(1) CRI.APP. 4017.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4017 OF 2010 Sachin S/o Anand Vaidya, Age : 31 years, Occu.: Business, Residing at : Bhagirathi, Opp. St. John The Baptist High School Veer Sawarkar Marg, Thane- 400 601 .. Applicant VERSUS The State of Maharashtra, Through Police Station Yermala, Dist. Osmanabad .. Respondent ... Mr. J.M. Murkute, Advocate for the Applicant Mr. B.J. Sonawane, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 15TH NOVEMBER, 2010 ORAL ORDER:- 1. By this Application, the applicant seeks bail under section 439 of the Code of Criminal Procedure. The applicant is real brother of deceased Sanket Vaidya. Said Sanket Vaidya used to run a business under name and style M/s. Car Mall at Thane. 2. The FIR purports to show that nephew of the informant, namely, Pandurang Ghule desired to purchase a Toyoto brand Fortune car vehicle. He had (2) CRI.APP. 4017.2010 enquired about availability of the car vehicle at M/s. Aparna Motors, Thane. The car booking was allegdly un-available due to heavy demand. It appears that said Pandurang Ghule came in contact with one Sandeep Dongare, who assured him to arrange for early delivery of the car vehicle. Said Sandeep Dongare introduced the victim-Pandurang Ghule to one Kaushik Vasani, Tushar Shinde, the present applicant, Sanket Vaidya, and Jigar Sanghvi. They assured him to make available the car vehicle. He gave two demand drafts on 20.12.2009 to present applicant- Sachin Vaidya. The applicant handed over two demand drafts to his brother i.e. Sanket Vaidya. Ultimately, transaction did not materialise. Pandurang Ghule gathered impression that he was duped by Sanket Vaidya, the applicant, Tushar Shinde and others. He therefore demanded back his amount alongwith the expenditure incurred by him. They agreed to repay the amount. It appears that Sanket Vaidya issued a cheque dated 20.3.2010 in name of Pandurang Ghule. The cheque was dishonoured. (3) CRI.APP. 4017.2010 3. The learned Advocate for the applicant submits that other co-accused have been released on bail and the present applicant has not much concern with the transaction of the alleged business of M/s. Car Mall, Thane. He would submit that the applicant is unnecessarily arrested only because of relation with deceased Sanket. He would point out that the amount was in fact in the custody of Tushar Shinde. He submits that when said Tushar Shinde is granted bail, the applicant should not have been denied the same treatment on basis of parity. He argued further that detention of the applicant in the jail is not required since the chargesheet is filed and the trial is going on. 4. The learned APP submits that involvement of the applicant in serious crime is prima facie evident from the record and, therefore, bail may not be granted to him. He has taken me through the relevant investigation papers. 5. What appears from the bank accounts extract is that the two demand drafts were credited in the (4) CRI.APP. 4017.2010 account of M/s. Car Mall, Thane on 26.12.2009 as per the contention of the complainant. It appears, no doubt, that there was certain dispute regarding the manner of payment. It also appears that FIR was lodged by Tushar Shinde while he was admitted in a private hospital on 19.3.2010 alleging that he was assaulted while he and his friends were proceeding towards Sudama Darshan building. The recitals of that FIR shows that said Tushar Shinde had a meeting with Pandurang Ghule on 8.1.2010. It appears that Tushar Shinde admitted payment of Rs.19,90,000/- and agreed to arrange for delivery of car vehicle to Pandurang Ghule. There was dispute regarding the payment of the amount to Pandurang Ghule after the latter had realised the fraud committed by Sanket Vaidya, Tushar Shinde and others. Be that may as it is, it transpires from the record that the cheque issued by deceased Sanket Vaidya in the name of complainant was dishonoured. The internal transaction between Sanket Vaidya and Tushar Shinde is of not much consequence. (5) CRI.APP. 4017.2010 6. There is prima facie material to show that the present applicant was in the company of Sanket Vaidya and others when the talks of the transaction were settled though Pandurang Ghule noticed that ordinarily the car vehicle was not available in the open market due to closure of the booking yet he was assured that the vehicle will be made available to him. The amount paid by him was deposited in the account of M/s Car Mall of which deceased Sanket Vaidya was proprietor. The subsequent development is that said Sanket Vaidya suffered from illness and was hospitalized after issuance of the cheque in the name of the complainant. The FIR purports to show that during the period of illness of Sanket Vaidya, the applicant was managing the business of M/s Car Mall alongwith the wife and the mother. It appears that said Sanket Vaidya had issued the cheque on 15.3.2010 in name of the complainant. He died on 8.4.2010. Though the applicant was not the proprietor on record, of the said M/s. Car Mall, yet it prima facie appears that he was concerned with the business and was present alongwith Sanket Vaidya from (6) CRI.APP. 4017.2010 the beginning of the transaction. It further appears that said amount was allegedly withdrawn by utilising A.T.M. card when Sanket Vaidya was in the hospital. Thus, there is prima facie evidence to implicate the applicant in the alleged offence of cheating and fraud. Under the circumstances, he cannot claim parity with Tushar Shinde who was not running the business of M/s Car Mall. Hence, the Application is dismissed. Sd/- [V. R. KINGAONKAR, J.] arp