1 abs FARAD CONTINUATION IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 421 OF 2010 ------------------------------------------------------------------------------------------------------------------ Office Notes, Office Memoranda of Court's or Judge's Orders Coram, appearances, Court's Orders or directions and Registrar's Orders Mr. P.J. Thorat for the applicant. Mr. K.V. Saste, A.P.P. for the State. CORAM : D.G. KARNIK, J. DATE : 3RD FEBRUARY 2010 P.C. : 1. Heard. 2. By this application, the applicant seeks pre-arrest bail in connection with Criminal Case No. 92 of 2009 arising out of a private complaint filed before the Judicial Magistrate, First Class, Panvel for an alleged offence punishable under sections 418, 420, 424 read with 34 of the I.P.C. 2 3. The facts narrated in brief are that the applicant (accused no.1) is a co-owner of the property bearing survey no.89/6A situate at village Palspe, Taluka Panvel. The applicant along with one more co-owner (accused no.2) claim to be power of attorney holders of all other co-owners. The applicant and accused no. 2 executed an agreement for sale dated 15th January 2007 agreeing to sell the property to the complainant company. The applicant and the accused no.2 received the total consideration of Rs.22 lakhs. However, they did not execute a sale deed in favour of the complainant company. But later on executed a sale deed in favour of accused no.7 who happens to be a former director of the complainant company. The complainant company therefore filed a complaint before the Magistrate against the applicant and other co- accused as well as accused no.7 – former director of the company. The learned Magistrate passed an order directing 3 investigation under section 156(3) of the Cr. P.C. directing the police to investigate. The matter is under investigation. The applicant apprehending arrest has filed this application for pre-arrest bail. 4. Admittedly, the applicant and the accused no.2 as power of attorney holders of all co- owners have executed the agreement for sale but have not executed the sale deed in favour of the company though they have received the entire consideration of Rs.22 lakhs. They have thereafter executed another sale deed in favour of accused no.7 by receiving Rs.37 lakhs. Prima facie, this shows that the applicant and the other co-accused had intention to cheat the complainant company as after having received Rs.22 lakhs, they had executed another sale deed in favour of accused no.7. 5. Learned counsel for the applicant submitted that there was no prima facie 4 material that the applicant had intention to cheat the complainant company. As the permission to sell required under the Tenancy Act could not be obtained in the name of the company, the sale deed was executed in favour of the accused no.7 who was its former director bonafide believing that the accused no.7 was representing the company. If this was so, then the applicant would not have demanded any further consideration and would not have claimed Rs.37 lakhs from accused no.7 as the consideration under the previous agreement was paid by the company. After pocketing the consideration received from the company, the applicant has received further consideration of Rs.37 lakhs from the accused no.7 which prima facie belies the defence of the applicant that he bonafidely executed the sale deed in favour of the accused no.7 believing him to be a nominee of the complainant company. 6. Needless to say if the applicant is 5 arrested, he would be free to apply for regular bail before the appropriate court and the court, after taking into consideration the entire material available before it, would consider the said application on its own merits without being in any way influenced by any of the observations made herein, which are only prima facie. 7. With these observations, the application is rejected. (D.G. KARNIK, J.)