1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3945 OF 2009 Mumtaz Mohammed Shoaib Shaik ....Applicant Vs. The State of Maharashtra ....Respondent ----- Shri Heman S Deshpande for Applicant Shri A.H.H. Ponda for Original Complainant Shri Y.M. Nakhwa  APP for State. ----- WITH CRIMINAL APPLICATION NO.3885 OF 2009 Mr. Asif S/o. Rafiq Shaikh ....Applicant Vs. The State of Maharashtra ....Respondent ----- Shri A.M. Saraogi for Applicant Shri A.H.H. Ponda for Original Complainant Shri Y.M. Nakhwa  APP for State. ----- CORAM: V.M. KANADE J. DATED: 19TH NOVEMBER, 2009 P.C. 1. Both the Applicants are arrested in connection with an offence punishable under sections 408, 465, 467, 468, 471, 420 r/w. 34 of the Indian Penal Code registered initially with Khar Police Station vide C.R. No.147 of 2009 and now transferred to E.O.W. Wing, Crime Branch, Mumbai. 6 2. The Applicant Mumtaj Mohamed Shoaib Shaikh was arrested on 2 nd May, 2009 and Applicant Asif S/o. Rafiq Shaikh was arrested on 10 th June, 2009. 3. The case of the Complainant in brief is that the husband of Mumtaj Mohamed Shoaib Shaikh was working with the complainant Binaifer Sanjay Kohli, who is a Producer by profession. According to the complainant she is the director of the company in the name and style as Edit-II Productions. and there were six employees in the said company. She has further stated that Mohammed Shoaib Shaikh was serving as accountant in the said Company. The said Mohammed used to look after the entire accounts work and also used to maintain the record of the firm. According to the Complainant, the Applicant had drawn his salary for the month of October and left the company and since then he is absent and did not report to her. According to the Complainant, she contacted the said Mohammed Shoaib over his mobile phone, however, the said phone was switched off and she could not contact him since the whereabouts of Mohammed Shoaib could not be traced. The accounts of the company were checked and it was noticed that certain important documents were missing from the office. According to the Complainant, the personal file of the said accountant Mohammed Shoaib was checked and it was 3 found that the xerox copies of the said data was not available. When further enquiries were made, it transpired that Mohammed Shoaib has sold his house and left along with his family. According to the Complainant, Shoaib then contacted Rahul Solanki who is one of the employees of the Complainant and threatened him. She also received a message on her mobile in which Shoaib informed her to pardon him and expressed his desire to meet her after four days. However, he did not contact her thereafter. Thereafter, the accounts were checked and it was found that there was difference of Rs.30,00,000/- in the said accounts. In the said account, it is also found that the cheques were issued by their office in the name of workers who are participating in the shooting and all the said cheques were deposited in the Standard Chartered Bank, Santacruz Branch. Accordingly, 8 cheques were found, which were in the name of different persons. According to the Complainant, the signature on the said cheques were forged and fabricated and they were issued in the fake names since the names of the said persons were not revealed in their office register. A complaint, accordingly, was lodged against Mohammed Shoaib alleging that he had siphoned off money to the tune of Rs.30,00,000/- and had committed theft of C.Ds and other important documents. An offence is registered 6 vice C.R. No.147 of 2009 for the offence punishable under sections 408, 465, 467, 468, 471, 420 r/w. 34 of the Indian Penal Code at Khar Police Station. 4. Thereafter, the accused Mohammed Shoaib was arrested and it was revealed that 70 account payee cheques to the tune of Rs.69,61,695/- and 363 bearer cheques to the tune of Rs.1,63,60,795/- were forged and the Complainant s firm was defrauded to the tune of Rs.2,33,22,490/-. During the course of investigation, according to the prosecution, it was found that Mohammed Shoaib had siphoned off all the misappropriated amounts in the account of his wife- the Applicant herein Mumtaz Mohammed Shoaib Shaikh and certain amounts were also transferred in the account of his brother-in-law Asif S/o. Rafiq Shaikh. Chargesheet was then filed against all the three accused for the aforesaid offences. Application was filed by these two Applicants for bail. However, the applications for bail were rejected by the Sessions Court on 4 th of August, 2009. 5. Shri Saraogi, the learned Counsel appearing on behalf of the Applicant - Asif Shaikh submitted that the charge sheet has been filed and the Applicant was in jail since 10 th June,2009 and the charge sheet was filed and offence was pertaining to the documents 5 which were forged by the principal accused and the only allegation against the Asif was that, out of the total amount which was misappropriated, an amount of Rs.2,67,500/- was utilized by him for purchase of a flat worth of Rs.6,17,500/- 6. Shri Deshpande, the learned Counsel appearing on behalf of the Applicant -Mumtaz Shaikh, submitted that the Applicant Mumtaz, at the most, would be said to be the receiver of the said properties since these amounts were deposited in her account and, thereafter, were invested in various properties which were seized by the police and that the various bank accounts stand in her name and in the name of principal accused Mohammed Shoaib, were also attached and seized. He submitted that there was no material to indicate that the Applicant had forged any of these cheques or was involved in the actual commission of the offence of forgery and fabrication of documents. He submitted that the Applicant Mumtaz is in jail from 2 nd May, 2009 and she, being a lady, is entitled to be released on bail, particularly when all the documents and properties were seized. 7. Shri Ponda, the learned Counsel appearing on behalf of the Complainant, on the other hand, vehemently urged that this was not a fit case for 6 grant of bail. He submitted that the Apex court in various judgments had laid down the criteria which have to be taken into consideration by the Court while considering the question of granting bail. He relied on various judgments of the Apex Court in support of the said submissions. He submitted that the law on the subject of grant of bail had undergone a drastic change and though general rule was that bail is a rule and jail is an exception as laid down in the case of Bhagirathsinh Judeja vs. State of Gujarat reported in 1984 Criminal Law Journal page 160, this rule had undergone a change and now it is held by the Apex Court that merely because charge sheet is filed and investigation is over in the cases where document are forged and fabricated, bail should not be granted as a matter of course. He invited my attention to the judgments of Central Bureau of Investigation, New Delhi vs. Abhishek Verma reported in (2009) 2 Supreme Court Cases (Cri) 1021, Bhuvaneshwar Yadav vs. State of Bihar and Ors. Reported in 1(200(0 CCR 24 (SC), Masroor vs. State of U.P. & Anr. Reported in III(2009) CCR 88 (SC), Lokesh Singh vs. State of U.P. & Anr. reported in 2009 CRI. L.J. 369, Himanshu Chandravadan Desai & Ors. vs. State of Gujrat reported in 2006 Cri.L.J. 136. He submitted that in all these cases there was a huge misappropriate of funds and amount of crores of rupees had been siphoned off by the accused 7 and the Court had taken into consideration the gravity of the offence, nature of accusation and severity of punishment and also the reasonable apprehension of tampering with witnesses or apprehension of threat to the Complainant. He then submitted that so far as Asif Shoaib is concerned, apart from the amount mentioned in the charge sheet, there was material to indicate that 11 account payee cheques were forged and deposited in Asif s account to the tune of Rs. 7,44,550/- and further cash was withdrawn by forged bearer cheques and deposited in Asif s account to the tune of Rs.11,75,920/-. Further, some amounts were transferred to the account of accused Mumtaz Shoaib Shaik to the tune of Rs.2,47,250/- and Rs.92,000/- and there was also huge withdrawal of amount to the tune of Rs.3,93,400/- from his Union Bank Account. Further particulars were given in flow chart payment regarding to the various construction companies. He, therefore, submitted that the Applicant Asif was also involved directly in the offence which is committed by the principal accused Mohammed Shaikh. So far as, Mumtaz Shaikh is concerned, he submitted that 12 properties stood in the name of Mumtaz Shaikh and though she was not earning any income through lawful means, 4 properties were subsequently purchased and sold by Mumtaz. A sum of Rs.66,55,110/- was deposited in cash out of the amount embezzled by Shoaib. 6 Various discrepancies are there in the statement of books of accounts. Various cheques were withdrawn and funds were embezzled and the details of the properties and said amounts mentioned in the compilation were tendered by him. He submitted that several threats have been given to the Complainant. A letter also had been sent after the matter was heard by this Court which was sent by the principal accused and which was posted by some person on his behalf and, therefore, there was perception of threat. The learned APP for the State has admitted the submissions made by the learned Counsel for the Complainant. 8. There cannot be any dispute regarding the ratio of judgments on which reliance is placed by the learned Counsel for the Complainant. In the present case, Mumtaz is the wife of the principal accused Mohammed Shoaib. Admittedly, he was working as an Accountant in the office of the Complainant. The cheques were allegedly forged and withdrawn by him and deposited in the account of his wife Mumtaz. All the properties which were purchased by his wife have been seized and attached. The accounts also have been frozen. There is no material, prima facie, to indicate that the Applicant Mumtaz was in anyway responsible or had an access to the cheques of the Complainant s firm or had forged and fabricated the 9 documents personally. In my view, therefore, the Applicant Mumtaz deserves to be released on bail as her continued detention in jail is not necessary since the trial is not likely to begin immediately in near future. So far as the Applicant Asif is concerned, the only allegation against him is mentioned in the charge sheet which has been filed by the prosecution that he had utilized an amount of Rs.2,67,500/- for purchasing a flat. Though the submission of the learned Counsel for the Complainant that some further amounts were also utilized by him is accepted, even then since the charge sheet is filed, continued detention of the Applicant  Asif Shaikh for an indefinite period, in my view, is not necessary. 9. So far as the allegation of threats is concerned, the allegation is against the principal accused Mohammed Shoaib. There is no material on record to indicate that the present Applicants, who are in jail, had any occasion to give the said threats to the Complainant herein. In any event, since the matter pertains to fabrication of documents, which are in the custody of police, the question of tampering these documents does not arise. All the prosecution witnesses belong to the Complainant since they are her employees and the case essentially is based on the documents which are seized by the prosecution. 6 Further, conditions can be imposed on the Applicants in order to ensure that they do not threaten the witnesses or try to tamper with the evidence. 10. As a result, the applications filed by the Applicants are allowed. The Applicants be released on bail in a sum of Rs.25,000/- each with one or two sureties each in the like amount. The Applicants, initially may give cash bail for a period of four weeks and, thereafter, shall furnish bail surety in a sum of Rs.25,000/- each. They shall report to the concerned police station once in a week for a period of three months and, thereafter,twice in a month. The Applicants shall not threat any of the prosecution witnesses or the Complainant. They shall not tamper with the evidence. 11. Applications are, accordingly, disposed of. (V.M. KANADE J.)