Bombay High Court
Paresh S/O Ratilal Shah vs State Of Maharashtra on 9 February, 2023
Bench: N. R. Borkar
914-ABA-353-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION NO. 353 OF 2023
Paresh Ratilal Shah ... Applicant
Versus
The State of Maharashtra ... Respondent
.........
Mr. Vijay Kurle alongwith Mr. Samkit Shah and Mr. C. Acharya for the
Applicant.
Mr. Amit Palkar, APP for the State.
.........
CORAM : N.R. BORKAR, J.
DATED : 9 FEBRUARY 2023
P.C. :-
. This is an application filed under Section 438 of the Code of
Criminal Procedure, 1973 for anticipatory bail.
2. The applicant is apprehending his arrest in Crime No. 1125 of
2022 registered at Hinjawadi Police Station, Pune for the offences
punishable under Sections 406, 420 r/w. 34 of Indian Penal Code.
3. I have heard the learned Counsel for the applicant and the
learned APP for the State.
4. According to the complainant, he was in need of capital to
augment his business. He got acquainted with the present applicant
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914-ABA-353-2023.odt
through co-accused in the present crime. It is alleged that the present
applicant had assured him to make available loan of Rs.200 crore at
minimal rate of interest on the condition that the applicant would have to
pay him commission for the same. According to the complainant, from
time to time he had paid Rs.79 lakhs towards the said commission,
however, neither loan is made available as assured nor the amount is
returned.
5. The learned Counsel for the applicant submits that the
complainant has not disclosed the true facts while lodging the FIR. It is
submitted that the dispute is of purely civil nature. The learned Counsel
for the applicant submits that criminal law cannot be utilized for money
recovery. It is submitted that even otherwise there is no need of custodial
interrogation. It is thus submitted that, the applicant may be released on
anticipatory bail. In support of submission, the learned Counsel for the
applicant has relied upon the Judgment in the case of Bimla Tiwari v. State
of Bihar and others1, wherein the Hon'ble Supreme has observed :
"We would reiterate that the process of criminal law cannot be
utilized for arm-twisting and money recovery, particularly
while opposing the prayer for bail. The question as to
whether pre-arrest bail, or for that matter regular bail, in a
given case is to be granted or not is required to be examined
and the discretion is required to be exercised by the Court
with reference to the material on record and the parameters
governing bail considerations. Putting it in other words, in a
given case, the concession of pre-arrest bail or regular bail
could be declined even if the accused has made payment of
the money involved or offers to make any payment;
conversely, in a given case, the concession of pre-arrest bail or
1 2023 SCC OnLine SC 51
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regular bail could be granted irrespective of any payment or
any offer of payment."
6. The fact that the applicant has received the amount of Rs.79
lakhs is not disputed. According to the applicant, the complainant has not
disclosed these facts, while lodging the FIR. The applicant has, however,
not disclosed what was that transaction against which he has received the
huge amount of Rs.79 lakhs. There is no dispute that process of criminal
law cannot be used for money recovery, however, when allegations of
cheating are made, which in my view are prima facie made out in the
present case, the applicant ought to have disclosed what was that true
transaction. Considering the overall facts, I am not inclined to grant
anticipatory bail to the present applicant. In the result, the following order
is passed :
(i) Application is rejected.
( N.R. BORKAR, J. )
Digitally signed
by KANCHAN
KANCHAN PRASHANT
PRASHANT DHURI
DHURI Date:
2023.02.13
14:58:19 +0530
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