{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4521 OF 2009 WITH CRIMINAL REVISION APPLICATION NO.352 OF 2009 1. Sureshkumar s/o Rikhabchand Jain Age-52 years, Occ-Business 2. Saw. Sushiladevi w/o Sureshkumar Jain Age-42 years, Occ-Household 3. Dulichand s/o Sureshkumar Jain Age-16 years, Occ-Education U/g of petitioner No.1, Father All R/o m/s Jai Anand Udyog, MIDC, Jalgaon, Tq & Dist-Jalgaon APPLICANTS VERSUS The State of Maharashtra RESPONDENT ....... Mr.A.G.Godhamgaonkar, Advocate for applicants Mr.N.B.Patil, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE: 15th January 2010 PER COURT: 1. Heard learned counsel for the parties. {2} 2. By the criminal revision application, the applicants have challenged the order dated 27.11.2009 passed by Ad Hoc Additional Sessions Judge, Jalgaon thereby refusing to relax the condition of depositing Rs.36 lacs and by criminal application No. 4521/2009 the applicants have challenged the order dated 16.12.2009 thereby rejecting Criminal application No.1022/2009. 3. It appears that on 17.07.2009, a complaint came to be lodged in MIDC, Police Station, Jalgaon by one Rajendra Wani and on the basis of the said complaint an offence at CR No.125/2009 for an offence punishable u/s 420 r/w 34 of the Indian Penal Code, against the present applicants came to be registered. It is alleged that the applicants had entered into three loan transactions with Jalgaon Janta Cooperative Bank, Market Yard Branch, Jalgaon. Property of the applicants was mortgaged with the bank and a floating charge was also created on the goods, which were to be manufactured by the applicants. It appears that the entire loan amount was to the tune of Rs.72,19.971/-. It further appears that as no details of the stock in trade were furnished to the bank and hence the complaint was lodged. 4. It appears that after lodging of the complaint, the applicants had moved Criminal Application No.1022/2009 for anticipatory bail before the Sessions Judge, Jalgaon. It further appears that the learned counsel representing the applicants, had submitted an application before the lower court on 09.10.2009 {3} expressing willingness of the applicants to deposit Rs.36 lacs with the bank, to which the bank had consented. It also appears that within mean time, as the applicant No.2, who happens to be the wife of applicant No.1, was suffering from cancer and was admitted in a hospital, all the three applicants were at Bombay for treatment of applicant No.2. It appears that due to this situation, an application was moved on 27.11.2009 before the Sessions Judge, Jalgaon, on behalf of the applicants expressing unableness to deposit the amount of Rs.36 lacs as undertaken and prayed for relaxation or cancellation of the said condition of depositing Rs.36 lacs. The said application came to be rejected on the very same day. The said order is impugned in criminal revision application. 5. It appears that as the condition imposed while granting anticipatory bail to the applicants, by the sessions Judge, was not complied with and hence the anticipatory bail application came to be rejected vide order dated 16.12.2009, which is impugned in criminal application. 6. Learned counsel for the applicants has contended that the condition of depositing Rs.36 lacs must not have been imposed as the matter was under consideration as to whether there is any prima facie offence or not against the applicant. Hence, it is urged that to impose such a stringent condition is illegal and if on the ground of violation of such condition, the application for anticipatory bail is rejected, then the said order is bad in law. {4} 7. It is urged by learned counsel for the applicants that already proceedings under the provisions of Maharashtra Cooperative Societies Act, for recovery of loan, are initiated by the bank and for the said purpose, an application is also moved to obtain recovery certificate u/s 101 of the said Act. 8. Considering the papers it appears that the property is already mortgaged by the applicants with the bank and the same is still in existence. According to learned counsel for applicants, the only fault on the part of applicants is that no detailed statement of stock in trade was submitted by them to the bank. It is also submitted that an application is already moved by the bank to obtain recovery certificate and the property mortgaged with the bank has been attached under the said proceedings. In this view of the matter, according to learned counsel for applicant, there shall not be an offence of cheating against the applicants. 9. Learned APP, while opposing the criminal application as well as revision application, has contended that the documents speak itself, as at the material time, undertaking was given on behalf of the applicants and the same is binding on them. In the premise, according to learned APP, no fault can be found with the order impugned in the revision application. It is also submitted that the order passed on 27th November, is an interim order and now the same has attained finality, as the anticipatory bail {5} application is rejected by the Sessions Court and hence the revision application has become infructous. 10. Considering the rival submissions, only question for consideration is that while hearing application of anticipatory bail, whether it is proper on the part of lower court to impose a condition to deposit Rs.36 lacs or not, when admittedly the property of the applicants is mortgaged with the bank. Considering the fact that the property of the applicants is mortgaged with the bank and the same is still in existence, on the face of it, there shall not be any accusation for offence u/s 420 r/w 34 of the IPC. In the premise, to impose the condition to deposit Rs.36 lacs with the bank itself is not maintainable in law. If the application for anticipatory bail is rejected on the ground that the condition to deposit Rs.36 lacs is not complied with, merely on the ground that undertaking to that effect was given by the applicants, the same is not sustainable in law. In the premise application for anticipatory bail needs to be allowed and the condition imposed on the applicants to deposit Rs.36 lacs needs to be released. 11. In the result, criminal revision application No. 352/2009 succeed. The condition to deposit Rs.36 lacs imposed by the lower court vide order dated 27.11.2009 is hereby cancelled. So also criminal application No.4521/2009 is allowed and in the event of arrest of the applicants, they be released on bail on their furnishing surety in the sum of Rs.15,000/- each and on executing {6} PR bond in the like amount. The applicants are directed to cooperate with the investigating agency and to attend the concerned police station, if required, on written requisition, from the IO concerned. [A.V.POTDAR, J.] drp/A10/criapln4521-09