Bombay High Court

Priyanka Vinod Patil vs The State Of Maharashtra on 15 December, 2016

Bench: S.S. Jadhav

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE SIDE JURISDICTION

CRIMINAL BAIL APPLICATION NO. 2447 OF 2016

Smt. Priyanka Vinod Patil .....Applicant

V/s.

The State of Maharashtra ....Respondent

WITH
CRIMINAL APPLICATION NO. 1043 OF 2016
IN

CRIMINAL BAIL APPLICATION NO. 2447 OF 2016

Eknath S. Nagare ....Intervener

IN THE MATTER BETWEEN

Smt. Priyanka Vinod Patil .....Applicant

V/s.

The State of Maharashtra ....Respondent

Mr. Ghanshyam Upadhyay i/b Law Juris Advocate for Applicant.

Mr. Amardeep Bhattacharya i/b Ms. Manjula Biswas for Intervener.
Mr. R. M. Pethe APP for the State.

CORAM : SMT. SADHANA S. JADHAV, J.

                                      DATED :                 15th DECEMBER, 2016.




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    PC :




                                                                                                                         
    1)         Heard. This is an application under section 439 of the Code of Criminal

Procedure, 1973. Applicant herein is arrested on 14/11/2016 in crime no. I-

161 of 2016 registered at Gangapur Police Station on 22/08/2016 for offences

punishable under Sections 406, 409, 420, 468, 471, 120 (B) and Section 3 of

the Maharashtra Protection of Interest of Depositors Act (MPID Act),

Sections 36, 73, 74, 75 r/w 447 of the Companies Act, 2013, Sections 17/23

of Securities and Contract Act, Sections 12/24 of Securities and Exchange

Board of India Act, 1992 and Sections 3, 11 r/w 14 of the Maharashtra

Ownership Flat Act, 1963. (MOFA Act).

2) Heard the learned counsel at length. Perused the papers of

investigation. While passing an order in this matter, it would be necessary to

consider the application in two parts. Firstly, the merits of the matter,

secondly the contemptuous demeanor of the Advocate representing the

applicant.

3) It is the case of the prosecution that on 20/08/2016, Ganesh Desai

lodged a report at the police station alleging therein that he was informed by

his friends that the applicant and her husband are running a Firm namely

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'House of Investment' and that the amount invested in the said Firm would be

further re-invested in gold and silver trading, mutual funds and contradictions.

That the returns would be lucrative. The complainant had seen the agreements

of the Director of the Company with other investors and not only had invested

his own earnings but also the earnings of his relatives. An agreement was

executed on 100/- Rs. Non-Judicial Stamp. Since March, 2016, neither he nor

his relatives had received any returns. He had issued a legal notice to the

Director of the Company. He had also persuaded the husband of the applicant

telephonically, however, there was no response. He had finally realized that

the Firm 'House of Investment' was floated with an intention to cheat people

and to make personal benefits at the cost of investors. The memorandum of

understanding was executed with an intention that it would never be acted

upon. Hence, the F.I.R.

4) The conduct of the applicant needs to be considered at the threshold. At

the outset, it shall be noted that the first information report was lodged on

22/08/2016, applicant herein had not filed any application under section 438

of the Code of Criminal Procedure, 1973 seeking pre-arrest bail and

whereabouts of the applicant were not known till 14/11/2016. This is a

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relevant factor for the reason that during this period, applicant has caused

disappearance of material evidence. Moreover, the husband of the applicant

Mr. Vinod Patil who is proprietor of the Firm M/s House Investment

Company Private Ltd is absconding prior to the registration of the offence.

The investigation is in progress. It is the case of the prosecution that 3464

persons have been duped by the applicant and her husband. Till today the

Investigating Officer has recorded the statements of 253 investors. The total

amount of the money involved, rather gulped by the applicant and her

husband is about Rs. 30 Crores.

5) The learned APP has submitted that the applicant has been in custody

for hardly 30 days and investigation is in progress and that her husband is

absconding and therefore, she does not deserve bail at this stage.

6) The learned counsel for the applicant had expressed his annoyance at

the said submission. This Court had inquired with the learned counsel for the

applicant, in respect of the whereabouts of the husband of the applicant and

had also expressed an opinion that the application could be considered after

Mr. Vinod Patil surrenders. The counsel was once again enraged and had

submitted that they are two different individuals and the Law does not permit

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the detention of one accused for securing the presence of co-accused.

Principally speaking it may be an appropriate submission, but it would not be

applicable in the present case as papers of investigation had revealed that the

husband was the proprietor of the said Firm but it was the present applicant

who was inducing people to invest in the said Firm, assuring them of lucrative

returns. She had not only stopped at that but had even caused disappearance

of evidence. The applicant was running a Fitness Centre in the same building

as that of House of investment. When the investors had started demanding

returns, applicant had kept all the documents, laptop and other material in the

Fitness Centre. She had caused disappearance of evidence of records.

Investigating agency has placed on record the Whats App chat of the husband

of the applicant with Sandhya Joshi who was also an investor and the husband

of the applicant had chatted as follows:

"Husband of the Applicant: I have made all workouts.

: Now it seems difficult to pay a penny also.

: My divorce is got finalized.

: After this things, again divorce case will got filed".

It therefore appears that applicant and her husband are likely to sever their

relationships only to see that the investors are not reimbursed.

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    7)         The counsel for the applicant had started intimidating the Court. The

first submission of the counsel was an attack on the Sessions Court which had

rejected the application seeking bail. The learned counsel for the applicant is

seeking bail on the ground of parity. According to the counsel, some of the

Directors of the said Firm have been enlarged on bail by the same Court

whereas the application of the present applicant was rejected. The counsel

submits that he was engaged as a counsel before the Court of Sessions at

Nashik. He had reached the Court when the Advocate on record was arguing

the matter at the time of hearing. The counsel had intended to pass an

application across the Bar, but was directed by the Sessions Court to file the

same in the Registry and that the matter would be heard only after the

application is registered. Counsel had then got application registered. It

appears that the applicant had filed a writ petition in this Court seeking

direction to the learned Trial Court to decide the application of the applicant

along with the bail applications of the co-accused on 30/11/2016 and hence,

application was heard by the learned Sessions Judge on 30/11/2016 and was

rejected. According to the counsel, there has been discrimination by the

learned Sessions Judge which amounts to Judicial impropriety. This Court had

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cautioned the counsel for the applicant that an application under section 439

of the Code of Criminal Procedure, 1973 before the High Court is not an

appeal against the order by the Sessions Court, but it is under concurrent

jurisdiction and therefore, the counsel should restrict himself to the merits of

the matter. The counsel was annoyed with the same and was of the opinion

that there is interference in his arguments by the Court. The counsel made

every attempt to intimidate the Court.

8) This Court had reminded him of the incident wherein he had earlier

also, had acted in a similar contemptuous manner and had hampered with the

administration of justice. It is observed by this Court in the order dated

29/06/2015 in Criminal Anticipatory Bail Application No. 704 of 2015 as

follows:

"Conduct of the learned counsel was such which is not worth mentioning in detail. He has not maintained the decorum of the Court.

Suffice it to say that the learned counsel had conducted himself in a contemptuous manner. This Court has, as usual, maintained the balance and has refrained itself from issuing a Contempt Notice. It is for the Bar Council of Maharashtra and Goa to take cognizance of the

same".

It is further observed that:

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"20 It is noticed that the learned Counsel for the applicant is

intimidating the court and was browbeating only on the ground that he has not been given proper audience. An attempt is being made to see

that the court should recuse from hearing the learned Counsel with an ulterior motive to benefit from such order. However, this court would not get intimidated and pass an order of "not before me".

21 The learned Counsel for the applicant has also insisted upon this Court to record that when the learned Counsel wanted to point out

certain portion from the FIR, this Court was of the opinion that the

Court has gone through the FIR and it is not necessary to reiterate the same. The Court was only trying to stop repetition of arguments as this

Court had perused the report and the records. The learned Counsel has also made an attempt to intimidate the Court by telling this Court that he wants to place the affidavit on record stating therein that the Court

had refused to read the FIR running into four pages alongwith the

Counsel although the submissions were heard as patiently as possible for almost 30 minutes. The conduct and demeanor of the learned

Counsel for the applicant in the course of hearing of this application is not worth mentioning, suffice it to say that it is contemptuous".

9) The said matter was taken to the Hon'ble Apex Court and the said

petition was dismissed. At this, the counsel informed the Court that he is

willing to file a petition seeking recall of the said order before the Apex

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Court. Be that as it may, it is permissible for any counsel to approach the

Higher Court and the same cannot be objected but the manner in which it was

informed was only to threaten the court and the said expression was

contemptuous. The counsel was of the opinion that in the present case,

applicant is not involved, rather the applicant is not concerned with the act of

her husband and therefore, she deserves to be enlarged on bail forthwith.

10) Upon perusal of papers of investigation it is clear that the act of the

applicant is clearly spelt out and that she is equally responsible for causing

loss to the vulnerable public at large. It is an economic offence and therefore,

this Court was of the opinion that the prayer could be considered after filing

of the charge-sheet.

11) The counsel for the applicant has then placed reliance upon various

Judgments of the Hon'ble Apex Court and has emphasised the Judgment of

the Hon'ble Apex Court in the case of Bhagirathsinh S/o Mahipat Singh

Judeja V/s. State of Gujarat [1984 SCC 284] and has placed implicit

reliance upon the observations:

"Even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be

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readily available for trial or that he is likely to abuse the discretion

grained in his favour by tampering with evidence".

12) The counsel has then placed reliance upon the Judgment of this Court

(Coram : Abhay M. Thipsay, J.) in the case of of Jignesh Prakash Shah

Versus The State of Maharashtra [Cri. Bail Application No. 1263 of 2014]

and has placed reliance upon the observations :

"24 All said and done, there is no change in the legal principle that

pretrial detention can never be authorized as and by way of infliction of

punishment".

13) Implicit reliance is also placed on other orders of this Court as well as

in the case of Suresh Kalmadi Versus CBI and has emphasized the ratio

decidendi:

"Person shall be entitled for grant of bail if allegations made against him has not been proved".

14) According to the counsel, the Sessions Court ought to have granted bail

to the applicant as the role attributed to her was less than the role attributed to

other Directors. The counsel has come heavily upon Sessions Court and

expected this Court to take action against the Sessions Court. In fact, this

would not fall within the powers of a Court while considering the application

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under section 439 of the Code of Criminal Procedure, 1973. The order of the

Sessions Court does not appear to be perverse. The grant or denial of relief

under section 438 & 439 of Code of Criminal Procedure, 1973 are

discretionary reliefs to be granted or denied on the basis of the material

collected in the course of investigation in the facts of the each case.

According to the counsel, if the Courts express different opinions on the

identical set of facts, it would lead to Judicial anarchy.

15) All said and done, the conduct of the counsel representing the applicant

was contemptuous but it appears that no matter what action any Court would

take against him, he would not change his attitude and continue to browbeat

the Court as if an assurance is given to the client that with particular

demeanor, he would be able to get the expected relief. It is not expected of a

member of the Bar to browbeat the Court by making irrelevant submissions

and secure the expected order. The Court also has to be conscious of the

signal that would be given to the society by granting bail in such cases like

the present one, especially when investigation is in progress and a deliberate

design is chalked out to secure the liberty of the absconding accused. The

courts would fail in dispensation of Justice, if the Court would succumb to

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such demeanors. The Court in order to save judicial time had pronounced the

operative order. Even thereafter, the counsel chose to address the court and

read some more judgments emphasising the right of the applicant to be

enlarged on bail. The winter vacation is ensuing and yet this Court had heard

the counsel for 45 minutes. The counsel was still of the opinion that he is not

heard sufficiently.

16) In the case of Nimmagadda Prasad Vs. Central Bureau of

Investigation [ 2013 (7) SCC 466] the Hon'ble Apex Court has observed

thus:

"Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs

to be viewed seriously and considered as grave offences affecting the

economy of the country as a whole and thereby posing serious threat to the financial health of the country".

17) This Court cannot be oblivious of the fact that the offence alleged

against the applicant is an economic offence where several people have been

cheated. The interest of the community shall always outweigh the right of

personal liberty of the individual concerned. It is a matter of record that the

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applicant and her husband had floated/published advertisements and induced

people to invest in the scheme floated by them by giving false promises. The

duo have amassed money and properties at the cost of hard earned money of

the investors. The papers of investigation would reveal that some of the

investors had sold their properties and invested in the scheme floated by the

applicant. Today, they have lost their property and the money also.

18) This Court is of the opinion that while granting bail, it is incumbent

upon the Court to keep the Judicial principles in mind, mainly gravity of

offence and implications thereof. Moreover, it would become a common

practice to intimidate the Court and secure bail.

19) It would not be fair to part with the order without referring to the

observation of the Hon'ble Apex Court in the case of Subrata Roy Sahara

v/s. Union of India & ors. reported in (2014) 8 SCC 420.

The Hon'ble Apex Court has held thus :

"Judge not to recuse himself from the matter unless he/she should not be hearing it for reasons of direct or indirect involvement, benchmark that justice must not only be done but should also appear to be done,

has to be preserved at all costs, even in the face of calculated psychological offensives and mind games as adopted by counsel in the present case, oath of office of Judge, to decide every case without fear

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or favour, Fearlessness and resoluteness with equanimity has to be

maintained. Benchhunting or benchhopping or benchavoiding should strongly repulsed."

It is observed that :

"It is most unbefitting for an advocate to make imputations against the

Judge only because he does not get the expected result, which according to him is the fair and reasonable result available to him. Judges cannot be intimidated to seek favourable orders. ......... No

system of justice can tolerate such unbridled licence on the part of a

person, be he a lawyer, to permit himself the liberty of scandalising a Court by casting unwarranted, uncalled for and unjustified aspersions

on the integrity, ability, impartiality or fairness of a Judge in the discharge of his judicial functions as it amounts to an interference with the dues course of administration of justice."

This Court is following the obitor dictum given by the Hon'ble Apex Court in

situation like the present case.

20) The Hon'ble Apex Court further observed that :

"We therefore also commend to all Courts, to similarly repulse all

baseless and unfounded insinuations, unless of course, they should not be hearing a particular matter, for reasons of their direct or indirect involvement. The benchmark, that justice must not only be done but

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should also appear to be done, has to be preserved at all costs."

21) The counsel has reiterated that the applicant is not involved in the Firm

and that her husband is the proprietor.

22) The High Court of Orissa, Cuttack in the case of Preeti Bhatia Vs.

Republic of India on 16 March, 2015 had observed thus:

"9. Let us have a bird's eye view as to why investigations of Chit Fund Scam cases were transferred from the State Agencies to CBI. The

Hon'ble Supreme Court in the cases of Subrata Chattoraj Vs. Union of

India and Ors. reported in (2014) 58 Orissa Criminal Reports (SC) 905 held as follows:

"18. More importantly, the question is whether this scam was confined only to those who actively managed and participated in the

affairs of the companies or the same flourished on account of the

support and patronage of others is an issue that has bothered us all through the hearing of this case.......

19.........All that we need to point out is that investigation into the scam is not confined to those directly involved in the affairs of companies but may extend to several others who need to be questioned about their

role in the sequence and unfolding of events that has caused ripples on several fronts.

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22....... Suffice it to say, that the scam of this magnitude is going on for

years unnoticed and unchecked, is suggestive of a deep-rooted apathy if not criminal neglect on the part of the regulators who ought to do everything necessary to prevent such fraud and public loot. Depending

upon whether the investigation reveals any criminal conspiracy among those promoting the companies that flourished at the cost of the common man and those who were supposed to prevent such fraud calls

for a comprehensive investigation not only to bring those who were

responsible to book but also to prevent recurrence of such scams in future".

23) In the case of Sanjay Chandra v/s. CBI decided on 23rd November,

2011, the Hon'ble Apex Court has observed thus:

"The grant or refusal to grant bail lies within the discretion of the

Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case."

24) Economic offence is a well planned act only for gaining personal

profits at the cost of the vulnerable factions of the society. White colour

crimes cannot be viewed with permissive, lenient and sympathetic vision.

Damage to faction of society is damage to national economy too. Position and

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status of the accused with reference to the victim and witness is also an

overriding consideration while granting bail. Bail is a matter of procedural

privilege and not right which accrues upon an individual. Applicants appears

to be motivator in the commission of the offence. Papers of investigation and

statements of investors, documents establish the fraudulent character and

hence, applicant does not deserve to be enlarged on bail.