If you are stuck in such a situation, here is what to do.

Mr. Alok Sharma, a resident of Jabalpur, found himself in a dire situation due to a misplaced act of trust. An acquaintance, Mr. Vikram Singh, who lived in another state, requested to use Mr. Sharma’s bank account for some business transactions, citing issues with his own local branch. Over several weeks, a woman named Ms. Priya Mehta deposited a total of approximately 18 lakhs into Mr. Sharma’s account. As per Mr. Singh’s instructions, Mr. Sharma immediately transferred the funds to him after each deposit. On a couple of occasions, Mr. Singh asked him over the phone to deduct small amounts (around 2000-3000 rupees) for mobile recharges or to settle prior small debts, which Mr. Sharma did. Unfortunately, these instructions were verbal and not recorded.

The situation took a dark turn when Ms. Mehta filed a criminal case against Mr. Singh, accusing him of cheating under Section 318 of the Bharatiya Nyaya Sanhita (BNS) and rape under Section 64 of the BNS. During the police investigation, Mr. Singh, allegedly under pressure, falsely stated that the entire 18 lakhs was still with Mr. Sharma. Despite bank statements clearly showing the onward transfers, the police included Mr. Sharma’s name in the FIR. He was arrested and had to spend nearly a month and a half in custody before securing bail. The case has now been committed to the Sessions Court, but charges have not yet been framed. Mr. Sharma’s family is now exploring the possibility of filing a discharge petition to clear his name before the trial begins.

Advice in such cases

Navigating the criminal justice system can be overwhelming, especially when you are innocent. It is crucial to act strategically and promptly.

• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A Good lawyer can get the issues resolve in 7-10 days.
• Gather all exculpatory (favourable) evidence immediately. In a case like this, the complete bank statement showing the trail of money is the most critical piece of evidence.
• Preserve any digital communication, such as text messages, emails, or call records, with the other parties involved.
• Never abscond or avoid summons from the police or court. Cooperate with the process while being guided by your lawyer.
• The most effective legal remedy at this stage is a discharge petition, which can be filed before the court frames charges against you.

Applicable Sections of Law

Understanding the relevant legal provisions is essential for your defence. The new criminal laws have replaced the old codes.

• Section 318 of the Bharatiya Nyaya Sanhita, 2023 (BNS): This section deals with cheating. To be held liable, the prosecution must prove that you had a dishonest intention from the very beginning to deceive and induce the victim to deliver property. In Mr. Sharma’s case, the lack of intention can be demonstrated through the bank statements.
• Section 64 of the Bharatiya Nyaya Sanhita, 2023 (BNS): This pertains to the offence of rape. While Mr. Sharma is not directly accused of this, the primary FIR contains this serious charge, which is why the case is before the Sessions Court.
• Section 251 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS): This is the most important provision for someone in Mr. Sharma’s position. It allows the Sessions Court to discharge an accused if, upon considering the police report and documents, it finds that there is no sufficient ground for proceeding against the accused. The court examines if a prima facie case is made out. If not, the accused is discharged without having to face a full-blown trial.

If you are the complainant

If you are in Ms. Mehta’s position, the one who has been wronged, it is vital to build a strong case from the start.

• Provide a clear, detailed, and chronological complaint to the police.
• Submit all documentary evidence you possess, such as bank transaction receipts, communication records with the accused, and any other relevant proof.
• Cooperate fully with the Investigating Officer (IO) and be available for recording statements as required.
• Clearly articulate the role of each person involved in the alleged offence.

If you are the victim

If you have been falsely implicated like Mr. Sharma, your priority is to extricate yourself from the proceedings as early as possible.

• Engage a competent criminal defence lawyer immediately. Time is of the essence.
• File for anticipatory bail under Section 482 of the BNSS if you anticipate arrest. If already arrested, seek regular bail promptly.
• Your lawyer’s primary focus should be on filing a robust discharge application under Section 251 of the BNSS before the Sessions Court.
• The discharge petition must clearly highlight the lack of evidence against you and present all proof of innocence, such as the bank statements proving you were merely a conduit for the funds.

How the police behave in such cases

Police investigations can sometimes be flawed, leading to the implication of innocent individuals.

• Police may initially rely heavily on the statements of the complainant or a co-accused without conducting a deep verification.
• In complex financial frauds, they might hastily add anyone whose name appears in the transaction chain to the list of accused.
• The pressure to file a chargesheet within the stipulated time can sometimes lead to incomplete or one-sided investigations.
• It is the responsibility of the defence to present its evidence to the court, as the police may have overlooked or ignored it.

FAQs people normally have

Here are answers to some common questions in such scenarios.

What is a discharge petition and what are its chances of success?

A discharge petition is a formal application made to the court before charges are framed, arguing that the evidence collected by the police is insufficient to justify a trial. The chances of success are high if the evidence on record, taken at face value, does not establish a prima facie case. In a situation like Mr. Sharma’s, where bank statements can prove his innocence regarding the misappropriation of funds, a discharge petition has a strong chance of being allowed.

What is the financial cost of this legal process?

Legal fees are not standardized and depend on the seniority of the advocate, the complexity of the case, and the court’s location. Filing a discharge petition in the Sessions Court could involve fees for drafting, filing, and appearances. While it is an expense, it is a crucial investment to avoid the mental, emotional, and financial drain of a lengthy criminal trial.

What evidence is required?

For a strong discharge application, the following evidence is crucial:

• The complete, certified bank statement of the account in question, showing the credits from the complainant and the corresponding debits to the co-accused.
• Any available communication (SMS, WhatsApp, email) with the co-accused where the transfer of money was discussed or instructed.
• A copy of the FIR and the complete chargesheet filed by the police.
• Any evidence establishing your own clean record and good character, which can be submitted to show the unlikelihood of your involvement in such a crime.

How long will the investigation take?

The legal process has its own timeline. The police investigation and filing of the chargesheet typically take 60 to 90 days from the arrest. Once the case is before the court, the stage of framing charges can take a few months. A discharge petition is decided during this window. The court’s decision on the discharge petition can take anywhere from 2 to 6 months, depending on the court’s workload and the arguments from both sides.

Advocate Sudhir Rao, Supreme Court of India