High Court · 2024

Legal Reasoning

1 BA-735-24.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO.735 OF 2024WITH BAIL APPLICATION NO.742 OF 2024SUDHIR S/O. RAMRAO DEVKATEVERSUSTHE STATE OF MAHARASHTRA...Advocate for Applicant : Mr. S. S. PalnitkarAPP for Respondent : Mr. S. D. Ghayal ...WITH BAIL APPLICATION NO.333 OF 2024ARUN S/O. NAGNATH FULEBOYANEVERSUSTHE STATE OF MAHARASHTRA...Advocate for Applicant : Mr. A. D. OstwalAPP for Respondent : Mr. S. D. Ghayal ...CORAM :S. G. MEHARE, J.RESERVED ON : 16-07-2024PRONOUNCED ON : 20-07-2024PER COURT :-1.Heard the learned counsel for the applicants and the learnedA.P.P. for the respondent.2.All three bail applications are taken up for disposal as arisingout of the same cause of action.3.In Bail Application No.735 of 2024, applicant Sudhir seeksbail in C.R.No.77 of 2023, registered with M.I.D.C. Latur PoliceStation, District Latur, for the offences punishable under Section409, 418, 420, 467, 468, 471, 201, 120B of the Indian Penal Codeand Section 3 of the Maharashtra Protection Of Interest OfDepositors (MPID) Act, 1999. 2 BA-735-24.odt4.In Bail Application No.333 of 2024 applicant Arun and in BailApplication No.742 in 2024 applicant Sudhir seek bail in C.R.No.43of 2023 registered with M.I.D.C. Police Station, Latur for theoffences punishable under Sections 420, 465, 467, 468, 469, 471,474, 477, 477A read with Section 34 of the Indian Penal Code. 5.Learned counsel for the applicant Sudhir has vehementlyargued that he was an employee of the firm registered in thename of co-applicant Arun. The main accused has used his bankaccount to transfer the money. The main accused was withdrawingand operating the bank account in his name. He is not thebeneficiary of the so-called defrauded money. He is a poor man.He was getting a small salary. His bank account has been seized.Nothing is recovered from him. Hence, he may be granted bail.6.The learned counsel for the applicant, Arun has advanced alengthy argument as if it is a trial. He placed on record thecompilation of the roznama of the trial Court to point out theprogress in the trial. In brief, he argued that the applicant had noconcern with the so-called firms. His elder brother, who is the mainaccused, was operating the bank account in his name. Thematerial collected on record would reveal that his brother wasoperating the bank account and dealing with the business of thefirms. He did not receive profit. The statement of the CharteredAccountant reveals that the entire account was maintained by his 3 BA-735-24.odtbrother. He submits that the applicant is languishing in jail formore than one year. The chargesheet is running in a thousandpages. A large number of witnesses are listed on the chargesheet. As per the prosecution case, the offence against theapplicant is for cheating, punishable under Sections 420 and 120Bof the Indian Penal Code. He submits that the maximumpunishment for the charges levelled against the applicant is sevenyears. The trial may take its time. He has furnished the affidavitthrough his wife that he would not transfer the land standing in hisname. Before the offence was registered, to show bona fides hehad deposited a huge amount with the office of the main accused. 7.To bolster his arguments, he relied on the case of JavedGulam Nabi Shaikh vs. State of Maharashtra and another,Criminal Appeal No.2787 of 2024 (Arising out of SLP (Cri) No.3809of 2004), dated July 3, 2024. He also relied on the case ofSatender Kumar Antil vs. Central Bureau of Investigation,(2022) 10 SCC 51 and Gurbaksh Singh v. State of Punjab,(1980) 2 SCC 565.8.The Learned Prosecutor has opposed the application.Referring to the material from the charge sheet, he hasvehemently argued that the prosecution has evidence that theapplicant, Arun has used money transferred to his account. It is abig fraud of Crores of Rupees. The Government has been cheated. 4 BA-735-24.odtHis defence is improbable. He had no reason to deposit the moneybefore registering the first information report. He submits that theratio laid down in the case of Javed Gulam (supra) and othercases he relied upon do not apply to the facts of the case. Theaccused protracted the trial by filing discharge and bailapplications. Though the chargesheet is large, the number ofwitnesses is moderate. He prayed to dismiss the applications.9. The defence of the applicant Arun is that there is absolutelyno material against him showing that he was in person doing thebusiness. The trial may take its time. However, there is material onrecord that the amount was transferred to his account and wasinvested in another firm. It is difficult to accept at this juncture thatthe applicant has no knowledge of what his brother was doing inhis name. The big fraud has been played with the Government.The question is how much time the trial would take. Could theprosecution proceed with the matter, and what time would theprosecution take to complete the trial?10.Admittedly, there are no antecedents to the discredit of theapplicants. Speedy trial is the fundamental right of accused asenshrined under Article 21 of the Constitution of India. Secondly, itis to be considered whether the applicants would flee away fromthe trial or interfere with the investigation, if any.11.The papers reveal that the offence is based upon the 5 BA-735-24.odtdocumentary evidence. The main accused was public servant. Hewas playing fraud with the Government and transferring themoney to the account of the firm, which is in the name of applicantArun. The amounts were also transferred in the name of applicantSudhir. The investigation reveals that a huge fraud has beenplayed with the Government. The prosecution has expressed anapprehension that if the bail is granted, the misappropriatedmoney, which the investigating officer could not detect, will not berecovered. It’s public money. The accused may evade the trial.Recovery of defrauded money is essential. 12.The Honourable Supreme Court, in a case of RameshKumar vs. The State of (NCT of Delhi), 2023 INSC 596,dated 04.07.2023, held that the practice of reducing the processof criminal law into money recovery proceedings is deprecated. Itwas further held that the process of criminal law could not beutilized for arm-twisting and money recovery, particularly whileopposing the prayer for bail. In such circumstances, we have nohesitation in holding that the very condition to get release thepetitioner should pay 20% of the cheque amount cannot besustained.13.The law is laid down that the Criminal Law would not be usedfor money recovery, and that may not be a ground to oppose thebail application. 6 BA-735-24.odt14.Recently, in the case of Javed Gulam (supra), theHonourable Supreme Court granted bail to the accused,considering that the accused was in jail as an under-trial for thepast four years, till the date the trial Court has not been able toeven proceed to frame charge and the prosecution intends toexamine not less than eighty witnesses. The Honourable SupremeCourt further observed in paragraph No.8 that having regard to theaforesaid, we wonder by what period of time the trial willultimately conclude. Howsoever serious crime may be, an accusedhas the right to a speedy trial as enshrined under the Constitutionof India. The Honourable Supreme Court also discussed the varioussettled principles of law that bail is not to be withheld as apunishment. The learned Supreme Court has reproduced theobservations in Gudikanti Narasimhulu v. Public Prosecutor,High Court of A.P., (1978) 1 SCC 240, which reads thus;“What is often forgotten, and therefore warrantsreminder, is the object to keep a person in judicialcustody pending trial or disposal of an appeal.Lord Russel, C.J., said :“I observe that in this case bail was refused forthe prisoner. It cannot be too strongly impressedon the, magistracy of the country that bail is notto be withheld as a punishment, but that therequirements as to bail are merely to secure theattendance of the prisoner at trial.” 7 BA-735-24.odt15.In the case of Gurbaksh Singh Sibba (supra), it has beenheld that the object of bail is to secure the attendance of theaccused at the trial, that the proper test to be applied in thesolution of the question whether bail should be granted or refusedis whether it is probable that the party will appear to take his trialand that is indisputable that bail is not withheld as a punishment.16.In the case of Satender Kumar Antil (supra), theHonourable Supreme Court held that, prolonged incarceration andinordinate delay engaged the attention of the court, whichconsidered the correct approach towards bail, with respect toseveral enactments, including Section 37 of N.D.P.S. Act. TheCourt expressed the opinion that Section 436A (which requiresinter alia the accused to be enlarged on bail if the trial is notconcluded within specified periods) of the Criminal ProcedureCode, 1973.17.From the various pronouncements of the Supreme Court, ithas been made clear that Section 436A of the Code of CriminalProcedure would apply to the special Acts in the absence of anyspecific provision.18.The Honourable Supreme Court, in the case of Javed Gulam(supra) in paragraph 19, has observed thus;“If the State or any prosecuting agency including thecourt concerned has no wherewithal to provide or 8 BA-735-24.odtprotect the fundamental right of an accused to have aspeedy trial as enshrined under Article 21 of theConstitution then the State or any other prosecutingagency should not oppose the plea for bail on theground that the crime committed is serious. Article 21of the Constitution applies irrespective of the nature ofthe crime.” 19.The compilation submitted by the learned counsel forapplicant Arun and the chart of Roznama reveal that many times,the accused were not produced from jail, and the prosecution evenfailed to deposit the muddemal property in the Court. There are alarge number of witnesses to be examined. It would take asufficient time. Considering the Roznama, it appears that the TrialCourt has not even proceeded with the matter expeditiously. Theprosecution has nothing to show that the applicants are likely toflee away and avoid the trial. The applicants have roots in theState. Considering the big chargesheet running thousands ofpages, the Court believed that the prosecution could not ensure aspeedy trial.20.The ratio laid down in the case of Javed Gulam (supra)clearly applies to the case at hand. As far as the merits of thecase, the investigation has been completed. Nothing is to berecovered from the applicants. Their detention would serve nopurpose. 9 BA-735-24.odt21.For the above reasons and applying the ratio laid down bythe Honourable Supreme Court, in the case of Javed Gulam(supra), the applicants deserve bail. Hence the order:- ORDERi)Bail applications are allowed.ii)The applicants - Sudhir s/o. Ramrao Devkate and Arun s/o.Nagnath Fuleboyane be released on bail, on furnishing PBand SB of Rs.50,000/-, with one solvent surety of the likeamount each, in the above crimes for the aforesaid offences,on the conditions that,(a)They shall attend the trial on each effective date.(b)They shall not protract the trial. (c)They should provide their address proofs and cellphone numbers to the Trial Court with an undertakingthat they would not change them until the trial iscompleted. (d)They should not indulge in similar crimes. ( S. G. MEHARE ) JUDGErrd