1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3443 OF 2011 1- Vishal Prakash Shah, age 38 yrs, Occ. Business, r/o Khistgalli, Ahmednagar. 2- Surendra s/o Rasiklal Shah, age48 years, Occ. Business, r/o Sadashiv Peth, Pune. APPLICANTS VERSUS THE STATE OF MAH AND ANR RESPONDENTS. **** Mr. Gaware Niteen V. Advocate for the applicants. Mr.G.R.Ingole A.P.P. for respondents. **** CORAM : SHRIHARI P. DAVARE,J. DATE : 26th AUGUST, 2011. PER COURT :- 1. Perused investigation papers, which were made available for the inspection purpose, as well as heard learned respective counsel for the parties, finally. 2 2. This is an application preferred by the applicants, seeking anticipatory bail, apprehending their arrest under Crime No. I-262/2011, registered at Kotwali Police Station, Ahmednagar, for the offence punishable under section 420 r/w 34 of Indian Penal Code. 3. It appears that offence has been registered on the basis of the complaint lodged by one Mangesh Deolalikar on 28.7.2011, alleging that the applicant nos. 1 and 2 herein namely Vishal s/o Prakash Shah and Surendra s/o Rasiklal Shah, carry on the business of sale and purchase of shares of ‘Kaynet Commodities Limited’, having its registered office at 633, Pulachi Wadi, 2nd Floor, Abhinandan Plaza, Deccan Gymkhana Pune. It is also alleged that applicant No.1 Vishal and applicant No.2 Surendra resides at Ahmednagar and complainant had acquaintance with him and therefore, through him, the complainant contacted Surendra Shah and thereupon applicant No.2, gave a copy of the agreement for opening the account. Thereafter, complainant signed the same on 2.4.2011, and handed over the same to Vishal Shah along with necessary documents. It is also alleged that after 3 lapse of about 15 days, the applicant No.1 Surendra informed the complainant that his account with ‘Kaynet Commodities Limited’ was started and asked him to deposit margin money to start with the transaction therein. Accordingly, complainant gave a cheque No.142219 dated 23.4.2011 for Rs.6,75,000/- drawn on H.D.F.C. Bank to applicant No.1 Vishal. It is also alleged that accordingly, applicant No.1- Vishal deposited the said cheque with H.D.F.C. Bank Branch Savedi and realized the said amount on 24.4.2011 and the proceed thereof were credited to the account of ‘Kaynet Commodities’. It is further alleged that after lapse of one week, the complainant made inquiry with applicant No.2 Surendra Shah to do transaction through the aforesaid account, however, he gave evasive replies. Hence, complainant went to the office of applicants at Pune, but the applicants gave abuses and assaulted him, and threatened him that he would be killed through Hirelings. Hence, the complainant made inquiry with the Regional Office of ‘Kaynet Commodities’ by sending letters on 2.6.2011 and 14.6.2011, but the said letters were not responded. Therefore, the complainant filed complaint against the applicants 4 for the alleged mis-appropriation of the amount and fraud upon the complainant. 4. The learned counsel for the applicants pointed out from the document i.e. authorization letter [page 35] that Dhiraj Patil, Yogesh Patil and Prajakta Saraf, who were the clients of said Mangesh Deolalikar, had authorized him by said authorization letter. Learned counsel for the applicants pointed out that cheuqe in question for Rs.6,75,000/- dated 23.4.2011 was drawn in favoaur of the Kaynet Commodities Pvt Ltd., and same was encashed into the account of Kaynet Capital Limited on 25.4.2011 itself, [page 60 and 62] and the applicants never received the said amount. 5. Learned counsel for the applicant further pointed out that the applicants herein issued notice to Yogesh Patil, Dhiraj Patil, Prajakta Suhas Saraf and Mangesh Mohan Deolalikar through advocate on 7.6.2011, and narrated the entire facts and asserted that as per agreement dated 1.3.2011, executed by complainant-Mangesh Deolalikar, who was official representative, was liable for every transaction and copy of the said notice is 5 produced at Exh’D’ [page 74], and, it is pointed out that, it was received by the complainant and copy of the postal acknowledgment is produced at page 81. It is also submitted that in response to said notice, complainant Mangesh Deolalikar sent reply on 14.6.2011 and stated that “I do not feel it appropriate and necessary to reply to other contents of your notice, as the same are infructuous, irrelevant, improper and without any proof” and accordingly, it is submitted that said notice sent by the applicants on 7.6.2011 was not replied by the complainant aptly. 6. It is further pointed out by the learned counsel for the applicants that, the applicant No.2 herein filed a complaint with Deccan Gymkhana police Station, Pune on 18.6.2011 and copy thereof is produced at [page 86] and said complaint was lodged against Yogesh Patil, Dhiraj Patil, Prajakta Saraf and their representative i.e. complainant namely Mangesh Deolalikar, in respect of the embezzlement of the amount to the tune of Rs. 82,67,580/- by them and cheating of the applicants to that extent. Learned counsel further pointed out that there after complainant namely Mangesh Deolalikar has filed complaint against the 6 applicants on 28.7.2011 for the offence punishable under section 420 r/w 34 of Indian Penal Code, as a counter blast. 7. It is apparent that cheque in question i.e. cheque no. 142219 for Rs.6,75,000/- was duly credited to the account of Kaynet Commodities’ as per statement of account [page 52]. Apparently, there is no substance in the allegations made by the complainant against the applicants herein. Moreover, considering the notice, sent by the applicants on 7.6.2011, and complaint lodged by the applicants with Police Station Deccan Gymkhana on 18.6.2011, it appears that the later complaint lodged by the complainant on 28.7.2011 is a counter blast to the same and apparently, there is substance in the submissions advanced by learned counsel for the applicants. 8. In the circumstances, considering the accusations made against the applicants, it appears that custodial interrogation of the applicants is not necessary for the further progress in the investigation and hence interim anticipatory bail granted to the applicants deserve to be made absolute. 9. In the result, present application is allowed and 7 interim anticipatory bail granted to the applicants No.1] Vishal s/o Prakash Shah and 2]- Surendra s/o Rasiklal Shah, by this Court on 8.8.2011, stands confirmed on the following conditions that :- i) The applicant nos. 1 and 2 shall give attendance before the concerned Investigator on every MONDAY between 05.00 p.m. to 07.00 p.m. till filing of the Charge sheet and shall cooperate in the investigation. ii] The applicant nos. 1 and 2 shall not influence upon the witnesses, and/or tamper with the prosecution evidence, directly or indirectly, in any manner, what so ever. 10. Present application stands disposed of finally. 11. The above observations are the primafacie in nature, same may not be used in any other matter, being decided on merits. (SHRIHARI P. DAVARE) JUDGE ... aaa/