High Court

Legal Reasoning

1 924-ABA.426-24+1.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD924 ANTICIPATORY BAIL APPLICATION NO.426 OF 2024DIPAK HARIBHAU SONAWANEVERSUSTHE STATE OF MAHARASHTRA AND ANOTHERWITHANTICIPATORY BAIL APPLICATION NO.427 OF 2024SUDEEP RAMESH MAHOREVERSUSTHE STATE OF MAHARASHTRA AND ANOTHER...Advocate for Applicants : Mr. Munde Suresh Walmikrao.APP for Respondent/s-State : Mr. S. P. Sonpawale.Advocate for Respondent No.2 to assist APP : Mr. S. S.Thombre....CORAM : S. G. MEHARE, J.DATE :04.10.2024PER COURT :- 1.Heard the learned counsel for the applicants, the learnedAPP for the respondent-State and learned counsel forrespondent No.2.2.The applicants seek pre-arrest bail in Crime No.195 of2022, registered with Kranti Chowk Police Station, DistrictAurangabad, for the offences punishable under Sections 420,465, 468, 471 read with Section 34 of the IPC. 2 924-ABA.426-24+1.odt3.The prosecution case in brief was that the applicantswith other persons told the complainant that they make theCSR funds available. Believing in the assurance of theapplicants and other co-accused and on their say thecomplainant has transferred Rs.20,00,000/- through RTGS inthe account of one Roshni Transport. That time, one of the co-accused Pallavi issued a cheque of Rs.20,00,000/- to thecomplainant to win over the confidence of the complainantthat if they could not arrange for the CSR fund, they wouldreturn the fee. Thereafter, they were in communication. Theaccused assured the complainant that the responsible officersof the Daimand India Pvt. Ltd. Mumbai were coming toAurangabad. They will inspect the papers and relevantdocuments of the trust/society. The complainant requestedthem to transfer the CSR fund. However, co-accused Pallaviand an unknown person flee away in a car. After followingthem, only Pallavi returned and assured him that the fundswould be released. Following them for one month, he wastold that the representatives of the Mahindra Susten Ltd.Mumbai would come. The earlier company would not releaseCSR funds. Again, the same request was made to him to keepall his papers ready. They met him at Kala Ganpati Mandir, 3 924-ABA.426-24+1.odtCIDCO, Aurangabad. He got suspicious. Therefore, they askedfor the identification proof of one Amol Dipak Ghorpade andthey examined him and doubted that the authority letter,identity card and bank statements were false and bogus. It is afact that the cheque issued to the complainant was presentedto the bank for encashment, it was dishonoured. Therefore,the complainant filed a proceeding under Section 138 of theN.I.Act against Pallavi. Thereafter, the FIR was registeredmaking the above allegations. 4.Further facts of the case were that one of the co-accusedwas granted anticipatory bail. The applicants secured theanticipatory bail from the learned Sessions Court on theground of parity to the said co-accused. The Sessions Courtbelieved them. However, later on, it transpired that theyobtained the anticipatory bail from the learned Sessions Courtby misrepresenting the facts. Hence, the bail granted earlierwas cancelled on 17.02.2023. The applicants had impugnedthe said order before this Court vide Writ Petition No.310 of2023. This Court pronounced the judgment on 25.10.2023upholding the order of the learned Additional Sessions Judge.Then, the applicants approached the Hon’ble Supreme Court.The Hon’ble Supreme Court had granted them interim 4 924-ABA.426-24+1.odtprotection for a few days. However, on 21.02.2024, the SpecialLeave Petition was dismissed. Thereafter, again the applicantsapproached the learned Sessions Court for anticipatory bail,which was registered as criminal Bail Application No.403 of2024. The learned Sessions Judge again dismissed theapplication recording the findings of the earlier conduct of theapplicants and in view of the order of this Court and the orderof the Hon’ble Supreme Court. Thereafter, again the applicantsapproached this Court by way of the present applications.5.On the earlier rejection of the bail applications, learnedcounsel for the applicants would submit that the applicationsof the applicants were never decided on merit. The earlier bailapplication was just granted on parity and no Court touchedthe merit. However, he argued before the Court that the Courtdid not grant him bail only on parity but also on merit. TheCourt did not accept his argument and specifically observedthat the contention of the learned counsel for the petitionerthat the order of bail was granted on merit as well as on meritdoes not find place in the impugned order passed by thelearned Additional Sessions Judge. The learned Judge who hadgranted anticipatory bail had cancelled the said bail byrecording the observations that the previous order was granted 5 924-ABA.426-24+1.odton presumptions of granting bail to co-accused and the bail ison parity. In such a situation, it is not opened for this Court toreplace the said findings that the order of pre-arrest bail wasalso on merit. Apart from this, even perusal of the order dated21.11.2022 whereby the bail was granted also did not indicateclearly that the bail granted was on merit as well as on parity.In the absence of any such specific observations therein, it isdifficult for this Court to accept the contention of the learnedcounsel for the applicants that the bail was granted on merit aswell. Referring to this finding of the Court, the learned counselfor the applicants has vehemently argued at length that theright to seek anticipatory bail on merit was not touched anytime before. Therefore, their applications would be consideredon merit. 6.He further argued that the applicants have no role toplay in this case. Though not pleaded, for the first time heargued that applicant Sudeep runs the computer centre. Hewas imparting training to the various persons through thecomplainant’s society. The society used his phone numbers forcommunication with other co-accused. There are no specificallegations against applicant Deepak Sonawane that he playeda role that he was a member of the gang. He has vehemently 6 924-ABA.426-24+1.odtargued that the complaint is vague. A complaint is silent aboutfiling proceedings under Section 138 of the N.I.Act. Thecomplainant is a big man. He is the brother of Ex-MLA. He isconsistently threatening the applicants and telling them that ifhis money is returned, he will withdraw the complaint. Healso alleged against the investigating agency that they did notinquire with the applicants when they were attending thePolice Station as per the order of this Court granting interimprotection. Even if the complaint is accepted as it is, it isbarely a civil contract. Not performing the civil contract doesnot give rise to the criminal proceeding. The complainant hasno explanation as to why had transferred Rs.20,00,000/- toRoshan Transport without verifying the facts. The complaint isalso silent about the benefits, the applicants have receivedfrom this transaction. They do not know Pallavi Khavankar,who had issued a cheque to the complainant. The FIR waslodged after five months that too at night hours. What was theurgency for the complainant to file the FIR at such late hours?7.He relied on the case of Sarabjit Kaur Vs. State of Punjaband another ; (2023) 5 Supreme Court Cases 360 andvehemently argued that the Hon’ble Supreme Court has heldthat a breach of contract does not give rise to criminal 7 924-ABA.426-24+1.odtprosecution for cheating unless fraudulent or dishonestintention is shown right from the beginning of the transaction.Merely an allegation of failure to keep up promise will not beenough to initiate criminal proceedings. The facts of that casewere that the appellant before the Hon’ble Supreme Court hadentered into an agreement to purchase a plot. The date of theexecution of the sale deed was also agreed. However, it wasdiscovered that the vendor was not the owner of the property.The appellant had received Rs.5,00,000/- as earnest money.The date of the sale deed was extended on receipt of anadditional sum of Rs.75,000/-. The complaint was filed by oneDarshan Singh S/o Jangir Singh with reference to the samealleged agreement to sell. However, against property dealerManmohan Singh in the aforesaid complaint, the reference wasmade to two other transactions entered into by Darshan Singhand the prayer was that the amount of Rs.29,00,000/- berecovered from the property dealers. Under this premise, theHon’ble Supreme Court held as mentioned above.8.He further relied on the case of Jay Shri and another Vs.State of Rajasthan ; Criminal Appeal No.0330 of 2024 (Arisingout of SLP (Crl.) No.14423 of 2023), dated 19.01.2024. In thiscase, the Hon’ble Supreme Court held that a mere breach of 8 924-ABA.426-24+1.odtcontract does not amount to an offence under Section 420 andSection 406 of the IPC unless the fraudulent or dishonestintention is shown right from the beginning of the transaction.The Court has referred to the case of Sarabjit Kaur (supra).Further, it has been observed that this Court has time andagain cautioned about converting purely civil disputes intocriminal cases. It seems that the Supreme Court was satisfiedthat it was a civil-like dispute. The anticipatory bail wasgranted to the applicants. 9.Learned APP has strongly opposed the application. Heread the complaint lodged before the Superintendent of Policeand argued that the Commissioner of Police sent the complaintto the Police Station and then the crime was registered. It wastranspired in the investigation that the identity cards and bankstatements mentioned in the complaint were fake and forged.The applicants were on WhatsApp chat which goes to showthat they were giving dry promises to the complainant aboutthe CSR fund. One of the accused Pallavi sent somedocuments to the complainant to win over his confidence thatthey were genuine. Applicant Sandip also sent a fewdocuments to the complainant. All accused were in contactwith each other. When the interim protection was granted to 9 924-ABA.426-24+1.odtthe applicants on condition to attend the Police Station, theydid not deposit their mobile phones. However, he has nodocument or written instructions that any such inquiry wasmade. No agreement or any document about the contract wasproduced to believe that there was a civil contract. Even at thetime of amending the application, no such facts regarding theagreement between the parties were brought to the light. Astime passed, the complainant learnt that all the accused hadsystematically cheated him and got the money transferred inthe name of Roshni Transport making him believe that theywere the genuine persons and had contact with the companiesto provide the CSR. Their earlier conduct on securing the bailby suppressing the facts is one of the strong circumstances tobelieve that since inception they had intention to cheat thecomplainant. Earlier the applicant tried to secure the bail onmerit. But neither the High Court nor the Supreme Courtconsidered it. Therefore, it cannot be said that these are thefirst bail applications on merit. The offence is serious. Manymore persons might have been cheated. They wanted to seizetheir mobiles and relevant documents. Therefore, theircustodial interrogation is essential. 10 924-ABA.426-24+1.odt10.Learned counsel Mr. Thombre for the victim hasreiterated the arguments of the learned APP and added thatsince inception the applicants had intention to cheat thecomplainant. They pretended that they were the responsibleofficers of the company and they could easily make the CSRfund available. Therefore, the complainant fell prey to theirfalse promises and paid them Rs.20,00,000/-. He also arguedthat after dishonour of the cheque, the complainant contactedthe applicants for a refund of his money. They assured him torepay, but they did not. He further argued that they have alsoplayed fraud with the Court while obtaining the anticipatorybail. This Court in writ petition No.310 of 2023 has specificallyobserved that purity of the process of law is of paramountimportance. Any order obtained by misrepresentation or fraudis a nullity. Any amount of justification for the grant ofanticipatory bail even having regard to the merit of the case isnot sufficient to maintain such an order, once there is afraud/misrepresentation with the Court. He would submit thatthis Court in the above order has declined the bail to theapplicants even on merit for the reasons that they had played afraud with the Court. He further argued that the earlier bailapplication was argued on merit and the above findings wouldreveal that the merits of the case were also considered in SLP 11 924-ABA.426-24+1.odtbefore the Hon’ble Supreme Court. Therefore, theseapplications cannot be considered unless the applicants showthe change in circumstances.11.Learned counsel for the applicants replied that theapplicants posted e-mail to the Investigating Officer. However,he never called them for further investigation. The police didnot investigate the crime properly. They were lethargic andworking on the say of the complainant who is a powerfulperson. To this date, they have not inquired about RoshniTransport and co-accused Pallavi. The applicants are the softtarget to recover the money under the pressure of police asthey are easily available in Aurangabad. He prayed that theapplicants have merits. Nothing is to be recovered anddiscovered from them. Therefore, their custodial interrogationis not essential. The interim protection granted to them maybe confirmed.12.The first question is whether these applications would beconsidered again in view of the findings of this Court in WritPetition No.310 of 2023. On the arguments advanced by thelearned counsel for the applicants in that writ petition, theCourt observed that the bail granted by the learned Additional 12 924-ABA.426-24+1.odtSessions Judge was not solely on the ground of parity.However, it is allowed on merit. Though the Court inparagraph No.6 has observed that the contention of thelearned counsel for the petitioner that the order of bail wasgranted on merit as well as on parity does not find place in theimpugned order of the Additional Sessions Judge, it has beenfurther observed in paragraph No.7 that any amount ofjustification for the grant of anticipatory bail even havingregard to the merit of the case is not sufficient to maintainsuch order. This finding crystallizes that the case of theapplicants was also considered on merit. However, since theyhave played a fraud/ misrepresentation with the Court they donot deserve anticipatory bail. The findings of this Court in theabove writ petition were confirmed. Reading these findings, itcould be said that the applicants’ anticipatory bail applicationswere also dealt with having regard to the merits of the case.Therefore, the applicants were to show the change incircumstances. However, they have no case as such. They arecoming with a case that their applications were ever notdecided on merit. Hence, they deserve anticipatory bail onmerit. As far as the merit of the case as argued at length by allparties, there appears snail’s speed investigation on the part ofthe Investigating Officer. The total non-cooperation with the 13 924-ABA.426-24+1.odtlearned APP in not supplying the entire papers and supplyingthe bald information to the learned APP about the refusal ofthe applicants to submit their mobile handsets and raises adoubt that the investigating Officer is not interested in findingthe truth. Considering the way of investigation perhaps hemight be under pressure or may be acting on the instructionsof the brother of the Chairman of the society, who is an Ex-MLA. However, there is no material placed before the Court tobelieve such allegations at this juncture.13.Be that as it may, the papers produced on record,particularly, the WhatsApp chats reveal that the applicantSudeep was in contact with the complainant and he wasreplying to the queries of the complainant. In one of theWhatsApp chats, he replied that he would inform him afterasking the present applicant Deepak. The chat show someconnection of the applicants with the crime. As far as the caselaws relied upon by the applicants are concerned those aredistinguishable on facts. Considering the allegations it couldnot be said that it is a civil contract. The money was paid toone of the co-accused as consultancy fees. Against thatconsultancy fees, the applicant did not pay a single penny fromany company and intellectually avoided keeping their words 14 924-ABA.426-24+1.odtand promises. The persons who were brought to Aurangabadbeing the representatives of the few companies were also fake.Many documents were exchanged between the complainantand the co-accused Sudeep. It seems from the arguments of allsides that nobody is coming to the Court with complete facts.Only the suitable facts to make out their cases were brought.However, what the material produced before the Court issufficient to prima facie believe the nexus of the applicantswith the alleged crime. They were the persons promising thecomplainant to make the CSR fund available for the society ofthe complainant on paying a consultancy fee ofRs.20,00,000/-. 14.The above discussion led this Court to conclude that theapplicants do not deserve anticipatory bail as prayed. Hence,both bail applications stand dismissed.15.Learned counsel for the applicants prays for continuingthe interim protection. The facts of the case as discussed abovereveal that the applicants were enjoying protection from arrestby obtaining orders from the Courts, due to which also theinvestigation is stalled. Considering the facts of the case andthe conduct of the applicants, the Court is of the view that it 15 924-ABA.426-24+1.odtwould be inappropriate to extend the interim protection asprayed for. Hence, the prayer is rejected. (S. G. MEHARE, J.)...vmk/-