1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4730 OF 2009 1. Nilesh Radheshyam Lahoti 2. Mahesh Narendra Kate 3. Manish Rammurthy Pandey 4. Mayur Narayan Darji ....Applicants Vs. The State of Maharashtra ....Respondent ----- Mr.H.H. Ponda i/b. R.A. Shaikh for Applicant No.1 Mr. S. Dasgupta for Applicant No.2 Mr. A.H.N. Ponda for Applicant Nos.3 and 4 Mr.S.A. Shaikh - APP for State Mr.Satish Mishra for Intervenor ----- CORAM: V.M. KANADE J. DATED: 5TH DECEMBER, 2009 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicants, learned Counsel for the Complainant and the learned APP for the State. 2. The Applicants have been arrested in connection with an offence which is registered by the Borivali 1 Police Station for the offence punishable under sections 365, 447, 486, 395, 323, 324, 506 (Part-II), 120(b) of the Indian Penal Code r/w. sections 37, 135 of the Bombay Police Act with Section 25 of the Arms Act. 3. The Applicant No.1 who is Accused No.1 was arrested on 17.9.2009. The Applicant No.2 who is accused No.2 was arrested on 18.9.2009. The Applicant No.3 who is Accused No.3 was arrested on 19.9.2009 and the Applicant No.4 who is Accused No.4 was arrested on 23.9.2007. 4. According to the Complainant, he knew one Manish Pandey since he had studied with him in Chetana College while he was pursuing his M.B.A. Degree and after completing his M.B.A. Course, Manish Pandey started his share broking business and the Complainant was purchasing shares through him. According to the Complainant, the said Manish Pandey i.e. Applicant No.3 herein suggested that they would start share broking business in partnership. He gave his consent and they started the said business from January, 2009 in the name of Techno Shares and Stock Brokers. There was no written agreement of partnership between the two and according to him in February, 2009, the Applicant No.1 Nilesh Lahoti also joined their firm as 1 a partner. According to the Complainant, apart from doing business with Manish Pandey and Nilesh Lahoti, he was also having his own separate sales/purchase share accounts and he was also doing his business on his own. 5. According to the Complainant, some time in March, 2009 he purchased some shares and earned profit of Rs.2,00,000/-. According to him, the Applicant No.1 Nilesh Lahoti wanted a share in the said amount of Rs. 2,00,000/- and there used to be frequent altercations between two friends. The Complainant, however, did not give his share and due to the dispute between the partners, the Complainant left partnership firm and went to his native place. According to the Complainant, he was threatened by the Applicant No.1 on his mobile phone and he decided to come to Mumbai and finish the transaction. Thereafter, they agreed that they would meet at Delhi and he had taken his cheque book of H.D.F.C. Bank, blank instruction slip of his Demat Account of Indian Inflowline Company, S.T.M. Cards and came to Delhi on 19.5.2009. The other accused met him outside the New Delhi Railway Station. From there, he was taken to hotel at Pahadganj and, thereafter, he was forcibly taken by them to Mumbai. Dipesh Kamble had shown a revolver to him and Rohesh Hegde had shown him a knife and he was, thereafter, brought to Bombay and they got down 1 at Borivali Railway Station and he was taken to the apartment of the Applicant No.1 at Borivali and there, he was asked to give a cheque of Rs.8,33,000/- in the name of Mahesh Narendra Kate. He was detained in that hotel room and his gold bracelet of 42 grams, gold chain of 30 grams and gold ring of 26 grams were forcibly removed on 22.5.2009. He was forcibly asked to sign on the sale agreement of his flat, which was registered with Sub-Registrar, Mira Road. According to him, he was, thereafter brought near Sumernagar flyover bridge at Borivali (West) and Nilesh went to the Branch of H.D.F.C. Bank to ensure that an amount of Rs.2,14,000/- was credited to his account from the Complainant's account in H.D.F.C. Bank. On 21.5.2009, he was brought to Majestic Hotel and on 23.5.2009 when they left the Complainant on the Highway outside of Santacruz Airport, he went to his native place via Delhi. 6. According to the Complainant, he filed his complaint with Pahelganj Police Station on 25.5.2009. Since no action was initiated by the police, he sent the copy of the application to Borivali Police Station by registered post. He also submitted his complaint to the Hon'ble Home Minister, Maharashtra State. The legal notice dated 26.5.2009 was sent him through his advocate. However, the facts mentioned hereinabove 1 were not mentioned in the said legal notice. In the said legal notice, it was alleged that on 19.5.2009 the accused had kidnapped him and had kept him in Mumbai in several places and certain sale documents were executed by him on account of threats given by the accused and signatures were taken on the documents without any consideration and at the point of gun. 7. A reply was given by the Applicant No.1 through his advocate by his advocate's notice dated 5.6.2009 wherein all these facts were denied and it was contended that in the year 2009, the Applicant no.1 had opened on account in the Complainant's name and shares of Twin Star Soft Company were transferred in the Demat Account of the Complainant and dates and number of shares were also mentioned and, therefore, it was alleged that the Complainant has misappropriated Rs.63,00,000/- and cheated to the Applicant No.1 and that the Complainant had agreed to repay the said amount by transferring his flat and by issuing two cheques for an amount of Rs.5,00,000/- and Rs.50,00,000/- and, accordingly, the Complainant had willingly executed the said document. The cheques, however, which were deposited by the Applicant No.1, were dishonoured. Thereafter, on 17th September, 2009, a complaint was filed by the Complainant in Borivali Police Station vide C.R. No. 1 341 of 2009 in which several new allegations were made, which are mentioned hereinabove. Thereafter, the Applicants were arrested. 8. The learned Counsel for the Applicant No.1 submitted that the entire case of the Complainant is false, fabricated and bogus and has been filed as an after-thought. The learned Counsel for the Applicant has invited my attention to the statement of transactions, the share transfer account of the Applicant No.1, the cheques which were issued by the Complainant for an amount of Rs.50,00,000/- and Rs. 5,00,000/- which were deposited and were dishonoured by bank memo dated 29.4.2009 and also the summary of the transactions of the Complainant's account dated 29.4.2009 which indicates that the said cheques have been returned. He also showed me the extract of the share account of the Complainant which shows that 8,61,000 shares were deposited in his account by the Applicant No.1. The learned Counsel for the Applicant has also invited my attention to paragraph 5 of the copy of the agreement of sale in which it was mentioned that the Transferor should hand over vacant and peaceful possession of the flat along with relevant documents. He, therefore, submitted that as alleged by the Complainant, the possession was not handed over. He, therefore, submitted that the entire 1 story which was alleged by the Complainant was false and bogus. 9. The learned Counsel appearing on behalf of the Applicant Nos.3 and 4 submitted that the only role which was attributed to the Applicant No.3 was that he had introduced the Complainant to the Applicant No.1 and role attributed to the Applicant No.4 was that he was the recipient of certain shares out of a business transaction and the said accounts were frozen by the police. The role attributed to the Applicant No.2 is also similar to the role attributed to the Applicant No.1. 10. Having heard the learned Counsel for the Applicants, Complainant and the Learned APP for the State at length, in my view, prima facie case has been made out by the Applicants for grant of bail. It is an admitted position that even according to the Complainant, he was a partner of the Applicant No.1 and Applicant No.3 and the cheques which were issued by the Complainant and deposited by the Applicant No.1 for an amount of Rs.5,00,000 and Rs.50,00,000/- were dishonoured and the said incident took place prior to the alleged date of kidnapping. The agreement for sale was also registered in the presence of Sub- Registrar,Thane. the share account also indicates 1 that he had deposited 2,20,000 shares in respect of Twin Star Soft Company and also 1,00,000 shares on 4.3.2009 and on 17.3.2009. All these documents, therefore, clearly indicate that the said allegations which are now made out by the Complainant do not appear to be true. It appears that the Complainant was to pay an amount of Rs.5,00,000/- and Rs. 50,00,000/- to the Applicant No.1 and he had not received the said amount. Under these circumstances, it is difficult to conceive that the Applicant No.1 would seek share in the share transaction of Rs. 2,00,000/- which according to the Complainant was the profit earned by him in his own transaction. The Sessions Court also has observed after going through the material on record that it is difficult to state as to who had cheated whom and, thereafter, surprisingly rejected the application for bail. In any case, the Applicants are in jail since September, 2009. They were remanded to the police custody and, thereafter, they have been transferred to the judicial custody. Further detention of the Applicants, in my view, is not necessary. The Applicants, therefore, deserve to be released on bail. 11. The Applicants shall be released on bail in C.R. No. 341 of 2009 registered with Charkop Police Station in a sum of Rs.10,000/- each with one or two sureties 1 each in the like amount. They shall report to the concerned police station once in a month. They shall not threaten the Complainant or any of the witnesses. 12. The Trial Court shall not be influenced in any manner by the observations made by this Court while deciding the case since these observations are essentially prima facie in nature. 13. Application is disposed of. (V.M. KANADE J.)