1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION jmi CRIMINAL APPLICATION NO. 5798 OF 2009. Mr. Haresh Kapadia. ..Applicant. v/s. The State of Maharashtra. ..Respondent. .... Mr. M.S. Mohite, for Applicant. Mr. M. H. Ramsinghani, First Informant (Original Complainant). Mr. Y.M. Nakhwa, APP, for Respondent-State. .... CORAM : S.J.KATHAWALLA, J. (VACATION JUDGE) DATE : 24TH DECEMBER 2009. P.C. The present application is filed by the applicant under section 438 of the Code of Criminal Procedure, 1973 . The applicant is apprehending arrest in connection with the offence registered vide MERC No.5/09 under sections 420, 120(b) of Indian Penal Code at Tardeo Police Station. The said offence has been registered in pursuance to directions under section 156 (3) of the Code of Criminal Procedure, 1973 issued by the Additional C.M.M., Girgaon, Mumbai, in Case No. 181/SW/2009 on a complaint lodged by M/s. Metal 2 Rolling Works Limited, through its constituted attorney Shri Ghansham Shah. The said complaint has been lodged by M/s. Metal Rolling Works Limited against the present applicant, one Shri Ashik Shah and Smt. Darshan Shah and M/s. Dhavan Spinning and Knitting Limited (Accused Nos. 1 to 4 respectively). 2. It is alleged in the complaint that the applicant use to work as Commercial Agent of the complainant company for several years. It is further alleged that one Shri Ramesh Shah alongwith the applicant had a meeting with the Directors of the complainant company. During the said meeting, they informed the Directors that there is a company by name New Rayon Mills Company Limited and the said company had authorised Ramesh Shah to put up a proposal for the assignment of the company’s property. They had informed the Directors that Debt Recovery Tribunal had declared the Rayon Mills Company Limited as a defaulter and as a result, the tenanted premises of the said company situated at Tulsi Pipe Road, admeasuring about 1 lac. sq. ft. was to be put for sale for meeting the 3 liabilities of the said company. They informed the Directors that they had the experitse to get the assignment completed in the complainant’s favour provided that they took over and discharged the liabilities of Rayon Mills Company Limited as a condition for assignment. They also told them that an amount of Rs.1 crore was required to be deposited with Bank of Maharashtra and further amount of Rs. 1 crore with the Sangli Bank to show their bonafide interest in the said transaction and thereafter they would obtain the consent of the banks for assignment of the tenanted property in their favour. They also told the Directors that they would charge an amount of Rs. 1.25 crores for executing the aforesaid deal. It is alleged that the pay order no. 309436 dated 20 th October 2006 for the sum of Rs.1 crore favouring the Bank of Maharashtra and a cheque dated 19 th October 2006 for the sum of Rs. 1 crore favouring Sangli Bank were handed over to them on the condition that the amount should be deposited in the “No Lien Accounts” of the said banks. It is further alleged on the request of the applicant that a cheque dated 9 th October 4 2006 for an amount of Rs. 1.25 crores was paid as fees to aforesaid Mr. Ramesh by way of a cheque issued in favour of M/s. Dhavan Spinning and Knitting Limited of which accused nos. 2 and 3, Mr. Ashik Shah and Smt. Darshna Shah were the Directors. It is alleged that the applicant had promised to complete the deal within three months failing which the amount will be returned with interest. 3. According to the complainant, the deal was to be completed within a period of three months from 9 th October 2006, i.e. by January 2007. Though the deal was not completed and the amount of Rs.1.25 crores not returned back to the complainant, the complainant filed the complaint only after a period of three years, i.e. on 30 th September 2009. Admittedly, the said Ramesh who was the father of the accused no.2 expired on 17 th January 2007. The amount of Rs. 1.25 crores is admittedly deposited in the account of M/s. Dhavan Spinning and Knitting Limited, in which the applicant is neither a shareholder nor a Director. A civil suit has been filed by the complainant against all the accused on 8 th October 2009 for 5 recovery of the said amount of Rs.1.25 crores. This Court by its order dated 4 th December 2009 has granted anticipatory bail to accused nos. 2 and 3. 4. Apprehending arrest, the applicant had filed an application seeking anticipatory bail before the Sessions Court, Greater Mumbai, by order dated 21 st December 2009. The learned Sessions Judge has rejected the application of the present applicant seeking anticipatory bail mainly on the ground that prima-facie it appears that the applicant is the main person who is involved in the said transaction. The amount of Rs.1.25 crores is involved in the said transaction. Though the amount has gone to the account of M/s. Dhavan Spinning and Knitting Limited, the main persons who accepted the cheque are Ramesh Shah (now deceased) and the present applicant. However, due to the death of Ramesh Shah, the applicant is fully responsible for the completion of the said transaction. 5. I have heard the learned Advocates appearing for the parties at some length. The learned Advocate appearing for the 6 complainant states that the applicant is the main accused since he had made representations as set out in the complaint of the applicant, he had accepted the cheque of Rs. 1.25 crores which was deposited in the account of M/s. Dhavan Spinning and Knitting Limited. Accused no.3 is the daughter of the applicant. He has submitted that the applicant had initially denied his involvement qua the present transaction. The learned Public Prosecutor on being asked why custodial interrogation of the applicant is required, submits on instructions by the Investigating Officer who is present in Court that the applicant may be directed to attend the police station on daily basis for approximately a week and his custodial interrogation is not required. 6. Though the amount of Rs.1.25 crores was handed over by the complainant to the applicant as well as the deceased Ramesh, it is an admitted fact that the amount was deposited in the account of M/s. Dhavan Spinning and Knitting Limited, of which accused nos. 2 and 3 are the Directors. There is nothing on record to show that the 7 applicant has anything to do with M/s. Dhavan Spinning and Knitting Limited. There is further nothing to show that M/s. Dhavan Spinning and Knitting Limited have made any payments to the applicant. The Directors of M/s. Dhavan Spinning and Knitting Limited have been granted anticipatory bail by this Court on 4 th December 2009. The complainants have filed a complaint after a period of three years and have also filed the civil suit seeking return of Rs.1.25 crores inter-alia from the applicant. No reason whatsoever is pointed out to show why custodial interrogation of the applicant is required in the matter. The learned A.P.P. has already submitted that the applicant be directed to attend the police station daily for a period of one week and his custodial interrogation is not required. 7. In view thereof, I pass the following order :- (i) In the event of the arrest of the applicant in connection with the offence punishable under section 420 and 120-B of the Indian Penal Code which is registered with Tardeo Police Station vide MECR No.05 of 2009, he shall be released on bail in the sum of Rs. 8 10,000/- with one or two sureties in the like amount. Initially, in the event of arrest, the applicant shall furnish cash bail of Rs. 10,000/- and within two weeks thereafter, he shall furnish surety of the said amount. (ii) The applicant shall report to Tardeo Police Station for a period of one week from 26 th December 2009 between 12.00 noon to 3.00 p.m. and thereafter, as and when called. The applicant shall not leave the jurisdiction of this Court without prior permission of this Court. 8. The application for anticipatory bail is disposed of. Parties to act upon an ordinary copy duly authenticated by Shirastedar of this Court. [ S.J.KATHAWALLA, J. ]