1appln-3512-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION No. 3512 of 2010 Rajesh Nagji Nisar .. .. .. .. Applicant. versus The State of Maharashtra .. .. Respondent. Mr M. K. Kocharekar with Sandeep Kekane, for the Applicant. Mr P. S. Hingorani, A.P.P.,for the State. CORAM:- A.R. JOSHI, J. DATE :- 11TH AUGUST, 2010. P.C.:- 1. Heard rival submissions for some time on this anticipatory bail application preferred by the applicant apprehending his arrest in C.R.No.76/2010 lodged with V.P.Road Police Station, Mumbai for the offence punishable under Section 406, 420 and 34 of I.P.Code. 2. Allegations against the present applicant are that he, in association with his father and wife, cheated the complainant by 2appln-3512-10 representing that he and his wife are having some share in the shop which is in the name of the co-accused, his father, on rental basis in Mumbai. Present applicant after such representation asked for the loan of Rs.700000/-(Rs.7 lakhs) or so, as allegedly, he had suffered loss in the business. It was made known to the complainant by the present applicant that in addition to repayment of such loan he will give the interest @ 12% and also he will give Rs.70,000/- per month by way of the rental charges for use of the said premises by the applicant himself, also he will get the entire consideration price fixed for such mortgage of the shop. Relevant documents such as Memorandum of Understanding (MoU) and affidavit for surrender of the rights as the tenants and General Power of Attorney were executed by the present applicant and other co-accused in favour of the complainant. It was also assured by the applicant that if he failed to repay the said loan amount then the said shop premises shall be transferred in the name of the complainant and for that purpose necessary no objection shall be obtained from the owner of the said shop i.e. some “Mumbai Panjrapole Trust”. Accordingly by different installments entire amount of Rs.70 lakh was paid to the applicant, without going into the interim stages as to on which date such amounts were paid. Suffice it to say 3appln-3512-10 that the applicant did not keep his word and in fact tried to avoid any communication with the complainant on one pretext or the other as to his father is out of town and at time he himself was out of town. The transfer of the said shop in the name of the complainant was avoided. At times certain cheques were given which are detailed in the F.I.R. However, on the request from the applicant the cheques were not deposited in the Bank by the complainant. 3. Ultimately, in the year 2010 sensing that the present applicant and co-accused had deceived the complainant, initially, he wrote a letter to the Home Minister of the State of Maharashtra, sometime by end of January, 2010. In the said letter details of the transactions between the parties so far as the payments made to the complainant were mentioned. Said letter is shown to the Court by the learned A.P.P., as it is forming part of the investigation papers. This was relied on by the complainant as there was strong argument on behalf of the applicant that the F.I.R. in the matter had been lodged on 30-4-2008. As such, it appears that, even prior to lodging of the F.I.R in April, 2010 there was initiation of taking any action against the present applicant and the co-accused. 4. Reportedly, as a follow up action on the said letter to the 4appln-3512-10 Home Minister, directions were given to the concerned Police Station and two letters, dated 31.3.2010 and 2.4.2010 respectively, were sent to the present applicant as to his attendance to the concerned Police station for preliminary investigation in the matter. In spite of such letters, the applicant did not remain present and, in fact, apprehending his arrest at the hands of the police, filed an application for anticipatory bail along with his wife co-accused on 15.4.2010 before the learned Sessions Judge, Greater Bombay. 5. By the order dated 29th June,2010 anticipatory bail application of the co-accused i.e. the wife and father of the present applicant was granted by the Court by end of June, 2010. On that day, the applicant remained absent and as such mainly on that count the application so far as the present applicant was concerned, was dismissed. However, in the said order dated 29th June,2010 in paragraph no.3 there are certain observations made concerning the implication of the present applicant. 6. During the arguments, in the present matter it was chosen on behalf of the applicant to argue the present matter before this Court on merits, without there being any opportunity for the matter to be sent back to the concerned Sessions Court for appraisal on the merits. 5appln-3512-10 Under the said premises the rival arguments were heard and factual position is ascertained as mentioned above. 7. During the arguments, learned A.P.P.for the State brought to the notice of the Court different various antecedents against the present applicant and submitted that there are four cases for the offence punishable under Section 138 of the Negotiable Instruments Act and two cases for the offence punishable under Sections 406 and 420 of the Indian Penal Code. It is also submitted that it is such type of modus operandi of the present applicant of giving assurances of repayment and taking the monetary benefits for himself and not obeying his words. 8. During the arguments, learned Advocate for the applicant submitted that this is a matter of civil transaction and breach of alleged agreement or understanding between the parties. Needless to mention that at time though it might be transaction for which a civil action can be taken still considering the specific circumstances and the action taken by the concerned party, action of the applicant as in the present matter, it cannot be lost sight of the factual position that even the penal action can also be taken against such person. In this view of the matter, considering the allegations and considering the representations 6appln-3512-10 made by the present applicant, it would not be in the fitness of situation to allow the discretionary relief of pre-arrest bail in favour of the applicant and accordingly present application is disposed of. In the result, the following order:- ORDER: (a) Bail application is rejected. (b) Any observations made in this order shall not be construed as any finding or any expression of opinion on the merits of the case at the time of trial. (A.R.JOSHI,J)