1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.66 OF 2010 1. Gitabai W/o.Gopal Agrawal, Age-54 years, Occu-Household, 2. Namit S/o.Gopal Agrawal Age-33 years, Occu-Business, Both R/o.11, Old S.B.I. Colony, Jalgaon, Tq. and Dist. Jalgaon APPLICANTS VERSUS The State of Maharashtra, Through Zilla Peth Police Station, Jalgaon RESPONDENT Mr.V.B.Patil, learned counsel for applicants. Mrs.Y.M.Kshirsagar, learned APP for respondent State. Mr.A.N.Nagargoje, learned counsel for original complainant. (CORAM : A.V.POTDAR, J.) DATE : 17/02/2010 PER COURT : 1. By this application, the applicants have approached this Court for their release, in the event of their arrest in connection with CR No.M.Case 339/2009, registered at Zilla Peth Police Station, Jalgaon. 2. Heard learned counsel for applicants followed by the submissions of learned APP, also supported by the counsel for original complainant. Perused the record of investigation till carried out. 2 3. From the submissions across the bar, as well as perusal of the record shows that private complaint appeared to be lodged before C.J.M. Jalgaon as RCC No.617/2009, alleging that the second applicant has obtained loan in the sum of Rs.47,50,000/- in the name of firm Agro Industries, MIDC, Jalgaon from the bank known as Jalgaon Janta Sahakari Bank Ltd. When the loan was sanctioned to the second applicant, number of documents were executed by way of security to the said loan. In those documents, a document of Equitable Mortgage was also came to be executed by the first applicant, by which the property of the first applicant was hypothecated with the original complainant bank, but for and towards the security of part of that loan obtained by the second applicant i.e. to the tune of Rs.20,00,000/- It appears that the said document is styled as memorandum of deposit of title deeds by a person to secure the loan account of another person. It is to be noted that the document is not registered document. There is an allegation that the same property was advertised for auction in the newspaper dated 14/11/2007 by Jalgaon Consumer Products Distributor Urban Co-operative Credit Society and during the inquiry, it is learnt that the said property was mortgaged by the first applicant with the said Jalgaon Consumer Products Distributor Urban Co-operative Credit Society and hence according to the original complainant, to destroy the first claim of recovery of the amount for which the loan was granted to the second applicant, this is the second transaction entered into by the first applicant. 3 4. During the course of submissions across the bar by both the sides it is brought to the notice of this Court that number of civil litigations are pending between these applicants as well as the original complainant bank. Considering the nature of transaction between the parties and the pending proceedings before the Co- operative Court as recovery certificate is already obtained u/s. 101 by the bank for the recovery of loan amount from second applicant. Bearing in mind this aspect, even though the complaint is lodged for cheating, in fact it is a part of civil dispute for which all the documents are with the bank as well as investigation agency. 5. In the premise, even though there is prima facie case, it is not the case of applicants required for custodial interrogation. In the premise, case is made out to exercise the discretion u/s. 438 of The Cr.P.C. hence order - O R D E R 1. Application is allowed. 2. Both the applicants be released on bail, in the event of their arrest in connection with CR No.M.Case 339/2009, registered in Zilla Peth Police Station, Jalgaon on furnishing surety in the sum of Rs.20,000/- each and on executing PR bond in the like amount. 3. The applicants are hereby prohibited to create further charge on the properties to their credit. (A.V.POTDAR, J.) khs/FEB 2010/cri-appl-66-10