STATE OF PUN v. ESH MANUJA

Learned counsel for the petitioners s Lear ners submits that as per the allegation egations in the FIR, the c , the complainant parted with a sum a sum of Rs.1.10 crores vide differe ifferent transactions throu s through his relatives /friends having aving transferred the same in favour o avour of petitioner/his brot is brother/his mother, however, no ba no bank transaction has been shown a hown as MOHMED ATIK 2024.05.18 12:55 I attest to the accuracy and authenticity of this order/judgment CRM-M No.18379 of of 2024 (O&M) 2 regards any paym y payment made in their favour fro from the accounts of complaina plainant himself. [2.1]. Learned counsel further submits that Lear ts that even if the details of payments a ents as alleged and point pointed out in the reply submitted o itted on behalf of the complainant a nant are taken at face valu ce value, the same nowhere co-relate relate with the payments alleged in th d in the FIR. He also poin o points out that such payments as all as alleged from an NRI could not hav ot have been permitted itted to be transferred being in violat violation of statutory provision und n under different relevant levant statutes. [2.2]. Learned counsel further points out Lear ts out that there is no dispute that th that the parties to the pr the present case were having trans transactions relating to purchase o hase of properties and tha and that is why even the documents p ents produced by the complainant als ant also reflect the entries entries of return of amount as well. well. He further submits that in suc in such circumstances the ces the dispute being in relation to pr to property transactions, no custodi ustodial interrogation of th of the petitioners was required. [2.3]. Learned counsel further points ou Lear nts out that agreement to sell date ll dated

18.03.2024 (Anne (Annexure P-8) as relied upon by the by the complainant with his reply wa nothing but an ac t an act of extortion on his part. In thi In this regard, he further points out ts out to Annexure P-3 i.e. 3 i.e. a complaint moved at the inst he instance of father of petitioner Nos r Nos.1 and 2 which was h was delivered by hand to the police police officials, as per which petition etitioner Nos.1 and 2 were were picked up and ransom calls we lls were received by the family beside besides threats at the ha the hands of the complainant and t and his mother. In support of h of his submissions, lear s, learned counsel placed reliance upo ce upon decision made by the Hon’b Hon’ble Apex Court in ca t in case of Siddharam Satlingappa M pa Mhetre vs. State of Maharashtr ashtra MOHMED ATIK 2024.05.18 12:55 I attest to the accuracy and authenticity of this order/judgment CRM-M No.18379 of of 2024 (O&M) 3 (2011) 1 SCC 69 C 694 to contend that in the given f iven facts, the petitioners were entitle entitled for grant of conce concession of anticipatory bail. [3]. The prayer made on behalf of the pe The the petitioners has been opposed at d at the instance of learn learned State counsel assisted by l d by learned counsel representing th ting the complainant whil t while submitting that as per Wha hatsapp chats between the partie parties which was even even not seriously disputed by the y the petitioners, it was apparent th ent that certain transactio sactions relating to exchange of mo of money did take place between th een the parties which we ch were even acknowledged by the p the petitioners and, thus, they havin having defrauded the com he complainant under the assurance ance of investing it against purchase o chase of property, howeve owever, having misappropriated the sa same, were not entitled for grant o grant of concession of anti t case. of anticipatory bail in the present case [4]. paper book. [5]. I have heard learned counsel for th I hav for the parties and gone through th ugh the In the given facts and circumstances, In th tances, wherein it has been admitted th tted that the parties i.e. pet i.e. petitioners and the complainant we ant were having transactions relating lating to investment and p and purchase of property, the alleg allegations by the complainant th ant that petitioners usurp usurped the entire money transferr nsferred by the complainant witho without purchasing any pr any property or share in the name of me of complainant, cannot be said to b id to be a simpliciter case r case of civil nature. From the contents of the FIR and From and the reply filed on behalf of th f of the complainant, whe t, wherein certain Whatsapp chats fr hats from mobile number of petitio etitioner No.1 (987715371 153713) have been produced on recor record and have not been controverte roverted by the petitioners tioners at all, it can be prima facie fo formed that the petitioners induce induced complainant by f t by forwarding him the sketch-site site plan of a property besides on des one MOHMED ATIK 2024.05.18 12:55 I attest to the accuracy and authenticity of this order/judgment CRM-M No.18379 of of 2024 (O&M) 4 video relating to ing to the project to invest therein erein. Thereafter, petitioner No.1 eve acknowledged ha ed having received different amounts ounts including some amount from th rom the maternal uncle of ncle of the complainant as well, regar regarding which the complainant als produced stateme tatement of account of his matern aternal uncle having Bank Accou ccount No.000000551408 55140888869 of State Bank of Ind of India. The aforesaid statement o ent of account available ailable at page nos.25 to 28 of reply reply filed by the complainant, record records that some amount mount was transferred to the account o count of NNB Estate Developer (havin having Bank Account N unt No.10142695202 of IDFC Firs First Bank Limited) on 02.01.202

01.2024 which happens to ens to be a proprietorship concern of p rn of petitioner No.1. All these facts facts do require custodial todial investigation by the police an lice and explanation from the side o side of petitioners. [6]. Further in the humble opinion of th Furth of this Court, the argument raised behalf of the peti e petitioners that the agreement to se t to sell dated 18.03.2024, entered in between the petiti petitioners and the mother of compla omplainant was an act of extortion, no legs to stand a tand as no proof has been placed on r d on record about any complaint in th t in this regard being serv g served on the police authorities. On the other hand on account o ount of admitted existenc istence of such agreement, possibility sibility cannot be ruled out that despi despite having been dupe duped of by the petitioners, the com he complainant still gave them anoth another chance to mend end themselves and settle the entire entire dispute, against which even the en they failed and backed acked out. [7]. In view of the detailed discussi In v iscussion made hereinabove, upon upon a cumulative ana analysis of the facts and circ nd circumstances, prima facie case o case of criminal breach o each of trust is duly made out again against the petitioners, they havin having deceived the com e complainant with fraudulent and di dishonest intent having obtaine btained MOHMED ATIK 2024.05.18 12:55 I attest to the accuracy and authenticity of this order/judgment CRM-M No.18379 of of 2024 (O&M) 5 huge amount from from him and misappropriated the the same, thus, considering the gravi gravity thereof offence besides, the manner in which th ich the complainant has been induce induced and also keeping eeping in mind the object of fair fair and impartial investigation, , the petitioners are no are not entitled for discretionary relief relief of anticipatory bail. Rather the her their custodial interrog terrogation is imperative to determin termine the trail of money. This is als s is also settled law as laid laid down in case of Srikant Upad padhyay & others vs. State of Biha Bihar and another’ 202 ’ 2024 INSC 202 that power to gran to grant anticipatory bail under Sectio Section 438, Cr.P.C is an is an exceptional power and should hould be exercised only in exception eptional cases and not as a ot as a matter of course. Relevant par nt paragraph No.8 of the said judgme dgment is reproduced here ed hereunder:- “It is thus obvious from the caten catena of decisions dealing with bail th il that ven while clarifying that arrest should ould be the last option and it should uld be estricted to cases where arrest is impe mperative in the facts and circumstanc stances f a case, the consistent view is that th of a at the grant of anticipatory bail shall all be estricted to exceptional circumstances. nces. In other words, the position is th is that he power to grant anticipatory bail the p bail under Section 438, Cr.P.C is a is an xceptional power and should be exer exercised only in exceptional cases an es and ot as a matter of course. Its object is t not a t is to ensure that a person should not not be arassed or humiliated in order to sati satisfy the grudge or personal vendet ndetta f the complainant. (See the decision o of th sion of this Court in HDFC Bank Ltd. Ltd. v. .J.Mannan & Anr.4 ).”. J.J.M [8]. Even the judgment of the Hon’b Even Hon’ble Apex Court in Siddhara Satlingappa Mhe Mhetre’s case (supra), which has be has been relied upon by learned couns counsel for the petitioners tioners specifically records in sub-par para (viii) that while considering th ring the prayer for grant o rant of anticipatory bail, a balance has ce has to be struck between two facto factors namely, no prejud prejudice should be caused to the fre the free, fair and full investigation an ion and there should be p d be prevention of harassment, humili humiliation and unjustified detention o ntion of MOHMED ATIK 2024.05.18 12:55 I attest to the accuracy and authenticity of this order/judgment CRM-M No.18379 of of 2024 (O&M) 6 the accused and, and, thus, the same may not come to ome to the rescue of petitioners, in th s, in the given facts and ci and circumstances discussed hereinabo reinabove. [9]. Accordingly, the present petition is d Acco is dismissed. [10]. All pending application(s), if any, sh All p ny, shall stand disposed of. May 15, 2024 Atik (HARKESH MANUJA) (HA JUDGE Whe Whether speaking/reasoned Whether reportable Whe Yes/N Yes/No Yes/No Yes/N MOHMED ATIK 2024.05.18 12:55 I attest to the accuracy and authenticity of this order/judgment