Sudhakar Vasantrao Tungar vs The State Of Maharashtra And ...
2022 Latest Caselaw 2494 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


 APPLICATION FOR CANCELLATION OF BAIL NO.195 OF 2021

                     SUDHAKAR S/O VASANTRAO TUNGAR
                                  VERSUS
                  THE STATE OF MAHARASHTRA AND ANOTHER
                                    ....

               Advocate for Applicant : Mr. A. A. Nimbalkar
         APP for Respondent No.1-State : Ms. Vaishali Patil Jadhav
             Advocate for Respondent No.2 : Mr. A. R. Saboo
                                   ....

                                         CORAM : SMT.VIBHA KANKANWADI, J.

                                         Date of Reserving the Order                :
                                         11-02-2022

                                         Date of Pronouncing the Order              :
                                         14-03-2022

ORDER :

1. Present application has been filed by the original informant under

Section 439 (2) and 482 of the Cr.P.C. to challenge the grant of bail to

the respondent No.2 in Bail Application No.1564 of 2021, by learned

Additional Sessions Judge-12, Aurangabad, on 03-09-2021, in

connection with Crime No.61 of 2021, registered with Police Station

Satara, Aurangabad City, Taluka and District Aurangabad, for the

offence punishable under Section 420 of IPC.

2. Heard learned Advocate Mr. A. A. Nimbalkar for applicant,

2 ACB 195-2021

learned Advocate Mr. A. R. Saboo for respondent No.2, and learned

APP Ms. Vaishali Patil Jadhav for respondent No.1-State.

3. It has been vehemently submitted on behalf of the applicant

that respondent No.2 was in need of money for his business, and

therefore, upon his request, the applicant had extended friendly loan

to the tune of Rs.3,20,000/- on 06-07-2020. The respondent No.2

had issued two cheques in favour of the applicant. So also he had

executed a bond which was then notarized as a part of assurance

about repayment of the loan. Respondent No.2 failed to repay the

same within time framed. In order to avoid payment, respondent

No.2 filed complaint before various authorities and had sent frivolous

notices to the applicant and other persons with concocted stories.

He had threatened to take action under the Money-Lending Act

against the applicant and other various persons. This act rather

shows that respondent No.2 has admitted that he had taken loan.

But when the applicant realized that respondent No.2 has cheated

him, he lodged the report. After the registration of the crime,

respondent No.2 went absconding. He approached this Court by

filing Criminal Application No.1061 of 2021 for quashing of the FIR.

By order dated 09-07-2021 and 06-08-2021, this Court expressed

3 ACB 195-2021

disinclination, and therefore, that application was withdrawn by

respondent No.2. Thereafter, he had filed the application for

anticipatory bail. The learned Additional Sessions Judge failed to see

that it was the economic offence and the Court should be slow in

grant of such relief which is extraordinary in nature. The evidence

which was collected till then, was not considered at all by the

learned Additional Sessions Judge. Though it was crystal clear that

respondent No.2 had borrowed the amount from the applicant and

he has not repaid it, the cheques got bounced. So also it was

brought on record that respondent No.2 had cheated many other

persons also and statements of those persons, who were cheated

by respondent No.2, would show that he has cheated those persons

to the tune of Rs.45.70 lakh. All those persons are waiting for their

money, but the learned Additional Sessions Judge observed that

there is no question of recovery of the amount. The State had

objected that application, however, those objections were not

considered by the concerned Court. As the bail has been granted to

respondent No.2 based on incorrect statements by respondent No.2

and the material has not been considered at all, such order needs to

be set aside.

4 ACB 195-2021

4. The learned Advocate for respondent No.2 relied on the

affidavit-in-reply filed by respondent No.2 and submitted that the

application by the informant is not maintainable at all in view of the

observations by this Court in Pankaj Jivdhar Katke Vs. The State of

Maharashtra and Another, Criminal Writ Petition No.1607 of 2018,

decided on 05-02-2019, wherein it was observed that :-

"When State has not made application for cancellation of bail, then merely respondent No.2 states that presence of the petitioner behind the bar is still necessary to complete the investigation, such submission cannot be considered."

None of the conditions imposed by the learned Additional Sessions

Judge have been breached, and therefore, application for

cancellation of bail before the superior Court, is not maintainable.

The offence was based on documentary evidence and nothing was

required to be recovered or discovered at the instance of respondent

No.2, and therefore, bail has been rightly granted. The applicant

has filed complaint under Section 138 of N.I.Act against respondent

No.2 and his family members. This shows that he has availed even

the alternate remedy. Learned Additional Sessions Judge has

exercised the discretion while granting anticipatory bail to

5 ACB 195-2021

respondent No.2 correctly which requires no interference.

5. It is to be noted that the FIR has been filed by the present

applicant and it says that he had extended loan of Rs.3,20,000/- to

respondent No.2, and respondent No.2 had given two cheques as

security or for the repayment of the said loan. It was assured that

those cheques would be honoured upon their presentation. Bond

was also separately executed, but it appears that, that amount was

not repaid and the cheques were also dishonoured. When he made

inquiry about respondent No.2, informant came to know that he has

cheated 11 more persons. The informant went on to give names of

those persons and contended that in a similar way those persons

have also been cheated. Whether a common FIR is maintainable,

would be a question which can be decided by the Trial Court, but the

fact remains is that all of them i.e. applicant and the other persons

had contended that they had extended hand loan to respondent

No.2. In the normal course definitely the amount would have been

refunded or the cheques would have been honored upon their

presentation, but it appears that those cheques were dishonored and

the informant had opted the remedy of lodging complaint under

Section 138 of N.I.Act. Now, the applicant/ informant has come with

6 ACB 195-2021

a case that he has been cheated by respondent No.2 as the amount

which was taken as hand loan, has not been repaid or refunded.

6. Another attempt also appears to have been made by

respondent No.2 when he filed complaint application against the

informant and all those creditors in which he had contended that all

of them are doing money-lending business. In fact, it is surprising

that how all of them can do money-lending business. It is rather an

adverse situation that many persons had given amount to

respondent No.2, and respondent No.2 has not repaid that amount

in respect of the informant and similarly situated witnesses. There

cannot be a racket operating as money-lendor. Each transaction

with each of those persons is different. It appears that it was the

friendly loan that was given to respondent No.2. The Division Bench

of this Court had refused to entertain the application filed by

respondent No.2 for quashing of FIR.

7. More concern has been shown by the applicant that

respondent No.2 may abscond and learned Advocate for the

applicant has relied on the ground No. 'E' ( b) stated by respondent

No.2 in his Bail Application No.1564 of 2021 before learned

Additional Sessions Judge. He has stated ground "E" as under :-

                                                   7                                   ACB 195-2021



                  "(b) vkrk dLVksMh;y baVjksxs'ku ph vko';drk ukgh-       dkj.k vkjksihdMwu

dkghgh tIr gks.ks ukgh o rks Qjkj gksouw dqBsrjh gkWLVsy e/;s dkWV cslhl oj jkgrks-"

It is then submitted that when respondent No.2 himself had

admitted that he would abscond and is also residing in some hostel

on cot basis, the learned Additional Sessions Judge was not assured

regarding his permanent address, still the anticipatory bail came to

be granted. Though the said wordings are appearing in the

application for anticipatory bail, it can be said that it is by way of

typing mistake. None of the accused will say that he would abscond.

No doubt, in the report given by the Investigating Officer while

resisting the anticipatory bail application before the learned

Additional Sessions Judge, Aurangabad, it is stated that the accused

has gone absconding since the date of FIR. This Court is not

impressed by the point for the simple reason that the applicant has

stated where he is residing, so also he has assured the Court that he

would attend the Court, then learned Additional Sessions Judge

without any concrete evidence could not have opined that there is

possibility of accused getting absconding.

8. Another fact to be noted is that no doubt the offence was

8 ACB 195-2021

economic offence, but there is no total bar for grant of anticipatory

bail. Here the basic nature of the transaction appear to be civil in

nature. Money was given as hand loan. Two cheques were given for

the repayment thereof. The amount was not repaid. Even the

applicant has exercised his right to file complaint under Section 138

of N.I.Act. Merely because in this case the amount could not be

recovered; that cannot be a ground for cancellation of bail. If a civil

transaction is couched with criminal transaction, then in appropriate

cases the extraordinary powers under Section 438 of Cr.P.C. can be

exercised.

9. What is appealing in this case is that while granting the

anticipatory bail to respondent No.2, a condition was imposed on

him that he should co-operate with the investigating agency for the

purpose of investigation, as and when called upon. Further, it was

also made clear that breach of any of the condition mentioned

above, shall make applicant liable for cancellation of bail. Now copy

of the police papers has been filed before this Court and the

documents in the form of general diary details from 02-10-2021 to

23-11-2021 on many occasions notice was issued to respondent

No.2 to remain present before the Investigating Officer. Even the

9 ACB 195-2021

intimation was given to the wife of respondent No.2 on 30-10-2021,

however, it is stated that he has not appeared before the

Investigating Officer. Even Investigating Officer has specifically

stated that the accused has not co-operated to the investigating

agency. Definitely this amounts to breach of the condition to the

bail. In the normal course, if the application would have been

against breach of terms of condition, then the informant or the State

could not have been allowed to come directly to this Court. But here

the prayers are two fold. The legality of the order is also challenged

and it has been stated by the Investigating Officer that he has not

attended the police station though intimation was given to him.

10. Learned Advocate for the applicant has relied on the decision

in Raghubir Singh: Simranjit Singh Mann Vs. State of Bihar,

reported in 1986 (4) SCC 481, wherein observations have been

made that :-

"Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigating,

10 ACB 195-2021

by creating or causing disappearance of evidence etc. The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. In such cases the bail granted can be cancelled either under Section 437 (5) or Section 439 (2) of Cr.P.C."

11. Further, reliance has been placed on Kanwar Singh Meena Vs.

State of Rajasthan and Anr., reported in 2012 (12) SCC 180,

wherein it is observed that :-

"Cancellation of bail is a serious matter. Bail once granted can be cancelled only in the circumstances and for the reasons which have been clearly stated by Supreme Court in a catena of Judgments......."

"10. Thus, Section 439 of the Code confers very wide powers on the High Court and the Court of Sessions regarding bail. But, while granting bail, the High Court and the Sessions Court are guided by the same considerations as other courts. That is to say, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other

11 ACB 195-2021

grounds are required to be taken into consideration. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. The court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police and comment on the same. Such assessment of evidence and premature comments are likely to deprive the accused of a fair trial. While cancelling bail under Section 439 (2) of the Code, the primary considerations which weigh with the court are whether the accused is likely to tamper with the evidence or interfere or attempt to interfere with the due course of justice or evade the due course of justice. But, that is not all. The High Court or the Sessions Court can cancel bail even in cases where the order granting bail sufers from serious infrmities resulting in miscarriage of justice. If the court granting bail ignores relevant materials indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justifed in cancelling the bail. Such orders are against the well recognized principles underlying the power to grant bail. Such orders are legally infrm and vulnerable leading to miscarriage of justice and

12 ACB 195-2021

absence of supervening circumstances such as the propensity of the accused to tamper with the evidence, to fee from justice, etc. would not deter the court from cancelling the bail. The High Court or the Sessions Court is bound to cancel such bail orders particularly when they are passed releasing accused involved in heinous crimes because they ultimately result in weakening the prosecution case and have adverse impact on the society. Needless to say that though the powers of this court are much wider, this court is equally guided by the above principles in the matter of grant or cancellation of bail."

12. Here in this case, merely because the State has not filed

application for cancellation of bail, it cannot be stated that the

application is not maintainable. Even the State can support the

application filed by the informant for cancellation of bail. The

observations in Pankaj Jivdhar Katke (Supra) were on a different

footing. It was a plain case of misappropriation by a servant and it

was not in the public interest, and therefore, the order of

cancellation of bail passed by the learned Additional Sessions Judge

was challenged in the writ petition before this Court, and in that

context those observations were made. Here in this case, rather

public money is definitely involved and the police papers show that

respondent No.2 had taken amount from so many persons and had

13 ACB 195-2021

not repaid the amounts. At the cost of repetition, it can be said that

since the application was filed on two grounds, the second ground

that is a breach of the condition can also be gone into by this Court

and it was which otherwise could have been if the only ground, then

the appropriate Court would have been the Additional Sessions

Judge who granted the bail. Though in his affidavit-in-reply

respondent No.2 has stated that there is no breach of term of bail,

he has not produced any evidence on record which would show that

he had attended the police station and made himself available for

investigation. The documents in the nature of general diary details,

would definitely show that in spite of intimation, he has not reported

to the police station, and therefore, taking into consideration the

ratio laid down in Raghubir Singh: Simranjit Singh Mann (Supra) as

well as Kanwar Singh Meena (Supra), the application deserves to be

allowed. Hence, following order.

                                     ORDER

               1)       Application stands allowed.

               2)       The order passed in Bail Application No.1564 of

2021, granting pre-arrest bail to respondent No.2, by

learned Additional Sessions Judge-12, Aurangabad, on

03-09-2021, stands set aside.

                                           14                                 ACB 195-2021



                3)       Respondent    No.2    to   surrender         before        the

Investigating Officer on or before 05.00 p.m. on 16-03-

2021.

4) In case of failure on the part of respondent No.2 to

surrender before Investigating Officer, the Investigating

Officer may take up the legal steps.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-.