Deepak S/O Amswaroop Agrawal v. The State Of Maharashtra Through Pso Ps Pardi Nagpur And Another

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION (ABA) NO. 707 OF 2024 Deepak s/o Ramswaroop Agrawal Vs State of Maharashtra and another. Office Notes, Office Memoranda of Court's or Judge's Order Coram, appearances, Court's Orders or directions and Registrar's order Mr. S.P. Bhandarkar, counsel h/f Mr. P.K. Bezalwar, counsel for the applicant. Mr. Ganesh Umale, APP for non-applicant/State. CORAM : URMILA JOSHI-PHALKE, J.

DATE : 11/10/ 4.

1.

Apprehending the arrest at the hands of police in connection with Crime No. 443/2024 registered with Police Station Pardi, Nagpur for the offence punishable under Sections 420, 406 read with Section 34 of the Indian Penal Code, 1860, the applicant approached this court for grant of pre-arrest bail.

2.

The crime is registered on the basis of a report lodged by Bandu Bhojraj Bangde, on an allegation that from 10/12/2018 to March 2024, from hatching conspiracy, the applicant and other co-accused agreed to purchase the agricultural field of the complainant bearing Khasra No. 14/2 and 22/2, admeasuring 6 acres, for consideration of Rs. 4,62,00,000/-. As the value of the complainant field as per the ready reckoner was Rs. 5,70,00,000/-, and for the said amount, the sale deed came to be executed between the applicant and others. The applicant has only paid Rs. 5,27,31,000/- to the complainant, i.e.

Rs. 42,69,000/- less. The complainant has not paid the total consideration amount, and it is further alleged that the applicant, by threatening and by assigning the reasons that there would be raids of the Enforcement Directorate (E.D.) and Income Tax, asked the complainant to transfer the amount in this account, and accordingly the amount of Rs. 2,62,00,000/- was transferred in the account of the present applicant.

3.

Thus, as per the allegations, the complainant was cheated to the tune of Rs. 1,96,69,000/-. On the basis of said report, police have registered the crime against the present applicant.

4.

Learned counsel, Mr. S.P. Bhandarkar for the applicant, submitted that the applicant entered into an agreement with the complainant, and accordingly, the consideration amount was fixed as Rs. 4,62,00,000/-. The recitals of the FIR itself show that the informant has received the entire consideration amount. He further submitted that, from 15/12/2018 till 27/03/2024, the applicant has paid a total amount of Rs. 5, 80,38,000/- by RTGS and cheques to the informant (1) Bandu Bhojraj Bangde, (2) Bandu @ Kushal Sadashiv Gharpende and (3) Chhabai Bai w/o Shyamrao Hatwar, (4) Madhuri Rewatkar,

(5) Gunabai Fating, (6) Manorama Karmore and the informant Bandu had received the amount of Rs. 4,31,30,000/-, whereas Bandu @ Kushal Sadashiv Gharpende received Rs.55,00,000/-, and Chhabi Bai w/o

Shaymrao Hatwar received Rs. 55,00,000/-, Madhuri Rewatkar received Rs. 4,95,000/-, Gunabai Fating had received Rs. 29,18,000/- and Manorama Karmore received Rs. 4,95,000/-, from the applicant. Thus, the applicant was paid Rs. 10,38,000/- more than the consideration amount in the Sale. Thereafter, the present applicant entered into an agreement to sell the said land to the Nandkishor Premchand Chakole, and while executing the sale-deed present informant stood as a witness. Thus, the informant was aware about the transaction which took place. He further invited my attention towards the recitals of the FIR and submitted that, as per the FIR, the amount of Rs. 20 Lakhs was transferred in the account of Shyam Steel on 03/12/2019 and also on 27/03/2024 to the Sudarshan Associates. However, the statement of the account is silent about the same.

5.

He submitted that as far as the handing over of a cash amount of Rs. 60 Lakhs is concerned, there is no material to show that the said amount was paid to the present applicant. As far as the other entries are concerned, he admits that amount is received by the present applicant, as the excess amount was paid to the informant. Thus, he submitted that considering the entire allegation against the present applicant, at the most, the case against the present applicant would lead of the recovery of the amount, but no offence is made out as far as Sections 420 and 406 are concerned. Thus, considering the same, the custodial interrogation of the present applicant is not required. In

view of that, applicant be released on bail in the event of his arrest.

6.

Learned APP strongly opposed the said application and submitted that during the investigation, the investigating officer has collected the accounts statement, from which it reveals that the amounts are transferred in the account of the present applicant. The present informant was duped by the present applicant by obtaining the amount on the pretext of or by showing him that there would be a raid of the Income Tax or Enforcement Directorate and forcing him to transfer the amount in their account. It is submitted that, the amount of Rs. 60 Lakhs was also paid by the informant by cash, and thus, the informant has lost the amount in the said transaction. In view of that, the custodial interrogation of the present applicant is required, and therefore, the application deserves to be rejected.

7.

After hearing both the sides and on perusal of the investigation papers, it reveals that there was a transaction between the present applicant and the informant as to the purchase of the ancestral property owned by the informant. Accordingly, they entered into an agreement, and the saledeed was executed. The consideration amount was fixed, and as per the recitals of the FIR, the informant has received the entire consideration amount i.e. Rs. 5,27,31,000/-. As far as the allegations regarding obtaining money by the present applicant on the pretext of

raid by the Income Tax or Enforcement Directorate is concerned, except the bare statement of the complainant, there is no other material. It is alleged that the present applicant has obtained a cash amount of Rs. 60 Lakhs from the complainant, i.e. also not substantiated by any other evidence. As far as some entries in the accounts are concerned, which are admitted by the present applicant but it is submitted that the said amount is received by the present applicant against the other transaction. During the investigation, it further reveals that the present applicant entered into the agreement to sell the said property to Nandkishor Chakole, and accordingly, a sale -deed is executed between the said Chakole and the present applicant, and surprisingly, the informant stood as a witness to the said transaction.

It is pertinent to note that said transaction was entered and registered on 20/04/2024, i.e. prior to the lodging of this report. The informant has not stated anything about this transaction, and he was a witness to the said transaction while lodging the report or in a subsequent statement recorded by the investigating agency. 8.

Whether the offence under Section 406 and 420 is made out or not, is a matter of evidence. At this stage, it is apparent that there was a transaction which is of a civil nature. It further apparent that as the other legal heirs have filed a civil suit against the informant, and thereafter the informant has filed this complaint. Considering the nature of the offence, it was obligatory on the part of the investigating officer to issue notice under Section 41

assigning the reasons whether arrest of the applicant is required.

9.

Section 41 under Chapter V of the Code deals with the arrest of persons. Even for a cognizable offense, an arrest is not mandatory as can be seen from the mandate of this provision. It is observed by the Hon'ble Apex court in the case of Satender Kumar Antil Versus Central Bureau Of Investigation & Anr. [2022 Livelaw (Sc) 577], wherein it is held that if the officer is satisfied that a person has committed a cognizable offense, punishable with imprisonment for a term which may be less than seven years, or which may extend to the said period, with or without fine, an arrest could only follow when he is satisfied that there is a reason to believe or suspect, that the said person has committed an offense, and there is a necessity for an arrest.

Such necessity is drawn to prevent the committing of any further offense, for a proper investigation, and to prevent him/her from either disappearing or tampering with the evidence. He/she can also be arrested to prevent such person from making any inducement, threat, or promise to any person according to the facts, so as to dissuade him from disclosing said facts either to the court or to the police officer. 10.

This provision mandates the police officer to record his reasons in writing while making the arrest. Thus, a police officer is duty-bound to record the reasons for arrest in writing.

11.

The consequence of non-compliance with Section 41 shall certainly inure to the benefit of the person suspected of the offense.

12.

Undisputedly, in the present case, the notice under Section 35(3) of B.N.S is given to the present applicant (41) Cr.P.C. However, on perusal of the said notice, nowhere it reveals that the investigating officer has recorded the reasons for what purpose the custody of the present applicant is required. Thus, considering that no reasons are assigned by the investigating officer, as far as the arrest of the present applicant is concerned, the applicant has made out a case for grant of bail, on the said ground also. After going through the entire investigation papers, it is apparent that the dispute between the present applicant and informant appears to be of a civil nature. However, whether there was an intention or not or whether the act of the applicant was intentional is a matter of evidence. At this stage, the applicant has made out the case for grant of anticipatory bail. In view of that, the application deserves to be allowed. Accordingly, I proceed to pass the following order:

a] The criminal application is allowed.

b] In the event of arrest, in connection with Crime No. 443/2024 registered with Police Station Pardi, Nagpur for the offence punishable under Sections 420, 406 read with Section 34 of the Indian Penal Code, 1860, the

applicant- Deepak Ramswaroop Agrawal shall be released on anticipatory bail, on executing P.R. Bond of Rs. 25,000/- with one solvent surety in the like amount.

c] The applicant shall attend the concerned police station twice in a week on Monday and Thursday between 10.00 a.m. to 01.00 p.m.

and shall cooperate with the investigating agency.

d] The applicant shall not leave the jurisdiction of Nagpur without prior permission of the District Court.

e] The applicant shall surrender his passport if he is having before the investigating agency.

f] The applicant shall not induce, threat or promise any witnesses who are acquainted with the facts of the present case.

g] The trial Court shall not be influenced by the observation which are prima-facie in nature.

The criminal application is disposed of [URMILA JOSHI-PHALKE, J.] Signed by: Mr. R.K. NANDURKAR Designation: PA To Honourable Judge Date: 17/10/2024 11:02:04