[Cites 11, Cited by 0]
Bombay High Court
Atul S/O Manoharrao Yamsanwar vs State Of Maharashtra Thr Pso.,Ps ... on 20 February, 2026
2026:BHC-NAG:3040
1 aba-62-67-68-26.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (ABA) NO. 62 OF 2026
Atul S/o. Manoharrao Yamsanwar Vs. State of Maharashtra
WITH
CRIMINAL APPLICATION (ABA) NO. 67 OF 2026
Subhash S/o Chainkaran Surana Vs. The State of Maharashtra
AND
CRIMINAL APPLICATION (ABA) NO. 68 OF 2026
Ankush S/o. Sunil Patil Vs. The 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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Shri G. S. Gour, Advocate for applicant (ABA No. 62/26).
Shri Shyam S. Dewani a/w. Shri M. R. Joharapurkar, Advocate for
applicant (ABA No. 67/26).
Shri Abhay Sambre, Advocate for applicant (ABA No. 68/26).
Ms D. V. Sapkal, APP for non-applicant/State.
Shri Harish Dangre a/w. Shri K. S. Agrawal, Advocate for assist to
prosecution.
CORAM :- M. W. CHANDWANI, J.
DATED :- 20.02.2026
Heard.
2. All the three applications are arising out of
the same crime i.e Crime No. 11/2026 registered with
Police Station Sitabuldi, Nagpur for the offence
punishable under Sections 406, 420 and 34 of the Indian
Penal Code (IPC) and therefore, they are being disposed
of by this common order.
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3. The First Information Report (FIR) reveals
that the applicants were the Directors of the Urban
Township Private Ltd. (for short, "the Company"). Since,
they were in need of financial assistance therefore, on
financial assistance provided by Mr. Deepak Gadge, a
share holder agreement dated 25.11.2016 came to be
executed between Mr. Gadge and the applicants, whereby
60% of the share holding of the Company was purchased
by Mr. Gadge and the applicants- Atul Yamsanwar,
Ankush Patil and Subhash Surana were holding 13%,
14% and 13% shares respectively.
4. The FIR also depicts that the Company
owned and possessed a piece of land bearing Khasra No.
2-3/1 and 2-3/4, City Survey No.1, Sheet No. 463/13,
Corporation House No. 1749, Mouza Chikhali (Deosthan)
at Nagpur (for short, "the said land"). When Mr. Gadge
asked about the projects of the Company and about
financial matters of the Company from time to time, none
of the applicants responded to him. Suddenly, on
31.03.2018, Mr. Gadge came to know that he has been
shown as a share holder of 30% shares of the Company
and the applicants- Atul Yamsanwar, Ankush Patil and
Subhash Surana were shown as share holders of 23%
24%, and 23% respectively in the audit report.
Thereafter, the applicants, behind the back of Mr. Gadge,
passed a resolution to sell the said land of the Company
to one Himanshu Yogendra Jain of M/s. Mahadeo Infra
Project, Nagpur for a consideration of Rs.10,60,00,000/-
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without giving any amount from the sale consideration to
Mr. Gadge. Therefore, the applicants not only cheated Mr.
Gadge but also misappropriated the amount which is to
be paid to him. Therefore, on the complaint of power-of-
attorney holder of Mr. Gadge, the aforesaid offence came
to be registered against the applicants.
5. It is contended on behalf of the applicants
that the offences under Sections 420 and 406 of the IPC
cannot go together. The offences alleged are punishable
with imprisonment of upto seven years. There is a delay
of four years in lodging the FIR. The FIR is lodged by the
power-of-attorney holder which is not permissible. The
Company has not been made an accused in the case. The
nature of dispute is civil and is already pending before
the National Company Law Tribunal. The property in
question was purchased in 2013 i.e. much prior to
induction of Mr. Gadge as a Director of the Company.
Without preliminary enquiry, as complemented in case of
Lalita Kumari Vs. Govt. of Uttar Pradesh and others
[(2014) 2 SCC 1], directly an offence is registered in
case of a commercial dispute. The applicants are ready
to co-operate in the investigation and therefore, their
anticipatory applications be allowed.
6. Per contra, learned APP assisted by learned
counsel for the complainant vehemently submitted that
before lodging the FIR, a preliminary enquiry was
conducted and after finding substance in the complaint,
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the said offences came to be registered against the
applicants. The ingredients of cheating were there since
inception. There are various incidents of cheating and
criminal breach of trust independently and therefore,
both the offences can go together, if they are stemming
from different incidents. A civil dispute and a criminal
offence can go together if the facts constitute an offence
of cheating. Inspite of Mr. Gadge having 60% share
holding in the Company, the applicants fraudulently
showed the share holding of Mr. Gadge only to the extent
of 30% in the documents submitted to the Registrar of
Companies (ROC). A resolution has to be passed by all
the Directors of the Company in wake of the agreement
but, the applicants fraudulently, behind the back of Mr.
Gadge, passed a resolution to sell the property of the
Company. The land was sold by the applicants to their
own associate free it from the clutches of the Company.
However, full consideration has not been paid by the
purchaser of the said land. On the date of inducting Mr.
Gadge as a Director, the land in question was the
property of the Company. On account of holding 60% of
the share capital of the Company, the consent of Mr.
Gadge to sell the land was necessary. The Company is a
shadow Company and for tracing the money trail,
custodial interrogation of the applicants is necessary. The
investigation is at a preliminary stage and if the
applicants are released, the crime will not be cracked.
Hence, they sought rejection of the applications.
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7. Perusal of the case-diary reveals that initially,
the applicants were the Directors of the Company which
owned and possessed the said land. Perusal of the share
holder agreement reveals that Mr. Gadge who purchased
the shares of the Company to the extent of 60% was
inducted as a Director of the Company and the shares of
the applicants in the Company were reduced in the
following manner- Atul Yamsanwar from 33% to 13%,
Subhash Surana from 33% to 13% and Ankush Patil from
34% to 14%. Thus, Mr. Gadge became the major
shareholder of the Company. However, the applicants,
who were initially the Directors of the Company reported
the share holding pattern to the ROC wherein, Mr. Gadge
was shown as having only 30% share of the Company,
despite of the fact that by the share holder agreement,
Mr. Gadge had purchased shares to the extent of 60%
with the consent of the applicants. However, the
applicants for reasons best known to them, showed Mr.
Gadge as the owner of 30% of the shares of the Company.
Not only this, they inducted some other persons as
Additional Directors of the Company behind the back of
Mr. Gadge. They even sold the said land of the Company
by a sale-deed dated 20.04.2022 for a consideration of
Rs.10,60,00,000/- behind the back of Mr. Gadge without
his consent.
8. Perusal of the conditions mentioned in the
share holder agreement shows that no share shall be
issued to anyone without prior written consent/approval
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of all the Directors including Mr. Gadge as well as the fact
that if a shareholder does not exercise his pre-emptive
right to acquire shares offered by the Company, then the
other shareholders in the same class shall be entitled to
subscribe to such new shares. It was further specifically
agreed that any change in the Management of the
Company regarding sale, transfer of the property/assets
owned by the Company shall require affirmative
concurrent votes of the applicants and Mr. Gadge. Inspite
of that, it prima facie appears that in order to defraud Mr.
Gadge, the applicants not only added some additional
Directors behind his back but also sold the sole asset of
the Company and did not share any amount of sale
consideration with him.
9. The fact that despite of selling 60% share of
the Company to Mr. Gadge, the applicants showed his
share capital in the Company as 30% in the documents
submitted to the ROC, which itself goes to show that it
was the intention of the applicants to cheat him since
inception. Inspite of the specific condition that the sale
of assets shall be with the consent of all the four
Directors, the applicants sold the asset i.e. the land of the
Company behind the back of Mr. Gadge. There is prima
facie involvement of the present applicants in the crime.
Further the entire sale consideration is not credited in the
account of the Company, investigation is necessary in
order to trace the money trail. Detailed investigation with
regard to the Resolution passed by the applicants to
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defraud Mr. Gadge is required and various documents are
also required to be seized from the applicants to crack the
offence. The investigation is at a preliminary stage. That
apart, considering the manner in which the alleged
offence is committed, effective interrogation of the
applicants is necessary for advancement of the
investigation, which can be possible by custodial
interrogation of the applicants.
10. Reliance is placed by the learned counsel for
the applicants on the decision of the Supreme Court in
the case of Lalita Kumari (supra), wherein it has been
observed that in case of a commercial dispute, it is
desirable to have a preliminary enquiry before
registration of an offence. Perusal of the case diary
reveals that initially, a complaint was filed with Police
Station Sitabuldi, Nagpur. The Deputy Commissioner of
Police (DCP) ordered for conducting a preliminary
enquiry and accordingly, a preliminary enquiry was
conducted through Assistant Police Inspector who in his
report, opined that an offence appears to have been
committed by the applicants. In furtherance of that, the
DCP directed that the FIR be registered. Thus, in the
present case, before registration of FIR, a preliminary
enquiry was conducted. Therefore, there is no substance
in the argument of the learned counsel for the applicants
that no preliminary enquiry was conducted before
registration of the offence.
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11. It is vehemently submitted by the learned
counsel for the applicants that the FIR has been
registered through the power-of-attorney holder and
therefore, the FIR is not maintainable. To buttress their
submission, they seek to rely upon the decision of this
Court in Writ Petition No. 845/2025 (Chirag S/o. Bharat
Sheth Vs. State of Maharashtra, decided on 18.12.2025),
wherein the Division Bench of this Court, relying on the
decision in case of Nirav Danishkumar Shah Vs. State of
Maharashtra [2018 SCC Online Bom 244] has quashed
the FIR registered for the offence punishable under
Sections 51 and 63 of the Copyright Act, 1957. The case
before the Division Bench of this Court in case of Nirav
Shah (supra) was in respect of prosecution under the
provisions of the Copyright Act, 1957 where a
professional was hired to lodge the complaint and
therefore, in that scenario, it has been held that the
complaint lodged by a power-of-attorney, who is a
professional, cannot be maintained. Whereas, the facts of
the present case are different. Here, the victim has given
the power-of-attorney to his employee to lodge the FIR.
Even otherwise, it hardly matters who has lodged the
FIR. If the Police receives any information of a
cognizable offence, then the offence is required to be
registered as held in the case of Lalita Kumari (supra).
12. No doubt, it has been held by the Supreme
Court in the case of Arshad Neyaz Khan Vs. State of
Jharkhand and others [2025 SCC Online 2058] that an
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act which constitute cheating may not constitute criminal
breach of trust and both the offences cannot co-exist.
However, in the present case, the allegations are in
respect of various malpractices. The investigation is at a
preliminary stage and therefore, it will be premature to
make any comment at this stage. At least the offence
under Section 420 of the IPC is palpable from the case-
diary.
13. Considering the material against the present
applicants and the nature of the allegations against them,
as well as the fact that the investigation is at preliminary
stage; investigation of various aspects of the crime is
required to be conducted. All the documents which are
required to be seized are with the applicants. Therefore,
I find support in the argument of the learned APP for the
State as well as the learned counsel assisting the
prosecution that custodial interrogation of the applicants
is necessary at this stage.
14. Sofaras, the submission of the learned
counsel for the applicants that the Directors are
vicariously liable for the acts of the Company and the
Company has not been made an accused and therefore,
the FIR is not maintainable is concerned, here the
allegations are levelled not against the Company but
against the Directors of the Company, regarding cheating
and defrauding not only Mr. Gadge but also Urban
Township Private Ltd as a Company. Thus, here the case
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is other way round. Therefore, this objection raised by
the applicants is without any substance.
15. To sum up, no case is made out for grant of
extra-ordinary relief of anticipatory bail to the applicants.
Hence, the applications are rejected.
(M. W. CHANDWANI, J.)
Signed by: Mr. Rajnesh Jaiswal
RRToJaiswal
Designation: PA Honourable Judge
Date: 21/02/2026 15:48:25
