Narendra Dharnidhar Gandhi vs Pankajkumar S/O Prabhakar Kawale ...
2016 Latest Caselaw 946 Bom

     Judgment                                           1                                 apl635.15.odt




                                                                                    
                   
                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                NAGPUR BENCH, NAGPUR.




                                                            
                      CRIMINAL APPLICATION (APL) NO. 635 OF 2015




                                                           
     Shri Narendra Dharnidhar Gandhi,
     Age 50 years, Occu : Business,
     R/o. 40, Balaji Nagar, Nagpur.




                                             
                                                                            ....  APPLICANT.
                              ig        //  VERSUS //

     1. Shri Pankajkumar S/o. Prabhakar Kawale,
                            
        Aged : Major,

     2. Smt. Sonal w/o. Pankajkumar Kawale,
        Aged : Major,
      


          Both R/o. A-2, Plot No.49, Khare Town, 
          Dharampeth, Mouza : Lendra, Nagpur. 
   



     3. State of Maharashtra, through Police
        Station Officer, Police Station, 
        Sitabuldi, Nagpur. 





                                                     .... NON-APPLICANTS
                                                                      . 
      ______________________________________________________________
     Shri R.R.Srivastava, Advocate for Applicant. 
     Shri S.V.Sirpurkar, Advocate for Non-applicant Nos. 1 & 2. 
     Shri K.R.Lule, A.P.P. for Non-applicant No.3. 





     ______________________________________________________________

                                  CORAM : Z.A.HAQ, J.

DATED : MARCH 29, 2016.

ORAL JUDGMENT :

1. Heard learned advocates for the respective parties.

Judgment 2 apl635.15.odt

2. RULE. Rule made returnable forthwith.

3. This is an application under Section 482 of the Code of

Criminal Procedure praying that the order passed by the learned

Additional Sessions Judge granting pre-arrest bail to the non-applicant

Nos. 1 and 2 in the crime registered against them for the offences

punishable under Sections 420, 465, 468, 471 read with Section 34 of

the Indian Penal Code, be set aside.

4. The non-applicant Nos. 1 and 2 had filed application under

Section 438 of the Code of Criminal Procedure before the Sessions

Court praying for pre-arrest bail. This application is allowed by the

Sessions Court by order dated 24th August, 2015.

The learned Additional Sessions Judge, after recording the

submissions made by the respective parties has recorded the reasons,

which weighed with him for granting pre-arrest bail, in paragraph 7 of

the order which reads as follows :

"7. It is pertinent to note that offence is not punishable with capital punishment. Applicants are resident of Nagpur. Thus, there is no chances to flee from the justice. At the most, evidence of cheating to the private business is attracted if allegation are

Judgment 3 apl635.15.odt

considered to be true. Allegation of forgery is hardly attracted to the present set of circumstances. Civil suit

is filed by the informant against the applicants. In this case, custodial interrogation of the present applicants/ accused appears to be not necessary. Regular attendance in the police station for the

purpose of co-operating to the investigation agency shall suffice the purpose of investigation. Applicant No.2 is the wife of applicant No.1 and she is merely signatory on the agreement. Thus, by putting

stringent condition, I am inclined to grant the protection to both the applicants/ accused. ...."

5. Shri R.R.Srivastava, learned advocate for the applicant has

submitted that the learned Additional Sessions Judge has granted pre-

arrest bail to the non-applicant Nos. 1 and 2 on general and superficial

considerations, overlooking the facts and documents on record. It is

submitted that the non-applicant Nos.1 and 2 have entered into

agreement with the applicant to sell the property for Rs.2,00,00,000/-

and at the time of agreement more than 2/3 of the amount i.e.

Rs.1,35,00,000/- was given by the applicant. It is submitted that the

non-applicant Nos. 1 and 2 had not disclosed to the applicant that the

property was mortgaged with Dharampeth Multi-State Co-operative

Society Limited, Nagpur. With this accusation, it is alleged that the

non-applicant Nos. 1 and 2 have cheated the applicant.

Judgment 4 apl635.15.odt

It is pointed out that the non-applicant Nos.1 and 2

subsequent to the execution of the agreement with the applicant,

executed another agreement with Manish Malpani and obtained

Rs.57,50,000/- from him and the non-applicant Nos. 1 and 2 had

suppressed from Manish Malpani that they had executed the agreement

with the applicant. The learned advocate for the applicant has

submitted that the non-applicant No.1 duped Dr.Kruplani of

Rs.55,00,000/- and he has also lodged report against the non-applicant

No.1. Shri R.R. Srivasatava, learned advocate has further pointed out

that the non-applicant No.1 has changed the surname from "Kawale"

to "Kawalea" and this is done with evil design which is clear from the

undisputed fact that the non-applicant No.1 is possessing and using two

PAN cards. It is submitted that the effect of the grave accusations

against the non-applicant Nos.1 and 2 and their modus operandi are

overlooked by the learned Additional Sessions Judge and only because

the non-applicant Nos.1 and 2 are charged with the offences for which

the maximum punishment is seven years, the pre-arrest bail is granted

on the general considerations. Relying on the judgment given in the

case of Puran vs. Rambilas, reported in AIR 2001 SC 2023, it is

submitted that the order passed by the learned Additional Sessions

Judge is required to be set aside as it suffers from perversity and the

Judgment 5 apl635.15.odt

pre-arrest bail granted to the non-applicant Nos. 1 and 2 is required to

be cancelled.

6. Shri S.V. Sirpurkar, learned advocate for the non-applicant

Nos. 1 and 2 has submitted that the application at the behest of the

applicant (private person) seeking cancellation of pre-arrest bail

granted to the non-applicant Nos. 1 and 2 is not required to be

entertained, when the Prosecutor / State of Maharashtra has not

challenged the order passed by the learned Additional Sessions Judge

granting pre-arrest bail to the non-applicant Nos. 1 and 2. It is further

submitted that in view of the reliance placed by the applicant on

subsequent events of execution of agreement with Manish Malpani, the

matter is required to be agitated before the Sessions Court. To support

the submission, the learned advocate for the non-applicant Nos. 1 and

2 has relied on the judgment given in the case of Gurcharan Singh Vs.

State (Delhi Administration), reported in (1978) 1 SCC 118. It is

further submitted that the alleged agreement of sale on which the

applicant is heavily relying, is not agreement of sale and there was a

money lending transaction and the non-applicant Nos. 1 and 2 have

paid interest and some amount from principal amount, to the applicant.

It is pointed out that the applicant has filed civil suit praying for

Judgment 6 apl635.15.odt

specific performance of the agreement and it is clear that the dispute

between the parties is of civil nature. Relying on the order given in the

case of Bagirathsinh Vs. State of Gujarat, reported in (1984) 1 SCC 284

and in the case of Dolat Ram vs. State of Haryana, reported in (1995) 1

SCC 349, it is submitted that the applicant has not been able to

establish that the circumstances necessary for cancellation of the pre-

arrest bail are existing which requires that this Court should exercise

jurisdiction under Section 482 of the Code of Criminal Procedure. It is

submitted that the non-applicant Nos. 1 and 2 are granted bail by the

order dated 24th August, 2015 and there is nothing on the record to

show that the non-applicant Nos. 1 and 2 have misused the liberty. It is

prayed that the application be dismissed.

7. Shri K.R. Lule, learned APP has submitted that the matter

be considered on the basis of the submissions made on behalf of the

applicant and the non-applicant Nos. 1 and 2.

8. With the assistance of the learned advocates for the

applicant and the non-applicant Nos. 1 and 2, I have examined the

documents placed on the record of the application. During the course

of submissions, it is reported that Manish Malpani has also made

Judgment 7 apl635.15.odt

complaint against the non-applicant Nos. 1 and 2 and crime is

registered on the basis of that complaint and apprehending arrest, the

non-applicant Nos. 1 and 2 have approached the Sessions Court seeking

pre-arrest bail and the Sessions Court has granted ad-interim protection

to the non-applicant Nos. 1 and 2.

Shri S.V. Sirpurkar, learned advocate for the non-applicant

Nos.1 and 2 has stated that the Sessions Court has referred the matter

for mediation and the mediation is going on. The learned advocate for

the non-applicant Nos. 1 and 2 has submitted that Manish Malpani has

been set by the present applicant and he has filed the complaint against

the non-applicant Nos. 1 and 2 on the dictates of the applicant.

09. In paragraph 5 of the order, the learned Additional

Sessions Judge has recorded the submissions made by the learned

A.P.P., however, the submissions are overlooked by the learned

Additional Sessions Judge and pre-arrest bail is granted to the non-

applicant Nos. 1 and 2. It is specifically contended, as recorded in

paragraph 5 of the order, that the non-applicant Nos. 1 and 2 entered

into an agreement of sale of the property for Rs.2,00,00,000/- and had

taken Rs.1,35,00,000/- from the applicant without disclosing that the

Judgment 8 apl635.15.odt

property was mortgaged with the Co-operative Bank. In my view, the

learned Additional Sessions Judge should have dealt with the

contention and the failure on the part of the learned Additional

Sessions Judge to deal with the contention vitiates the order passed by

him.

The other serious allegation against the non-applicant No.1

is that he has changed his surname and has obtained PAN Card using

the changed surname and that he is using both PAN cards. This serious

accusation is brushed aside by the learned Additional Sessions Judge

recording that the non-applicant No.1 has changed his surname by

making the application as per the procedure and as the non-applicant

No.1 has changed the surname, his PAN Card number is also changed.

The contention on behalf of the State, as recorded in paragraph 5 of the

order passed by the learned Additional Sessions Judge, was that the

non-applicant No.1 is using two PAN Cards and this contention has not

been dealt with by the learned Additional Sessions Judge.

10. The learned advocate for the applicant has rightly relied on

the judgment given in the case of Puran Vs. Rambilas (supra), in which

it is laid down that one of the grounds for cancellation of bail would be

where ignoring material and evidence on record a perverse order

Judgment 9 apl635.15.odt

granting bail is passed in a heinous crime and that too without giving

any reasons. It is laid down that such an order would be against the

principles of law and interests of justice would require that such

perverse order be set aside and bail be cancelled. It is recorded that the

offences under Sections 498-A and 304-B of the Indian Penal Code for

which the accused in that case was being prosecuted were on the rise

and have a very serious impact on the society and therefore, an

arbitrary and wrong exercise by the trial Court has to be corrected.

Shri S.V. Sirpurkar, learned advocate has submitted that

the conclusions of the Hon'ble Supreme Court in the case of Puran vs.

Rambilas (supra) were in view of the heinous crime punishable under

Sections 498-A and 304-B of the Indian Penal Code and the same test

cannot be applied in the present case as the offences are not so serious

and the maximum punishment for the offences for which the non-

applicant Nos. 1 and 2 are charged is imprisonment up to seven years.

The Hon'ble Supreme Court dealt with the situation as it

prevailed in 2001. Now, the cases of cheating, fraud, siphoning of

money are on the rise and in fact, have assumed enormous proportion

and such offences are affecting the economy. Therefore, I am not

inclined to accept the submission made by the learned advocate for the

Judgment 10 apl635.15.odt

non-applicant Nos. 1 and 2 that the proposition laid down in the

judgment given in the case of Puran (supra) is not to be applied in the

present case.

11. As far as the submission made on behalf of the non-

applicant Nos.1 and 2 that the application made on behalf of the

applicant (private person) need not be entertained as the State is not

seeking custody of the non-applicant Nos. 1 and 2 is concerned, the

point is covered by the judgment given in the case of Brij Nandan

Jaiswal Vs. Munna, reported in (2009) 1 SCC 678.

The judgments given in the case of Bagirathsinh and Dolat

Ram (supra) are considered by the Hon'ble Supreme Court in the

judgment given in the case of Puran (supra) and therefore, they are not

being discussed separately.

12. One relevant aspect required to be considered is the

conduct of the non-applicant No.1 and his tendency to commit the

offence. The facts on record show that the non-applicant No.1 has

subsequently entered into an agreement with Manish Malpani and has

taken substantial amount of Rs.57,50,000/- from him and another

Judgment 11 apl635.15.odt

agreement has been entered into with Dr. Kruplani and the non-

applicant has got Rs.55,00,000/- from Dr. Kruplani pursuant to that

agreement. The use of two PAN Cards by the applicants is also required

to be taken notice of.

13. In view of the above, in my view, the impugned order is

unsustainable as the learned Additional Sessions Judge has not

considered the material and the evidence on record.

However, as the non-applicant Nos. 1 and 2 are granted

pre-arrest bail by the order dated 24th August, 2015, I considered it

appropriate to examine as to whether the custody of the non-applicant

No.2 (lady) would be required by the investigating agency. The

accusations, as recorded in paragraph 5 of the order passed by the

learned Additional Sessions Judge, prima-facie show that the non-

applicant No.1 had been responsible for all the acts.

Considering the facts on the record, in my view, the

pre-arrest bail granted to the non-applicant No.2 is not required to be

cancelled at this stage.

      Judgment                                             12                                 apl635.15.odt




                                                                                       
     15.               Hence, the following order :




                                                               
            i)         The   order   passed   by   Additional   Sessions   Judge   in   Misc. 

Criminal Application No. 1724 of 2015 on 24th August, 2015 granting pre-arrest bail to the non-applicant No.1-

Pankajkumar Prabhakar Kawale (Kawalea) is set aside and the pre-arrest bail granted to non-applicant No.1- Pankajkumar Prabhakar Kawale (Kawalea) is cancelled.

ii)

The order passed by Additional Sessions Judge in Misc. Criminal Application No. 1724 of 2015 on 24th August,

2015 granting pre-arrest bail to non-applicant No.2-Sonal Pankajkumar Kawale (Kawalea) is maintained.

Criminal Application (APL) No. 635 of 2015 is partly

allowed in the above terms.

At this stage, Shri S.V.Sirpurkar, learned advocate for the

non-applicant Nos.1 and 2 submits that this order may be kept in

abeyance for a period of four weeks to enable the non-applicant No.1

to take appropriate steps in the matter.

However, considering the facts of the case, I am not

inclined to consider the request, it is rejected.

JUDGE

RRaut..