Bombay High Court
Vivek Sukhchand Mohane vs State Of Mah. Thr. The Investigation ... on 12 January, 2024
2024:BHC-NAG:493
(1) 37.ba.1064.2023
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (BA) NO.1064 OF 2023
Vivek Sukhchand Mohane
Vs.
State of Maharashtra, Through the Investigating Officer, Police Station Gittikhadan
District Nagpur
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. Parvez W. Mirza, Advocate for applicant.
Mr. Sneha Dhote, APP for non-applicant/State.
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 12/01/2024
1. By this application, the applicant is seeking
bail under Section 439 of the Code of Criminal
Procedure in connection with Crime No.765/2023
registered with Police Station Gittikhadan, District
Nagpur for the offence punishable under Sections 406
and 420 of the Indian Penal Code. The applicant is
arrested on 03.10.2023 and since then he is behind bar.
2. The accusation against the present applicant
is on the basis of report lodged by Kiran Sujit Somkuwar
wherein she has alleged that she is resident of Nagpur
and present applicant was her neighbour. The applicant
has induced her that he works in a Share Market and
Mutual Fund and if she invest the amount, she will get
good returns. The applicant had displayed the board on
his house under the name 'EDELWEISS'. As the present
applicant induced her, she has invested the amount of
(2) 37.ba.1064.2023
Rs.5,00,000/- which is hard earned money as well as
other persons have also invested the amount, they could
not get returns and were duped to Rs.21,35,500/-. On
the basis of said report, police have registered the crime.
3. It is contention of the learned Counsel for the
applicant that applicant is registered as a Broker and
having certificate issued by National Institute of
Securities Markets as well as Securities and Exchange
Board of India (SEBI). The informant and other
investors have invested the amount subjected to the
market risk. At the most, the act attributed against the
present applicant that he has suggested them to invest
the amount in the share market. Merely, because, he has
suggested to them to invest the amount in the share
market is not sufficient to charge him for the offence
punishable under Section 420 of the Indian Penal Code.
Now, investigation is completed and charge-sheet is filed,
further incarceration of the present applicant is not
required. He further submitted that the offence alleged
against the present applicant is punishable with
imprisonment less than seven years and in view of the
judgment of the Hon'ble Apex Court in Satender Kumar
Antil Vs. Central Bureau of Investigation reported in
(2022) 10 SCC 51, the compliance under Section 41A of
Cr. P.C. was required which was not complied by the
Investigating Officer. For all above these reasons, the
applicant be released on bail.
(3) 37.ba.1064.2023
4. Said application is strongly opposed by the
State on the ground that with intention to dupe the
informant and the other investors, the applicant has
induced them to invest the money. The applicant is
running Investment Consultancy by obtaining the Shop
Act licence which was expired long back. The intention
of the present applicant is revealed from the act
committed by him, if he is released on bail, the investors
and the informant would lose their hard earned money
and prays for rejection of the application.
5. Having heard learned Counsel for the
applicant and the learned APP for the State, perused the
investigation papers. There is no dispute as to fact that
present applicant is a certified Broker as National
Institute of Securities Markets issued him a licence of
Broker which is valid till September 2025. He is also
registered with the SEBI and working as a Broker for the
EDELWEISS. From the recitals of the FIR shows that the
applicant who is working as a consultant asked the
complainant and other investors to invest the amount,
accordingly they have invested in the share and
sustained loss. Though the recitals of the FIR are
showing that the present applicant has induced them to
invest the money but the informant and other investors
have invested the amount in the share market and they
are well aware about the risk of the share market. At
this stage, whether they have only invested the amount
on the inducement or at their own, which is a matter of
(4) 37.ba.1064.2023
evidence. Admittedly, there is no compliance in view of
the judgment of the Hon'ble Apex Court in Satender
Kumar Antil (supra) by issuing the notice under Section
41A of Cr.P.C.. Investigation is already completed and
charge-sheet is already filed. Further incarceration of
the present applicant is not required. In view of that,
application deserves to be allowed by imposing certain
conditions. Accordingly, I proceed to pass following
order.
ORDER
(i) The application is allowed.
(ii) The applicant Vivek Sukhchand
Mohane be released on bail on executing PR bond
in the sum of Rs.25,000/- with one solvent surety
in the like amount, in connection with Crime
No.765/2023 registered with Police Station
Gittikhadan, District Nagpur for the offence
punishable under Sections 406 and 420 of the
Indian Penal Code.
(iii) The applicant shall not induce, threat
or promise any witnesses who are acquainted
with the facts of the case.
(iv) The applicant shall furnish his cell
phone number and address with the address
proof.
(URMILA JOSHI-PHALKE, J.)
Sarkate
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 15/01/2024 16:57:49
