IN THE COURT OF JUDICIAL MAGISTRATE

AT THANE
MISCELLANEOUS APPLICATION NO. ____ 2019
IN
CC NO.1811 OF 2008

1) Kuzhicheril Gopalakrishnan )
Kesavan Nair )

2. Dinesh Chellappa Mudaliyar )

3. Christopher Leo Rozario ) Applicants

Versus
1. The State of Maharashtra )
(through Mira Road Police Station) )
2. Anupam Ankush Wadekar ). .. Respondents

APPLICATION FOR DISCHARGE U/s. 239 OF

Cr.P.C ON BEHALF OF THE ACCUSED SUBIN
SUBIRA SURENDRAN

MAY IT PLEASE YOUR HONOR:

On behalf of the Applicants/Accused above named it is most respectfully

submitted as under:
1. The Applicant is a law abiding and peace-loving citizen of India having his
address as mentioned in the cause title is a victim of the circumstances.
2. The Respondent is the State of Maharashtra represented through the Senior
Inspector of Police Mira Road Police Station who had lodged the F.I.R.
bearing C.R. No. 116/2005 against present Applicants/Accused u/s 406,
420,465, 467, 468, 471 r/w 34 of Indian Penal Code.

3. That the Prosecution case in the nutshell is as under:

i. It is alleged that the Complainant is running a company

and carrying work of computer software and E-Learning

(IT Education through Internet) namely www-w3

varsity.com.

ii. It is further alleged that one Mr. Ahuja had introduced the

Complainant to K.G.K Nair director of Diotek India Ltd. It

is alleged that both the companies i.e. Complainant

Company and Diotek India Ltd. entered in to an 2 years

agreement whereby the Diotek India Limited was to pay

Res.5,00,000/- for the products supplied by the

Complainant. It is alleged that Complainant company had

sent via email four types of products and further say that

the said products do not come under sales tax but under

service tax.

iii. It is alleged that the said Diotek Company as per the

agreement paid Rs. 2,00,000/- in the month of January

and balance to be paid thereafter. It is alleged that

thereafter the said Company defaulted in making every

 month payments and hence he met K.G.K Nair who gave

some excuses. It is alleged that in the month of August

2003 the said Company paid Rs.10,25,700/-. It is alleged

that by various letter the Complainant informed the

company of their balance payments and the said

Company vide their letter dated 15.03.2004 informed that

as the Complainant entered an agreement between the

Company in the month if August 2003 hence the said

agreement is cancelled.

iv. Thereafter the Complainant lodged a complaint at EOW,

cell-3 crime branch, Mumbai. That during the inquiry the

Company director K.G.K Nair had sent a letter stating

that the agreement between the companies had been

terminated on 12.03.2003. It is alleged that Complainant

has not signed the said termination agreement and the

same has bogus signatures and the EOW office had asked

for original agreement from K.G.K. Nair who informed that

same is filed with sales tax. That after inquiry it was

revealed that no original documents are with sales tax.

v. That thereafter EOW transferred investigation to Mira

Road Police station and thereafter FIR bearing C.R. No.

T116/08 dated 18.3.2005 came to be registered under

sections 406,420,465,467,468,471 r/w 34 of Indian Penal

Code against the Directors of Diotek India Limited.

4. The Applicants submit that, they preferred application for Anticipatory

bail and the Ld. District and Sessions Judge was pleased to grant an

interim anticipatory bail in favour of the Applicants. By the final

order, the Ld. District & Sessions Judge has extended the protection

till 16th April 2005 with the directions that the Applicants shall

approach the regular court for regular bail.

5. The Ld. Magistrate upon surrender granted bail with further direction

to attend the police station once in a week. The Applicants complied

with the said order and cooperated with investigation fully.

6. It is submitted that during investigation specimen signatures of the

Applicants were taken and same were sent for report of Handwriting

Expert and after completion of investigation the Respondent filed

charge sheet along with the Hand writing expert Opinion/report from

the Chief State Examiner of Documents, Pune, Maharashtra.

7. The Applicants submit that after perusing the entire charge sheet and

in particular Opinion of the hand writing expert, which stands in

favour of the Applicants, hence it cannot be unfair to say that

conviction can be based upon such evidence or interested witnesses.

GROUNDS

a. That the Applicants are innocent and are nowhere concerned

with the alleged offence.

b. The story of the prosecution will not survive the test of trial

based upon the evidence brought forth in the charge sheet.

c. The Opinion/Report of the Hand writing Expert which

apparently does not support the statement of the Complainant

and in-fact tarnishes the entire story of the prosecution that the

termination agreement is forged and bogus.

Reproduced below is the Opinion dated 31.05.2006 of the

Assistant State Examiner of Documents:

Having carefully examined the documents. I am of opinion

that.

The Red encircled signature marked by me as Ex. Q-1 is

not written by the writer who wrote the signatures marked by me

as Exs. A-1 to A-9 and AN-1.

I am unable to express any definite opinion as regrds the

identity or otherwise of the Red encircled signature marked by

me as Ex.Q-1 with the signatures marked by me as Exs. B-1 to B-

12, BN-1 to BN-3, C-1 to C-12,CN-1 to CN-4,E-1 to E-12, EN-1,EN-

2,D1 to D-12,DN-1 t DN-3 for want of sufficient identifying

characteristics.

d. It is well settled by various judgments that

expert opinion must always be received with great caution and

perhaps none so with more caution than the opinion of

handwriting expert. There is a profusion of precedential

authority which holds that it is unsafe to base a conviction

solely on expert opinion without substantial corroboration

( Magan Bihari Lal v. State of Punjab (1977 (2) SCC 210).

Moreover, the present opinion in hand in fact supports or

 favours the Petitioners case and hence relying upon would

rather strike a blow to the prosecution story.

e. That the entire case of the Complainant is of civil nature and

only criminal aspect was developed by the Complainant when

the Petitioners tendered a termination agreement suppressed by

the Complainant and subsequently in further statement the

Complainant stated the said termination agreement was forged

and bogus. Now apparently the Opinion reads otherwise.

f. The transaction was a commercial transaction and both the

parties were at will to terminate the agreement as particularly

mentioned under clause 20 in the initial agreement dated

1.01.2003 between Master Computech Pvt. Ltd.(Complainant

Company ) and Diotek India Limited, which is part of the charge

sheet and relied upon by the Prosecution. Hence the present

case is only filed with ulterior motives and malafide intentions of

the Complainant.

g. Even assuming there was any breach of conditions of the

agreement dated 1.01.2003, the Complainant instead of

referring the matter to arbitration or filing a civil suit has

chosen to file a false and frivolous criminal case against the

Applicants.

h. It is not the case of the prosecution that said termination

agreement was ever used for any undue financial gains to the

Applicants. There was no gain for the Applicants, they never

used the alleged forged documents anywhere.

 i. Even the Company of the Applicants had suffered losses in the

said transaction which were informed to Complainant and

moreover a substantial sum was already been paid to the

Complainant under the initial agreement.

j. The acts allegedly committed by the Petitioner do not attract any

offence.

k. The said case was lodged only to harass and disrepute the

Petitioners out of vengeance.

l. The Petitioners craves leave to add amend, alter the aforesaid

paragraphs if so required in the interest of justice.
m. The Applicant has no criminal antecedents, is victim of the
circumstances

Hence, in the above stated circumstances it is humbly prayed that:

a) This Hon’ble Court may be pleased to discharge the

applicants/accused from the CC No. 1811 of 2008 arising out of Cr.
No. 116 /2005 registered with Mira Road Police Station, Thane for the
offences punishable u/s. 406, 420,465, 467, 468, 471 r/w 34 of
Indian Penal Code.

b) Any other order/s, which this Hon’ble Court may deem fit and proper
in the interest of justice.

AND FOR THIS ACT OF KINDNESS THE APPLICANTS/ACCUSED SHALL BE

DUTYBOUND AND SHALL EVER PRAY.

Date: On this ___ day of April 2019.

Place: Thane.