Bombay High Court
Case Details
1 aba893IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADANTICIPATORY BAIL APPLICATION NO. 893 OF 2024Ashish s/o Ajit Bhandari,Age; 40 years, Occ; Medical Practice,R/o; Saras Nagar, Ahmednagar....Applicant V E R S U S1)The State of Maharashtra,2)Superintendent of Police,Ahmednagar, District Ahmednagar....Respondents ………………...Advocate for the Applicant : Mr. R.M. Dhorde (Senior Advocate ) i/bMr. Vikram R.DhordeA.G.P. for Respondent Nos. 1 & 2 : Mr.N.B. Patil Advocate for Assist to APP : Mr. A.M. Gholap…………………WITHANTICIPATORY BAIL APPLICATION NO. 912 OF 2024Dr. Rakesh s/o Kantilal GandhiAge; 42 years, Occ; Medical Practitioner,R/o; Flat No. 1, Mahadeo Apartment,Pipeline Road, Savedi, Dist. Ahmednagar....Applicant
Legal Reasoning
2 aba893 V E R S U S1)The State of Maharashtra,Through Kotwali Police Station, District Ahmednagar.2)Superintendent of Police,Ahmednagar, District Ahmednagar....Respondents ………………...Advocate for the Applicant : Mr. Nilesh S. GhanekarA.G.P. for Respondent Nos. 1 & 2 : Mr.N.B. Patil Advocate for Assist to APP : Mr. A.M. Gholap………………… CORAM : KISHORE C. SANT, J. Date of Reservation : 12.08.2024 Date of pronouncement : 21.08.2024ORDER :1.Both these application are preferred seeking bail in theevent of arrest of the applicants, in connection with the FIR No. 556of 2024, registered with Kotwali Police Station, District Ahmednagarfor the offences punishable under Sections 406, 467, 468, 471 r/w34 of the Indian Penal Code (for short ‘IPC’). 3 aba8932.The FIR is lodged by one Amit Rasiklal Kothari, who hasalso appeared before this Court through Advocate, by way of filingan application seeking permission to assist the learned APP.3.It is the case of the first informant that he and his wifeShweta are the trustees of one of the trust namely “RaysFoundation’ (hereinafter referred to as the ‘said trust’) alongwithDr. Rakesh Kantilal Gandhi and others. Dr. Rakesh Gandhi is anapplicant in ABA No. 912 of 2024, who is the Chairman of the saidTrust since inception. The said trust runs a College namely ArihantCollege of Pharmacy. The said trust is having Bank Account inHDFC Bank, Station Road, Ahmednagar. The said account isoperated by the informant and one Yogesh Suresh Bafna asauthorized trustee. Dr. Rakesh Gandhi, Dr. Ashish Bhandari andthe informant are also elected as trustees of another trust namely‘Balaji Harji Karpe’ trust. This ‘Balaji Harji Karpe’ runs a schoolnamely ‘Sai Angel School’ from Nursury Play Group till 10th atTavlenagar, Aurangabad Road, Savedi, Ahmednagar, in their ownland. For the construction of the said School, they had raised loanfrom the Bank of Maharashtra and opened loan account. The saidloan Account became NPA. The bank, therefore, started recovery 4 aba893proceedings. Pursuant to that now loan is repaid by the trust bycollecting amount from the trustees.4.Lateron, in August, 2022 the present applicants decidedto raise loan for the construction of building for the School run bythe ‘Karpe Foundation’ and for that purpose it was decided to applyfor the loan of Rs. 8,50,00,000/- and for that purpose theapplicants put a proposal with the bank that the ‘Rays Foundation’shall give guarantee for the same. It is shown in the bank that theinformant, his father and other trustees have passed a resolution tothat effect. The informant, his wife, one Ajit Kothari and RasikChandulal Kothari, now deceased, have not even signed the saidresolution. However, still the ‘Rays Foundation’ was shown asguarantor and loan from HDFC Bank got sanctioned. It is allegedthat for that purpose, the applicants made bogus signatures andhave prepared bogus documents. Though there was no resolutionpassed, a fabricated resolution was given to the bank and newBank Account came to be opened. It is, thus, alleged that theapplicants have committed forgery. They have also breached therules of the Trust. Thus, there is cheating as well. On theseallegations the FIR came to be lodged.
Legal Reasoning
5 aba8935.These applicants approached the learned SessionsJudge, Ahmednagar seeking bail in the event of their arrest. Thelearned Sessions Judge, Ahmednagar by order dated 20.05.2024rejected their application, thus, the applicants are before thisCourt.6.The learned Senior Advocate Mr. Dhorde, vehementlyargued the application. He submits that there is no dispute so faras the fact that the School of ‘Karpe Trust’ was to be taken over andloan was to be obtained from the bank and for that purpose anaccount was to be opened in HDFC Bank. He submits that hisclient has no concern with the ‘Rays Foundation’. There is noquestion of fabrication of the documents of the said trust, as infactthe bank has not disbursed the loan of Rs. 8,50,00,000/-. Thus,no offence as alleged has taken place. This applicant is not a partyto any forgery. He has not done any act pursuance to the allegedforgery. His client has not done anything causing loss to the trustor to the bank. There is no question of endorsement by theinformant or any other person. The complaint is lodged just topressurize. No specific role is assigned to his client. 6 aba8937.Mr. Ghanekar, learned Advocate submits that infactwhen an amount of Rs. 9,00,000/- was transferred from the ‘RaysFoundation’ and while transferring the said amount an OTP wassent from the account of informant himself, still the informant haslodged a complaint. The said amount was to be utilized for thetrust. He has made specific averments in his application that whiletransferring the amount from the account of ‘Rays Foundation’, anOTP was sent to the informant. Thus, the applicant was aware ofopening of the account and still has lodged the complaint aftermuch delay. There is no loss caused to any one. There is acomplaint filed by one Yogesh Bafna against the informant inrespect of the some transactions of the trust. He thus submits thatno offence is actually made out. Custody of the applicant is notrequired. He thus prays for allowing the application.8.Learned APP for the respondent-State with theassistance of the learned Advocate Mr. Gholap, vehemently arguedthe case submitting that the applicants are not co-operating theinvestigation and they are not giving such information. Attention isalso invited to a copy of resolution dated 09.02.2023. It issubmitted that in fact no resolution was ever passed on 7 aba89309.02.2023, still said document was submitted before bank foropening an account. Signatures appearing on the documents arenot of the informant, his father and his wife. The signatures ofthese persons are forged. He also invites attention to certified copyof the resolution passed by the Board of Director of ‘RaysFoundation’ dated 13.02.2023, wherein, the signatures appearingon resolution are not signatures of the informant, his wife andfather. He further submits that these bogus documents were givenwhen a resolution was in the ‘Marathi’ language and the copiesproduced on record would show that while submitting documentsin the bank they submitted english translation. Though there wasno power given, however, the applicants themselves impressed thebank that they have been given the powers to open and operatebank account. In the register of the trust, no such resolution isfound. The trial Court has clearly observed that these applicantswere absconding and were not traced. He submits that originalresolutions dated 09.02.2023 and 13.02.2023 are not found onrecord. He thus submits that the applicants do not deserve anyrelief from this Court. It is further pointed out that the avements inthe application No. 912 of 2024 are not correct even to theknowledge of the applicants as the amount of Rs. 9,00,000/-, in the 8 aba893HDFC bank account was deposited through a cheque and there wasno question of receiving any OTP for the said transaction on themobile number of the informant. In any case, when the applicantshave not approached this Court with clean hands, on the contraryallegations are levelled against the informant. This conduct of theapplicants do not make them to get the relief of anticipatory bail.9.During the course of hearing this Court had called forinformation from the HDFC bank, to ascertain as to where are theoriginal resolutions. It is submitted by the bank that the originalresolutions were given to the bank while opening an account. Onthis the learned APP invited attention to the certified copy of theresolution wherein, the endorsement is seen of the bank officialthat the original is seen and the documents were returned. It issubmitted that the original resolutions are returned to theapplicants. It is thus clear that the original resolutions are with theapplicants, however, inspite of inquiry they are not giving theoriginals, whereas, it is the say of the applicants that the originalresolutions are in ‘Marathi’ language and those are in the office ofthe trust. Since the bank required the original resolutions, theenglish translation was given certifying it to be true copies. 9 aba893Therefore, there is some typographical mistake when actually theoriginals were with them. It was wrongly typed as 09th February,2023. 10.Now, there is additional affidavit filed by the AshishBhandari on record. It is seen that the applicant Ashish Bhandarihas no concern with the ‘Rays Foundation’, whereas, RakeshGandhi is a member in both trusts i.e. ‘Rays Foundation’ and‘Karpe Foundation’. Thus the custody of Ashish Bhandari is of noany help so far as the information about the ‘Rays Foundation’ isconcerned. As regards as Rakesh Gandhi is concerned, it is seenthat a copy of resolution annexed by him bears incorrectinformation. He could not satisfy the Court about the same. So faras a specific stand taken in his application that while opening bankaccount an OTP was sent on mobile of informant is concerned, it isclear that no such OTP was sent as the amount was not transferredon line but was transferred by way of cheque. He accepts that theaverments in his application are made under misconception. Hehas also filed additional affidavit on 12.08.2024. It is stated in theaffidavit dated 12.08.2024 that he has also tried to collect theoriginal documents from the bank. While making translation of 10 aba893resolution the date and other material was wrongly typed. So far asthe averments in respect of OTP are concerned, it is argued that inthe interrogation by police to some other persons in presence ofthese applicants, it revealed that the OTP was sent, therefore, theaverments were made in his application.11.This Court finds that the case of both the applicants isdifferent on two counts, firstly that the Rakesh Gandhi happens tobe the trustee in both the trusts, whereas, Dr.Ashish Bhandari isnot a trustee in ‘Rays Foundation’. Mr. Rakesh Gandhi has madespecific allegations in his application levelled against the informantthat the informant has given misleading information in the FIR,which is found to be incorrect.12.Both the applicants submit that they are the medicalpractitioners and there is no possibility of their absconding. If theyare arrested, their images would be tarnished. In view of the above,this Court finds that the applicant in ABA No. 893 of 2024Dr.Ashish Bhandari deserves bail. Where as applicant in ABA No.912 of 2024, Dr. Rakesh Gandhi does not deserve any protectionfrom this Court. Hence following order : 11 aba893ORDERi)Anticipatory Bail Application No. 912 of 2024stands rejected.ii)Anticipatory Bail Application No. 893 of 2024stands allowed.iii)Applicant Dr. Ashish Bhandari be releasedon bail, in the event of his arrest, in connectionwith FIR No.556 of 2024, dated 02.05.2024,registered with Kotwali Police Station,Ahmednagar, for the offences punishable underSections 406, 467, 468, 471 r/w 34 of the IndianPenal Code, on furnishing PR bond of Rs. 50,000/-(Rs. Fifty Thousand Only) alongwith a solventsurety in the like amount.iv)The Applicant shall co-operate with thepolice.(v) The applicant shall attend concerned policestation as and when called by the police.(vi) The applicant shall keep informed theconcerned police station about his contact detailssuch as residential address, mobile numbers etc.and shall not leave Ahmednagar city till filing of the 12 aba893charge-sheet.vii)The applicant shall not try to contact any ofthe prosecution witnesses.(viii) In case of breach of any of the condition, thisorder is liable to be cancelled.( KISHORE C. SANT ) JUDGE13.After pronouncement of the this order the learnedAdvocate Mr. Ghanekar for the applicant Dr. Rakesh KantilalGandhi, in ABA No. 912 of 2024 prays for extension of interimrelief. The same is therefore, extended for four weeks from today.( KISHORE C. SANT ) JUDGEmahajansb/