(1) CR.APP. 2291 .2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2291 OF 2009 1] Smt. Indirabai w/o Kishanlal Mutha, Age: 54 years, Occu.: Household, R/o Yeldarkar Colony, Parbhani 2] Jayprakash S/o Kishanlal Mutha, Age: 42 years, Occu.: Business, R/o Gokul Nagar, Datta Dham, Basmath Road, Parbhani 3] Eknath S/o Giridhar Chavan, Age: 64 years, Occu.: Pensioner, R/o Yeldarkar Colony, Parbhani .. Applicants Versus The State of Maharashtra, Through Police Station Officer, Nava Mondha Police Station, Parbhani, Dist. Parbhani (Copy to be served on Public Prosecutor, High Court of Judicature of Bombay, Bench at Aurangabad) .. Respondent Mr. S.G. Chapalgaonkar, Advocate for the Applicants Mr. N.H. Borade, APP for the Respondent-State CORAM : A.V. NIRGUDE, J. DATED : 8TH JULY, 2009 ORAL ORDER:- 1] The applicants are seeking anticipatory bail in crime no. 72 of 2009 of Nava Mondha Police (2) CR.APP. 2291 .2009 Station, Parbhani. The offences alleged against the applicants are punishable under section 406, 417, 420, 468, 471, 34 IPC. 2] The complainant is a Bank who advanced certain loans to the applicants 1 and 2 and in turn the applicants 1 and 2 secured the loan by mortgaging their residential property. The property stood in the name of applicants 1 and 2. The mortgage was through a registered document. Despite of mortgage of the property, the applicants 1 and 2 alienated half share of the property in favour of the applicant no.3 by a registered deed. The Bank learnt about this transaction when the applicants 1 and 2 committed default of the loan E.M.I. The Bank assumed that the applicants 1 and 2 had committed the offence of cheating, forgery and criminal misappropriation. On such assumption, the Bank filed a private complaint before the learned Judicial Magistrate First Class, Parbhani who probably without giving a serious thought to the facts of the case, issued an order under section 156(3) of the Code of Criminal Procedure and directed the Police to investigate into the case. The Police thereafter, promptly registered the offence. The applicants learnt about this and they approached the learned Additional Sessions Judge-3, Parbhani for an order of anticipatory bail. This time, it was thoughtlessness of the learned (3) CR.APP. 2291 .2009 Additional Sessions Judge, who refused anticipatory bail to the applicants. 3] I think the Courts below wrongly assumed that it was a case of forgery. Both the documents in question are registered and there is no forgery involved at all. The applicant no.3 would get proprietary right to the property, subject to the mortgage which was in existence since prior to his transaction. Such transaction cannot be an offence of cheating or criminal misappropriation. The learned Judicial Magistrate First Class, Parbhani should have understood this and should not have issued the order of investigation under section 156(3) Cr.P.C. In a case like this, there is hardly anything to investigate because the documents are available with the parties and the documents at the most were required to be collected from the parties and forwarded to the Court. What is more disturbing in the entire episode is the approach of the Additional Sessions Judge, who in a case like this, could think of rejecting the application. The learned Additional Sessions Judge did not understand that the document between the applicants could not have been a forgery. The applicant no.3 could have lawfully purchased the property and as said above his right would be subject to the mortgage. This basic concept of civil law and Transfer Of Property Act, was ignored by the learned Additional Sessions (4) CR.APP. 2291 .2009 Judge. The applicants are entitled to the relief of anticipatory bail. 4] In the event of their arrest in this case, they shall be released on bail of Rs.5000/- (Rs. Five Thousand) each with one surety each in the like amount. 5] Criminal Application stands disposed of. 6] A copy of this order be sent to the learned Additional Sessions Judge-3, Parbhani. Sd/- (A.V. NIRGUDE, J.) arp/8july9/cr2291.09