The State Of Maharashtra, Thr. ... vs Sanjeev S/O Shankarrao Khade And ...
2021 Latest Caselaw 2385 Bom

                                          1                            APPEAL-70-21-3.odt



               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR


                          CRIMINAL APPEAL NO. 70 OF 2021


 The State of Maharashtra,
 Through Sub-Divisional Officer,
 (Competent Authority, appointed
 under MPID Act).                                                   . . . APPELLANT

                      ...V E R S U S..

 1.     Sanjeev s/o Shankarrao Khade,
        Aged about : 49 years,
        R/o Plot No.101, Jayant Mansion-6,
        Near Kachore Lawn, Manish Nagar,
        Wardha Road, Nagpur.
        (at present in Central Jail, Nagpur).

 2.     Mrs. Nanda w/o Sanjeev Khade,
        Aged about : 45 years,
        R/o Plot No.101, Jayant Mansion-6,
        Near Kachore Lawn, Manish Nagar,
        Wardha Road, Nagpur.                                    ... RESPONDENTS

 Shri T.A.Mirza, APP for the appellant/State.

                           CORAM :       Z. A. HAQ AND
                                         AMIT B. BORKAR, JJ.

                           DATED     : 05.02.2021.


 ORAL JUDGMENT (PER : AMIT B. BORKAR, J.) :


 1.               Heard.

 2.               Admit.





                                          2                         APPEAL-70-21-3.odt

3. Through this appeal, the State of Maharashtra has

challenged the order passed by the District Judge-2 and Additional

Sessions Judge, Nagpur, thereby refusing to confirm attachment in

respect of immovable property i.e. Flat No.101, First Floor, A Wing,

Jayanti Mansion VI, Manish Nagar, Nagpur.

4. The Competent Authority under Section 5 (3) of the

Maharashtra Protection of Interest of Depositors (In Financial

Establishments) Act, 1999 (for short "MPID Act") had attached

properties of the respondent nos.1 and 2 by Notification dated

21.3.2016. The respondent no.1 was the Director of Financial

Institution - M/s. Wetell Concept Pvt. Ltd. It is alleged by the

prosecution that the Directors of the said Company had launched

various schemes and promised high attractive rates of interest and

received deposits from 161 depositors to the tune of Rs.3,09,53,000/-

but, did not return the amount of deposits. Crime No.313/2011 was

registered against the Directors of the said Company including the

respondent no.1 for offences punishable under Sections 420, 406 and

120-B of the Indian Penal Code read with Section 3 of the MPID Act.

The respondent nos.1 and 2 were arrested and their immovable

properties were attached after the Government was satisfied that the

respondents have acquired said properties out of the deposits collected

by them and the respondents are not likely to refund deposits to the

3 APPEAL-70-21-3.odt

depositors. The prosecution, therefore, filed an application under sub-

section (3) of Section 5 of the MPID Act, for making order of

attachment absolute and for necessary directions for realisation of

assets, as contemplated by Sections 4 and 7 of the MPID Act.

5. The respondent no.1 filed his reply and stated that the

property, which is the subject matter of the present appeal i.e. Flat

No.101, First Floor, A Wing, Jayanti Mansion VI, Manish Nagar, Nagpur

has been purchased by respondent no. 1 and 2 , out of their own

income on 11.5.2011 . It is stated that the respondent no.2 - wife was

having her property at Akola, which was sold for consideration of

Rs.3,85,000/- and the said amount was utilised for purchasing flat in

question. Therefore, it was prayed that the attachment in respect of the

said flat should not be made absolute.

6. The respondent no.2 filed her Intervention Application in

the said proceedings to oppose making of attachment absolute. It is

stated by the respondent no.2 that the flat in question has been

purchased after saving considerable money from her salary, by selling

ancestral property for consideration of Rs.3,85,000/- and selling flat at

Rajat Plaza for an amount of Rs.3,81,000/-. It is further stated that she

used to run tuition classes and earned sufficiently.

4 APPEAL-70-21-3.odt

7. We have carefully considered the documents produced by

the respondent nos.1 and 2. On careful perusal of the record, it appears

that the flat in question i.e. Flat No.101 was purchased by the

respondent nos.1 and 2 for an amount of Rs.25,00,000/- on 11.5.2011.

The respondent no.2 in her cross-examination admitted that she had

paid stamp duty of Rs.1,20,000/- and paid registration fee to the tune

of Rs. 25,000/- and she had to incur miscellaneous expenditure for the

purpose of registration of said agreement to the tune of Rs.25,000/-.

Therefore,it appears that the respondent nos.1 and 2 had paid an

amount of Rs.26,95,100/- on the date of sale-deed i.e. on 11.5.2011.

8. From the evidence adduced by the respondent no.2, it

appears that the respondent nos.1 and 2 have paid an amount of

Rs.16,00,000/- to the builder for purchase of flat in question. It also

appears that before execution of the sale-deed, on 18.4.2009, there was

agreement to sale executed between the builder and the respondent

nos.1 and 2 in respect of flat no.101, . From the documents below

Exhibit Nos.28 and 37, it appears that the respondent no.1 paid an

amount of Rs.16,00,000/- to the builder by way of cheque and cash

from 4.1.2009 till 14.07.2009. It also appears from the material on

record that the respondent no.2 had paid an amount of Rs. 4,01,000

from 18.1.2009 till 2.3.2009. The evidence on record shows that the

respondent nos.1 and 2 have collectively paid an amount of Rs.

5 APPEAL-70-21-3.odt

20,01,000/- to the builder in the year 2009 itself by way of part

consideration of amount of Rs.25,00,000/-. There is no evidence

adduced by the respondent nos.1 and 2 to show that in what manner

they paid remaining amount of Rs.5,00,000/- to the builder. There is no

evidence adduced by the respondent nos.1 and 2 to show as to how

they had arranged for the amount of amount of Rs. 1,95,100/- for

registration of the sale-deed.

9. The respondent no.2 in her examination-in-chief stated that

she was working as Insurance Agent and she had deposited commission

received as Insurance Agent in her Savings Account with Central Bank

of India. We have considered Exhibit 62,which is Passbook of account of

the respondent no.2. Considering the entries in the passbook, it appears

that the respondent no.2 had balance of Rs. 80,329/- for the period

between 4.2.2009 till 14.7.2009, which is the period of payment of part

consideration to the builder for purchase of flat in question.

10. It is also stated by the respondent no.2 that the

consideration for the purchase of Flat No.101 was also paid by selling

her house on 18.12.2009 at Akola for an amount of Rs.3,85,000/-.

From the evidence on record, it appears that the respondent no.2 had

paid builder amount of her share from 4.1.2009 to 14.07.2009 and the

sale-deed of house at Akola for consideration of RS.3,85,000/- was

6 APPEAL-70-21-3.odt

executed on 18.12.2009. There is no evidence on record to show that

after 14.7.2009 the respondent no.2 has paid any amount to the builder

for purchase of the property in dispute.

11. The respondent no.2 also stated that she was serving as

Teacher in Saraswati Upper Primary School, Kamptee, and she tendered

her resignation on 30.6.2007. The evidence on record shows that in the

year 2007 when she resigned from her job as Teacher, her total salary

was Rs.12,946/-. The respondent no.2 has admitted in her evidence

that the amount of salary was shown in her Income Tax Return. The

respondent no.2 has not adduced any evidence to show that she had

saved amount of salary during her tenure of her service.

12. The respondent no.2 also stated that she had sold her Flat

no.407 on 16.10.2007 by registered sale-deed for consideration of

Rs.3,11,000/-. The respondent no.2 in her cross-examination admitted

that she purchased Flat no.407 on 19.10.2006 for consideration of

Rs.4,80,000/- and was sold by her on 16.10.2007 for an amount of

Rs.3,11,000/-. It is, therefore, clear that she had not received any profit

out of the said transaction. The respondent no.2, in her Income Tax

Return for assessment year 2007-08 had shown her gross income at

Rs.1,33,280/-. The respondent no.2 admitted in her cross-examination

that on 19.3.2007, she had an amount of Rs.15,711/- in cash and

7 APPEAL-70-21-3.odt

Rs.10,514/- as bank balance. The respondent no.2 had not filed any

documentary evidence on record to show that she had any independent

income during the period 2007 to 2011 after her resignation from her

employment as Teacher.

13. Insofar as her claim as regards income as Insurance Agent

is concerned, the respondent no.2 in her cross-examination admitted

that she has not filed any statement to show that how much commission

was received by her during period of three years since her appointment

on 11.3.2006.

14. Having considered the documentary evidence produced by

the respondent no.2 in the light of sale consideration of Flat no.101 of

Rs.25,00,000/- and additional amount of Rs.1,70,100/- towards

expenses, the respondents have failed to adduce reliable and cogent

evidence to show that the flat in question has been purchased by them

out of their own source of income. In absence of such evidence, the

learned District Judge was not justified in refusing to confirm

attachment of flat in question. The learned District Judge has not even

taken into consideration amount of sale consideration of flat in

question. It appears that reasons which weighed with the learned Judge

for refusing to confirm attachment were sale proceeds of Rs.3,11,000/-

of sale-deed dated 16.10.2007 and amount of Rs.3,85,000/- of sale-

8 APPEAL-70-21-3.odt

deed dated 18.12.2009. But, the learned Judge has ignored material

documents produced by the respondent no.2 to show that the amount

paid by the respondent no.2 to the builder for purchase of flat in

question was much prior to 18.12.2009, and after 18.12.2009, no

amount was paid by the respondent no.2 to the builder towards sale

consideration of the said flat. In our view, findings and inferences are

drawn in a stretched and unacceptable manner which renders the

impugned judgment perverse. The learned District Judge has

completely ignored material evidence on record. The findings of learned

District Judge are based on irrelevant considerations of facts and law.

Therefore, we are satisfied that the order passed by the learned District

Judge impugned in the appeal deserves to be quashed and set aside.

Therefore, we pass the following order:

ORDER

(i) Clause (iii) of the impugned order dated 13.08.2019 refusing to

confirm attachment in respect of Flat no.101, First Floor, A Wing,

Jayanti Mansion VI, Manish Nagar, Nagpur is quashed and set aside.

(ii) The attachment of immovable property by Government Notification

bearing No.EOF-0114/CR No.37/POL-13 dated 21.03.2006 is confirmed

in respect of Flat no.101, First Floor, A Wing, Jayanti Mansion VI,

Manish Nagar, Nagpur.

                                                  9                           APPEAL-70-21-3.odt



                           The appeal is allowed in the above terms.




                        JUDGE                                       JUDGE



ambulkar