1 ABA558.11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION ANTICIPATORY BAIL APPLICATION NO.558 OF 2011 KJ Mr.Umair Zafar Mohammed )..Applicant Versus The State of Maharashtra )..Respondent ---- S/Shri Abhay S.Khandeparkar i/by B.R.Maurya for the applicant. Smt.P.P.Shinde APP for the respondent/State. Shri Manish M. Mittal in person- Complainant/intervener is present in Court. ---- CORAM : J.H.BHATIA, J DATE : 20th September, 2011 PC 1 Heard the learned Advocate for the applicant and the learned APP for the State. 2 The applicant seeks anticipatory bail in Crime No.278 of 2 ABA558.11.sxw 2011 registered with Santacruz police station under Sections 452, 395, 397 & 341 of IPC on a report lodged by one Manish Mittal. 3 The applicant is owner of the shop no.135/A, Grotta Vitage, Chinai Compound, Juhu, Mumbai. The complainant Manish Mittal wanted the said shop and proposed to take it on a rent of Rs. 30,000/- per month, for which he was to deposit amount of Rs. 2,50,000/- with the applicant. However, after some discussion, they agreed to enter into partnership in the business and Manish Mittal was to make repairs and spend amount of Rs.2,40,000/- out of the amount deposited with the applicant. That agreement took place on 31.12.2008. A contract was for a period of two years. According to the complainant, later on, it was found that for carrying out necessary repairs, amount of Rs.16 lakhs would be required. Therefore, one Memorandum of Understanding had taken place on 19.1.2009. The complainant was to spent the amount of Rs.16 lakhs for repairs. It would be inclusive of Rs. 2,40,000/- being the contribution of the applicant out of the deposit amount. The balance amount would be spent by the complainant. As per the Memorandum of Understanding, there 3 ABA558.11.sxw was understanding that the partnership may continue for a period of 7 years, though after lock-in period of 2 years, it could be terminated and the person, who would be terminating the partnership, would be required to bear the expenses of the repairs. On 11.5.2011, the complainant lodged a report with the police alleging that on that day in the morning, the present applicant, accompanied by some other persons, had forcibly entered into the shop, caused damage and taken away certain properties and had taken forcible possession of the shop in violation of the terms of the contract. On that basis, the offence came to be registered. 4 According to the applicant, no such Memorandum of Understanding was entered into on 19.1.2009 nor the complainant had spent such a huge amount. The initial amount of Rs. 2,40,000/- has been adjusted. The period of contract is over and according to him, he was put in possession of the shop by the complainant himself. According to him he is falsely implicated in this case because complainant wants to regain possession of the shop. 4 ABA558.11.sxw 5 The learned Advocate for the applicant has taken me through the notice issued by the applicant to the complainant on 21.3.2010 and reply dated 21.9.2010 from the complainant, which does not make any reference to the Memorandum of Understanding dated 19.1.2010. He also pointed out from the report of the police submitted before the Sessions Court that as per the statements of neighbours, no such incident had taken place and no valuable articles appeared to have been taken away from the shop. The learned Advocate also contended that the Memorandum of Understanding is forged document. According to him, even if the Memorandum of Understanding is presumed to be reliable, it does not show that the amount was actually spent by the complainant. Learned Advocate, after taking instructions from his client, stated that to show his bonafide, the applicant is willing to deposit amount of Rs.8 lakhs, which may be his share in the total amount of expenses with request that the amount be kept in a fixed deposit. Learned APP has no objection. 5 ABA558.11.sxw 6 Therefore, in the event of arrest in C.R.No.278 of 2011, the applicant shall be released on his executing PR bond of Rs. 25,000/-with one or two sureties in the like amount with condition that he shall make himself available to the police for the purpose of interrogation/investigation and shall fully co-operate with the police, with further condition that he shall deposit amount of Rs.8 lakhs with the Metropolitan Magistrate, 32nd Court, Bandra within a period of 3 weeks from today. 7 After the amount is so deposited, the learned Magistrate shall invest the same in a fixed deposit with some nationalised bank initially for a period of 2 years, renewable from time to time according to need. The principal amount and interest thereon shall be subject to the future orders that may be passed by the appropriate Court. In case any civil suit is filed by any other party, the order about that amount may also be passed by such civil Court. Either of the parties shall be at liberty to approach the appropriate civil Court or before the trial Court for appropriate direction in respect of possession of the shop and as the key of the 6 ABA558.11.sxw premises is with the police at present, the police shall abide with the direction which may be given by the civil Court or the trial Court as the case may be. (J.H.BHATIA,J)