1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 531 of 2010 Avinash P. Wadgaonkar ... Applicant versus The State of Maharashtra ... Respondent ... Mr.Kolmeet Singh i/b Shri Vinod R. Gupta for the applicant. Mr.S.N. Gawade APP for the State. CORAM : D.G. KARNIK, J. DATED : 23rd February 2010 P.C. 1. Heard. 2. By this application, applicant seeks bail in connection with C.R.No. I-108 of 2009 registered with Nerul Police Station for an alleged offence punishable u/s.418, 419, 420, 465, 467, 468, 471, 475 r/w sec.34 of the IPC. 3. On 19th March 2009, one Mr.Raghuveer Digpal (hereinafter referred to as “the complainant), Advocate & Notary lodged a FIR stating that Smt.Bharati Kulkarni, the wife of the present applicant was preparing false and fabricated documents by using false and fabricated 2 notarial stamps. Investigation was carried out by the police and it was noticed that the said Bharati Kulkarni was so preparing the false and forged documents by using notarial stamps of different notaries. Bharati Kulkarni was arrested and the present applicant who is also an advocate and husband of Bharati Kulkarni was arrested on 19th May 2010. He is in custody since then. 4. One of the charges levelled against the applicant is that he is not even an advocate and is not entitled to do legal practice. A copy of the Sanad issued by the Bar Council of Maharashtra and Goa is produced on record by the applicant. Investigation carried out by the police also reveals that the applicant is registered as an advocate and his name appears on the role of Advocates enrolled by the Bar Council of Maharashtra. No case is made out that applicant is practicing without being an advocate. 5. So far as the offence regarding preparation of false notarial documents are concerned, the prime accused is his wife. There is no direct material showing that applicant had himself prepared any false or fabricated documents or practised as a notary. Learned APP fairly conceded that even there was no direct evidence of applicant himself preparing any false and fabricated notarial document. He however submitted that applicant had helped his wife or atleast cannived at her preparing false and fabricated notarial documents. As there is a prima facie case against his wife, applicant should not be granted bail. 6. In Bhagirathi Judeja Vs. State of Gujarat AIR 1984 SC 372, strongly relied upon by the applicant, the Supreme Court has held that 3 mere fact that a prima facie case is made out is no ground for refusing the bail. The Supreme Court has observed:- “If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. 7. As held by the Supreme Court, refusal of bail cannot be by way of punishment for an alleged crime. Existence of prima facie case is a condition precedent for detention in custody. If there is no prima facie case perhaps that may be a ground for discharge. Bail cannot be denied merely because there is a prima facie material connecting the accused to the crime. There would have to be further grounds for refusal of bail, such as possibility of accused being not available for trial because he may abuse the bail and abscond or that he may threaten the prosecution witnesses or tamper with the evidence or any other good ground. In the present case, there is no allegation that applicant, if granted bail, would not be available for trial and/or is likely to flee and/or is likely to threaten the prosecution witnesses. 8. In the facts and circumstances of the case, in my view, applicant can be granted conditional bail. Hence, I pass the following order:- 4 O R D E R Applicant be released on bail on his executing P.R bond of Rs. 20,000/- with one surety of the like amount subject to a condition that the applicant shall not threaten any of the prosecution witnesses and/or tamper with the prosecution evidence. (D.G. KARNIK,J.)