1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION (ABA) NO.387 OF 2011 (IRSHAD KHAN SALIM KHAN //VS// STATE OF MAH. THR. P.I. CRIME BRANCH, PS SADAR, NAGPUR) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. V.N.Morande, Advocate for Applicant. Mr. D.M.Kale, A.P.P. for Respondent. CORAM : M.N.GILANI, J. DATE : DECEMBER 05, 2011. 1. This is an application under Section 438 of the Code of Criminal Procedure for releasing the applicant/ accused on anticipatory bail against whom offence bearing Crime No. 110 of 2011 is registered with Police Station, Sadar, Nagpur for the offence punishable under Sections 420, 465, 468, 471 read with Section 34 of the Indian Penal Code and Sections 3, 4 and 6 of Chit Fund Act. 2. None other than the accused, on 10.04.2011, lodged first information report alleging commission of the offence of cheating, forgery etc. and on that basis the offence came to be registered. 3. It is alleged that 'Unipay 2U Marketing Pvt. Ltd.' is a Malaysian based company having its office at Bangalore. The object of the company was to receive deposits from various investors and to earn profit by purchasing raw gold and refining it. While receiving deposits the company had promised that within ten months the investors / depositors would get double the amount deposited. It was also informed to the public at large that citizens of sixteen countries had invested with the company. In response to that the applicant/ 2 accused and others invested with the company. Thereafter the position of the applicant/ accused was changed from merely an investor to a group leader. In the capacity of group leader he canvassed for the company and succeeded in earning number of deposits. 4. In February, 2011 it was noticed that there was no repayment of the deposits/ investments by the company to its various investors. Therefore, the applicant/ accused and other investors started inquiring about non-refund of their deposits. Ultimately it was noticed that Unipay 2U played fraud on the depositors and therefore, the present applicant/ accused lodged first information report. 5. It is prosecution case that while investigating into the offence registered on the basis of the report lodged by the applicant/ accused it was noticed that the present applicant/ accused is guilty of criminal breach of trust and other offences. 6. In reply, at page Nos. 8 to 12 the modus operandi of the applicant/ accused is explained. Through the statements of various other investors viz. Dr. Meghnath Hulke, Manda Dupare, Usha Khakse and others it was revealed that he was applicant/ accused who used to promise them to return double the amount of their investments within ten months. He had distributed various brochures and some of them were seized from his custody. Since February, 2011 one Gautam Bhattacharya of the said company had entrusted day to day work to the present applicant/ accused. The applicant / accused was in Malaysia from July, 2011 to October, 2011. From his possession deposit receipts of the account in Axis Bank have been seized. A huge amount appears to have been deposited in two accounts in the name of applicant/ accused and his wife. It was further revealed 3 that on 30.09.2011 the applicant/ accused received Rs.25,94,000/- and same was deposited in his accounts. It is, therefore, stated that the first information report lodged by the applicant/ accused appears to be partly false in the sense that it was deliberately made exculpatory. In order to show repayment, the applicant/ accused has issued cheques from his own account. This shows his involvement in the entire affairs of the said company. 7. The grievance of the applicant/ accused is that after he lodged report, the investigating agency has not been able to investigate dispassionately and for no reason is making allegations against him. 8. In application at paragraph 7 the applicant/ accused has tried to explain his innocence as under : “7.It was also convinced to the investigating officer that to withdraw profit returns from the account of investors in the company was time-consuming and expensive process. It is submitted that to withdraw amount from the account of investor in the company, bank of the investor used to deduct 10% dollars conversion charges, apart from this, bank used to consume time of one month for clearance of dollars into Indian currency. The other option with the investors was that they used to give consent to the applicant to get amount from the their account in the company to the account of applicant in the form of dollars, against this the applicant used to pay the investors in Indian currency from his account from the amount of new investors investing amount through the account of applicant, for which the applicant used to invest in the name of fresh investors from the dollars accounted in his account in respect of profit return of the investors to whom he paid in Indian currency from his account. In this process 10% charges for conversion of dollars to the Indian currency were used to save.” 4 9. The aforesaid averments are consistent with the reply filed by the learned Additional Public Prosecutor to show that the role of the accused is not merely that of investor but he was the key person and who used to operate with the company and as such is responsible for duping various gullible investors. 10. Considering the nature of the offence where the hard earned money of the investors in the sum of more than Rs.1.5 crores is siphoned off by giving false promise of doubling the amount within ten months and the role of the accused/ applicant appearing in the affairs of the said two companies, it would not be desirable to exercise the discretion of granting anticipatory bail in his favour. The application is rejected. JUDGE RR..