Badrinath S/O. Udaysing Rathod vs The State Of Maharashtra And ...
2018 Latest Caselaw 542 Bom

                                                                      wp-1278-17.odt
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

                CRIMINAL WRIT PETITION NO. 1278 OF 2017

        Badrinath  s/o Udaysing Rathod ... Petitioner 
        Age 52 years, Occu: Agri.
        R/o N-9, M-2, 133/4, Sant 
        Dnyaneshwar Nagar, CIDCO, 
        Aurangabad. 

        VERSUS

1.      The  State of Maharashtra,
        Through   the   Police   Station 
        Officer, CIDCO Police Station,
        Aurangabad

2.      Vijay S/o Shivram Nalawade
        Age 43 years, Occu: Nil
        R/o Nimbalkar Plaza,
        Keshavnagar, Chinchwad Pune,
        Tq. & Dist. Pune

3.      Mahadeo s/o Ramchandra Deshmukh ... Respondents 
        Age 58 years, Occu: Service,
        R/o Mayani Tq. Khatav 
        Dist. Satara.

4.      Megha w/o Vijay Nalawade,                  ... Intervenor
        Age 38 years, Occu: Service,
        R/o Nimbalkar Plaza, 
        Keshavnagar, Chinchwad, Pune.


Mr. N. V. Gaware h/for Mr. Gokul M. Shingare, Advocatge 
for the petitioner. 
Mr. B. A. Shinde, APP for the respondent No.1 State
Mr. J. V. Deshpande, Advocate for  respondent No.2
Mr. A. K. Bhosale, Advocate for respondent No.3.
Mr. R. P. Deshpande, Advocate for the Intervenor

                                    CORAM   :  K. L. WADANE, J.
                                     DATE   :    17th December,  2018


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JUDGMENT:                          

1. The present petitioner lodged complaint with the

Police Station, CIDCO, Aurangabad on 7th March, 2017

alleging that his son Hemant was intending to take

admission for MBBS course. Respondent No.2 Vijay

Nalawade contacted him on his mobile and asked him to

meet at his residence at Pune. Accordingly, the

complainant, his brother and other persons visited the

house of respondent No.2. The amount for taking

admission to MBBS course was settled at Rs.30 lakhs.

Accordingly, on 20th July, 2016, the complainant/

petitioner went to Chhatisgad, where, one medical

college is located and met respondent No.2 Vijay

Nalawade. Respondent No.2 accepted Rs.10 lakhs in

cash from the complainant and Rs.1.25 lakhs by D.D.

On the second day, respondent No.2 again demanded Rs.15

lakhs. On 20th August, 2016, the complainant/

petitioner transferred an amount of Rs.10 lakhs by

RTGS to the bank account of Respondent No.2. After

three days, the complainant went to Chhatisgad and

enquired about the admission of his son. At that time,

it was informed that admission at Chhatisgad college

was closed and respondent No.2 instructed the

complainant to approach the Chairman of Medical College

wp-1278-17.odt at Mayni, Dist. Satara. Accordingly, the complainant

approached to one of the employee of that college

namely Mr. Ranade and paid Rs.6,35,000/- by D.D. on

10th October, 2016 and transferred Rs.12 lakhs on

15.10.2016 and Rs.4 lakhs on 17.10.2016 through RTGS

to the Bank account of Mr. Ranade. Hence, in all, the

complainant has paid an amount of Rs.21,20,000/- to

respondent No.2 and Rs.22,35,000/- to respondent No.3.

Out of which, respondent No.2, repaid an amount of

Rs.4,25,000/- and respondent No.3 also repaid some

amount. Thus an amount of Rs.16,95,000/- is due from

respondent No.2 and an amount of Rs.6,35,000/- is due

from respondent No.3, who is stated to be Chairman of

Mayni college.

2. After filing of the complaint, offence came to

be registered and the accused persons were arrested.

During investigation, wife of respondent No.2 produced

an amount of Rs.16,95,000/- in the form of D.D. and on

behalf of respondent No.3 cash amount of Rs.6,35,000/-

was produced before the Investigating Officer. The

aforesaid amount was seized in the crime as per

Panchanama.

3. The present petitioner field application for

wp-1278-17.odt interim custody of the amount deposited with the

Investigating Officer. The learned Chief Judicial

Magistrate, vide order dated 12.07.2017 in Cri. M.A.

No. 720/2017, rejected the application. The

petitioner has challenged the said order and prayed for

interim custody of the amount.

4. Heard Mr. Gaware, the learned counsel appearing

for the petitioner, Mr. B. A. Shinde, APP for the

respondent No.1 State, Mr. J. V. Deshpande, Advocate

for respondent No.2, Mr. A. K. Bhosale, Advocate for

respondent No.3 and Mr. R. P. Deshpande, Advocate for

the Intervenor.

5. Learned APP has produced on record the report

submitted by the Investigating Officer dated 5th

October, 2017 which is taken on record and marked 'X'

for identification.

6. Meanwhile, wife of respondent presented the

revision application before the Sessions Court,

Aurangabad bearing Criminal Revision No. 199/2017. As

per the directions issued by this Court, the hearing of

the criminal revision was expedited and after hearing

the both the parties, the revision application filed by

the wife of respondent No.2 against the order passed

wp-1278-17.odt below Exh. 22 dated 12.07.2017 has been rejected.

7. Mr. Gaware, the learned counsel appearing for

the petitioner, during the course of argument, pointed

out that some of the amount was paid by the present

petitioner by transferring the same from the account of

the petitioner to the account of respondent No.2

through RTGS. Similarly, the amount paid to the

college of respondent No.3 was also in the form of D.D.

and in the form of RTGS, therefore, there is clearcut

evidence on record to show that the complaint paid the

aforesaid amount to respondent Nos. 2 and 3. Mr.

Gaware, the learned counsel further points out the

entries from the pass book which shows that some of the

amount was transferred to the account of Respondent

No.2 by RTGS.

8. From the report of the Investigating Officer,

dated 5th October, 2017, it appears that during the

investigation, wife of respondent No.2 presented three

Demand Drafts, amounting to Rs.16,95,000/- and an

amount of Rs.6,35,000/- was produced on behalf of

respondent No.3. The investigating officer has no

objection to grant interim custody of the cash amount

in favour of the present petitioner. Thus, from the

wp-1278-17.odt record, prima facie, it appears that respondent Nos. 2

and 3 have unauthorizedly accepted huge amount from

the complainant. Mr. Gaware, the learned counsel

further submits that the interim custody of the amount

be handed over to the petitioner and the petitioner is

ready to produce the same before the trial court as and

when directed by the Court. Mr. Gaware, the learned

counsel further submits that condition to that effect

may be imposed.

9. Learned counsel appearing for the intervenor

submits that the amount was recovered from the wife of

respondent No. 2 which she has collected from the

relatives. When specific query was made to the learned

counsel for the intervenor, as to why she had not

complained to the Superior Police Officer stating

that the I.O. had exerted pressure and unauthorizedly

compelled her to deliver certain property. It was

tried to be suggested on behalf of the intervenor that

husband of the intervenor i.e. respondent No.2 was in

police custody and therefore no complaint was made.

Even assuming for the sake of argument that her

contention is correct, still, it was not answered as

to why such complaint was not made to the superior

officer of Police after release of respondent No.2 on

wp-1278-17.odt bail and after submitting the charge sheet. The learned

counsel appearing for the intervenor submits that no

such complaint was ever made by the intervenor with the

superior police official. She has represented herself

in the proceeding by way of filing Criminal Revision

before the Sessions Court.

10. Looking to the nature of relief claimed by the

petitioner and the objections raised on behalf of

respondent Nos. 2 & 3 and the intervenor, it is not

necessary to discuss each and every aspects of the

matter in detail at this stage.

11. In view of the above circumstance, I am of the

opinion that during the pendency of the trial before

the trial court, the petitioner is entitled for the

custody of the amount deposited with the Investigating

Officer. Hence following order:

O R D E R

(1) The order dated 12.07.2017 passed by the Judicial

Magistrate, First Class, Aurangabad in Criminal M. A.

No. 720/2017 is hereby quashed and set aside.

(2)The amount of Rs.23,30,000/- be given to the

petitioner on the following conditions.

wp-1278-17.odt i. The petitioner shall give bank guarantee of

Rs.11,65,000/- and further he shall furnish

solvent security for the remaining amount of

Rs.11,65,000/- to the satisfaction of the trial

court.

ii. The petitioner shall produce the amount as and

when ordered by the trial court.

(3) Criminal Writ Petition is accordingly disposed of.

(K. L. WADANE, J.)

JPC