Bombay High Court
Ashutosh Kumar vs State Of Maharashtra on 18 December, 2023
Author: N. J. Jamadar
Bench: N. J. Jamadar
2023:BHC-AS:38391
1-ABA2481-2023+.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 2481 OF 2023
Sanjay Laxmiprasad Pandey ...Applicant
Versus
State of Maharashtra ...Respondent
WITH
ANTICIPATORY BAIL APPLICATION NO. 1887 OF 2023
Ashutosh Kumar ...Applicant
Versus
State of Maharashtra ...Respondent
WITH
ANTICIPATORY BAIL APPLICATION NO. 1888 OF 2023
WITH
INTERIM APPLICATION NO. 2494 OF 2023
Monica Ashutosh Kumar ...Applicant
Versus
State of Maharashtra ...Respondent
Mr. Ashok Bhatia, for the Applicant in ABA/2481/2023,
ABA/1887/2023 and ABA/1888/2023.
Smt. Ashwini Takalkar, APP for the State/Respondent.
Mr. Uday Warunjikar, a/w Dilip Shukla, for the Intervener.
CORAM: N. J. JAMADAR, J.
DATED: 18th DECEMBER, 2023
ORDER:
-
1. Heard the learned Counsel for the applicant, the
learned APP for the State and the learned Counsel for the
intervener.
1-ABA2481-2023+.DOC
2. These applications are for pre-arrest bail in connection
with CR No.53 of 2023, registered with DCB-CID Police
Station, (initially registered with Varsova Police Station,
Mumbai, vide CR No.385/2023), for the offences punishable
under Sections 406, 420, 465, 467, 468, 471 and 506 read
with Section 34 of the Indian Penal Code, 1860 ("the Penal
Code") and Sections 3 and 4 of the Maharashtra Protection of
Interest of Depositors (In Financial Establishments) Act,
1999.
3. Ashutosh Kumar; applicant in ABA/1887/2023, claims
to be a 1992 batch Civil Services Central Government Cadre
Officer and currently posted as a Regional Director, Plastics
Export Promotion Council.
4. Monica, applicant in ABA/1888/2023, is the wife of
Ashutosh Kumar. She claims to be suffering from cancer.
5. Sanjay Pandey. applicant in ABA/2481/2023, is a
Director of LFS Group of Companies.
6. Rajkumar Dadhich; the first informant and the
applicant in IA/2696/2023 and IA/2694/2023, claimed to
have became acquainted with the applicant Ashutosh Kumar
(A1) through Babulal Meghwal. Ashutosh (A1) made a
representation that he was a Senior IAS Officer, Monica (A2)
1-ABA2481-2023+.DOC
was the Director of LFS Global Private Ltd. They had 9 to 10
companies, which were engaged in various business,
including development of real estate, SRA Projects, Project
Financing, and Film Industry. Ashutosh Kumar (A1) also
represented to the first informant that if amounts were
invested in the said ventures, the investor would get double
the amount of investment under one year, with monthly
royalty by way of profit.
7. In the month of June, 2017 accused No.1 induced the
first informant to invest an amount of Rs.5,00,000/-.
However, the first informant was made to draw a cheuqe on
an account of KK Engineering of Babulal Meghwal and, on
the next day, the said amount was transferred to the account
of the applicant. The first informant alleged in the month of
July, 2017 accused No.1 again called him, boasted about his
position and power. Accused No.1 induced the first informant
and his associates to invest the amount. A sum of
Rs.40,00,000/- was paid in cash to accused No.1, and his
associates, including accused No.2 and accused No.1's
partner Manoj Patel and Manager; Sanjay Pandey; applicant
in ABA/2481/2023. The first informant alleges that over a
period of time till December, 2018, he was induced to part
1-ABA2481-2023+.DOC
with a sum of Rs.1,45,00,000/- in cash and a sum of
Rs.5,00,000/- through cheque. Like the first informant,
other investors were also induced to invest various amounts
aggregating to Rs.5,50,00,000/-.
8. As the profits were not returned as promised despite
repeated demands, the first informant and other investors
claimed to have entertained suspicion. Enquiries revealed
that the accused had deceived them, the documents shown
by Ashutosh Kumar (A1) to induce them to part with the
amount were forged and fabricated, Accused No.1 was
implicated in a number of offeces of cheating, he was
prosecuted for the offences punishable under Prevention of
Corruption Act. He had also deceived many other investors.
When the first informant and other investors requested
accused No.1 to return their amounts, accused No.1
threatened them with dire consequences.
9. Initially a complaint in writing was filed by the first
informant. Notice was issued to the accused. The accused
had preferred applications for pre-arrest bail apprehending
arrest while the FIR was not yet registered. The learned
Additional Sessions Judge was persuaded to reject the
applications as there was credible material against the
1-ABA2481-2023+.DOC
applicants. Eventually FIR came to be registered on 20 th July,
2023, after which ABA/1887/2023 and ABA/1888/2023
were filed in this Court.
10. Mr. Bhatia, the learned Counsel for the applicants,
submitted that the very factum of filing of the FIR is not free
from infirmities. The first informant allegedly gave a
complaint in writing at Andheri Police Station. The date on
which the said complaint was filed, is not borne out by the
said complaint. It was submitted that the concerned police
station had furnished information under Right to Information
Act that no such report was filed. Yet, the investigation was
commenced and notices were issued to the applicants to join
in the investigation even before lodging of the FIR. This,
according to Mr. Bhatia, indicates the highly prejudicial and
partisan manner in which the investigation has been carried
out.
11. On the merits of the matter, Mr. Bhatia would urge that
the perusal of the allegations in the FIR would indicate that
except a sum of Rs.5,00,000/- which was transferred to the
account of Babulal Meghwal, rest of the amounts running
into the Crores, were allegedly paid in cash. Such allegations
are inherently improbable. Moreover, the amounts were
1-ABA2481-2023+.DOC
allegedly paid during the year 2017 - 2018. Yet, the FIR came
to be lodged in the year 2023. Such inordinate delay coupled
with the inherently improbable allegations in the FIR makes
out a strong prima facie case in favour of the applicants.
12. It was further submitted that there is material to
indicate that accused No.1 was a karta of M/s. Ashutosh
Kumar HUF, and, in that capacity, a Director in the
Companies, namely, LFS Global Pvt. Ltd and Shringar
Realties Pvt. Ltd. There is nothing illegal in accused No.1
becoming a Director in those companies in the capacity of
Karta of HUF, while holding a Civil Post in the Government,
as the Service Rules permit. Mr. Bhatia further submitted
that the amounts, which were credited to the account of the
HUF, have been duly acknowledged in the balance
conformation letters executed on behalf of the M/s. Ashutosh
Kumar HUF.
13. Mr. Bhatia laid emphasis on the fact that Ashutosh
Kumar (A1) had lodged a complaint on 6th April, 2023 of
extortion against the first informant and others, who
threatened to falsely implicate the applicant. Manoj Patel
had also lodged a complaint against the first informant and
others of extortion by giving threats of false implication. To
1-ABA2481-2023+.DOC
give a counterblast to these complaints all the applicants
have been falsely roped in.
14. In any event, according to Mr. Bhatia, the offences
punishable under Sections 465, 467, 468 and 471 of the
Penal Code cannot be said to have been made out as it is not
alleged that the applicants had prepared any false
documents. Since the applicants have roots in society, the
applicants deserve the exercise of discretion.
15. Mr. Patil, the learned APP, resisted the prayers of pre-
arrest bail. It was submitted that the applicants have
induced the first informant and other four persons to part
with a huge amount of Rs.5,50,00,000/-. It was submitted
that there are statements of witnesses, which lend support to
the claim of the first informant that the amounts were paid to
the applicants. A false representation was made by the
applicants to show that Ashutosh Kumar (A1) was entitled to
a land vested in the State Government.
16. Mr. Patil further submitted that the antecedents of the
applicants also dis-entitle them from the discretionary relief
of pre-arrest bail. As may as six crimes have been registered
against Ashutosh Kumar (A1) and two crimes each against
Monica (A2) and Sanjay Pandey (A4), apart from the subject
1-ABA2481-2023+.DOC
crime. Mr. Patil urged that Ashutosh Kumar (A1) is in a
position to influence the witnesses and tamper with evidence.
17. Lastly, Mr. Patil submitted, the observations of the
Division Bench in Criminal Application No.955 of 2023,
preferred by the applicants to quash FIR No.385 of 2023
(DCB-CID CR No.53/2023), underscore the complicity of the
applicants in the alleged offences in emphatic terms. In the
face of those observations, according to Mr. Patil, the
applicants do not deserve pre-arrest bail.
18. Mr. Warunjikar, the learned Counsel for the intervener,
supplemented the submissions of Mr. Patil. Mr. Warunjikar
urged that the contentions sought to be urged by the
applicants are in the nature of defences, which can be
considered at the stage of trial.
19. I have given anxious consideration to the rival
submissions. First and foremost, the submission on behalf of
the applicants that there was no complaint against the
applicants when they were summoned to join in the
investigation, looses significance as eventually the FIR came
to be registered on 20th July, 2023.
20. The thrust of the submissions of Mr. Bhatia was on the
point that the first informant and witnesses allegedly paid
1-ABA2481-2023+.DOC
amounts in cash and that too prior to five years. Such
allegations, according to Mr. Bhatia, do not deserve credence.
In the face of such allegations, this Court has granted pre-
arrest bail. Reliance was placed on a Division Bench
judgment of this Court in the case of Pradeep Vyankatesh
Balpande vs. State of Maharashtra and Anr. 1 and an order
passed by a learned Single Judge in the case of Nadeem Nafis
Ahmed Khan vs. State of Maharashtra2.
21. Mr. Bhatia would further urge that in a case of this
nature where the first informant has indulged in an illegal
transaction of investing the amount in cash, the loss must be
allowed to lie where it falls and the Court cannot come to the
aid of a party in an illegal transaction. Reliance was placed
on the decision of the Supreme Court in the case of G.
Pankajakshiamma and others and others vs. Mathaimathew
(Dead) through LRs and Anr. 3. Mr. Bhatia further submitted
that custodial interrogation of the applicants for the recovery
of the allegedly defrauded amount, also cannot be a valid
consideration. The Court cannot, according to Mr. Bhatia,
perform the role of a recovery agent for the first informant
1 2021 ALL MR (Cri) 4069.
2 ABA/657/2022 dated 12th March, 2022
3 2004 DGLS (SC) 1198.
1-ABA2481-2023+.DOC
and the investors. Reliance was placed on the decisions of
the Supreme Court in the cases of Dilip Singh vs. State of
Madhya Pradesh and another4 and Ramesh Kumar vs. State
of NCT Delhi5.
22. There can be no quarrel with the aforesaid propositions.
Entitlement to pre-arrest bail turns on the nature of the
accusation, gravity of the offences and a prima facie material
in support of the accusation. The decision to grant bail in
one case may not apply to another with equal force as one
additional fact or absence of one fact makes a world of
difference.
23. Prima facie, there is material to indicate that a sum of
Rs.5,00,000/- was initially credited to the account of KK
Engineering, of Babulal Meghwal, and it was thereafter
transferred to the account of Ashutosh Kumar (A1). An
endeavour was made on behalf of the applicant to explain
away the said payment by pressing into service a statement of
confirmation of accounts indicating the receipt of the said
amount. It was urged that the said transaction had no
connection with the alleged cheating. A document purported
to be a promissory note seems to have been executed by
4 (2021) 2 Supreme Court Cases 779.
5 (2023) 7 Supreme Court Cases 461.
1-ABA2481-2023+.DOC
Manoj Patel thereby promising to pay a sum of
Rs.5,50,00,000/- on or before 31 st September, 2019. In
addition, the statements of Babulal Meghwal, Mannalal Gujar
and Jaysing Hada, lend prima facie credence to the
prosecution version. The time and place and circumstance in
which the cash amounts were paid and the manner in which
those amounts came to be routed, have also been adverted to
by the aforesaid witnesses. The material on record further
indicates that Sharayu Prasad Yadav, applicant in
ABA/3029/2023, has also stated about the use of the
account of his firm Obloom Resort Pvt. Ltd. for routing all the
amounts.
24. In the face of the aforesaid material, at this stage, it
would be hazardous to throw the version of the first
informant and the investors overboard. It may be relevant to
note that the major submissions now sought to be canvassed
were urged before the Division Bench, in the quashing
application. It would be appropriate to extract the
observations of the Division Bench in the judgment in
Criminal Application No.955 of 2023, which read as under:
"12. Perusal of the FIR would indicate that, the amount of
Rs.1,45,00,000/- is alleged to have been handed over in
cash to the Applicant No.1 in the presence of Babulal
Meghwal, Jaysing Hada and Mannalal Gujjar. Learned APP
1-ABA2481-2023+.DOC
has tendered the record of investigation which includes over
the statements of the witnesses. Perusal of the statements
of Babulal Meghwal, Jaising Hada and Mannalal Gujjar
discloses that, they have corroborated the statement that,
the money was handed over in their presence to the
Applicants. As far as the role of the Applicant No.2 is
concerned, in the meeting of July, 2017, when the sum Rs.
40,00,000/- was handed over in cash to the Applicants and
the documents pertaining to the Kanjurmarg-Bhandup
Land were shown, she was present and had assured the
Respondent No.2 that, the assurance is being given by the
Applicant No.1 who is a highly placed Government officer
and it has to be trusted. The cash amount is alleged to be
handed over to the Applicants.
13. From the allegations, prima facie it appears that, the
Applicant No.2 had received the cash amount alongwith
Applicant No.1and had misrepresented about the business.
The Applicant No.2 had a role to play in the entire
conspiracy. It needs to be noted that, Section 34 of the IPC
has also been applied in the present case. The money had
been handed over in her presence and the
misrepresentation is that, the investment is to be made in
LFS Global Pvt. Ltd. of which Applicant No.2is a director
and that the said Company was handling the development
projects as well as financing film projects.
14. Considering the allegation in the FIR and the
investigation which has been carried out by the Police, the
statement of the First Informant as recorded in handing
over the sum of Rs. 1,50,00,000/- has been corroborated by
three witnesses. As such, merely because the amounts were
alleged to have been paid in cash, cannot be a reason to
disbelieve the First Informant. At the time of the quashing of
the proceedings, the veracity of the allegations is not
required to gone into and it will be a matter of trial as to
how such huge amounts of cash was generated by the First
Informant. The uncontroverted allegations reflected in the
material on record, prima facie reveals the complicity of the
Applicants in the alleged offences and points out to the
commission of the alleged offences by the Applicants.
15. Mr. Lala, learned counsel for the Applicants after
deliberations sought permission to withdraw the
Application. However,we are not inclined to permit the
Applicants to withdraw the Application. This is for the
reason that, the FIR as well as investigation which has been
carried out in the said crime reveals shocking state of
affairs. The Applicant No.1 is stated to be highly placed
Government Officer presently working as a Regional Director
of Plastics Export Promotion Council.
16. The statements of the witnesses prima facie indicate
that, the Applicant No.1 by misusing and misabusing his
official position, have deceived the First Informant and
1-ABA2481-2023+.DOC
others and induced them to part with a huge amount of
about Rs. 5,50,00,000/- under the guise of investing in
various SRA/MHADA projects and other development
projects assuring them of handsome return of profit.
17. What is startling is that, such a highly placed official
has been charged in six crimes which are lodged in Delhi,
Mumbai and Rajasthan. Not only that, the Power of
Attorney which the witnesses claimed to have been shown to
them to induce them to invest into the development project
is in respect of land admeasuring about 63.55,225.7 sq.
mtrs. bearing Survey No. 275 situated at Village Kanjur
Taluka. This huge tract of land, according to the
communication of the City Survey Officer,belongs to
Maharashtra State Government. This indicates that, not
only private individuals are sought to be deceived, but it
appears that there is a larger and wider conspiracy to deal
with Government land without any authority of whatsoever
nature in that behalf.
18. We are also shocked to note that, the investigation
discloses that, as per the ROC details, the Applicant No. 1 is
shown to be the director in various companies, the details
as under :
Name of Name of the Post held by the Period of the
the Company Applicant Holding Post
Person
Ashutosh LFS Aviation Managing Director 2011 to 2014
Kumar Pvt. Ltd.
Director 2017 to 2019
Ashutosh LFS Managing Director 2011 to 2014
Kumar Constructions
Pvt. Ltd. Director 2017 to 2019
Ashutosh LFS Distilleries Director 2017 to 2019
Kumar Pvt. Ltd.
Ashutosh LFS Pharma & Director 2017 to 2019
Kumar Healthcare Pvt.
Ltd.
Ashutosh LFS Managing Director 2011 to 2014
Kumar Infrastructure
Pvt. Ltd. Director 2017 to 2019
Ashutosh LFS Power and Managing Director 2011 to 2014
Kumar Natural
Resources Pvt. Director 2017 to 2019
Ltd.
Ashutosh LFS Chemicals Managing Director 2011 to 2014
Kumar & Fertilisers
Pvt. Ltd. Director 2017 to 2019
19. We have our own doubts as regards the permissibility
of an Government Officer to occupy the post of Managing
Director/Director in private limited companies, considering
1-ABA2481-2023+.DOC
that the Central Services (Conduct) Rules, 1964 prohibit a
Government Servant from engaging directly or indirectly in
any trade or business except with the previous sanction of
the Government. Considering the material which is
unearthed against the Applicants which reveals startling
state of affairs, we find it to be of utmost importance that
the investigation is not stiffled but is necessarily required to
be continued.
20. It is necessary to trace the money trail so as to
investigate as to whether the amounts are being laundered
through various companies incorporated by the Applicants
in which either the Applicants or their associates have been
shown as a directors of the company. We find that there is
much more than meets the eye and the FIR cannot be
quashed at this stage.
21. We are completely satisfied with the manner in which
the investigating officer has conducted the investigation in
the present matter. However, considering the fact that the
Applicant No.1 is stated to be an IAS officer, we feel that the
present investigating officer may have his own limitations.
As such, we direct the investigation to be conducted by the
Deputy Commissioner of Police and the investigation to be
supervised by the Joint Commissioner of Police of the said
Department. The Deputy Commissioner of Police may take
the help of the present investigating officer or other officers
to assist the investigation.
The Application stands dismissed in the above terms."
25. The aforesaid observations emphasised the necessity of
investigation, in clear and explicit terms. Custodial
interrogation of the applicants Ashutosh Kumar and Sanjay
Pandey appears to be indispensable for a fair and effective
investigation. I find substance in the submission of Mr.
Warunjikar, the learned Counsel for intervener, that the
explanation sought to be offered on behalf of the applicant
Ashutosh Kumar is in the nature of a defence, which is
required to be tested at the trial. At this stage, to unearth
the fraud in all its facets, ascertain the identity of the
1-ABA2481-2023+.DOC
persons privy to the fraud and also have a money trail,
custodial interrogation of the applicant Ashutosh Kumar and
Sanjay Pandey seems to be warranted.
26. As regards Monica Ashutosh Kumar, applicant in ABA/
1888/2023, the only allegation against Monica in the FIR
appears to be that in the month of July, 2017, when Ashutosh
Kumar (A1) was making an effort to induce the first
informant and his associates to invest the amount by
showing them the documents, without furnishing copy
thereof, the first informant and his associates demanded
copies of those documents and thereupon Monica alongwith
other accused tried to reason with them by asserting that
why they were not believing a person holding such a high
position. Except the said incident in the month of July, 2017,
no role of any inducement for, or even presence at the time of,
delivery of the rest of the amount is attributed to applicant
Monica. On rest of the occasions, the first informant
alleged, apart from Ashutosh Kumar (A1), Manoj Patel and
Sanjay Pandey were present and they collected and counted
the cash amount. In the aforesaid view of the matter, I am
persuaded to hold that the applicant Monica deserves
exercise of discretion.
1-ABA2481-2023+.DOC
27. Hence the following order:
:ORDER:
(i) Applications of Ashutosh Kumar; applicant in
ABA/1887/2023 and Sanjay Pandey; applicant in
ABA/2481/2023, stand rejected.
(ii) Application of Monica Ashutosh Kumar; applicant in
ABA/1888/2023, stands allowed.
(iii) In the event of arrest of Monica Ashutosh Kumar;
applicant in ABA/1888/2023, in CR No.53 of 2023,
registered with DCB-CID Police Station, (Initial CR
No.385/2023 registered with Varsova Police Station,
Mumbai), the applicant be released on bail on
furnishing a PR Bond in the sum of Rs.30,000/- with
one or two sureties in the like amount.
(iv) The applicant shall cooperate with the investigation
and attend DCB-CID Police Station on 28 th and 29th
December, 2023 and 4th and 5th January, 2024 in
between 10.00 am. to 1.00 pm. and, thereafter, as and
when directed by the Investigating Officer.
(v) The applicant shall not tamper with the prosecution
evidence and/or give threat or inducement to the first
1-ABA2481-2023+.DOC
informant or any of the persons acquainted with the
facts of the case.
(vi) The applicant shall regularly attend the proceedings
before the jurisdictional Court.
(vii) It is clarified that these prima facie observations are
confined to determine entitlement to pre-arrest bail
only.
Applications stand disposed.
In view of disposal of ABA/1888/2023, IA/2694/2023
does not survive and stands disposed.
[N. J. JAMADAR, J.]
