Ali Raza Abdul Karim Shaikh v. State Of Maharashtra
by PALLAVI MAHENDRA WARGAONKAR Date:
2024.08.06 15:59:32 +0530 PALLAVI MAHENDRA WARGAONKAR
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO. 1797 OF 2024 WITH INTERIM APPLICATION NO.2086 OF 2024 Ali Raza Abdul Karim Shaikh ...Applicant
Versus
The State of Maharashtra (At the instance of Matunga Police Station Vide C.R.No.421 of 2023)
...Respondent
Mr. Tohid Shaikh, Advocate for the Applicant. Mr. Ishan Srivastava i/b. Ravleen Sabharwal, for the Intervener. Smt. Mahalaxmi Ganapathy, APP for the Respondent - State. PSI - Shri S. Pawar, Matunga Police Station, Present.
CORAM
:
N. J. JAMADAR, J.
RESERVED ON :
30th JULY 2024.
PRONOUNCED ON :
5th AUGUST 2024.
PC.
:
1.
The Applicant, who is arraigned in C.R. No.421 of 2023, registered with Matunga Police Station, Mumbai, for the offences punishable under Section 120B, 406, 420, 468, 471 and 506(2) of the Indian Penal Code, 1860 ("Penal Code") has preferred this application to release him on bail.
2.
The gravamen of indictment against the Applicant is that during the period 27th September 2021 to 14th February 2022, the Applicant had entered into a conspiracy with Arif Ajmuddin 1/8
Patel (A2) and Raju Devidas Manglani (A3) to defraud first informant. The Applicant and the co-accused had induced the first informant to part with a huge amount by making a false representation that they would get the prosecutions initiated against the first informant quashed. It is, inter-alia, alleged, the Applicant had deceived first informant to part with a huge amount of Rs.1,95,68,000/- on various counts, like, getting prosecutions against the first informant quashed, transferring a liquor license, which stood in the name of one Vikrant Sonawane, and also by promising huge returns on the investment made by the first informant in the business of agriculture produce at APMC Market, Navi Mumbai. 3.
The first informant further alleged that when he realised the fraud and insisted for repayment of the amount which he was deceived to part with, the Applicant threatened the first informant by pointing a pistol.
4.
Mr. Shaikh, learned counsel for the Applicant submitted that myriad allegations have been made in the FIR. A fair reading of the FIR may indicate that the transactions between the parties were distinct from the one alleged in the FIR. Payment of huge cash amount does not merit countenance. 5.
Mr. Shaikh, further submitted that as per the 2/8
prosecution, post-investigation, it has transpired that a sum of Rs.72,75,000/- has been transferred in the account of the Applicant. Out of the said amount, a sum of Rs.1,95,000/- was, in turn, transferred to the account of Raju Devidas Manglani (A3) and the said accused has deposited the said amount before the trial Court, upon his release on bail. Another sum of Rs.3,30,000/- has been transferred to Vijay Yeshudas Nadar, another co-accused. Thus, to show the bonafide, the Applicant is willing to deposit the balance amount of Rs.67,77,000/- within 5 months from the date of his release on bail. An affidavit of the Applicant incorporating the schedule of payment has also been filed.
6.
In any event, the learned counsel for the Applicant submitted that the offences punishable under Sections 468 and 471 cannot be said to have been prima facie made out. The offence under Section 420, being the major offence, entails punishment which may extend to 7 years. All the offences are triable by Magistrate. Investigation is complete and charge sheet has been lodged. The other co-accused have already been released on bail. Thus, the Applicant, who has been in custody since 6th October 2023, deserves to be enlarged on bail. 7.
Smt. Mahalaxmi Ganapathy, learned APP, resisted the 3/8
prayer for bail. It was submitted that the credit of the amount to the account of the Applicant and his relatives is evidenced by the Bank statements. There is adequate material to make out a very strong prima facie case against the Applicant. In fact, the Applicant was the principal character in the fraud. Therefore, the fact that other co-accused, who have relatively minor role, have been released on bail, does not enure for the benefit of the Applicant.
8.
Mr. Ishan Srivastava, the learned counsel for the Intervener, also stoutly resisted the prayer for bail. It was urged that the first informant was defrauded of a huge amount. In the event, the Applicant is released on bail, there is a very strong possibility of tampering with evidence and fleeing away from justice. Thus, the Applicant may not be released on bail. It was further submitted that, in the event the Court takes into account the willingness of the Applicant to deposit the amount, the Applicant shall be directed to deposit a substantial portion of the amount before his release on bail.
9.
I have perused the material on record. Prima facie, from the perusal of the allegations in the FIR, it becomes evident that there were multiple transactions between the first informant and the Applicant. Initially, first informant was induced to part with 4/8
money on the count that the prosecutions then pending against first informant would be quashed. Secondly, first informant was allegedly induced to pay the amount by making a representation that liquor license which stood in the name of Vikrant Sonawane would be transferred in the name of the first informant. Arif A. Patel (A2) had allegedly impersonated himself as Vikrant Sonawane. Thirdly, the FIR indicates, first informant was again defrauded to invest the amount in the business of agriculture produce at APMC Market by making a false representation that first informant would earn a return of Rs.19.75 Lakhs against an investment of Rs.12 Lakhs, after 40 days.
10.
One also gets an impression that first informant had realised that there was something amiss with the initial transactions entered into with the Applicant and, yet, there were further transactions between the Applicant and the first informant. The cheques drawn by the Applicant were also allegedly dishonoured.
11.
The evidence of credit of amounts to the account of the Applicant and his relatives is required to be appreciated in the backdrop of the aforesaid nature of transactions between the parties. The submission on behalf of the Applicant that the real 5/8
nature of the transaction and the genesis of the offences has not been clearly spelled out, cannot be thus brushed aside lightly.
12.
At any rate, the investigation is practically complete for all intent and purpose. Charge-sheet has been lodged. In the circumstances of the case, whether an offence punishable under Sections 468 and 471 of the Penal Code can be said to have been prima facie made out, appears contentious. The offence under Section 420 of the Penal Code entails punishment which may extend to 7 years. In this view of the matter, further detention of the Applicant as an under-trial prisoner does not seem to be warranted.
13.
The Court has noted the affidavit filed by the Applicant volunteering to deposit the amount. The Court is conscious that bail cannot be granted on the condition of deposit of the amount. Nonetheless, since affidavit has been filed by the Applicant voluntarily, the undertakings therein can be accepted as the undertakings to the Court and in case of breach of those undertakings, the consequences will follow.
14.
I am, therefore, inclined to release the Applicant on bail. Hence, the following order:-
ORDER
6/8
(i) The Application stands allowed.
(ii) The Applicant - Ali Raza Abdul Karim Shaikh be released on bail in C.R. No.421 of 2023, registered with Matunga Police Station, Mumbai, for the offences punishable under Section 120B, 406, 420, 468, 471 and 506(2) of the Indian Penal Code, 1860, on furnishing a P.R. Bond of Rs.50,000/- with one or two sureties in the like amount, to the satisfaction of the trial Court.
(iii) The Applicant shall mark his presence at the Matunga Police Station, Mumbai, on the first Monday of every month between 10.00 am to 12.00 noon for a period of two years or till conclusion of trial, whichever is earlier.
(iv) The applicant shall not tamper with the prosecution evidence and/or give threat or inducement to the first informant and any of the persons acquainted with the facts of the case.
(v) The undertakings given by the Applicant in the affidavit dated 26th July 2024 are accepted as the undertakings to the Court. In the event of breach of the undertakings, the consequences will follow. 7/8
(vi) By way of abundant caution, it is clarified that the observations made herein-above are confined for the purpose of determination of entitlement for bail and they may not be construed as an expression of opinion on the guilt or otherwise of the applicant and the trial Court shall not be influenced by any of the observations made herein-above.
(vii) In view of the disposal of the bail application, all Interim Applications also stand disposed.
(N. J. JAMADAR, J.) 8/8