Bombay High Court
Nitin Raybhan Bhavar vs The State Of Maharashtra on 8 September, 2021
Bench: M. G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO. 282 OF 2021
Nitin s/o Rayabhan Bhavar Applicant
Versus
The State of Maharashtra Respondent
Mr. V.D. Sapkal, Senior Counsel instructed by Mr. S.R. Sapkal,
Advocate for the applicant.
Mr. S.P. Sonpawale, APP for respondent/State.
Mr. M.D. Shinde, Advocate for the informant.
CORAM : M.G. Sewlikar, J.
RESERVED ON : 25th August, 2021.
PRONOUNCED ON : 8th September, 2021.
PER COURT :
1. This is an application under Section 439 of the Code of
Criminal Procedure for releasing the applicant on bail in connection
with Crime No. 18/2020 registered with CIDCO Police Station, Dist.
Aurangabad, for the offences punishable under Sections 406, 420,
467, 468, 471, 120(B), read with Section 34 of the Indian Penal Code
and Sections 3 and 4 of Maharashtra Protection of Interest of
Depositors (in Financial Establishment) Act, 1999.
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2. Prosecution case in nutshell is that informant Sharad
Kisanrao Gawali is an Architect having his offce at 103, E Wing,
Kailas Arcade, Cannaught Place, Aurangabad. Applicant is an
Advocate by profession and has his offce adjacent to the offce of the
informant. Informant and applicant are friends for last 8 to 9 years.
Accused Abhieet Pansare, resident of Nasik, is the relative of the
applicant. Accused Abhieet Pansare claims himself to be a Scientist.
In the month of July 2016, applicant represented the informant that
accused Abhieet Pansare had undertaken a big project and applicant
had invested some amount in the said project and got good returns
from accused Abhieet Pansare. It is also the case of the prosecution
that in the month of September 2016, applicant, accused Abhieet,
mother and sister of accused Abhieet, met the informant in his offce
at Aurangabad. That day, accused Abhieet represented informant
that accused Abhieet is running a business of electric products and
work of manufacturing Radium Radioactive Coil Reactor is in
progress. Accused Abhieet made representation that there was an
agreement between him and NASA (Nuclear & Atomic Science
Laboratory). Accused Abhieet also showed him some documents
such as purchase order No. NAL/08/16/25526 dated 25 th August,
2016, in favour of M/s Science Kudos for supply of Radium
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Radioactive Coil Reactor for an amount of Rs. 75 Million Dollars i.e.
Rs. 4,81,12,51,400/- in Indian currency. Accused Abhieet also
represented that huge amount was required for completion of the
said project but accused Abhieet did not have the required fnance.
Several persons have invested in the said project but that amount
was not suffcient to meet the expenditure of the said project.
Accused Abhieet also promised informant that in case the informant
invests an amount of Rs. 2,50,00,000/-, he would pay
Rs.25,00,00,000/- within a year. Informant was not having so much
amount but considering the scheme, he thought of investing the
amount.
3. Accordingly, on 20th October, 2016, informant, his friends
and relatives, 14 in number, paid Rs. 30,00,000/- in cash to accused
Abhieet at Aurangabad. On 21st November, 2016, again informant
and his friends and relatives, 16 in number, paid an amount of Rs.
40,00,000/- to accused Abhieet at Aurangabad. Again on 5 th March,
2017, Abhishek Gujrathi and his nine friends paid Rs.20,00,000/- to
accused Abhieet at Aurangabad. On 6th April, 2017, informant and
14 others paid an amount of Rs.30,00,000/- in cash to accused
Abhieet. On 18th June, 2017, informant and 22 others paid an
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amount of Rs. 50,00,000/- to accused Abhieet at Aurangabad. On
10th August, 2017, informant and 17 others paid Rs. 40,00,000/- to
accused Abhieet at Aurangabad. On 12th October, 2017, informant
and 17 others paid Rs. 40,00,000/- in cash to the accused at
Aurangabad. While making all these payments, it is alleged that
applicant was with accused Abhieet Pansare.
4. It is also prosecution case that after expiry of one year of
initial investment, informant demanded returns of his investment on
20th October, 2017. Despite making repeated demand, neither the
accused nor applicant paid any amount with regard to the
investment made by the informant, his friends and relatives. Lastly,
accused Abhieet on 14th November, 2017, issued fve cheques of
Rs.50,00,000/- each drawn on HDFC Bank, Nasik, in favour of the
informant. Those cheques were dishonoured. Again on 31 st March,
2018, accused Abhieet issued six cheques of Rs. 50,00,000/- each in
favour of the informant but those were also dishonoured. Therefore,
on 23rd July, 2018, informant issued legal notice for demand of money
to accused Abhieet. On 31st August, 2018, notarised agreement was
executed between accused Abhieet and the informant wherein
accused Abhieet admitted responsibility to pay the amount. On 21 st
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September, 2018, accused Abhieet again issued four cheques of
Rs.80,00,000/- each in favour of the informant. Those cheques were
also dishonoured. Thereafter again on 28th December, 2018, accused
Abhieet issued cheque of Rs. 50,00,000/- in favour of the informant
but the same was also dishonoured. Again on 26 th February, 2019,
notarised document was executed between accused Abhieet and the
informant wherein accused Abhieet admitted his responsibility to
pay the amount. On 26th February, 2019, accused Abhieet issued
three cheques of Rs. 3,20,00,000/- in favour of the informant but
those were also dishonoured. Informant realised that accused
Abhieet had cheated him and others and the applicant was also
involved in the same. On these allegations, First Information Report
was lodged in CIDCO Police Station, Aurangabad, on 9 th January,
2020, on the basis of which, offence came to be registered under the
aforesaid sections.
5. Heard Shri V.D. Sapkal, learned Senior Counsel for the
applicant, Shri Sonpawale, learned APP for the State and Shri M.D.
Shinde, learned counsel for the informant.
6. Shri Sapkal submitted that the applicant is an Advocate.
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He submitted that applicant has no concern with Science Kudos
partnership frm. The tenor of the First Information Report shows
that dispute is between the informant and accused Abhieet Pansare.
According to Shri Sapkal, First Information Report came to be lodged
after inordinate delay of three years. In terms of the First
Information Report, amount was paid to accused Abhieet during the
period from 20th October, 2016 to 12th October, 2017. After 12th
October, 2017, informant and the alleged investors started demanding
refund of the amount. He submitted that from the entire First
Information Report, the role of the applicant cannot be discerned.
From the First Information Report, the only role which the applicant
has played is that the amount was paid in his presence. Nothing is
brought on record by the prosecution to indicate that applicant had
promised the informant or other investors. Entire investigation does
not show that applicant is the benefciary of any amount. Informant
did not pay any amount to the applicant. Applicant has no
connection with the business of accused Abhieet. At the instance of
the informant, various agreements were executed by accused Abhieet
for return of amount, to which, applicant is not a party. He further
submitted that Reserve Bank of India had issued Notifcation dated
8th November, 2016, stating that because of demonitisation, currency
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notes of Rs. 500/- and Rs. 1000/- were withdrawn from circulation.
In that case, it is not made clear, as to how such a huge amount was
raised by the informant and other investors. He submitted that there
was an agreement dated 31st August, 2018 between accused Abhieet
and informant for repayment of amount by accused Abhieet to
informant. However, applicant is not a party to this agreement. He
further submitted that another agreement dated 26 th February, 2019
was executed between accused Abhieet and informant to which also
applicant was not a party. This agreement shows that applicant is
not a benefciary nor applicant is a signatory to this agreement. He
further stated that accused Abhieet had given memorandum in
which he has specifcally stated that he himself had prepared forged
document indicating that he had entered into an agreement with
NASA. Applicant has no concern with Science Kudos. He further
stated that accused Abhieet had made online application to get
licence under Maharashtra Shops and Establishment Act, 1948. It
shows that applicant was not a partner of Science Kudos. Earlier to
that, registration certifcate under Maharashtra Shops and
Establishment Act shows that applicant and Roshan Rajendra Karpe
are shown as partners of Science Kudos. This document has an
endorsement "validity unknown". He submitted that this clearly
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shows that there is a remark on this certifcate that validity of the
signature is not known. Shri Sapkal further argued that this shows
that this document was not a valid document. He further submitted
that no document is produced on record to show that applicant was
the partner of Science Kudos. As per prosecution case, one Roshan
Rajendra Karpe is also a partner of Science Kudos but he is not an
accused. If really the transaction had been for and on behalf of the
frm, said Roshan Rajendra Karpe would also have been an accused.
This clearly shows that the entire transaction was done not in the
name of partnership frm but in the name of accused Abhieet
individually. He submitted that applicant himself had paid Rs.
3,00,000/- to accused Abhieet. This clearly shows that applicant is
also a victim. Applicant is in custody since November 2020.
Applicant does not have criminal antecedents. He submitted that the
documents are voluminous and the trial is not likely to commence in
near future. Applicant cannot be detained for an indefnite period of
time. He, therefore, prayed for release of the applicant.
7. He placed reliance on judgments in the matter of Sanjay
Chandra Vs. Central Bureau of Investigation reported in AIR 2012
Supreme Court 830, P. Chidambaram Vs. Central Bureau of
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Investigation reported in AIR 2019 Supreme Court 5272 and
Manoranjana Sinh alias Gupta Vs. Central Bureau of Investigation
reported in AIR 2017 Supreme Court 769.
8. Learned APP and Shri Shinde, learned counsel for the
informant submitted that the applicant is equally involved in this
offence. They submitted that accused Abhieet Pansare had
misrepresented one of the investors that he was a Deputy
Commissioner of Police and the applicant remained silent. Applicant
is the relative of accused Abhieet. Entire amount was paid in the
presence of the applicant. They further submitted that applicant is
the partner of Science Kudos. It is an unregistered partnership frm.
In the house search panchanama of accused Abhieet, document of
dissolution of partnership frm of applicant, Roshan Rajendra Karpe
and accused Abhieet was seized. This clearly indicates that accused
Abhieet, Roshan Karpe and the applicant had formed partnership
frm. They further submitted that there are statements of witnesses
indicating that applicant represented that accused Abhieet is a
Scientist and he has got project of NASA. They further submitted
that statement of Advocate Godsay, resident of Nasik, has been
recorded which shows that Advocate Godsay had notarised
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partnership deed of Science Kudos between accused Abhieet,
applicant and Roshan Rajendra Karpe. They submitted that
applicant claims that he is also a victim as he had deposited amount
of Rs. 3,00,000/- with accused Abhieet. However, income tax
returns of applicant do not show that this much amount was
invested by applicant with accused Abhieet. They submitted that
applicant is equally guilty as is accused Abhieet. Therefore,
applicant does not deserve to be enlarged on bail.
9. Charge-sheet has been fled. Applicant claims that he
has no concern with Science Kudos. It is true that partnership deed
has not been seized. However, there is evidence to show that
applicant was the partner of Science Kudos. Prosecution has
recorded statement of Advocate Godsay. As per his statement, it
appears that this partnership deed was presented before him for
notarisation. He notarised the said document. He made entry in the
register on 12th September, 2016, at serial No. 953. Description of
deed is shown to be partnership. Name of partners are shown to be
Abjieet Viay Pansare, Nitin Bhawar i.e. applicant and Roshan
Rajendra Karpe. This shows that there was a partnership between
accused Abhieet, applicant and Roshan Rajendra Karpe. Therefore,
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evidence collected by prosecution shows that there was a partnership
frm between applicant, Roshan Karpe and accused Abhieet.
10. Culpability of applicant is evident from statement of
Rajesh Thadani, owner of a fat in Surat Bahar Cooperative Housing
Society, Kulaba, Mumbai. Applicant and accused Abhieet had been
to witness Rajesh Thadani. Accused Abhieet represented himself to
be an IPS offcer and was posted at Nasik as DCP and applicant
represented himself to be an Advocate practising at Aurangabad High
Court and Legal Advisor of Shirdi Saibaba Sansthan. Allegations in
the First Information Report show that accused Abhieet is a Scientist
and applicant had also represented that accused Abhieet is a
Scientist. Applicant was aware that accused Abhieet was
misrepresenting himself to be an IPS Offcer. Still the applicant did
not disassociated himself from accused Abhieet Pansare. Had
applicant and accused Abhieet not ill-intentions, applicant would
have disassociated with accused Abhieet then and there only. This
clearly shows culpability of applicant in the offence alleged against
him.
11. Statements of witnesses I.e.Dilip Shinde, Pawan Bairagi,
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Mahesh Jadhav, Mangesh Dev and others show that informant had
taken these persons and other witnesses to the applicant. Applicant
stated that accused Abhieet is his relative and is a Scientist and he
had got a project from NASA and that if investment is made in this
project, the witnesses would get good returns. On his representation,
informant and other witnesses paid an amount of more than Two
Crores. If applicant had no concern with Science Kudos or if
applicant had no concern with the project which accused Abhieet
had allegedly undertaken, he would not have canvassed the scheme
before the informant and these witnesses.
12. Now, coming to the argument of applicant being a victim.
According to applicant he had paid Rs. 3,00,000/- to accused
Abhieet. Applicant has produced account statement of accused
Abhieet. It shows that amount of Rs. 3,00,000/- was paid on 22 nd
February, 2017, amount of Rs. 2,00,000/- was paid on 3 rd September,
2017 and amount of Rs. 1,00,000/- was paid on 7th September, 2017.
However, these are not the only transactions which the applicant and
accused Abhieet had. Account statement shows that amount of Rs.
1,00,000/- was paid by applicant to Accused Abhieet on 8 th October,
2017, as handloan. An amount of Rs. 8,00,000/- was paid on 11 th
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May, 2018 by applicant to accused Abhieet. Again, an amount of
Rs.1,00,000/- was aid by applicant to accused Abhieet on 20 th
October, 2018. This clearly shows that these were not only two
transactions between applicant and accused Abhieet. There are
other transactions also. Therefore, it is diffcult to accept that
applicant himself had deposited amount of Rs. 3,00,000/- with
accused Abhieet.
13. In the case of P Chidambaram (supra) the Honourable
Supreme Court has observed as under :-
"22. The jurisdiction to grant bail has to be
exercised on the basis of well-settled principles
having regard to the facts and circumstances of
each case. The following factors are to be taken
into consideration while considering an
application for bail : (i) the nature of accusation
and the severity of the punishment in the case of
conviction and the nature of the materials relied
upon by the prosecution; (ii) reasonable
apprehension of tampering with the witnesses or
apprehension of threat to the complainant or the
witnesses; (iii) reasonable possibility of securing
the presence of the accused at the time of trial or
the likelihood of his abscondence; (iv) character
behaviour and standing of the accused and the
circumstances which are peculiar to the accused;
(v) larger interest of the public or the State and
similar other considerations (vide Pralhad Singh
Bhati v. NCT, Delhi and another (2001) 4 SCC
280) : (AIR 2001 SC 1444). There is no hard an
fast rule regarding grant of refusal to grant bail.
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Each case has to be considered on the facts and
circumstances of each case and on its own
merits. The discretion of the court has to be
exercised judiciously and not in an arbitrary
manner. At this stage itself, it is necessary for us
to indicate that we are unable to accept the
contention of the learned Solicitor General that
"fight risk" of economic offenders should be
looked at as a national phanomenon and be dealt
with in that manner merely because certain other
offenders have fown out of the country. The
same cannot, in our view, be put in a straight-
jacket formula so as to deny bail to the one who
is before the Court, due to the conduct of other
offenders, if the person under consideration is
otherwise entitled to bail on the merits of his own
case. Hence, in our view, such consideration
including as to "fight risk" is to be made on
individual basis being uninfuenced by the
unconnected cases, more so, when the personal
liberty is involved.
14. Having regard to this, there is prima facie evidence
against the applicant. Applicant induced informant and other
investors to deposit amount in the alleged NASA project. Because of
inducement of applicant, informant and others parted a huge
amount of more than 2 Crores. In view of this, I am not inclined to
release the applicant on bail. Hence application is rejected.
( M. G. SEWLIKAR )
Judge
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 843 OF 2021 IN
BAIL APPLICATION NO. 282 OF 2021
Sharad Kisanrao Gawali Applicant
Versus
The State of Maharashtra & another Respondents
Mr. M.D. Shinde, Advocate for the applicant.
Mr. S.P. Sonpawale, APP for respondent/State.
Mr. V.D. Sapkal, Senior Counsel instructed by Mr. S.R. Sapkal,
Advocate for the informant.
CORAM : M.G. Sewlikar, J.
DATE : 25th August, 2021.
PER COURT :
Application is allowed.
( M. G. SEWLIKAR )
Judge
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