PANKAJ v. THE STATE OF MAHARASHTRA

Diksha Rane 936. BA 1082-23.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCRIMINAL APPELLATE JURISDICTIONBAIL APPLICATION NO.1082/2023PANKAJ S/O. BHAGCHAND CHALLANI..APPLICANTVS.THE STATE OF MAHARASHTRA..RESPONDENTWITHINTERIM APPLICATION NO.4157/2023 INBAIL APPLICATION NO.1082/2023M/S ASHOKA ENGINEERING COMPLANY THROUGH ASHISH ASHOK KATARIYA AND ORS..APPLICANTVS.THE STATE OF MAHARASHTRA..RESPONDENT------------Adv. Pavan S. Patil a/w. Adv. Abhay Ostwal, Adv. Nitin Jagtap, Adv. Yash Gawade for the applicant.Ms. Veera Shinde, APP for the State. Senior Advocate Aabad Ponda a/w. Adv. Shailesh Kharat, Adv. Rutvik Gadge for the intervener. Adv. Nitin Gaware Patil for the respondent no.2.PI Nilam Bhagat, EOW, Pune City.------------ CORAM : M. S. KARNIK, J. DATE : NOVEMBER 9, 2023.1/10 Diksha Rane 936. BA 1082-23.docP.C. :1.Heard learned counsel for the applicant, learned APPfor the State, learned senior advocate for the intervener andlearned counsel for the respondent no.2.2.This is an application for bail in respect of the offencepunishable under Sections 406, 420 read with 34 of theIndian Penal Code (hereafter ‘IPC’ for short) read withSections 3 and 4 of the Maharashtra Protection of Interest ofDepositors (in Financial Establishments) Act, 1999 (hereafter‘MPID Act’ for short) registered on 5/1/2021 vide C.R.No.3/2021 with Swargate Police Station, Pune. 3.In brief it is the case of the prosecution that theapplicant who claims to be a Chartered Accountant, gainedtrust of several investors/depositors who were known to himpersonally. The investors/depositors invested an amount ofRs.70,78,60,933/- with the applicant as he had promisedlucrative returns. The investors/depositors later realized thatthe applicant defaulted in paying them assured returns. Itwas later learnt that the investments/deposits made by theinvestors/depositors was utilized by the applicant forpurchasing various properties. 2/10 Diksha Rane 936. BA 1082-23.doc4.The applicant was arrested on 5/1/2021 and now is incustody for more than two years and nine months. Themaximum period of imprisonment prescribed for the offencefor which the applicant is being tried before the MPID Courtis seven years imprisonment. 5.As and by way of security, the applicant had offeredsome properties. The title and the ownership of suchproperties is seriously disputed by Mr. Ponda, learned senioradvocate. I refrain from venturing into matters of title orotherwise of the said property offered as security in theseproceedings. The parties are free to take recourse inappropriate proceedings before the appropriate forum. 6.Learned senior advocate for the interveners submittedthat the conduct of the applicant disentitles him fromenlargement on bail for failing to comply with the orderdated 11/8/2023 of this Court. The relevant portion of thesaid order reads thus:-“1.According to the prosecution, the amount involved in thepresent offence is Rs.70,78,60,933/-.2.Learned Advocate for the applicants states that he willtake instructions from the applicant about deposit amount ofentire amount.3.Stand over to 1 September 2023. To enable him to takeinstructions on that aspect.”3/10 Diksha Rane 936. BA 1082-23.doc7.Learned senior advocate submitted that once theadvocate for the applicant was to take instructions from theapplicant about deposit quantum of entire amount, now theapplicant cannot resile from his statement and he mustabide by the same, more so when such statement isrecorded in the order dated 11/8/2023 of this Court. Heinsists that the applicant must deposit the amount. 8.In my opinion, the order dated 11/8/2023 only recordsthat the advocate for the applicant was to take instructionsfrom the applicant about deposit quantum of entire amount. There is no definite statement made about such deposit. I,therefore, do not find any substance in the contention oflearned senior advocate Mr. Ponda appearing for some ofthe investors that failure to deposit the amount shouldresult in the consequence of rejecting this application.9.Mr. Gaware Patil, learned counsel for some of theinvestors has filed an affidavit of Mr. Sunil Bansilal Raisoni. Itis submitted by Mr. Gaware Patil that earlier a stand hadbeen taken by the applicant that he does not own orpossess any property. While placing reliance on Exhibit “R-5”4/10 Diksha Rane 936. BA 1082-23.docof the affidavit, learned counsel contends that the list of theproperties mentioned in Exhibit “R-5” are sold by theapplicant to other parties who are proxy purchasers. 10.Learned counsel for the applicant, on instructions, submits that if there are any properties of the ownershipand/or in possession of the applicant, the applicant will haveno objection if the MPID Court is to proceed for attachmentof those properties under sub-section (4) of Section 7 of theMPID Act. This statement is recorded as an undertaking tothis Court. The applicant to abide by such statement. Further as regards the properties which are mentioned inExhibit “R-5” at page 1275 of the affidavit filed by Mr. SunilRaisoni is concerned, it is open for the investors/depositorsto make an appropriate application before the MPID Courtfor appropriate reliefs including the attachment of suchproperties. Learned counsel submits that the applicant onhis part shall not have objection for attachment of suchproperties in accordance with law if they are of hisownership. This statement is recorded as an undertaking tothis Court.11.Considering that the applicant is in custody for more5/10 Diksha Rane 936. BA 1082-23.docthan two years and nine months as an undertrial withnothing being placed on record to indicate that he is a flightrisk or he will evade attending the trial, in respect of theoffence punishable for a maximum period of seven yearsimprisonment, the applicant can be enlarged on bail. Continuation of the applicant’s custody will only be by wayof pre-trial punishment. Though learned senior advocate aswell as learned counsel for the investors requested that theapplicant should deposit the amount, in my opinion, in thefacts and circumstances of the case, imposing such acondition when the applicant has already undergone thislong period of custody as an undertrial, will be unfair. It isopen for the investors/depositors to make appropriateapplication/s before the MPID Court to secure their depositsand for realization of their money out of the propertiesattached in accordance with law.12.I must bear in mind the observations of the Hon’bleSupreme Court in the case of Manish Sisodia vs. CentralBureau of Investigation1. Their Lordships in paragraph 27held thus:-12023 SCC OnLine SC 1393.6/10 Diksha Rane 936. BA 1082-23.doc“27.However, we are also concerned about the prolongedperiod of incarceration suffered by the appellant Manish Sisodia.In P. Chidambaram v. Directorate of Enforcement, the appellanttherein was granted bail after being kept in custody for around49 days, relying on the Constitution Bench in Shri GurbakshSingh Sibbia v. State of Punjab, and Sanjay Chandra v. CentralBureau of Investigation, that even if the allegation is one ofgrave economic offence, it is not a rule that bail should bedenied in every case. Ultimately, the consideration has to bemade on a case to case basis, on the facts. The primary object isto secure the presence of the accused to stand trial. Theargument that the appellant therein was a flight risk or thatthere was a possibility of tampering with the evidence orinfluencing the witnesses, was rejected by the Court. Again, inSatender Kumar Antil v. Central Bureau of Investigation, thisCourt referred to Surinder Singh Alias Shingara Singh v. State ofPunjab and Kashmira Singh v. State of Punjab, to emphasise thatthe right to speedy trial is a fundamental right within the broadscope of Article 21 of the Constitution. In Vijay MadanlalChoudhary (supra), this Court while highlighting the evil ofeconomic offences like money laundering, and its adverseimpact on the society and citizens, observed that arrest infringesthe fundamental right to life. This Court referred to Section 19 ofthe PML Act, for the in-built safeguards to be adhered to by theauthorised officers to ensure fairness, objectivity andaccountability,22 Vijay Madanlal Choudhary (supra), also heldthat Section 436A of the Codes can apply to offences under thePML Act, as it effectuates the right to speedy trial, a facet of theright to life, except for a valid ground such as where the trial isdelayed at the instance of the accused himself. In our opinion, Section 436A should not be construed as a mandate that anaccused should not be granted bail under the PML Act till he hassuffered incarceration for the specified period. This Court, in7/10 Diksha Rane 936. BA 1082-23.docArnab Manoranjan Goswami v. State of Maharashtra, held thatwhile ensuring proper enforcement of criminal law on one hand, the court must be conscious that liberty across human eras is astenacious as tenacious can be.”13.The applicant is in custody for more than two yearsand nine months with no possibility of the trial concludingany time soon. The investigation is complete. The charge-sheet has been filed. There are no criminal antecedentsreported against the applicant. The applicant is not a flightrisk. Hence, the following order :-O R D E R(a) The application is allowed.(b) The applicant- Pankaj s/o. Bhagchand Challani inconnection with C.R. No.3/2021 registered with SwargatePolice Station, Pune, shall be released on bail on hisfurnishing P.R. Bond of Rs.1,00,000/- with one or moresureties in the like amount.(c)The applicant is permitted to furnish cash bail surety inthe sum of Rs. 1,00,000/- for a period of 6 weeks in lieu ofsurety.(d) The applicant shall attend the Investigating Officer ofSwargate police station, Pune, once in a month every firstMonday of the month between 11.00 a.m. and 1.00 p.m. till8/10 Diksha Rane 936. BA 1082-23.docthe trial concludes.(e)The applicant shall not directly or indirectly make anyinducement, threat or promise to any person acquaintedwith the facts of the case so as to dissuade him fromdisclosing the facts to Court or any Police Officer. Theapplicant shall not tamper with evidence.(f)On being released on bail, the applicant shall furnishhis contact number and residential address to theInvestigating Officer and shall keep him updated, in casethere is any change.(g)The applicant shall surrender his passport, if any, tothe investigating officer and if he does not have thepassport, an affidavit to that effect shall be filed before theMPID Court.(h)The applicant shall not leave the country without priorpermission of the Investigating Officer.(i)The applicant shall attend the trial regularly. Theapplicant shall co-operate with the trial Court and shall notseek unnecessary adjournments.(j)The applicant to file an affidavit/undertaking in thisCourt within a period of two weeks from the date of hisrelease affirming that he abides by all the statements thathave been incorporated hereinabove on his behalf.9/10 Diksha Rane 936. BA 1082-23.doc14.The application is disposed of.15.The interim application is also disposed of.16.Learned senior advocate Mr. Ponda requests that thisorder be stayed for a period of four weeks. The request isrejected.(M. S. KARNIK, J.) 10/10