Prashant Damodar Katkade vs The State Of Maharashtra
2021 Latest Caselaw 7194 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL BAIL APPLICATION NO.168 OF 2021

 Mohammadali Jamaluddin Saiyyad
 @ Raunak Suresh Madhiwal                               .... Applicant
             Versus
 The State of Maharashtra                               .... Respondent

                                    .....
                                  WITH
                   INTERIM APPLICATION NO.1182 OF 2021
                                    IN
                 CRIMINAL BAIL APPLICATION NO.168 OF 2021


 Prashant Damodar Katkade                               ...Applicant/Intervenor
 IN THE MATTER BETWEEN:
 Mohammadali Jamaluddin Saiyyad
 @ Raunak Suresh Madhiwal                               .... Applicant
             Versus
 The State of Maharashtra                               .... Respondent

                               -----
 Dr. Abhinav Chandrachud, Advocate i/b. R.V. Gupta, for the
 Applicant.
 Mr. Chetan S. Damre, Advocate for the Intervenor.
 Mr. Ajay Patil, APP for the Respondent-State.
                               -----

                                     CORAM : SARANG V. KOTWAL, J.

DATE : 05th MAY, 2021 [Through Video Conferencing]

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P.C. :

1. This is an application for setting aside the condition of

depositing Rs.22 Lakhs as a condition precedent for being released

on bail. The second prayer is for the Applicant's release on bail in

connection with C.R.No.I-101/2018 registered at Manmad City

Police Station, District-Nashik.

2. Heard Dr. Abhinav Chandrachud, learned Counsel

for the Applicant, Shri Chetan Damre, learned Counsel for the

Intervenor and Shri Ajay Patil, learned APP for the State.

3. The Applicant was arrested in connection with the

above offence on 9.3.2019. The offence was registered under

Sections 420, 120-B read with 34 of the Indian Penal Code.

4. The FIR was lodged by one Prashant Katkade on

31.5.2018. He has stated that he was in the business of

construction and development. He wanted a project loan for

his business. He came in contact with one of the accused

Prakash Jadhav. The informant met him at Manmad. The

accused Prakash Jadhav represented to the informant that he

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was representative of M/s. Cobra Financial Solution, Branch

Walsad, Gujarat. He told the informant that through the Chief

Officer of the said financial company he could get the loan of

Rs.5 Crores @ 6% per annum for the informant's project at

Nashik. The loan was to be repaid within five years. The FIR

mentions that Prakash Jadhav represented to the informant

that the present Applicant was the Chief Officer of the

Financial Company. Thereafter the present Applicant,

Prakash Jadhav, Prakash Parmar and Sajid Ajmeri met him at

Manmad and decided to go ahead with their transaction.

They inspected the documents and showed willingness to

give loan. The informant was told by Prakash Parmar that he

should meet the Applicant at hotel Fountain on Thane by-pass

road. The informant paid in all Rs.22 Lakhs in cash by way of

commission to obtain loan of Rs.5 Crores. However, no loan

was sanctioned in his favour and he has lost that amount of

Rs.22 Lakhs. On this basis, the FIR is lodged.

5. The Applicant was arrested as mentioned earlier.

From the record it appears that the charge-sheet was not filed

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within time after the Applicant's arrest and at the first

instance the Judicial Magistrate, First Class, Manmad City

vide his order dated 10.5.2019 granted bail to the Applicant

under the provisions of Section 167(2) of Cr.P.C. in the sum of

Rs.50,000/- with one or two solvent sureties in the like

amount. Vide the same order, notice was issued to the

investigating officer to explain within seven days as to why

the charge-sheet was not filed within prescribed time.

6. Dr. Chandrachud appearing for the Applicant

submitted that after this order was passed on 10.5.2019;

within four days i.e. on 14.5.2019, charge-sheet was filed and,

therefore, the Applicant could not be released on bail.

Thereafter the Applicant preferred another application for bail

under Section 439 of Cr.P.C., which was allowed by the

Additional Sessions Judge, Malegaon vide his order dated

21.8.2020 in Criminal Bail Application No.98/2020. In the

operative part of the order, the Applicant was directed to

deposit Rs.22 Lakhs before the Magistrate as a condition

precedent for his release on bail.

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7. The Applicant was unable to comply with this

condition and, therefore, moved Criminal Misc. Application

No.25/2020 for relaxation of that particular condition and

also for relaxation of condition of reporting to the police

station. This Application was rejected and, therefore, the

Applicant has preferred the present Application before this

Court.

8. Dr. Chandrachud submitted that the Applicant

deserves to be released on bail pursuant to the order passed

by the J.M.F.C., Manmad City under Section 167(2) of Cr.P.C..

That order was passed on 10.5.2019 and the charge-sheet was

filed shortly thereafter on 14.5.2019. It cannot be termed as

reasonable time enabling the Applicant to comply with the

directions of learned Magistrate for his release on bail. He

submitted that even under Section 167(2) of Cr.P.C., the

Applicant is entitled to be released on bail as it is his statutory

right.

9. Dr. Chandrachud further submitted that even

otherwise, on merits, the Applicant deserves to be released on 5 of 14

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bail. He relied on the fact that all the three other accused are

released on bail. Co-accused Prakash Jadhav was granted bail

by this Court (Coram: A.S. Gadkari, J.) vide order dated

21.12.2018 passed in Bail Application No.2942/2018. Co-

accused Sadiq Bhai was granted bail by Additional Sessions

Judge, Malegaon vide his order dated 28.2.2019 passed in

Bail Application No.111/2019. Another co-accused Prakash

Parmar was granted bail by this Court (Coram: A.S. Gadkari,

J.) vide order dated 26.6.2020 passed in LD/VC/IA/93/20 in

BA/2389/2019. Dr. Chandrachud, therefore, submitted that

on either of these grounds, the Applicant deserves to be

released on bail.

10. Learned Counsel for the intervenor Shri Damre

strongly opposed this Application. He submitted that at the

first instance when the Applicant was granted bail under

Section 167(2) of Cr.P.C. he had not complied with the

directions and, therefore, his right to be released on bail

under those conditions stood extinguished. He further

submitted that, on merits, the Applicant does not deserve to

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be released on bail as he was the master-mind behind this

offence. He submitted that, the Applicant has two passports

and, therefore, possibility that the Applicant may abscond, if

granted bail, cannot be ruled out.

11. Shri Damre justified the order passed by the

Sessions Court by imposing pre-condition of depositing Rs.22

Lakhs. He further submitted that the role of the present

Applicant is different from those of the co-accused who have

been granted bail. Shri Damre submitted that there are nine

antecedents against the present Applicant in the States of

Maharashtra and Gujarat.

12. Shri Ajay Patil, learned A.P.P. fairly submitted that

the condition asking the Applicant to deposit Rs.22 Lakhs as a

pre-condition is onerous and the Hon'ble Supreme Court in

many judgments has criticized such approach. He further

submitted that, on merits, the Applicant does not deserve to

be released on bail.

13. I have considered all these submissions. As rightly

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submitted by Dr. Chandrachud, the Applicant was granted bail

under the provisions of Section 167(2) of Cr.P.C. on

10.5.2019. Within four days the charge-sheet was filed and

it is presumed that the Applicant's right to be released on bail

stood extinguished. This may not be correct position in law.

The Applicant was not given sufficient and reasonable

opportunity to furnish sureties as was directed. Therefore, it

would not be proper to observe that the Applicant had not

complied with the directions and, therefore, had forfeited his

right to be released on bail under Section 167(2) of Cr.P.C..

However, the Applicant has not taken any further steps by

approaching any higher forum in that behalf, and, instead

preferred an Application under Section 439 of Cr.P.C.

14. In that behalf it is necessary to refer to the FIR.

The FIR clearly sets out the manner in which the offence was

committed. Though the FIR does indicate that the Applicant

was shown to be the Chief Officer of the concerned Financial

Firm, the earliest representation was made by co-accused

Prakash Jadhav. The other accused had played their

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respective parts and it cannot be said that the offence was

committed by the present Applicant single handedly on his

own.

15. The orders passed by this Court and Sessions

Court granting bail to the co-accused do bear some

importance in the context of the case. Therefore, on the

parity also the Applicant deserves to be released on bail in the

present case, albeit with some conditions to ensure his

presence during trial. This is particularly necessary in view of

the submissions made by Shri Damre that there are

antecedents against the Applicant and he has two passports.

16. The crucial aspect in this case is about imposition

of onerous condition directing the Applicant to deposit Rs.22

Lakhs as a condition precedent for bail. In this context, the

observations of learned Additional Sessions Judge, Malegaon

are interesting. His reasoning is encapsulated only in one

paragraph i.e. Paragraph No.5, which reads thus :

"05] Perused the documents on record. It appears from the Say that investigation is completed,

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charge-sheet is filed. Accused is charged for the offence punishable under section 420, 120(B) r/w. S. 34 of I.P.C. The maximum sentence provided is of seven years imprisonment. Under such circumstance, as per mandate of the Hon'ble Supreme Court in Covid-19 Pandemic situation, applicant is entitled for the bail. It is also reflected from the documents that applicant is habitual to change his name. There is a every possibility that he may abscond and will not available for the trial. Under such circumstance, I am of the opinion that stringent conditions be imposed on him while enlarging him on bail. In result, I pass the following order."

17. There is absolutely no indication of learned

Judge's inclination to impose such a heavy condition. There is

no discussion in that respect at all. Obviously the condition is

onerous and it is prejudging the issues between the parties

without trial. This condition proceeds on the footing that the

FIR is the complete truth without necessity of any further

proof. This approach obviously is not permissible. As far as

imposing onerous condition is concerned, the Hon'ble

Supreme Court in many judgments has held that such an

approach is not permissible.

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18. In the case of Dataram Singh Vs. State of Uttar

Pradesh and another, as reported in (2018) 3 SCC 22, the

Hon'ble Supreme Court has observed that the conditions for

the grant of bail ought not be so strict as to be incapable of

compliance, thereby making the grant of bail illusory.

19. In the case of M.D. Dhanapal Vs. State

represented by the Inspector of Police, as reported in (2019) 6

SCC 743, the Hon'ble Supreme Court in Paragraph-6 has

observed that it is well settled that bail cannot be made

conditional upon heavy deposits beyond the financial capacity

of an Applicant for bail.

. In the present case, though the order of bail was

passed on 21.8.2020; the Applicant is still in custody as he

was unable to comply with the directions of depositing Rs.22

Lakhs. This obviously means that such condition is beyond his

financial capacity; thereby practically denying him relief of

bail.

20. In another case of Dilip Singh Vs. State of Madhya

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Pradesh and another, as reported in (2021) 2 SCC 779, the

Hon'ble Supreme Court in Paragraph-4 has held that a

Criminal Court, exercising jurisdiction to grant

bail/anticipatory bail, is not expected to act as a recovery

agent to realise the dues of the complainant, and that too,

without any trial.

21. Thus, it can be seen that in the present case the

condition directing the Applicant to deposit Rs.22 Lakhs as a

condition precedent, for release on bail cannot be sustained.

Learned Judge has not given any reasoning whatsoever for

arriving at that particular figure. It is assumed that since the

FIR mentions that the amount involved was Rs.22

Lakhs,therefore, such an amount appeared in the operative

part. But, there is no other discussion in the body of the

order. The entire approach of learned Judge is erroneous.

22. As mentioned earlier, considering merits of the

case and also the fact that the Applicant was entitled to be

released on bail under Section 167(2) of Cr.P.C., I am inclined

to grant bail to the Applicant on certain conditions, but, not 12 of 14

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on the condition of directing him to deposit Rs.22 Lakhs. The

antecedents of the Applicant and the fact that he could not be

immediately arrested will also have to be taken into account.

Dr. Chandrachud stated, on instructions, that the Applicant is

ready and willing to furnish local solvent sureties. Hence, the

following order :

ORDER

(i) The operative part of the order dated 21.8.2020 passed

by the Additional Sessions Judge, Malegaon in Criminal

Bail Application No.98/2020 is set aside. However, the

Applicant is granted bail on following conditions.

(ii) The Applicant is directed to be released on bail in

connection with C.R.No.I-101/2018 registered with

Manmad City Police Station, District-Nashik. on his

furnishing a PR bond in the sum of Rs.50,000/- (Rupees

Fifty Thousand Only) with one or two local solvent

sureties in the like amount.

(iii) The Applicant shall deposit his passport, if any, with the

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investigating officer before being released on bail.

(iv) The Applicant shall furnish his residential address and

contact number before being released on bail.

(v) The Applicant shall attend the concerned police station

on first Monday of every month till framing of the

charges.

(vi) The Applicant shall attend the trial Court on every single

date except when prevented by a reasonable cause.

(vii) The Application is disposed of accordingly. With

disposal of this Application, Interim Application

No.1182/2021 is also disposed of.

(SARANG V. KOTWAL, J.) Deshmane (PS)

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