Preeti W/O Harihara Mahapatra v. The State Of Maharashtra
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1166 OF 2015.
Mrs. Preeti Harihar Mahapatra, age 33 years, occ. Housewife, R/o Flat No. 142, Applicants.
14th Floor, Building No.4B, Kalpataru, Mumbai - 400 093
VERSUS
The State of Maharashtra, through the Commissioner of Police, Aurangabad Respondent.
.....
Shri V.D.Sapkal, Advocate for the Applicants. Shri M.M.Nerlikar, Additional Public Prosecutor for the State of Maharashtra.
Shri. R.S.Deshmukh, Advocate to assist P.P.
.....
CRIMINAL APPLICATION NO. 1553 OF 2015 Harihar Mahapatra, age 43 years, occ. Business, R/o Flat No. 142, Applicant.
14th Floor, Building No.4B, Kalpataru, Mumbai - 400 093
VERSUS
The State of Maharashtra, through the Commissioner Of Police, Respondent.
Aurangabad Shri S.G.Ladda, Advocate for the Applicant.
Shri M.M.Nerlikar, Additional Public Prosecutor for the State of Maharashtra.
Shri R.S.Deshmukh, Advocate to assist P.P.
.....
CORAM : V.M.DESHPANDE, J.
DATED : 1st April, 2015.
O R D E R : - [1] These two applications can conveniently be disposed of by the common order, since the applicants in both these applications are apprehending their arrest in connection with Crime No. I-17 of 2015, registered with Jinsi police station, Aurangabad, for the offences punishable under Sections 420, 467, 468, 471 r/w 34 of the Indian Penal Code. [2] I have heard Shri V.D.Sapkal, learned counsel for the applicant Preeti in Criminal Application No. 1166 of 2015 and Shri S.G.Ladda, learned counsel for the applicant Harihar in
Criminal Application No. 1553 of 2015. I have also heard Shri M.M.Nerlikar, learned Additional Public Prosecutor for the respondent/State and Shri R.S.Deshmukh, learned counsel representing the first informant in both the applications. Both the learned counsel for the applicants strenuously urged before me to point out that the respective applicants have made out a prima facie case in their favour for grant of anticipatory bail. Both the learned counsel extensively took me through various documents filed on record, including various e-mails, the complaint which was registered as noncognizable offence at respective police stations at Mumbai, and also the order passed by the learned court below. [3] The first information report is recorded at police station Jinsi, Aurangabad on 18.1.2015. It was lodged by Dr. Percy Savakshaw Jilla.
Since the said first information report was disclosing commission of a cognizable offence, the investigating officer has recorded the said first information report as Crime No.17 of 2015 for the offences punishable under Sections 420, 467, 468, 471 r/w 34 of the Indian Penal Code. The first information report shows that the offence has commenced from November, 2011.
[4] The Hon'ble Apex Court in the case of Niranjan Singh & Ors. Versus Prabhakar Rajaram Kharote & Ors, reported in
1980 A.I.R. 785 held that, a detailed elaboration and evaluation of the prosecution case need to be avoided at the time of consideration of the bail application, since it prejudices both the prosecution as well as the accused persons. However, in order to reach to the correct conclusion in the present matter, this court shall be referring certain events those are essential for the just decision of these two applications.
[5] Applicants Preeti and Harihar are the husband and wife. They are the Directors of one Private Limited Company, known as M/s HM Skyscrappers Pvitate Limited. The said company is engaged in the construction business at Mumbai. The first information report proceeds that in the year 2011 in the month of November, applicants Preeti and Harihar came to the first informant and his wife, who are the doctors by profession and are having IVF (Test Tube Baby) center at Aurangabad.
The first information report proceeds that due to the relations as doctor and the patient, the relations between them in due course of time became thick. The applicants disclosed that they are the Directors of a construction company and the said construction company is about to commence the construction of a building at Carter Road, Bandra and requested the first informant and his wife to invest amount.
The exception could not be taken in the statement made in the first information report to the effect that the relations between the applicants and the first informant and his wife became thick. The relations between the patient and the doctor are special in nature, especially the type of treatment for which the patient approaches to the doctor. Obviously, the treatment for IVF (commonly known as test tube baby) is a long standing treatment, and therefore, if the relations between the applicants and the first informant converted into thick relations, prima facie there cannot be any doubt about such relations.
[6] The first information report further proceeds that after the request was being made by the applicants for investment of the amount, the applicants have also made known to the first informant that the first informant and his wife will get a share in the profit to the extent of 30 per cent. Further the applicants have also disclosed about the steps taken by them for constructing a building. In the first information report, specific accusations are made against the present applicants that due to the proposal and allurement to the first informant that if the amount is invested in the said project, they will get handsome returns, the first informant and his wife agreed to invest the huge amount in the said project. The first information report further discloses that the applicants on 15.10.
2012 sent a e-mail by which two resolutions of the Board of Directors of H.M. Sky -scrappers Pvt.Ltd. in respect of the meetings dated 21.3.
and 5.6.2012 were sent. By the said resolutions, the construction company has resolved that the company will be entering into the partnership with the wife of the first informant. Accordingly by e.mail dated 23rd October, 2012 certificate to that effect was sent by the applicants.
It is also disclosed in the first information report that thereafter the other e-mails were sent. It is also stated that the applicants also stayed for 8-10 days in the residential house of the first informant.
[7] It has been specifically averred in the first information report that on 4.5.2012 the applicants sent a e-mail by giving schedule of investment. It was also promised by the applicants that on investment of Rs.8.50 Crorers and in lieu of the said investment the first informant was to get residential flat of 5,000 sq. ft area and Rs.4,30,00,000/- by way of profit. The first informant in pursuance to the schedule, paid following amount to the applicants :- Date Amount.
9th February, 2012.
20 Lakhs.
29rd April, 2012.
1 Crore.
15th June, 2012.
1 Crores - 40 Lakhs.
12th October, 2012.
70 Lakhs.
2nd November, 2012.
80 Lakhs.
3rd December, 2012.
1 Crores - 30 Lakhs.
It is specifically stated in the first information report that the amount was received by applicant Harihar and one Manoj in presence of one Sachin Bhogaokar.
The first information report further proceeds that in spite of giving huge amount when the applicants were trying to avoid the first informant, the first informant requested the applicants to show the place of construction of the building i.e. the project for which the first informant has invested huge amount. That time, evasive replies were given by the applicants. Therefore, the first informant carried a valid impression in his mind that he has been duped, and therefore, he obtained the copy of the commencement certificate which was sent to the first informant by the applicants through using his right under the Right to Information Act from the Municipal Corporation, Greater Mumbai. After obtaining the commencement certificate from the Corporation, the first informant was shocked to see and know that the commencement certificate which was given to the first informant by the applicants was a forged and fabricated document and it was never issued in favour of the company of which the applicants are the Directors. Therefore, ultimately the first information report was lodged.
[8] It is the common submission of the learned counsel for both the applicants that it is a pure civil dispute. According to them, the first informant is pressurizing them to extract money
from them. According to the applicants there was, of course a transaction between the applicants and the first informant, however, that transaction was in respect of only of purchase of a flat at Bandra, and for that, the applicants have received Rs.30 Lacs from the first informant. However, according to the learned counsel for the applicants, ultimately it was found by the applicants that the project at Bandra is not viable and there are certain difficulties in executing the said project, and therefore, the said project was scrapped and Rs.35 Lacs were repaid to the first informant by R.T.G.S. Mode through the Bank.
According to the learned counsel for the applicants, since the first informant was having a deep interest for taking a place at Mumbai, hence, he was annoyed by the act on the part of the present applicants to scrap the said project, and therefore, though the first informant had received Rs.35 Lacs from the present applicants, he started exerting pressure on the applicants for making the huge amount. For that, according to the applicants certain threats were also given by the first informant and his wife resulting into lodging of the complaint with police station MIDC at Mumbai on 13.5.2014, upon which a non-cognizable offence was registered vide NC No. 1792 of 2014.
Learned counsel also invited my attention to the legal notice which was issued by the applicant Harihar to the wife of the first informant Manju on 7.4.2014, by which it was pointed out that Rs.35 Lacs were also repaid to Manju on 21.11.2013
from the personal account of Harihar.They also invited attention of this court to the complaint lodged by Harihar with the Senior Police Inspector of MIDC police station, Mumbai, wherein according to them, the first informant and his wife are exerting pressure in order to extract money from them, and therefore, request was made to the Senior Police Inspector of MIDC police station, Mumbai to register the first information report against them. They also invited my attention on the reply notice dated 28.4.2014 given by the wife of the first informant to the legal notice of Harihar, dated 7.4.2014.
[9] Learned counsel for the applicants further submitted that after the interim order was granted by the learned Additional Sessions Judge, Aurangabad, they have attended the police station and the documents are already seized by the investigating officer. According to the learned counsel for the applicants, the custodial presence of the present applicants is not at all necessary for the purpose of interrogation and for that they relied upon the authoritative pronouncement of the Consti -tutional Bench of Hon'ble Apex Court reported in Gurubaksh Singh Sibbia, etc. vs The State of Punjab [AIR 1980 S.C. 1632].
[10] Another limb of argument of both the learned counsel for the applicants is that when the first informant has lodged a complaint that he has invested huge amount of more than Five
Crores, it was obligatory on his part to show that at the relevant time they were having sufficient amount with them and for that the learned counsel relied upon a decision of learned Single Judge of this court in the matter of Mehboob Kadar Shaikh vs State of Maharashtra [2014 (3) LJ Soft 38]. Further, the learned counsel submitted that the police machinery should not be pressed into service for recovery of the amount because according to the learned counsel, at the most the first informant has to recover the remaining amount from the applicants, and therefore, to buttress the said submission, they relied upon the authoritative pronouncement of the Apex Court in the matter of Ravindra Saxena vs State of Rajasthan [AIR 2010 SC 1225].
Lastly, they submitted that since the applicants have already extended cooperation to the investigating officer, presently their custodial presence is not required at all. [11] Per contra, the learned Additional Public Prosecutor Shri M.M.Nerlikar submitted with vehemence that the present case is such, in which looking to the nature of accusations in the first information report against the present applicants, gravity of the offence and the reasons elaborated in the reply filed on behalf of the investigating officer, the custodial presence of the applicants is absolutely essential, and therefore, he prayed rejection of the present applications.
investigation done till today by the investigating officer and also pointed out the incriminating material is appearing in the investigation papers against the present applicants. He, therefore, submitted that in the present case the discretionary relief should not be granted in favour of the present applicants. He also submitted that the present applicants have flouted the order of interim protection granted by the learned Additional Sessions Judge.
[12] Shri R.S.Deshmukh, learned counsel for the first informant has also supported this submission of the learned Additional Public Prosecutor. According to the first informant, the applicants have issued two cheques in favour of the first informant and his wife, one of HDFC bank for Rs. 2,61,00,000/- and another of ICICI bank for Rs. 2,00,00,000/- and the present applicants assured the first informant to deposit the said cheques. However, when those cheques when deposited with the Bankers of the first informant, both the cheques were dishonored by the Bankers of the present applicants, in so far as HDFC bank, cheque was returned with the remark "account is closed" and in so far as ICICI bank, cheque was returned with the remark, "funds are insufficient", and therefore, both of them submitted that the applications need rejection. [13] The foremost submission of the counsel for the applicants is that the transaction between the first informant and
his wife on one hand and the applicants on the other, was only in respect of purchase of a residential flat at Carter road, Bandra. According to them, the price fixed for the said flat was Rs.Five crores and for that Rs. 30 Lacs were paid by the first informant and his wife through cheques. According to the applicants, the said project wherein this apartment was to be constructed was required to be scrapped by the applicants for the reason that their legal consultant had advised them not to proceed with the said project, since the said project was having some deficiencies. Therefore, according to them, they refunded Rs.35 Lacs through the Bank by RTGS mode.
[14] The question, this court is required to answer is that the transaction between the applicants and the first informant was only restricted to the purchase of a residential flat at Bandra alone or it was a partnership in between the first informant and his wife on one hand and the present applicants who are the Directors of H.M. Skyscrappers Private Limited on the other, and for that huge amount was invested.
[15] In that behalf, it would be useful to have the reference to the report lodged by applicant Harihar with MIDC police station, Mumbai on 13.5.2014 against wife of first informant, which was registered as NC No. 1792 of 2014. Perusal thereof clearly shows that there was a transaction between the applicants on one hand and the first informant and his wife on
the other, for commencement of a new business and project for building construction and the non-applicant for the said project has invested certain amount, however, since the said project was remained to be completed, therefore, Harihar has refunded the entire amount. The said complaint further states that since the non-applicant in said complaint, now there is no profit from the said project, extends threats to the applicants. [16] If the transaction between the applicants and the first informant and his wife was only for purchase of flat, such averment would not have found place in the complaint that they have lodged with MIDC police station at Mumbai resulting into registration of a non-cognizable case. It clearly reflects that some kind of other transaction was there in between the applicants and the first informant and his wife and not only in respect of the purchase of the flat, as argued and suggested by the learned counsel for the applicants.
Further it is pointed out by the first informant that two cheques were given to the first informant and his wife of the H.D.F.C. bank and I.C.I.C.I. Bank, which were dishonored for the reasons as mentioned in the earlier part of this order. To challenge the said submission made by the first informant, learned counsel for Harihar, Shri S.G.Ladda handed over a complaint, dated 21.1.2015 by Harihar to the Senior
Police Inspector, M.I.D.C. Police station, Mumbai, across the bar along with its Xerox copies. Both are taken on record and those are marked as 'X' and 'X-1' for the purpose of identification purpose.
[17] Learned counsel Shri Ladda for the applicant Harihar invited my attention to paragraph 10 of the said complaint that around May, 2013 it was decided to close the office and Miss Natasha Jilla, who is the daughter of the first informant and who was involved in the shifting and settling the office, has taken away the entire stationary, computers, common seal, stamps, original share certificates, minutes book, original Board Resolutions, cheque books of the company and also some signed cheques of his personal account in HDFC bank, Andheri East Branch and ICICI bank Andheri West Branch.
[18] Inviting this, the learned counsel tried to impress upon the court that the cheques which are mentioned to be given by the applicants to the first informant were not given by the applicants, but it appears that Natasha the daughter of the first informant has procured the same at the time of shifting of the office.
At the first blush, the argument submitted by the learned counsel appears to be very attractive, however, on closer scrutiny, the said submission of Shri Ladda, learned counsel
needs rejection. It is unbelievable that the signed cheque book which did not find place in the office and all other articles as mentioned in paragraph 10 of the complaint were taken away by Natasha the daughter of the first informant in May, 2013. However, for that complaint is lodged on 21st January, 2015 i.e. after the filing of first information report against the applicants. Further the applicants are not saying what action was taken by the Senior Police Inspector, MIDC police station, Mumbai on the said complaint. The applicants have not pointed out that the Senior Police Inspector, MIDC police station, Mumbai has registered offence against Natasha. If no steps were taken by the said Police Inspector, it was open for the present applicants to pursue the matter with the higher ups of the MIDC police station, Mumbai.
[19] Be that as it may, the applicants have filed a complaint, dated 13.5.2014 with the Senior Police Inspector, MIDC police station, Mumbai. The said complaint was a complaint for extortion and criminal intimidation exerted against the applicants by the wife of the first informant. In paragraph 20 of the said complaint, specific prayer is made for registering the offence against the wife of the first informant for extortion and also for extending threat for death and criminal intimidation. The said complaint, even assuming was given on 1 3.5.2014, the applicants could not point out anything from
record to show that the offence was registered against the wife of the first informant on the basis of the said complaint. In the said complaint a very serious threat to their life has been alleged, therefore, it could not be digested that the applicants will not pursue their efforts to book the perpetrators of the crime. The applicants could not point out anything before this court as to what steps were taken in respect of the complaint, dated 13.5.2014 by the Senior Police Inspector, MIDC police station, Mumbai, namely whether any crime was registered against Manju or in the event of not taking appropriate action against Manju in accordance with law what steps were taken by the applicants to see that the perpetrators of the crime are booked and are dealt with in accordance with law.
Such an inaction on their part speaks volumes against them. [20] It is strenuously urged by the learned counsel for the applicants before this court that the applicants have already repaid the entire amount of Rs. 30 Lakhs and to that effect the first informant has given communication to the applicants dated 1st December, 2013, by which the first informant is confirmed that no dues are receivable from the applicants or the Company either to the First Informant or to his wife. The said letter is available at Page No.91of the compilation of Criminal Application No.1553 Of 2015.
Perusal of the aforesaid shows that, it is most important document for the applicants.
It is to be noted that on 17th May, 2014 and 22nd May, 2014, the applicants were in receipt of two notices from the Economic Offences Wing and Cyber Crime Cell, Aurangabad City. ( In short, the EOW & Cyber Crime Cell, Aurangabad.) The receipt of these notices are not at all disputed by the applicants. In fact, these notices are annexed alongwith the Application. Notice dated 7th May, 2014 shows that the applicants were called upon to attend the office of the EOW & Cyber Crime Cell, Aurangabad on 20th May, 2014 for the purpose of answering certain questions relating to the application filed against them by the First Informant Dr. Parsi Sawaksha Jilla. Inspite of receipt of such notices, the applicants did not attend the EOW & Cyber Crime Cell, Aurangabad. It appears that reply was sent through e.mail to the EOW & Cyber Crime Cell, Aurangabad contending therein that applicant - Harihar Mahapatra was in Delhi till 2nd June, 2014.
So called "No Dues Certificate" is dated 1st December, 2013. Thus, when the applicants received the notices from the EOW & Cyber Crime Cell, Aurangabad, the applicants could have attended the said Wing and could have pointed out the communication dated 1st December, 2013 however, for the reasons best know to the applicants, they chose not to show such
important document to the EOW & Cyber Crime Cell, Aurangabad When these two requests were sent to the applicants; that time offence was not registered against the present applicants, nor there is anything available on record by which it can be said that the applicants were apprehending any coercive action against them. Therefore, it was expected from them as a dutiful citizen of this Country to attend the office of the EOW & Cyber Crime Cell, Aurangabad in pursuance to the Notice issued in accordance with the Law.
Further the present applicants filed an application for grant of anticipatory bail before the learned Sessions Judge, Aurangabad on 29th January, 2015. Even at that time, the communication dated 1st December, 2013 was not placed on record.
Further in pursuance to the conditions imposed by the court below while granting interim anticipatory bail, the applicants were directed to attend the concerned Police Station however, that time also they did not place communication dated 1st December, 2013 in the hands of the Investigating Officer. The learned trial court has observed in the order that, in the morning hours of 13th February, 2015 a pursis was filed
on record to the effect that said document is produced before the Investigating Officer. However, even before the learned trial court, that time, the Investigating Officer has stated that no such document was disclosed to him or was given to him. Further while opposing present application, on affidavit the Investigating Officer has stated that the applicants have not handed over the communication dated 1st December, 2013 purportedly written by the first informant - Dr. Parsi Jilla.
[21] I have an occasion to peruse the communication dated 1st December, 2013 which is placed on record at Page No.91 of the compilation. In view of the place of signature of Dr. Parsi Jilla, as appearing in the said document, prima facie, it appears that contents of said document were written subsequently. If really such important document was in possession of the applicants since the year 2003, the applicants would not have missed ample opportunities, available with them to place it before the authority to show their innocence. Hence, at this stage, no importance can be attached to the said document. [22] The applicants have stated that after interim order was passed in their favour by the learned trial court, they have attended the investigating officer and all the documents are seized from them. This particular submission is seriously disputed by the investigating officer by filing his detailed affidavit. The prosecution has pointed out that the applicants
have not produced any document to the investigating officer. At this stage, the court will obviously rely on the statement of the investigating officer, who is in command of the entire investigation.
[23] Further, in reply, it has been stated by the investigating officer that during the course of the investigation he has collected compact disk of the conversation between the applicants and the first informant and his wife. The learned Additional Public Prosecutor has made available to this court the investigation papers, which contain the transcription of the conversation that occurred between the applicants on one hand and the first informant and his wife on the other. Perusal of the same clearly shows that the applicants have received more than Rs. Five crores from the first informant and his wife and not Rs.30,00,000/- as stated by the present applicants.
[24] Further the submission of the learned counsel for the applicants that, the transaction was only in respect of a flat and not as the partner in project, cannot be accepted in view of the availability of the material in the investigation papers. The learned Additional Public Prosecutor has pointed out to this court from the investigation papers, a email sent by the present applicants to the first informant. It clearly shows that the first informant and his wife were required to pay Rs.7,50,00,000/- in cash and Rs.
amount they were to earn a flat of area of 5,000 sq. ft. worth Rs.21⁄2 crores and the profit from the project i.e. more than Rs.4,30,00,000/-. This email clearly demonstrates the case of the present applicants that the transaction between the applicants and the first informant and his wife was not only in respect of a flat.
[25] The learned Additional Public Prosecutor has submitted that custodial presence of the present applicants is essential for following :- (1) For determination of voice as appearing in the compact disk to seize.
(2) The computer and scanner sending the email to seize.
(3) The mobile phones and SIM cards of the applicants.
In that behalf it would be apt to refer to the legal notice issued to the wife of the first informant by advocate of applicant - Harihar namely Abdul Kader Millwala on 7.4.2014. Paragraph 13 of the said notice clearly shows as under :- "My client states that all the SMSs have saved and call conversations have been recorded."
Thus, the applicants themselves have accepted about the exchange of email and the conversation between them.
Therefore, those mobile phones are required to be seized and if the custody is claimed by the prosecution for the same, it cannot be said that it is unwarranted.
[26] Further, according to the prosecution the commence -ment certificate which was sent to the first informant by the present applicants, at its face value, is a fabricated document. The number of the said certificate is CE/8272 which is issued by the Municipal Corporation of Greater Mumbai.The commence -ment certificate which was sent by the present applicants to the first informant is dated 3.5.2012 and it is addressed to M/s HM Skyscrappers Private Limited of which the applicants are the Directors. However, the commencement certificate of the said number which was obtained by the first informant from the Municipal Corporation of Greater Mumbai under the Right to Information Act shows that it is dated 7.5.2014.
Further in the investigation papers, there is a communication from the Executive Engineer, Municipal Corporation Greater Mumbai which also shows that the commencement certificate given by the present applicants to the first informant is not part and parcel of the official record of the Municipal Corporation. [27] The survey of the aforesaid facts clearly shows that right from beginning the applicants were having an intention to dupe the first informant and his wife by giving false promises.
documents. The promises which were made by the present applicants were made on the basis of the documents which the applicants were knowing that those documents are not genuine and they are fabricated and bogus documents. Thus, the applicants, right from the beginning induced the first informant and his wife to part with huge amount and in fact they were successful in getting the huge amount from the first informant. The submission made on behalf of the applicants about the source of the income of the first informant is not required to be vouched at this stage since it is the duty of the first informant to point out the source of income to the appropriate authority. [28] Further, the learned trial court protected the present applicants by interim order, dated 5.2.2015. Clause (5) of the said order reads as under : - "(5) They should not leave India without prior permission of this Court. It is further directed that, they shall remain present before this Court on 13.2.2015 and thereafter on each date till passing of final order."
Thus, it is clear that the applicants were required to attend the court till passing of the final order. On the contrary, when the order was passed on 13.2.2015 the present applicants were not present before the Court. An excuse is advanced before this court that they were under misconception that since their Advocate was required to leave court premises on account of his personal difficulty it was thought fit by the applicants that they
also need to leave the court premises. Such a misunderstanding, as put forth before this court by the applicants through their counsel, needs no favourable consideration. What was directed by the learned trial court while granting interim anticipatory bail in favour of the applicants was that they should remain present before the Court at the time of passing final order. The directions were not in respect of the advocate. Therefore, the applicants cannot take a spacious plea that since their advocate was required to leave the court premises due to his personal difficulty, they also thought that their presence is not required. The applicants are well educated persons. They understand what condition was imposed by the court upon them.
Further, when they availed the benefit of the order passed by the learned trial court, it was their bounden duty to scrupulously follow the conditions imposed upon them by the court. That shows that the present applicants have scant respect to the court of law, as rightly observed by the learned Judge of the court below. [29] Grant of anticipatory bail is a discretionary relief. No doubt the discretion has to be exercised judiciously, however, the court cannot be oblivious of the conduct on the part of the present applicants. Further, looking to the gravity of the offence and looking to the reasons putforth by the learned Additional Public Prosecutor for the custodial presence of the present applicants, this court is of the considered view that the present applicants are surely not entitled for discretionary relief.
[30] In the result, both the Criminal Applications are dismissed.
(V.M.DESHPANDE, J.) dbm/crap1166.15