1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1918 of 2010 Gurdayal Singh Kehar Singh Kandey and another ..VERSUS.. State of Maharashtra, through P.S.O., P.S., Rana Pratap Nagar, Nagpur. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. S.V.Manohar, Advocate for the applicants. Mr. M.J.Khan, A.P.P. for the respondent/State. Mr. Shyam Dewani, Advocate (Assist to Prosecution) for the ori. Complainant. CORAM : Prasanna B. Varale, J. Order reserved on : 15th December, 2010. Order pronounced on : 22nd December, 2010. Heard. By the present application under Section 439 of the Code of Criminal Procedure, the applicants are seeking their enlargement on bail in Crime No. 282/2010 registered with Police Station, Rana Pratap Nagar, Nagpur for the offences punishable under Sections 420, 406, 409, 418, 420, 424 R/w Sec.34 of I.P.C. The sum and substance of the report lodged against the applicants is that applicant no.1 is father of applicant no.2. A report was lodged against the applicants and other accused namely Smt. Sneha Kandey, wife of applicant no.1 and mother of applicant no.2 at Rana Pratap Nagar Police Station, Nagpur at the instance of one Nitin Kshirsagar. It is stated in the report that the complainant, who is the Manager in Selvel Publicity Consultant Pvt.Ltd., Bombay, was authorities to look after the activities of the company. The applicant No.2 - Raunak Kundey is the owner of a private concern namely Gurusneh Associates, having its office near his residence. The parties entered into an agreement for letting out hoardings on lease for the 2 year 2008-2009. The applicant no.1 Gurdayal Kandey stood guarantor for the said transaction. As per the said agreement, the applicants availed the services of the Selvel Publicity Company and a bill was claimed to the tune of Rs.2,05,33,790/- by the said company. There were several requests made for payment of said amount, but as there was no response from the applicants, further correspondence was made and ultimately the applicant no.2 Raunak issued 7 cheques of different amount to the tune of Rs.1,36,00,000/-. The complainant deposited those cheques for encashment, but the same were dishonured for want of sufficient funds in the account. The applicant no.2 Raunak thereafter offered to part with some portion of his residential house towards the amount due against him. A conveyance deed was prepared between the parties in the presence of one Abhay Bansod, the Branch Manager of Selvel Company and Advocate Shri Anirudh Dev. Applicant no.2 Raunak demanded Rs.10,00,000/- and acknowledge the receipt of amount and agreed to execute the conveyance deed in favour of complainant. It was decided between the parties that the transaction will be duly registered with the authorities. The company accordingly deposited stamp duty of Rs. 2,02,665/- along with penalty of Rs.24,320/- with the treasury. It was decided between the parties to attend the office of Sub Registrar office, Nagpur on 17/6/2010. The complainant visited the office of Sub-Registrar, Nagpur on 17/6/2010 and found that the accused has not turned up. The complainant feeling some foul play in the matter, made an enquiry and it was revealed in the office of Nagpur Improvement Trust that the said property is already mortgaged with one Shri Kanyaka Nagari Sahakari Bank, Sitabuldi, Nagpur. Therefore, feeling that the applicants have cheated the complainant, he lodged the present report. Mr. Manohar, learned Advocate for the applicant submitted 3 that the police authorities in unprecedented promptness have taken up the steps within two hours of lodging the report, the accused were arrested and produced before the learned Magistrate. Learned Magistrate was pleased to grant police custody of the accused persons till 21/11/2010 and on 21/11/2010, the request for further police custody was rejected and the accused were remanded to Magistrate custody. Learned Magistrate, granted bail to accused no.3 i.e. wife of applicant no.1, but rejected the application of applicant nos.1 and 2 on the ground that the offence registered against the applicants is under Section 409 I.P.C., which prescribes for punishment of life imprisonment. Subsequently, the applicant nos.1 and 2 approached the learned Sessions Court seeking bail, but learned Sessions Judge also rejected their application on the ground that the offence is under Section 409 and investigation is at initial stage. Mr. Manohar, learned Advocate for the applicant submitted that the approach of the learned Magistrate as well as learned Sessions Judge was erroneous. The courts below lost sight of the fact that the transaction between the parties was purely of civil nature and at the most, it was the failure to comply with the conditions of the transaction. According to him, bare perusal of the report would show that the report is an outcome of an attempt to settle the civil dispute between the parties by initiating criminal proceedings thereby pressurizing the applicants. The complainant only with a view to harass the applicants has pressurized the investigating authorities to register the offence under Section 409 I.P.C. Learned Advocate for the applicant submitted that as applicant no.2 was unable to repay the amount, the applicant no.1 and his wife being the parents of applicant no.2 helped him to overcome the financial problem faced by him. It is further submitted that the applicant no.1 is at his advance age and is facing the health problems. He has undergone Angioplasty 4 operation in 2008 and recently when he was taken to the Department of Cardiology of Super Speciality Ward of Medical College and Hospital, a certificate dated 02/12/2010 is issued stating therein that the applicant has already undergone angioplasty with unstable angina with LV dysfunction (ef 45%) with ectopic beats. He is at present under observation in ICCU and is awaiting further investigations. Learned Advocate has placed on record various medical reports of applicant no.1 about his treatment. Earlier, the applicant no.1 had taken the treatment at Avanti Institute of Cardialogy and hence, he wish to take his further treatment in the said hospital as his past history is known to he doctors of said hospital. Learned Advocate submitted that the complainant with an ill motive has filed the present case against the applicants. It is further submitted that when the demand was made by the complainant through notice dated 31/5/2010 seeking action on the part of the applicants for registration of the Deed of Conveyance and handing over possession of the property, the same was replied through his Advocate. On 15/6/2010, it was informed through a communication that the document is not signed by the applicants and he owes no responsibility towards the alleged Deed of Conveyance. Both these documents i.e. the notice and the reply are placed on record at annexure 2 and 3. According to the learned Advocate for the applicants, after the reply dated 15/6/2010, the complainant was silent for considerable period of nearly six months and has proceeded at a belated stage only with a view to harass the applicants. Learned Advocate further submitted that even considering the case as it is, there is absolutely no reason to attract the provisions of Section 409 IPC. It is submitted that there is neither entrustment of the property in favour of the applicants nor the applicants were acting in the capacity of the agent or any other person as prescribed under Section 5 409 IPC. Mr. Manohar, learned Advocate submitted that insofar as the property involved is concerned, the applicant no.2 is not even the owner of the property and in view of these facts, the applicants are entitled to be released on bail. To support his contentions, learned Advocate for the applicants has placed reliance on the judgments of the Apex Court in the case of Siddharam Mhetre .vs. State of Maharashtra and others, reported in 2010 (12) SCALE 691 and in case of Ravindra Saxena .vs. State of Rajasthan, reported in (2010) 1 Supreme Court Cases 684. Per contra, learned APP and Mr. Dewani, learned Advocate for the complainant (assist to prosecution) have strongly opposed the application. The reply is filed by the State. Mr. Khan, learned APP and Mr. Dewani, learned Advocate for the complainant submitted that from the initiation of the transaction itself, the intention of the applicants/accused was to cheat the complainant. It is submitted that such fraudulent intention is revealed from the acts of the applicants such as avoiding the payment even though there were repeated demands. The cheques which were issued by the applicants were dishonoured due to insufficient funds. When these attempts were failed, the parents of applicant no.2 i.e. other accused appeared on the scene with contention to part with the portion of their residential house. It is submitted by the respondents that the applicants/accused knowing full well that the property was mortgaged with one Shri Kanyaka Nagari Sahakari Bank, Sitabuldi, Nagpur, entered in the Deed of Conveyance with the complainant and also asked the complainant to part with an amount of Rs.10,00,000/- for the said transaction. The complainant was ready to perform his part and though, it was decided between the parties to attend the office of Sub-Registrar on 17/6/2010, the applicants did not turn up 6 to the office of Sub-Registrar. The respondents submitted that the accused persons with a guilty mind have committed the offence and they have committed the breach of trust of the complainant and the complainant is subjected to loss of Rs.2,05,33,790/- . Learned APP and Mr. Dewani, Advocate have, therefore, prayed for rejection of the application. Mr. Dewani, learned Advocate for the complainant has placed reliance on the judgment of this Court in the case of Fida Hussain Yahyabhai Bohra .vs. State of Maharashtra and another, reported in 2010(1) Bom. C.R. (Cri.) 658. I have considered the submissions of learned Advocates for the parties. I have gone through the material placed on record. Perusal of the record reveals that there was a contract between the complainant and the applicant no.2 for letting out the hoardings on lease. An amount of Rs.2,05,33,790/- was outstanding towards said contract. Applicant no.1 was guarantor to said agreement. There was exchange of correspondence between the parties and as per the understanding between the parties, the applicant no.2 issued 7 cheques totaling to Rs.1,36,00,000/- in favour of the complainant. But the same were dishonoured for the reason of insufficient funds. Thereafter, the parties entered into an agreement and a Deed of Conveyance was prepared, the subject matter of which, was certain portion of the house property owned by applicant no.1 and his wife. The further details are already discussed and hence, the same are not repeated here. The arguments of the parties are also already referred and hence, the same are not repeated. The record further shows that the starting point was the transaction between the parties of letting out the hoardings on lease. The transaction was purely of civil nature. All the subsequent events will have to be looked into on the backdrop of transaction of letting of 7 hoardings on lease. There is considerable merit in the submission of learned Advocate Mr. Manohar that the transaction between the parties was purely of civil nature. There is also considerable merit in the submission of Mr. Manohar that the material on record falls too short to attract the provisions of Section 409 I.P.C. It is revealed from the record that the Deed of Conveyance, on which a thrust is given by the complainant, a reply was given by the applicant through communication dated 15/6/2010 denying any liability towards the Deed of Conveyance and also alleging that the particular document is bogus and forged. There is no explanation in the long silence of the complainant for a period of six months. In Siddharam Mhetre’s case, on which reliance has been placed by learned Advocate for the applicants, the provisions of Section 437, 438 & 439 of Cr.P.C. are elaborately dealt with by the Apex Court. In Ravindra Saxena’s case, though, the Apex Court was dealing with the anticipatory bail, it has observed that the defence put forward by the appellant cannot be obliterated at this stage itself. WE are also of the opinion , that the submission of the learned counsel for the appellant that the dispute herein is purely of a civil nature cannot be brushed aside at this stage. The Apex Court while considering the application under Section 438 Cr.P.C., has observed that the fact that the court may not ignore the plea that dispute of the parties is of purely civil nature and insofar as the case of the applicant is concerned, it stands on better footing as the applicants are seeking their enlargement under Section 439 of Cr.P.C. I have also gone through the judgment in Fida Hussain’s case, on which reliance has been placed by Mr. Dewani, learned Advocate for the complainant. The applicant/accused in that case had opened various accounts in the bank by floating bogus companies and on the basis of bogus documents, the accused submitted various 8 bills purportedly from various companies in respect of purchase of material, which in fact were not supplied but obtained bogus sanction orders in order to recover the money from the Government and misappropriate it. The purchase was in respect of medicines and some apparatus at Government hospitals. This Court by considering the material observed that if any person has indulged into deliberate swindling of crores of public money to make quick and easy money with eye on personal profit, without in fact supplying the necessities to the hospitals and there appears prima facie grounds to believe into the accusations levelled against him, such person cannot be enlarged on bail to be let loose on the society particularly, when past criminal cases were reported against him and are still pending. In the present case, the transaction is between the company and the applicants/ accused, which is purely of a civil nature. There was no public money involved in the transaction and as such in my considered opinion, the judgment in Fida Hussain’s case is of no help to the complainant. Insofar as the ground of ill health of applicant no.1 is concerned, it is stated in reply filed by learned APP that the applicant no.1 was hospitalized since 19/11/2010 in Medical College and Hospital and the concerned Doctor has stated that the patient is improved with he conventional treatment and also stated that presently the patient is haemodynamically stable but complainant of chest pain off and on. It is also stated that the applicant no.1 is advised for coronary angioplasty and estimate is Rs.90,000/- for the said Angioplasty and the same will be done after depositing the amount. It is further stated that though applicant no.1 is not completely fit physically, but is fit for interrogation. On consideration of the material, I am of the opinion that prima facie case is made out by the applicants. The record also show that the investigation is nearly complete. The apprehension expressed 9 by the investigating agency of tampering of the evidence and non- availability of the applicants for trial can be taken care of by putting the applicants on conditions. In my opinion, looking to the age and illness of the applicant no.1, he may be directed to attend the police station as and when called by the police, whereas the applicant no.2 may be directed to attend the police station on every Sunday between 9.00 am to 12.00 noon for six months and thereafter as and when called by the police. In the result, the application is allowed. The applicant nos.1 and 2 be released on bail on furnishing P.R. bond of Rs.25,000/- each (Rupees Twenty Five Thousand only) with one solvent surety in the like amount, in Crime No. 282/2010 registered with Police Station, Rana Pratap Nagar, Nagpur for the offences punishable under Sections 420, 406, 409, 418, 420, 424 R/w Sec.34 of I.P.C.on the following conditions. a] The applicants to cooperate with the investigating agency. Applicant no.1 to attend the police station, Ranapratap Nagar, Nagpur as when called by the police. Applicant no.2 to attend the police station, Ranapratap Nagar, Nagpur on every Sunday between 9.00 a.m. to 12.00 noon, for a period of six months and thereafter as and when called by the police. b] The applicants shall not tamper with the prosecution evidence nor commit any act such as contacting the prosecution witnesses or pressurize them. c] The applicants to submit their residential address and contact numbers such as phone/mobile numbers to the investigating agency. 10 d] In case the applicants are moving out of the area of police station, Rana Pratap Nagar, Nagpur, they shall inform the police station about their visit to other place. In case of breach of these conditions, the prosecution agency to take necessary steps in accordance with the provisions of law. The application is disposed of in above terms. JUDGE Diwale