1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5071 of 2009 Mr.Santosh Laxminarayan Menon & Anr ... Applicants versus The State of Maharashtra ... Respondent ... Mr. S.R.Chitnis, Sr.Advocate with Mrs.V.R.Raje for the applicant. Mrs.A.A.Mane APP for the State. CORAM : D.G. KARNIK, J. DATED : 19th January 2010 P.C. 1. Heard. 2. By this application, applicants seek pre-arrest bail in connection with a crime registered against them under C.R.No.I-334 of 2009 dated 9th November 2009 at Vartak Nagar police station, Thane for an offence punishable u/s.406, 420 r/w section 34 of the IPC. 2 3. The prosecution case in short is that Mr.Pravin M. Gawde (hereinafter referred to as “complainant”) was in need of a loan of Rs.Three crores for construction of a marriage and multi purpose hall on his land at Manchar. He was banking with Deccan Merchants Co- operative Bank who was willing to lend a sum of Rs.One crore but tht was not enough for his needs. The applicants approached the complainant with an offer that they would arrange for a loan of Rs.Three crores from a Foreign Bank for a commission. They initially demanded a sum of Rs.Two lakhs by commission which was paid by the complainant. Further sums totalling Rs.5,00,000/- were paid by the complainant to the applicants from time to time as per their demand. However, no loan was arranged for by the applicants. According to the complainant, applicants had intention to cheat and defraud him since the beginning and he has been cheated for Rs.Five lakhs. 5. Mr.Chitnis. Learned Senior Advocate appearing for the applicants, submitted that applicants had no intention to cheat since beginning. In fact, they had taken every effort to arrange for the loan. Even a letter dated 13th December 2008 (copy is at Annexure “A”) was issued by Indo Hongkong Banking Services Corporation (for short “IHBC”) sanctioning 3 the loan subject to certain terms and conditions. The loan was sanctioned and the sanction letter was issued on account of efforts made by the applicants. The complainant had not complied with the conditions of sanction of the loan and therefore the loan was not actually disbursed. 6. The genuineness of the letter was doubted when the matter came up before the Court on 23rd November 2009. This Court (Coram V.M.Kanade, J) by its order dated 23rd November 2009 directed certain investigations to be carried out regarding the letter and granted protection to the applicants till then. Investigation was accordingly carried out by Smt.Meghna Ramchandra Burande, Police Sub-Inspector attached to Vartak Nagar police station. After the investigation, she has filed the affidavit dated 11th January 2010. She had also written a letter to the Reserve Bank of India making enquiry regarding IHBC. Learned APP states that by a letter dated 18th November 2009, Reserve Bank of India has informed to Smt.Burande, PSI, that no banking company by name “Indo Hongkong Banking Services Corporation” has been granted any licence to carry on business of banking in India. Conjoint reading of the letter of RBI and the affidavit of Smt.Burande makes it clear that the letter dated 13th December 2009 was either not issued by IHBC or it 4 was not authorised to carry out banking business and grant a loan. In the Additional Affidavit in reply, Mr.Burande has stated that she had gone to Bangalore and made enquiries with Finaword Consultancy Services (an associate of IHBC). Mr.Pinto, one of the employees states that Managing Director had already resigned and left the company as the company was not in a position to pay salary for the employees. In her affidavit, Smt.Burande PSI, has stated that the custody of the applicant is needed for custodial interrogation. It cannot be denied that custodial interrogation has its own benefits. In the circumstances, in my view, it would not be appropriate to grant pre-arrest bail to the applicants. 7. Mr.Chitnis, learned Senior Advocate, relying upon the decision of S.V.L. Murthy Vs. State 2009 6 SCC, 77, submits that for the purpose of offence of cheating, existence of intention to cheat must exist at the time of making initial promise of the contract. There cannot be dispute about this proposition. Non genuineness of the letter dated 13th December 2008 procured by the applicants is one of the pointers to show that the applicant had intention to cheat since beginning. In any event, whether there was any intention to cheat since inception or not is a matter which can be ascertained only after investigation is completed. 5 8. For these reasons, there is no merit in this application which is hereby rejected. (D.G. KARNIK,J.)