Taha Hafiz Kazi vs The State Of Maharashtra
2021 Latest Caselaw 2485 Bom

                                                     Cri.Appln-391 and 223-2019.odt
Shambhavi
N. Shivgan
                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by Shambhavi N.
                         CRIMINAL APPELLATE JURISDICTION
Shivgan
Date: 2021.02.08
15:08:03 +0530
                             BAIL APPLICATION NO.391 OF 2019

                   Sachin Vasant Shelar
                   Age 43 years, Occu: Service,
                   R/o. B-103, Chandresh Kanchan CHS
                   Shivaji Chowk, Lodha Heaven,
                   Dombivali (East),
                   District: Thane
                   [Presently lodged at Thane
                   Central Prison, Thane               ... Applicant
                         Vs
                   The State of Maharashtra
                   Vide C.R.No.I-116 of 2018
                   registered at Chitalsar Police
                   Station, Thane                    ... Respondent

                                           WITH
                             BAIL APPLICATION NO.223 OF 2019

                   Taha Hafi Kaii
                   Age: 26 years, Indian Inhabitant
                   Residing at: B/B-1, 201, Falah Complex
                   , Talavpali Road, Kausa, Thane
                   Presently lodged in Thane Jail         ..Applicant
                          Vs
                   The State of Maharashtra
                   Through the Police Inspector,
                   Chitalsar Police Station,
                   District: Thane                        ..Respondent
                                               ...

                   Mr. Akhilesh Dubey with Mr. Bhushan Bankar with Mr.
                   Uttam Dubey with Mr. Siddhesh Rajput and Mr. Vinod


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                                     Cri.Appln-391 and 223-2019.odt

Dubey i/by Law Counsellors for the Applicant in BA 223
of 2019.

Mr. Nitin Pradhan i/by Mr. S.D.Khot for applicant in BA
391 of 2019.

Ms. Veera Shinde, APP for the Respondent-State.

PI Nitin Thakare attached to Crime Branch (Division 1)
Thane present.


          CORAM : SANDEEP K. SHINDE J.
          RESERVED ON :  28th JANUARY, 2021.
          PRONOUNCED ON: 8th FEBRUARY, 2021.

JUDGMENT :

These applications are fled under Section 439 of

the Code of Criminal Procedure, 1973 ('Code' for short).

2 Applicant Sachin Shelar ('Shelar' for short) and

Taha Hafi Kaii ('Kaii' for short) have been cited as accused

nos.2 and 1 respectively in Crime No.I-116 of 2018

registered at Chitalsar Police Station, Thane for the ofences

punishable under Sections;

(I) 419, 420, 406, 465, 467, 468, 471, 120B,

171 read with Section 34 of the Indian Penal

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Code, 1860;

(ii) Section 4 of the Chit Funds Act, 1982;

(iii) Section 66D of the Information Technology

Act, 2000;

(iv) Section 3 of the Maharashtra Protection of

Interest of Depositors Act ('MPID' for short).

3 Particulars of the accused in the subject ofence

and their date of arrest are as under:

    (1) Taha Hafi Kaii                4th June, 2018

    (2) Sachin Vasant Shelar          18th June, 2018

    (3) Vikram Shekhar Bangera        13th August, 2018

    (4) Amit Madanlal Lakhanpal       Absconding

    (5) Ms. Komal Bhimrao Shirsat     Absconding



4           On 31st June, 2018, charge-sheet has been fled

against accused nos.1 and 2. On 9 th October, 2018

supplementary charge-sheet has been fled against accused

no.3.

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5         Prosecution's case in brief is that;

          Amit    Lakhanpal       (absconding        accused)           is

Managing Director of Flintstone Group of Companies;

1) Money Trade Coin Club Private Limited.

2) Flintstone Technology Pvt. Ltd.

3) Ray Afordable Flats and Housing Pvt. Ltd.

4) Orbit Buildcon LLP

5) M.T.Pay Services LLP

6) Flintstone Infracon LLP

7) Flintbeats Enterprises LLP

6 That in the year 2017, Amit Lakhanpal held the

seminars at Delhi, Pune and Nashik explaining benefts of

investment in crypto currency. One of such seminars held

on 4th August, 2017 was organised at Taj Mansingh, New

Delhi on the subject crypto currency. It was attended by the

complainant Pravin Agarwal and his friends. In the said

seminar, Amit Lakhanpal introduced himself as a member

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of Finance Ministry and showed his visiting cards with

national emblem on it. He encouraged the complainant and

other persons to invest in money trade coin (MTC). Amit

Lakhanpal explained and assured that if the coins were

purchased between 15th July, 2017 to 27th July, 2017, the

value per coin would be 1 $; between 30th July, 2017 to 12th

August, 2017, the value per coin would be 1.5 $; and if

purchased between 15th August, 2017 to 27th August, 2017,

value would be 2 $ and 30th August, 2017 to 12th

September, 2017, it would be 2.5 $. He assured that on 17th

September, same would be listed in public crypto currency

exchange and the rate of money trade coin (i.e. MTC) would

be 3 $. He represented that to keep the rates stable at 3 $,

Rs.250 Crores would be kept in fxed deposit and Rs.1750

Crores stand by letter of credit was obtained. He

represented that MTC would be connected to e-commerce

service and the rate would go up to 600 $ in future. That to

win the confdence of the investors, he had shown

correspondence with Government of India, Prime Minister

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office, Finance Ministry for making the crypto currency

legal. He had also promised that investors would be given

visa debit card on which MT coins would be loaded and

same could be used in ATM machine and can be used as

currency. Impressed with attractive investment schemes,

Mr. Agarwal, Complainant visited the office of Flintstone

group of Companies at Thane and invested Rs.10 Lakhs in

Money Trade Coin (MTC).

7 It is alleged that after deposit of the amount,

complainant's account was opened in MT Pay and MT coins

were transferred in the said account for its maturity in

January, 2018. That instead of returning the said amount,

Amit Lakhanpal had foated another scheme, i.e., coin

deposit ratio, which had, locked-in period, of six months

with 15% returns for six months and 20% returns for

twelve months. In the month of December, 2017, Amit

Lakhanpal and co-accused listed MT coins on Nova

Exchange (virtual coin exchange). Complainant purchased

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MT coins from the said exchange . After few days, rate of

MT coins started declining. When the complainant enquired

about decline in value of MTC, Kaii, Accused No.1 told that

said MT coins were not of their company. Furthermore, a

new scheme by name, MTC Banque and new exchange by

name MTCX India were foated. Complainant and others

invested in the coin on assurance that rate of coin would be

increased to 6 $ per coin. Due to this hope was generated

within the complainant and others to make further

investments in another plan with Cypto Zananiya. At this

time, value of MT coins had gone up, substantially but at

the same time service of withdrawal of money or sale of

money trade coin was stopped. Investigation revealed that

Amit Lakhanpal and co-accused consciously manipulated

rate of MT coins. Thus, it is to be stated that accused Amit

Lakhanpal and co-accused lured people into investing

money with false promise of heavy returns. To, say,

investors were neither paid returns nor returned principal

amount nor were permitted to trade in MTC. Thus, by

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gaining trust of the complainant and other investors, they

made them to invest in their money trade coin crypto

currency by foating various schemes, plans called

Cryptoiananiya. It is crypto currency wallet service, where

investors can deal in money trade coin and bitcoin on MTCX

Capital India for their fnancial transactions.

8 Thus, subject ofence is economic ofence having

deep routed conspiracy and involving huge loss of

investors' money. Thus, it appears, Amit Lakhanpal with the

active assistance and in collusion with the applicants, who

are before this Court, collected huge amount of Rs.113

Crores from ffteen thousand investors and siphoned of

from various accounts.

9 Applicants herein were arrested in the month of

June, 2018. Charge-sheet has been fled against them,

however, further investigation is underway.

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10        Mr. Pradhan, learned counsel for the applicant-

Shelar, would contend that Shelar was working under the

authority of Amit Lakhanpal as his employee and was not

involved in decision making process nor had control over

the day-to-day afairs of the group of companies led by

Amit Lakhanpal. The learned counsel would contend that

the penal provisions of the MPID Act have been incorrectly

invoked, in-as-much as, provisions of Section 2(c)(viii) of the

MPID Act takes away from its purview any amount received

by way of subscription in receipt of chit. He would rely on

provisions of Section 2(d) of the Chit Funds Act, 1982. Mr.

Pradhan would, therefore, submit that if provisions of Chit

Funds Act, 1982 are applied, it excludes, provisions of MPID

Act. His next submission is that there is no evidence at all

to indicate or even to suggest that applicant-Shelar is

benefciary of any amount allegedly siphoned of by Amit

Lakhanpal or other directors of the company. It is submitted

that Shelar is salaried employee and all throughout his acts,

commission and omissions were at the command, of Amit

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Lakhanpal. It is further submitted that the investigation is

over and trial may not commence in near future. However,

presence of the applicant-Shelar can be secured for the trial

by imposing suitable conditions. Learned counsel would

submit that since prosecution's case is based on

documentary and electronic evidence and since all

electronic devices are seiied, possibility of tampering

evidence stands excluded and ruled out. Mr. Pradhan

would, therefore, urge that the applicant be released on

bail.

11 The State has opposed the applications of Shelar

and Kaii by fling affidavit of Mr. Nitin Thakre, Senior Police

Inspector attached to Crime Branch Unit-I, Thane. Ms.

Shinde, the learned Additional Public Prosecutor has taken

me through the charge-sheet and pointed out role

attributed to the applicants and their complicity in the

subject crime.

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12 Investigation shows, accused Shelar was not an

employee of the group of companies led by Amit Lakhanpal

but he is director in the following six companies:

(1) Flinstone Technology Pvt. Ltd.

(2) MT Pay Services Pvt. Ltd.

(3) Money Trade Coin Pvt. Ltd.

(4) Flinstone Infracon LLP

(5) Orbitcon LLP

(6) Flinstone Enterprises Pvt. Ltd.

Office of the Registrar of Companies has supplied the

aforesaid information, which is also placed on record along

with the affidavit. In view of this fact, the contention of Mr.

Pradhan that accused Shelar was an employee at the

command of Amit Lakhanpal is incorrect. Therefore, at the

frst place, the applicant Shelar has not approached this

Court with clean hands.

13 Material on record indicates, that soon after the

registration of the subject ofence, accused Shelar fed to

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Dubai. There is material on record to suggest that the Amit

Lakhanpal and Shelar purchased the air tickets from one

agency and statement of employee of the said agency

fortifes this fact.

14 The learned Additional Public Prosecutor, to show

the complicity of the applicant Shelar, has relied on the

statement of Chetan Thakkar Angadia recorded on 29 th

June, 2018. Mr. Chetan Thakkar Angadia is in the business

of courier serice. His statement reveals that in November,

2017, he was introduced by one Mehul to applicant Shelar

and at the instance of Shelar, Chetan Thakkar had

collected, cash around Rs.4 Crores in between November,

2017 to February, 2018 from diferent cities across the

country and at his instance handed over/delivered the cash

to co-accused Bangera, Tushar Joshi and other persons. Mr.

Thakkar stated at the instance of the applicant Shelar, he

had delivered cash at the office of Flinstone Group at thane.

In support of the statement, Chetan Thakkar has produced

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the register. It is part of affidavit. I have perused it. (Page

269, 286). This register shows, particulars of persons across

the country from September, 2017 till 31 st January, 2018

wherefrom he had collected cash. I have no reason to

disbelieve and discard the statement of Chetan Thakkar

and the entries in register, maintained regularly in the

course of business, which in clear terms shows complicity of

the applicants in the subject crime. In this regard, further

investigation is on going and Shelar is the only person, who

can explain from whom and for what purpose, huge cash

was collected through Angadia and where the cash is lying

or utilised.

15 Yet, statement of one Arun Madhukar Lade,

another investor clearly discloses complicity of both the

applicants. In his statement, he has given clear account as

to how he was lured by Amit Lakhanpal to invest

Rs.1,10,000/- in money trade coin, a crypto currency and

other such schemes and wallets foated by the group of

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companies. He would say that as and when he visited

office, the applicants were found present. It may be stated

that this witness was assured defnite returns on

investment in money trade coin and his confdence was

won by showing forged stand by letter of credit issued by

the HSBC Bank against the fxed deposits. This letter of

stand by credit turned out to be a forged document as

could be seen from letter dated 5 th June, 2018 addressed to

Senior Police Inspector by the HSBC Bank. Bank disowned

the said document.

16 The learned Additional Public Prosecutor has

further relied on statement of Amit Kumar Panigrahi to show

complicity of accused Kaii. Though it is contended by the

learned counsel for the accused Kaii that Kaii was an

employee of the group of companies led by Amit Lakhanpal

but the evidence is otherwise.

17 Mr. Panigrahi in his statement recorded on 22 nd

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August, 2018 stated that in the year 2017, accused Kaii

had appointed him as PHP Developer and instructed him to

develop two web-sites namely MTCX India.com and MTCX

India.in. These web-sites were required by Amit Lakhanpal

for trading in the crypto currency. Accordingly, this witness

developed these two web-sites, through which investors

were investing the money in the schemes foated by Amit

Lakhanpal and the co-accused. This witness stated in detail

how the schemes were operated through these two web-

sites to which accused Mr. Kaii had complete access.

Statement of this witness suggests, technical changes in

the two web-sites were frequently made at the instance of

Kaii and he had complete control over the rate of crypto

currency. This witness said/stated, that Kaii was possessing,

a software through which he was able to infate and defate

rate of crypto currency. Ms. Shinde, the learned Additional

Public Prosecutor has also relied on the statement of one

Akash Solanki, who does the business of advertising. His

services were hired for promoting the business of money

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trade coin and MTCX India company on social media. It is

his statement that in October, 2017, Amit Lakhanpal asked

him to make graphics of ten web-sites, developed by Kaii.

18 Thus, the evidence on record clearly shows that

applicant Kaii, was handling technical operations right from

developing web-sites, designing logo and graphics including

online registration of investors. This accused used to open

accounts of investors with MTCX and issue the unique id to

the investors. His close association with Amit Lakhanpal is

also evident from the statement of one Vilas Mohite, who

said his office premises were given to Group of Finstone

Technologies Private Ltd under the registered leave and

licence agreement with accused Kaii. Statement of Akash

Solanki revealed that Kaii had given contract of graphical

design of web-site to him. Besides, the evidence also

suggests, he had designed and created MT Pay mobile

application and two web-sites, which is evident from the

panchanama relating to the downloaded data of the web-

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sites. Thus, to be stated, Kaii was not just, on the pay-roll of

Lakhanpal. A fact cannot be overlooked, that Kaii lent

complete technical support to companies and for trading in

MTC. It is apparent from the statements of witness, that

Kaii had an access to system and was instrumental in

manipulating the rates of MTC crypto currency. Had he been

just an employee of Amit Lakhanpal, defnitely, he would

not have given free hand and access to system, to Kaii.

19 In the course of the investigation, personal

mobiles, lap-tops of both the accused were seiied and

forwarded for digital forensic audit and the reports are

awaited.

20 In the course of the investigation, eighty bank

accounts were seiied of which the forensic audit is sought.

It is evident from the communication dated 24 th August,

2020.

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21 It may be stated that so far as the accused Shelar

is concerned, further investigation has revealed that he was

authorised signatory to operate the bank accounts of the

Finstone Technologies Private Ltd, Money Trade Coin Club

Private Ltd.

22 Ms. Shinde, the learned Additional Public

Prosecutor has relied on the account opening forms, which

show, accused Shelar was signatory no.3 so far as Finstone

Technologies Private Ltd.'s bank account is concerned.

23 Thus, it is to be held that accused Shelar and Kaii

were not sheer employees of the group of companies and

working at the command and under authority of Amit

Lakhanpal but the evidence shows, they were active at all

the stages right from foating schemes, developing web-

sites, monitoring the rate of crypto currency, activating

investors' accounts, blocking their accounts and collection

of cash from diferent persons across the country and its

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appropriation, as has been disclosed by Mr. Chetan Thakkar.

24 It may be stated that the report of Forensic Audit

Report of "eighty bank" accounts is awaited. Once, that

report is received, investigating agency may be able to

trace the trail of money. Today, it cannot be said that

applicants are not benefciaries of the money siphoned of.

In fact, looking at their role in the entire process right from

attending seminars, foating schemes, web-sites, collection

of cash, controlling rate of crypto currency, it is unlikely that

they were not benefciary of the amount siphoned of from

eighty-two bank accounts of companies. Evidence shows

that during June, 2018 till 9th June, 2018 in the

web-sites of the company vii. Mtcxindia.com,

wallet.moneytradecoin.com and MT pay wallet about 15810

investors have invested either through MT Pay/ MTCX or

Banque UK or Cryptoianania schemes and the wallets

foated by group of companies. There are about 45,000

investors and database analyie panchanama shows about

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15,810 investors had invested about Rs.113,10,36,551/-.

Evidence also shows, money, hard discs, mobile phones,

pen-drives, lap-tops, CPUs were seiied from personal

search and from the offices of the companies and digital

forensic report in respect of 104 electronic and support

devices is awaited. Evidence also suggests, money invested

by 15,810 investors around 113,10,36,551/- has been

diverted in the companies established in countries say

Poland, England, Harju County, Dubai-UAE, Switierland.

Therefore, taking cue from the material surfaced in

investigation, investigating agency is in the process of

invoking the provisions of 166A (letters regotary) of the

Code of Criminal Procedure, 1973, for which necessary

correspondence has been made with the Director General

of Police.

25 Here crime , relates to Economic Ofence. Prima-

facie, material on record shows absconding key accused

Amit Lakhanpal and applicants committed the subject crime

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with minute planning and deliberate design. Herein,

Forensic Audit Report (of eighty-two bank accounts) and

digital forensic report of 104 electronic devices is awaited.

Report in respect of the support devices (like pendrive, hard

disks, etc.) would, provide, further and more inputs-

particulars, including money trail. In addition, investigation

relating to investment in foreign countries, if any, is in

progress. Thus, having regard to role of applicants' surfaced

in the investigation, if they are released, further

investigation will surely be infuenced. Equally, whereabout

of key accused is not traced. Thus, though investigation

(partly) is over, chances of tampering prosecution evidence

at the hands of applicants cannot be ruled out.

26 So far as applicants' contention that provisions of

Section 2(d) of the Chit Funds Act and Section 2(c)(vii) of

the MPID Act being mutually exclusive, prosecution could

not have applied or invoked it simultaneously, it may be

stated that in appropriate proceedings and at appropriate

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time, applicants may raise this contention.

27        Applications are rejected.



28        It is made clear that observations made here-in-

above be construed as expression of opinion for the

purpose of bail only and the same shall not in any way

infuence the trial in other proceedings.

(SANDEEP K. SHINDE, J.)

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