Bombay High Court
Priyanka W/O Abhishek Pacchao vs State Of Mha. Thr. Ps Hudkeshwar ... on 18 January, 2024
2024:BHC-NAG:957
31.ba.1427.22.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (BA) NO.1427 OF 2022
(Priyanka w/o Abhishek Pacchao Vs. State of Maharashtra)
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Mr. R.R. Deo, Advocate for the applicant.
Ms M.A. Barabde, APP for the State.
CORAM:- URMILA JOSHI-PHALKE, J.
DATED :- JANUARY 18, 2024
By preferring this application, the applicant is
seeking bail under Section 439 of the Code of Criminal
Procedure.
2. The applicant came to be arrested on
26/06/2022 in connection with Crime No.226/2022
registered at police station Hudkeshwar, Nagpur for the
offences punishable under Sections 406, 409, 420 and
120-B of the Indian Penal Code and Section 3 of the
Maharashtra Protection of Interest of Depositors
(In Financial Establishments) Act, 1999.
3. The accusation against the present applicant
is on the basis of report lodged by one Vaibhav Suresh
Pandav who alleged that one Prashant Mahadeorao
Mohod who is the brother by relation suggested him to
invest the amount of Rs.3,00,000/- in the Horizon
Investment of the applicant which gives return of
Rs.90,000/- per month. It is alleged that when the
complainant on 01/11/2021 went to the office of Horizon
Investment and meet the co-accused who is the husband
of the present applicant namely Abhishek Gajanan
Pacchao and said Abhishek introduced the complainant to
the applicant and it was informed that if he invest the
amount he will get return 20% to 30% per month, and
therefore, he has invested the amount. It is further
alleged that like the complainant several other depositors
have deposited the amount but they have not received any
returns and they were duped by the applicant and her
husband. As per the allegation, the applicant is the
Managing Director of H.A. Advisory and Software Pvt. Ltd.
On the basis of said report, police have registered the
crime against the present applicant.
4. Learned Counsel for the applicant submitted
that from the recitals of the FIR it reveals that as the
complainant wants to get the profit from the investment,
and therefore, he was in search of the good investment
plans and as he came across the said investment plan
through one Prashant Mohod and therefore, he has
invested the amount. It is not the case that the
complainant was induced by the present applicant to
invest the amount. He further submitted that the other
investors have also invested the amount to get good
returns from their investment. At the most, the act of the
present applicant comes under the breach of the contract
but the case doesn't cover under the criminal breach of
trust. He submitted that at the most it can be termed as
that the wrong business decision or the decision taken by
the present applicant proves to be wrong but it does not
mean that there was a criminal breach of trust. For
attracting the office under Section 405 of the Indian Penal
Code, the intention and the mens rea of the applicant
which is the ingredient which requires to be established by
the prosecution. He further submitted that at the most the
case of the present applicant covers under the illustration
(d) given under Section 405 of the IPC which reads as
under:
Illustration (d)
"if A, in the last illustration, not dishonestly but
in good faith, believing that it will be more for
Z's advantage to hold shares in the Bank of
Bengal, disobeys Z's directions, and buys shares
in the Bank of Bengal, for Z, instead of buying
Company's paper, here, though Z should suffer
loss, and should be entitled to bring a civil
action against A, on account of that loss, yet A,
not having acted dishonestly, has not
committed criminal breach of trust."
He submitted that in view of the definition
given under Section 405 of the IPC Whoever, being in any
manner entrusted with property, or with any dominion
over property, dishonestly misappropriates or converts to
his own use that property, or dishonestly uses or disposes
of that property in violation of any direction of law
prescribing the mode in which such trust is to be
discharged, or of any legal contract, express or implied,
which he has made touching the discharge of such trust,
or wilfully suffers any other person so to do, commits
"criminal breach of trust".
5. He submitted that there was no entrustment
of any property or any dominion over the property. The
investment was made by the investors at their own to get
some benefits or the profits and unfortunately the
applicant could not keep her promise to give the returns
which resulted into the loss to the depositors as well as to
the present applicants. There was no dishonest intention
on the part of the present applicant, therefore, the offence
of criminal breach of trust is not made out against the
present applicant. Now, investigation is completed and
charge-sheet is filed, further incarceration of the applicant
is not required. He also invited my attention towards the
fact that now trial is already commenced and the evidence
of the complainant is recorded who has not supported
the case of the prosecution and completely left the loyalty
towards the prosecution. The trial will take its own time
for its final disposal and no purpose will be served by
keeping the present applicant behind bar. In view of that
he be released on bail.
6. In support of his contention he placed reliance
on Hridaya Ranjan Prasad Verma and ors. Vs. State of
Bihar and another [(2000) 4 SCC 168] wherein the
Honourable Apex Court has distinguished the breach of
contract and the criminal breach of trust cheating. It is
held by the Honourable Apex Court that cheating
distinguish from mere breach of contract. The definition
contemplates two separate classes of acts i.e. deception,
fraudulent or dishonest inducement and deception by
intention but not fraudulent or dishonest inducement.
7. He further placed reliance on Satishchandra
Ratanlal Shah Vs. State of Gujarat and anr. [(2019) 9 SCC
148] wherein also the Honourable Apex Court dealt with
the criminal breach of trust and cheating and held that
law recognizes a difference between simple
payment/investment of money and entrustment of money
or property. A mere breach of a promise, agreement or
contract does not, ipso facto, constitute the offence of the
criminal breach of trust under Section 405 IPC without
there being a clear case of entrustment.
8. On the basis of the above submissions he
submitted that even accepting the allegations as it is
against the present applicant, trial is already commenced,
investigation is completed and further incarceration of the
present applicant is not required. Hence, the applicant
deserves to be released on bail.
9. On the other hand, learned Additional Public
Prosecutor strongly opposed the application on the ground
that the applicant who is the Managing Director of the
said investment company namely Horizon Investment who
were running the share marketing business induced
various investors to invest the amount and accordingly
various investors have invested their hard earned money
and instead of getting any profit from the said investment,
they have lost their amount. She invited my attention
towards the various statements recorded during
investigation and submitted that all these investors are the
person from poor strata of the society who have invested
their small savings to get the benefits or the returns and
they have lost the entire amount. If the applicant is
released on bail, they would lose their hope of getting the
amount. In view of that, considering the prima facie
material against the present applicant, bail application
deserves to be rejected.
10. Having heard learned Counsel for the parties.
Perused the investigation papers. It reveals from the
investigation papers as well as from the recitals of the FIR
that the applicant and her husband was running the firm
by name Horizon Investment. As per the recitals of the
FIR, the complainant has invested the amount as his
brother suggested him to invest the amount for getting the
handsome returns from the said investment. Likewise the
complainant, several other depositors have invested the
amount for getting the returns from the said investment.
Unfortunately, instead of getting the investment, they lost
their amount which was invested. Admittedly, several
persons who are coming from the poor strata of the
society have invested their hard earned money in the said
investment. Whether the applicant was having intention to
dupe the complainant or it is a wrong decision in the
business is a matter of evidence or to recording the
evidence this fact requires to be proved by the
prosecution. At this stage, it appears that the applicant
who was the Managing Director of the said investment
company could not keep her promise and could not pay
the returns to the depositors, and therefore, crime is
registered against her as well as her husband. Admittedly,
investigation is now completed and charge-sheet is filed.
11. Though the nature of the offence is economic
offence and it is settled law that when we are considering
the economic offence it affects the economy of the
country. At the same time, it is required to be taken into
consideration the observation of the Honourable Apex
Court in Satender Kumar Antil Vs. Central Bureau of
Investigation, [(2022) 10 SCC 51] wherein it is held that
the question for consideration is whether it should be
treated as a class of its own or otherwise and also
observed that this issue has already been dealt with by this
Court in the case of P. Chidambaram v. Directorate of
Enforcement, [(2020) 13 SCC 791] in para 23 which is
reproduced as under :
"23. Thus, from cumulative perusal of the
judgments cited on either side including the one
rendered by the Constitution Bench of this Court,
it could be deduced that the basic jurisprudence
relating to bail remains the same inasmuch as the
grant of bail is the rule and refusal is the
exception so as to ensure that the accused has the
opportunity of securing fair trial. However, while
considering the same the gravity of the offence is
an aspect which is required to be kept in view by
the Court. The gravity for the said purpose will
have to be gathered from the facts and
circumstances arising in each case. Keeping in
view the consequences that would befall on the
society in cases of financial irregularities, it has
been held that even economic offences would fall
under the category of "grave offence" and in such
circumstance while considering the application
for bail in such matters, the Court will have to
deal with the same, being sensitive to the nature
of allegation made against the accused. One of
the circumstances to consider the gravity of the
offence is also the term of sentence that is
prescribed for the offence the accused is alleged
to have committed. Such consideration with
regard to the gravity of offence is a factor which
is in addition to the triple test or the tripod test
that would be normally applied. In that regard
what is also to be kept in perspective is that even
if the allegation is one of grave economic offence,
it is not a rule that bail should be denied in every
case since there is no such bar created in the
relevant enactment passed by the legislature nor
does the bail jurisprudence provide so. Therefore,
the underlining conclusion is that irrespective of
the nature and gravity of charge, the precedent of
another case alone will not be the basis for either
grant or refusal of bail though it may have a
bearing on principle. But ultimately the
consideration will have to be on case-to-case
basis on the facts involved therein and securing
the presence of the accused to stand trial."
12. It is further observed by the Honourable Apex
Court while considering the aspect of the economic
offence that we are conscious of the fact that the accused
are charged with economic offence of huge magnitude.
We are also conscious of the fact that the offences alleged,
if proved, may jeopardise the economy of the country. At
the same time, we cannot lose sight of the fact that the
investigating agency has already completed investigation
and the charge-sheet is already filed before the Special
Judge, CBI, New Delhi. Therefore, their present in the
custody may not be necessary for further investigation and
released the applicant on bail.
13. The Honourable Apex Court further consider
its decision in the case of Sanjay Chandra Vs. Central
Bureau of Investigation [(2012) 1 SCC 40] in paragraph
No.39 which is also reproduced hereunder :
"39. Coming back to the facts of the present case,
both the courts have refused the request for grant
of bail on two grounds: the primary ground is
that the offence alleged against the accused
persons is very serious involving deep-rooted
planning in which, huge financial loss is caused
to the State exchequer; the secondary ground is
that of the possibility of the accused persons
tampering with the witnesses. In the present
case, the charge is that of cheating and
dishonestly inducing delivery of property and
forgery for the purpose of cheating using as
genuine a forged document. The punishment for
the offence is imprisonment for a term which
may extend to seven years. It is, no doubt, true
that the nature of the charge may be relevant,
but at the same time, the punishment to which
the party may be liable, if convicted, also bears
upon the issue. Therefore, in determining
whether to grant bail, both the seriousness of the
charge and the severity of the punishment should
be taken into consideration."
14. In the light of the above observation if the
facts of the present case are taken into consideration for
the offence punishable under Section 420 and 406 of the
IPC punishment provided is less than seven years and for
the offence punishable under Section 409 of the IPC the
punishment provided is imprisonment either description
for a term which may extend to ten years, and shall also
be liable to fine. Therefore, by applying the ratio laid
down by the Honourable Apex Court in the case of Sanjay
Chandra (supra) and after considering the seriousness of
the charge and the severity of the punishment present
application of the applicant for grant of bail deserves to be
considered and applicant deserves to be released on bail.
Accordingly I proceed to pass following order :
(i) The application is allowed.
(ii) The applicant - Priyanka w/o Abhishek
Pacchao in connection with Crime
No.226/2022 registered at police station
Hudkeshwar, Nagpur for the offences
punishable under Sections 406, 409, 420 and
120-B of the Indian Penal Code and Section 3
of the Maharashtra Protection of Interest of
Depositors (In Financial Establishments) Act,
1999, be released on bail on furnishing P.R.
bond in the sum of Rs.50,000/- with one
solvent surety in the like amount.
(iii) The applicant shall attend the police
station Economic Offence Wing, Nagpur on
first day of every month, till the culmination
of the trial and the concerned officer of the
said police station, EOW, Nagpur shall record
her presence.
(iv) The applicant shall attend the trial
Court regularly without seeking any
exemption unless there are exceptional
circumstances.
(v) The applicant shall furnish her Cell
phone number and address with the address
proof.
(vi) The applicant shall surrender her
passport before the Investigating agency.
(vii) The applicant shall not leave the
jurisdiction of the Nagpur city without
seeking prior permission of the District Court,
Nagpur.
(viii) The applicant shall not directly or
indirectly make any inducement and threat or
promise to any person acquainted with the
facts of the present case.
15. The application is disposed of.
(URMILA JOSHI-PHALKE, J.)
*Divya
