N. v. R.


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Soundirarasu, reported in (2023) 6 SCC 768 observed that:-

        “60. In the context of trial of a warrant case, instituted on a police
        report, the provisions for discharge are to be governed as per the
        terms of Section 239 which provide that a direction for discharge can
        be made only for reasons to be recorded by the court where it
        considers the charge against the accused to be groundless. It would,
        therefore, follow that as per the provisions under Section 239 what
        needs to be considered is whether there is a ground for presuming
        that the offence has been committed and not that a ground for
        convicting the accused has been made out. At that stage, even strong
        suspicion founded on material which leads the court to form a
        presumptive opinion as to the existence of the factual ingredients
        constituting the offences alleged would justify the framing of charge
        against the accused in respect of that offence, and it is only in a case
        where the Magistrate considers the charge to be groundless, he is to
        discharge the accused after recording his reasons for doing so.
        61. Section 239 envisages a careful and objective consideration of the
        question whether the charge against the accused is groundless or
        whether there is ground for presuming that he has committed an
        offence. What Section 239 prescribes is not, therefore, an empty or
        routine formality. It is a valuable provision to the advantage of the
        accused, and its breach is not permissible under the law. But if the
        Judge, upon considering the record, including the examination, if any,
        and the hearing, is of the opinion that there is “ground for
        presuming” that the accused has committed the offence triable under
        the chapter, he is required by Section 240 to frame in writing a charge
        against the accused. The order for the framing of the charge is also
        not an empty or routine formality. It is of a far-reaching nature, and it
        amounts to a decision that the accused is not entitled to discharge
        under Section 239, that there is, on the other hand, ground for
        presuming that he has committed an offence triable under Chapter
        XIX and that he should be called upon to plead guilty to it and be
        convicted and sentenced on that plea, or face the trial. (See : V.C.
        Shukla v. State [V.C. Shukla v. State, 1980 Supp SCC 92 : 1980 SCC
        (Cri) 695] ).
        62. Section 239CrPC lays down that if the Magistrate considers the
        charge against the accused to be groundless, he shall discharge the

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        accused. The word “groundless”, in our opinion, means that there
        must be no ground for presuming that the accused has committed the
        offence. The word “groundless” used in Section 239CrPC means that
        the materials placed before the court do not make out or are not
        sufficient to make out a prima facie case against the accused.
        67. Thus the word “groundless”, as interpreted by this Court, means
        that there is no ground for presuming that the accused has committed
        an offence.
        69. The suspicion referred to by this Court must be founded upon the
        materials placed before the Magistrate which leads him to form a
        presumptive opinion as to the existence of the factual ingredients
        constituting the offence alleged. Therefore, the words “a very strong
        suspicion” used by this Court must not be a strong suspicion of a
        vacillating mind of a Judge. That suspicion must be founded upon the
        materials placed before the Magistrate which leads him to form a
        presumptive opinion about the existence of the factual ingredients
        constituting the offence alleged.
        72. The real test for determining whether the charge should be
        considered groundless under Section 239CrPC is that whether the
        materials are such that even if unrebutted make out no case
        whatsoever, the accused should be discharged under Section
        239CrPC. The trial court will have to consider, whether the materials
        relied upon by the prosecution against the applicant herein for the
        purpose of framing of the charge, if unrebutted, make out any case at
        all.
        73. The provisions of discharge under Section 239CrPC fell for
        consideration of this Court in K. Ramakrishna v. State of Bihar [K.
        Ramakrishna v. State of Bihar, (2000) 8 SCC 547 : 2001 SCC (Cri)
        27] , and it was held that the questions regarding the sufficiency or
        reliability of the evidence to proceed further are not required to be
        considered by the trial court under Section 239 and the High Court
        under Section 482. It was observed as follows : (SCC p. 549, para 4)
            “4. The trial court under Section 239 and the High Court under
            Section 482 of the Code of Criminal Procedure is not called upon
            to embark upon an inquiry as to whether evidence in question is
            reliable or not or evidence relied upon is sufficient to proceed
            further or not. However, if upon the admitted facts and the


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            documents relied upon by the complainant or the prosecution
            and without weighing or sifting of evidence, no case is made out,
            the criminal proceedings instituted against the accused are
            required to be dropped or quashed. As observed by this Court in
            Rajesh Bajaj v. State (NCT of Delhi) [Rajesh Bajaj v. State (NCT
            of Delhi), (1999) 3 SCC 259 : 1999 SCC (Cri) 401] the High
            Court or the Magistrate are also not supposed to adopt a strict
            hypertechnical approach to sieve the complaint through a
            colander of finest gauzes for testing the ingredients of offence
            with which the accused is charged. Such an endeavour may be
            justified during trial but not during the initial stage.””
16)         Thus, it is clear that the Supreme Court in its various decisions

has held that while considering the application for discharge the Court has to

take into consideration the prima facie case as made out by the

Complainant/prosecution.

17)         It is settled law that, no detailed evaluation of material or

meticulous consideration of the possible defences is required to be undertaken

at the stage of considering a application seeking discharge. What is required

to be considered is only whether the allegation and charge against the accused

is groundless. What is required to be seen is whether the material is of such

nature that, even if the same is unrebutted, it makes out no case whatsoever

against the accused. In the present case, it cannot be said that, there is no

basis or foundation or grounds to proceed against the Petitioner. Prima facie

the Petitioner has collect the amounts due to the said company in the name of

a entirely different and distinct company i.e. Arvind Clean Line. The said

company has no relation or link to the company/creditor i.e. Manmachine



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India Pvt. Ltd. The conduct of the Petitioner prima faice make out a case

against the Petitioner. The conduct and acts of the Petitioner is raise doubts

and a strong suspicion. The suspicion is founded on the material available on

record.

18)         While considering the application of discharge, even a strong

suspicion founded on the material available before the Magistrate would be

sufficient to proceed against the accused. Where there is prima facie material

available on record to frame the charge against the accused, it cannot be said

that the charge is groundless and therefore the accused cannot be discharged

under Section 239 of the CrPC. At the time of considering the discharge

application the Court considers the police report and documents available to

decide whether the allegations against the accused are groundless or whether

there is ground for presuming that the accused has committed an offence.

Assuming that the presumption is raised, it is always available for the accused

to rebut the said presumption at the trial.

19)         A charge can be said to be groundless only when there is no

incriminating material as against the accused or even a strong suspicion. If

there are sufficient grounds to proceed against the accused, or even a strong

suspicion it cannot be said that the charge is groundless. At the initial stage,

even a strong suspicion which leads the Court to think that there are grounds

for presuming that the accused committed an offence, it will not be open to

the Court to say and conclude that there is no sufficient ground for proceeding


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                      against the accused. If strong suspicion is created, it cannot be said that the

                      charge is groundless.

                      20)           Considering the law as laid down by the Hon’ble Supreme Court,

                      the facts of the present case and the conduct of the Petitioner this Court is of

                      the view that no case has been made out for seeking discharge by the

                      Petitioner.

                      21)           In view thereof, the petition is dismissed.

                      22)           The Registry is directed to communicate a copy of this Order to

                      Respondent No. 2 for information.




                                                              (RANJITSINHA RAJA BHONSALE, J.)
SAGAR
SANTOSH
MAGAR
Digitally signed by
SAGAR SANTOSH
MAGAR
Date: 2026.09.22
19:22:20 +0530




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