1 Cri-A-5299-10.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 5299 OF 2010 WITH CRIMINAL APPLICATION NO. 90 OF 2011 WITH CRIMINAL APPLICATION NO. 139 OF 2011 WITH CRIMINAL APPLICATION NO. 223 OF 2011 CRIMINAL APPLICATION NO. 5299 OF 2010 Mr. Ivan Lawrence Martis ... Applicant vs. The State of Maharashtra ... Respondent CRIMINAL APPLICATION NO. 90 OF 2011 Mr. Ivan Lawrence Martis ... Applicant vs. 1. The State of Maharashtra Respondent 2. Harishchandra Sitaram Sharma Intervener. CRIMINAL APPLICATION NO. 139 OF 2011 Shri Harishchandra Sitaram Sharma Applicant vs. 1. The State of Maharashtra 2. Mrs. Aruna @ Kajal Ivan Martis 3. Mr. Nikhil Pradeep Feterpekar ..Respondents CRIMINAL APPLICATION NO. 223 OF 2011 The State of Maharashtra .. Applicant (Orig. Respondent) vs. 1. Mrs. Aruna alias Kajal Ivan Martis 2 Cri-A-5299-10.odt 2. Nikhil Pradeep Faterpekar. .. Respondents (Org.applicants) Mr. A.M.Saraogi, i/b. Saqtish Adsul,Advocate, for the applicant (in Appln.No. 5299/2010) Mr. I.S.Thakur, i/b. M/s. Global Juris Consultants for the Intervener (in Appln.No. 90/2011 and for the applicant. (in ABA No.139/2011) Smt. P.P.Shinde, APP, for the respondent- State and for the applicant (in ABA No. 223/2011. CORAM: J.H.BHATIA,J. DATE : 15th September, 2011. P.C. 1. Heard. 2. Application No.90/2011 filed by the original complainant for intervention to oppose Anticipatory Bail Application is allowed and stands disposed of. 3. Application No.5299/2010 is filed by accused No.1 - Ivan Lawrence Martis seeking anticipatory bail in Crime No.479/2010 registered with Mahatma Phule Police Station, Kalyan, District Thane for the offence under Section 380 read with Section 34 of IPC on a report lodged by Harishchandra Sharma. The 3 Cri-A-5299-10.odt applications No.139/2011 and No.223/2011 are filed by the original complainant and State respectively seeking cancellation of anticipatory bail granted to accused Aruna Ivan Martis and Nikhil Pradeep Faterpekar, who are accused Nos. 2 and 3 in the said offence. Therefore, all these applications may be disposed of by this common order. 4. To state in brief, the complainant lodged a report on 15.9.2010 at the Police Station that on 11.9.2010 that he had taken amount of Rs. 2 lakh from his partner Desmond Richard Lobo because they required the money to purchase certain elecrical goods for supply to the Railways as per the contract taken by them. That amount of Rs.2 lakh consisted of the currency notes of denomination of Rs.1,000, Rs.500 and Rs.100. The complainant had kept that amount in a blue coloured trolley bag and it was kept in the box of his bedroom and this fact was known to his wife. Accused No.2 Aruna w/o applicant Ivan Martis, is sister of the wife of the complainant. On 11.9.2010, the complainant and his wife Aruna @ Kajal along with their children had come to the house of the complainant. At that time, wife of the complainant had told her sister Aruna about the amount lying in the box of the bed. After that all of them went away to take their meals. During the following night i.e. between 11.9.2010 and 12.9.2010 they stayed at the house of a friend. On 12.9.2010 at about 5 a.m. the complainant came back to his house 4 Cri-A-5299-10.odt and at that time the complainant verified that the amount was safely lying. Therefore, at about 9.30 a.m., all of them took their breakfast. After that, the complainant and accused No.2 Nikhil went away for some work. Wife of the complainant, his sister-in-law Aruna and co-brother Ivan Martis were at the house. They were all preparing to go out after changing clothes. When wife of the complainant and her sister came back after changing the clothes in the kitchen, the applicant Ivan was not present in the hall or the living room. The door was open. For the whole day, these persons were outside and in the night, after taking dinner, the complainant returned to his house and again verified whether the amount was there. At that time, he did not find the amount of Rs.2 lakh. He made enquiries with all the three accused persons, but they denied that they had taken the money. The report was lodged after three days and the offence came to be registered. 5. Aruna and Nikhil accused Nos. 2 and 3 were granted anticipatory bail which is sought to be cancelled. 6. According to the prosecution, on 16.9.2010, the complainant made a supplemental statement before the police, that an amount of Rs.53 lakh in cash was also kept by him in his bed in the bedroom and on 16.9.2010 he had found 5 Cri-A-5299-10.odt that the said amount of Rs.53 lakh was also missing and thus, according to the prosecution, total amount of Rs.55 lakh was stolen away from the house of the complainant. 7. This Court had from time to time given several directions to the Investigating Officer to collect the material as to how, from whom and when the amount of Rs.53 lakh was collected by the complainant in cash. The Investigating Officer recorded statements of several persons and it has been disclosed during the investigation that the complainant had received amount of Rs.51 lakh from 8 different persons. The total amount of Rs.55 lakh, included the amount of Rs. 4 lakh which was cash in hand with the complainant and also the amount of Rs.4 lakh which he had received from his partner Desmond. The remaining amount of Rs.47 lakh was received by him from seven different parties in cash as hand loans without interest as he needed that money to execute a contract for the Northern Railways. 8. Affidavit in reply filed by the Investigating Officer, PSI Sunil Waghmare and the statements recorded by him reveal that ABB Ltd. which is a registered company, was a contractor working for Railways and they were expecting some contract for repairs from the Northern Railways, Ambala Cantt., 6 Cri-A-5299-10.odt Haryana. The complainant and his partner Desmond were running business in the name and style of M/s. Aarti Trading Corporation and they were working for executing contracts taken by ABB as their associates. Since March 2010, negotiations were going on between the Northern Railways, Ambala Cantt. and ABB Ltd. for repairing and overhauling electrical instruments and installations which would require purchase and supply of electrical goods. It is also revealed that in July,2010, ABB Ltd. made a request to the Northern Railways to submit their budgetary quotation for the said work through M/s. Aarti Trading Corporation and this permission was granted for the first time on 31.8.2010. It appears that the work was to be allotted and to be undertaken some time in January 2011. 9. As per the statements recorded by the Investigating Officer and the information collected from different sources, the complainant had withdrawn amount of Rs.13,14,000/- from his account with ICICI Bank from April to September 2010. That amount included the amount of Rs.4 lakh, which was allegedly stolen away in this incident. He had received amount of Rs.27 lakh from one Sanjay Wadgaonkar, who is a businessman at Aurangabad. It appears that from 1.4.2010 to 12.9.2010, he had withdrawn amount of Rs.1,85,81,200/- from his account with UCo Bank, Aurangabad and during the same period he had 7 Cri-A-5299-10.odt also withdrawn amount of Rs.1,90,87,000/- from his account with Oriental Bank, Aurangabad. Out of the said amounts withdrawn by Sanjay Wadaonkar from his accounts, he had allegedly supplied amount of Rs.5 lakh to the complainant on 14.6.2010, Rs. 9 lakh on 7.7.2010, Rs.7 lakh on 12.8.2010 and Rs.6 lakh on 9.9.2010. All these amounts were paid by Sanjay Wadgaonkar in cash to the complainant. One Vinayak Shetty had also withdrawn amount of Rs.13,15,500/- from his accounts with two different banks from April 2010 to 12.9.2010 and out of that he had paid amount of Rs.12 lakh to the complainant in July-August and lastly on 10.9.2010. All these payments were made in cash. It is material to note that out of Rs.13,15,000/- he had withdrawn amount of Rs.2,10,000/- on 12.9.2010 while amount of Rs.12 lakh was already supplied by him before 10.9.2010. One Smt. Minto Jain claims to have handed over amount of Rs.3 lakh to the complainant on 11.9.2010. This was her savings and the amount was lying with her at her house. Same is the position with other lenders. 10. It is surprising that so many persons withdrew huge amounts from Bank accounts and allegedly lent the amounts to the complainant in cash. If the complainant really needed money and they were benevolent to give hand loan to him without interest, they could have conveniently made payment by issuing cheques to the complainant and the complainant could encash the cheques. No 8 Cri-A-5299-10.odt plausible d explanation is coming from the prosecution as to why such huge amounts were given by so many persons to the complainant in cash. 11. As noted above, for the first time, on 31.8.2010, ABB Ltd. was permitted to submit quotation through M/s. Aarti Trading Corporation. Till that time, M/s. Aarti Trading Corporation was not expected to submit the tender or quotation. Work was to be executed and therefore the goods were required to be purchased sometime in January 2011. In such circumstances, it is not clear why the complainant had obtained such huge amounts from different parties in cash during June, July and August 2010. It appears that the complainant had also his own Bank account. There was also Bank account in the name of Aarti Trading Corporation. There is no plausible explanation why such huge amount was not kept in the Bank accounts. It is material to note that in the FIR the complainant states that as he needed money to purchase electrical goods, he had taken amount of Rs.2 lakh from his partner Desmond. If he had already amount of Rs.53 lakh in cash with him, there is no explanation why he required amount of Rs.2 lakh on that day from his partner for purchase of goods. 12. The FIR shows that on 11.9.2010, he and his other family members had gone to take their meals outside. As soon as he came back, he checked and 9 Cri-A-5299-10.odt verified that the amount of Rs.2 lakh was safe. Then on that day, they had been to different places and they stayed overnight at a friend's house. On 12.9.2011, at 5 a.m. he came back along with other members of the family and immediately at 5 a.m. he again checked and verified that the amount of Rs.2 lakh was lying safe in the house. On that day, after 9,30 a.m., it was revealed to him that the amount of Rs.2 lakh was missing. Report of the missing amount of Rs.2 lakh was lodged on 15.9.2011. It is surprising that on 12.9.2011 or three days thereafter the complainant did not bother to verify whether the huge amount of Rs.53 lakh which was also lying in the bed was safe or not. 13. The prosecution has recorded certain statements to show that the accused had shown the amount of Rs.30 lakh and was willing to return the amount, but that amount was not returned because the accused did not go to the complainant due to illness of wife of the accused. His application for anticipatory bail is pending for last about 10 months. Admittedly, the search of the house of the premises of the accused have been taken and no such amount has been recovered. 14. The learned Counsel for the accused Ivan contends that Aruna @ Kajal comes from Brahmin family. In 2004, they had entered into inter-religious 10 Cri-A-5299-10.odt marriage which was registered. Since 2004 for about 5 - 6 years they had no contacts with her parents and other relatives. However, admittedly, the complainant was a witness of that marriage and therefore it appears that they had contacts with him. According to the learned Counsel, to bring peace among two families, the complainant had invited the accused and his wife but thereafter this false complaint was lodged. Whether there is any substance in this allegation or not cannot be ascertained at this stage. 15. It may be noted that amount of Rs.2 lakh was deposited by other accused to show their bonafides when anticipatory bail was granted to them. According to the learned Counsel for the accused, in view of the facts and the circumstances, nothing more is required to be recovered. Taking into consideration the circumstances noted above, in my opinion, possibility of harassment of the accused in the name of custodial interrogation cannot be totally ruled out because of some extraneous reasons. 16. Therefore, interim anticipatory bail granted to the applicant on 9.12.2010 is hereby made absolute. ] 17. The Application Nos. 139/2011 and 223/2011 for cancellation of 11 Cri-A-5299-10.odt anticipatory bail granted to accused Nos. 2 and 3 stand rejected. 18. It is hereby made clear that the observations on the facts made in this order are only for the purpose of deciding the application for anticipatory bail and will not affect the merits of the case as and when, after investigation charge sheet is filed or case is required to be tried. (J.H.BHATIA,J.)