Vijaykumar Deshraj Sethi vs Senior Police Inspector And Ors
2021 Latest Caselaw 7478 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CRIMINAL APPELLATE JURISDICTION

                        CRIMINAL APPLICATION NO.70 OF 2021

    Vijaykumar Deshraj Sethi                                .... Applicant

              versus

    1.        Senior Police Inspector,
              Malegaon Camp police station, Malegaon
    2.        State of Maharashtra &
    3.        Vilas Asaram Chordia                 .... Respondents
                                       .......

    •       Mr.Rajat Vinod Dighe, Advocate for Applicant.
    •       Ms.A.A. Takalkar, APP for the State/Respondent.

                                    CORAM : SARANG V. KOTWAL, J.

DATE : 19th MAY, 2021 (through video conferencing)

P.C. :

1. This praecipe is moved for speaking to the minutes for

correction of order dated 05/05/2021 in the operative part

clause (i), it is mentioned thus;

"(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."

Nesarikar

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2. The correct date of the order however is 8.1.2020.

Therefore this clause of the operative part needs to be corrected

by replacing incorrect date '8.1.2021' by the correct date

'8.1.2020'.

3. Corrections be carried out and the corrected order be

uploaded. Rest of the order remains as it is.

(SARANG V. KOTWAL, J.)

CORRECTED ORDER DATED 05/05/2021 READS THUS :

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.

-----

                               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 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.

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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. 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,





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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 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

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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 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

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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 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.

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

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.

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 8.1.2020 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 Malegaon Camp

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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.)