Bombay High Court
Vijaykumar Deshraj Sethi vs Senior Police Inspector And Ors on 5 May, 2021
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.70 OF 2021
Shri Vijaykumar Deshraj Sethi .... Applicant
Versus
1. Senior Police Inspector,
Malegaon Camp police station, Malegaon
2. State of Maharashtra, &
3. Vilas Asaram Chordia .... Respondents
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Mr. Rajat Vinod Dighe, Advocate for the Applicant.
Smt. A.A. Takalkar, APP for the Respondent-State.
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CORAM : SARANG V. KOTWAL, J.
DATE : 05th MAY, 2021
[Through Video Conferencing]
P.C. :
1. The Applicant has filed this application for
modification of the bail condition imposed by Additional
Sessions Judge-3, Malegaon in Criminal Bail Application
No.12/2020 in connection with C.R. No.113/2019 registered
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Deshmane(PS)
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with Malegaon Camp Police Station, District-Nashik. That
order was dated 8.1.2020. Vide that order, the Applicant was
directed to be released on bail on P.R. bond of Rs.1 Lakh with
two separate solvent sureties in the like amount. More
importantly the Applicant was directed to deposit Rs.25 Lakhs
as a pre-condition for being released on bail. The Applicant is
aggrieved by such condition.
2. The Applicant was arrested on 26.11.2019 and
since then he is in custody. The investigation is over and the
charge-sheet is filed.
3. Heard Shri Rajat Dighe, learned Counsel for the
Applicant and Smt. A.A. Takalkar, learned APP for the State.
4. The FIR is lodged by one Vilas Chordia. He has
stated that he was in the medical profession. He wanted to
purchase an MRI machine. The Applicant represented to him
that he was in a position to import an MRI machine and he
had quoted the price of Rs.1,15,00,000/-. The informant
entered into an agreement with the Applicant on 15.1.2012.
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The informant initially paid Rs.20 Lakhs in the Applicant's
bank account and thereafter paid Rs.5 Lakhs for that purpose.
Inspite of getting that amount, the machine was not supplied
by the Applicant and the informant was deprived of his
money. Therefore, this FIR is lodged.
5. Learned Counsel for the Applicant invited my
attention to the agreement executed between the Applicant
and the informant in the year 2012. In that agreement itself
there are various terms and conditions. The agreement also
mentions receipt of Rs.25 Lakhs by the present Applicant.
6. Learned Counsel for the Applicant, therefore,
submitted that, at the highest, it is a case of breach of contract
for which the informant has civil remedy and no offence of
cheating and misappropriation of property is made out.
7. He further submitted that the Sessions Court has
reached a conclusion that the Applicant deserves to be
released on bail and thereafter it was not permissible to
impose the condition which was impossible to perform
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thereby practically denying him bail.
8. Learned A.P.P., on merits, opposed this application.
She submitted that the informant is deprived of his legitimate
amount. However, she did not support imposition of the
onerous condition in the operative part of the order granting
bail to the Applicant based on various Supreme Court
judgments. She made this submission fairly as an Officer of
the Court.
9. I have considered all these submissions. I have
perused the charge-sheet.
10. At this stage, there is no denial that the informant
had paid Rs.25 Lakhs and has not received the machine.
However, it was subject matter of an agreement. If there is
breach of any of the terms in the agreement, obviously the
civil remedy is very much available with the informant. There
is some force in the submission that it is purely a civil dispute.
However, this can be examined during trial.
11. Learned Counsel for the Applicant submitted that
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the amount received from the informant was given to the
supplier from USA and the Applicant has not misappropriated
it.
12. The Applicant is already in custody since
26.11.2019. The Applicant was granted bail by the Additional
Sessions Judge vide order dated 8.1.2020. Therefore for more
than one year and three months the Applicant was unable to
avail of that order because of the onerous pre-condition of
depositing Rs.25 Lakhs.
13. Learned Judge had granted bail to the Applicant
that means he had reached a conclusion that the Applicant
deserves to be released on bail. In such a situation, imposing
Rs.25 Lakhs as a pre-condition in the operative part was not
permissible. There is absolutely no discussion in the order as
to why such condition was imposed.
14. It appears that since the FIR mentions that Rs.25
Lakhs were paid by the informant, the condition was imposed
that Rs.25 Lakhs should be deposited. This is prejudging the
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issue without trial. It is well settled in different judgments of
Hon'ble Supreme Court that such conditions should not be
imposed.
15. 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.
16. 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 this case the bail order was passed on 8.1.2020
and the Applicant could not avail of it for more than a year.
17. In another case of Dilip Singh Vs. State of Madhya
Pradesh and another, as reported in (2021) 2 SCC 779, the
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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.
18. In this view of the matter, the condition of
imposition of Rs.25 Lakhs at this stage, cannot be sustained.
Learned Counsel for the Applicant stated that the Applicant is
ready and willing to furnish local solvent sureties. Therefore,
the following order is passed:
ORDER
(i) The operative part of the order dated 8.1.2021 passed by
the Additional Sessions Judge-3, Malegaon in Criminal
Bail Application No.12/2020 is set aside. Instead, the
Applicant shall be released on bail on following
conditions.
(ii) The Applicant is directed to be released on bail in
connection with C.R.No.113/2019 registered with
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Malegaon Camp 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
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 to mark his presence
before the concerned police station, 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.
(SARANG V. KOTWAL, J.)
Deshmane (PS)
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