IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2772 OF 2009 Sudatta D. Dive ..... ..... ...Applicant V/s The State of Maharashtra ..... ..... ...Respondent. Mr.A.Y.Sakhare, Sr.Adv. i/by Mr.Jeetendra Sachdev, Adv. for the applicant. Mrs.P.P.Shinde, APP for the Respondent. Mr.Arjun Wadkar, Adv. For the intervenor. CORAM: A.P.DESHPANDE, J. 18th August, 2009. PC: The applicant is apprehending arrest at the hands of Uran police station in complaint bearing No.23/09 filed by one Ramesh U. Shah under sections 406, 409, 420 read with section 34 of IPC. The complainant is represented by advocate Shri Arjun Wadkar and he is permitted to intervene on oral prayer made in that regard. 2. The present applicant had entered into an agreement with agriculturists (hereinafter referred to as “the allottees” ) with a view to purchase three plots of land which were to be allotted to the agriculturists on account of acquisition of their land by CIDCO. Under the scheme framed by CIDCO 12.5% of the land acquired by CIDCO is allotted to the land owners. In the present case the agreement entered into by the applicant with the agriculturists pertain to this 12.5.% land. According to the applicant the agreement entered into by him with the agriculturists is dated 16.2.06 in respect of two plots and in respect of third plot agreement is dated 22.11.05. The applicant had made various payments to the agriculturists and the same are reflected on pages 17 and 18 of the application. The applicant had paid 1 sum of Rs.33,03,000/- by cheque and Rs.2,83,000/- in cash aggregating to a sum of Rs.35,86,000/-. According to the learned counsel for the applicant the agriculturists had agreed to execute the conveyance either in favour of the applicant or his nominees. The applicant and the complainant entered into agreement dated 27.10.06 where under the present applicant assigned the rights in favour of the complainant in lieu of agreed consideration. To be on safer side the complainant insisted that the agreement should also be signed by the allottees and thus a tripartite agreement was entered into between the applicant, complainant and the allottees. It does appear that on account of passage of time the value of the property appreciated and the allottees were reluctant to execute the documents which gave rise to civil litigation between the parties. The applicant filed a suit for specific performance of agreement against the allottees. The suit came to be compromised and compromise decree came to be passed. At later point of time the complainant filed a suit yet again for specific performance of agreement against the allottees and the present applicant. The applicant was impleaded as defendant No.7 in the suit. The complainant entered into a settlement with the allottees and hence the suit came to be decreed in favour of the complainant and against the allottees under consent decree dated 6.12.08. The present applicant was deleted as defendant in the suit. It is only after the suit filed by the complainant came to be decreed in consent terms on 6.12.08 that the present complaint came to be filed on 3.2.09. I am taken through all the agreements and documents on record. Prima facie it can be seen that the dispute predominantly is of civil nature. 3. Learned counsel appearing for the complainant made a statement that the applicant is not acting fairly and has obtained injunction against the allottees restraining them from transferring the property in favour of the complainant or any one else. He has further submitted that the applicant has 2 admittedly received an amount of Rs.56,57,000/- from the complainant and hence an appropriate direction need to be issued to the applicant as one of the conditions while granting anticipatory bail forcing him to deposit the said amount. 4. Learned counsel Shri Sakhare appearing for the applicant has invited my attention to para 10 of the affidavit in rejoinder filed on behalf of the petitioner to the affidavit of respondent. In para 10 of the affidavit it is categorically stated that the petitioner is ready and will to assign all the right, title and interest in the property in favour of the complainant on payment of legitimate dues and in the alternative it is stated that the petitioner is ready and willing to return the amount of RS.56,57,000/- together with interest thereon to the complainant. Learned counsel for the applicant submits that the applicant would be depositing the amount of Rs.60 lacs in three instalments first being of Rs. 20 lacs within 15 days, second of Rs.20 lacs within a period of 45 days and third of Rs.20 lacs within a period of 75 days from today. In view of the said statement and the statement made in para 10 of the affidavit referred to above, I deem it appropriate to issue appropriate direction in regard to deposit of the amount. For the purposes of issuing said direction the amount received by the applicant from the complainant together with interest is roughly calculated at Rs.60 lacs. Being of the view that the dispute is predominantly civil in nature and touches the agreements and the documents forming part of civil suit I am of the view that the applicant is entitled to be granted anticipatory bail. Hence I pass the following order: i) In the event of arrest of the applicant in complaint No.23/09 for the offence punishable under sections 406, 409, 420 read with section 34 of IPC the applicant-Sudatta D. Dive shall be released on bail on executing personal bond in the sum of Rs.25,000/- with one or two sureties in the like amount. 3 ii) The applicant shall attend Ural police station daily for a period of one week between 4.00 to 6.00 p.m during which period the police should interrogate and record his statement and thereafter as and when required by the investigating agency. The applicant shall abide by conditions stipulated in Section 438(2) of Code of Criminal Procedure. iii) The applicant shall file an undertaking during the course of the day that he would deposit a sum of Rs.20 lacs within 15 days from the today in the trial Court, a sum of further Rs.20 lacs within 45 days from today and balance of Rs.20 lacs within a period of 75 days from today without prejudice to the rights and contentions of the parties. 5. Application stands disposed of in above terms. Needless to mention that the observations made in this order are only for the purpose of disposing of present application under section 438 of Code of Criminal Procedure. 18.8.2009. 4