Madhya Pradesh High Court

Ashif Shaikh vs The State Of Madhya Pradesh on 15 March, 2021

Author: Sujoy Paul

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 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
                      M.Cr.C. No.9371 of 2021
                    Ashif Shaikh Vs. State of M.P.

Indore, Dated:- 15/03/2021
      Heard through video conferencing.

      Shri A. S. Garg, learned Senior Counsel with Ms. Poorva

Mahajan, learned Counsel for the applicant.

      Shri Ankit Premchandani, learned Panel Lawyer for the

respondent/State.

With the consent, finally heard.

This is the first application filed by the applicant/accused under

Section 438 of the Code of Criminal Procedure, 1973 for grant of

anticipatory bail. The applicant is apprehending his arrest in

connection with Crime No.1036/2020 registered at Police Station -

Vijay Nagar, District - Indore for the offences registered under

Sections 420, 406 and 409 of the Indian Penal Code.

Learned Senior Counsel submits that co-accused persons,

namely, Manvendra Singh Bhadoriya and Vinit Satpute filed

applications under Section 439 of Cr.P.C. arising out of same offence,

which were registered as M.Cr.C. Nos.1977/2021 and 2153/2021.

This Court was kind enough in granting them regular bail. The only

difference in the present case is that it is an anticipatory bail. The

present applicant is a Director, similarly, Vinit Satpute, who was

granted regular bail in aforesaid case was also a Director.

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.9371 of 2021 Ashif Shaikh Vs. State of M.P.

Learned Senior Counsel further submits that the complaint

preferred by complainant Yagnesh Janak Bhai Rawal (referred in

Annexure A/12) to SEBI shows that he allegedly paid Rs.53 lakhs to

the applicant's company in the shape of "Service Charge". It was

taken note of by SEBI and since no substance was found in the said

complaint, complaint was resolved and no action was taken at the end

of SEBI. This Court after taking into account the aforesaid aspects,

granted regular bail to the applicants therein. Present applicant will

co-operate with the investigation. He will not influence the witnesses

or temper with any material. He may be given anticipatory bail.

Learned Panel Lawyer opposed the same by contending that a

document dated 17.01.2020 was not brought to the notice of this

Court in previous round of litigation in the case of Vinit Satpute etc.

wherein SEBI informed the local police authorities to examine the

aspect of fraud etc. being committed by applicant's company. It is not

disputed that otherwise the case of present applicant is similar qua

Vinit Satpute and Manvendra Singh Bhadoriya (supra).

I have heard the parties at length on this aspect.

In the common order dated 28.01.2021 passed in the case of

Manvendra Singh Bhadoriya (supra), this Court recorded as under:-

"The payment in the shape of 'service charge' is received from persons for giving financial advise. The applicant Manvendra

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.9371 of 2021 Ashif Shaikh Vs. State of M.P.

Singh Bhadoriya is an employee whereas another applicant Vinit Satpute is a Director of the said company. By taking this Court to various documents filed with the application, learned Senior counsel submits that it was made clear to the complainant that stock trading is inherently risky and if he agrees to assume complete and full responsibility for the outcome, he may take advise of the company. The complainant, with eyes open, signed the relevant documents on which reliance is placed by learned Senior counsel. When desired result did not come to him, he preferred a complaint before the SEBI (Security Exchange Board of India). The SEBI did not find any substance in his complaint. Heavy reliance is place on this document dated 18.11.2019. By taking this Court to this document, learned Senior counsel submits that the nature of complaint itself prima facie shows that the amount in question was paid regarding 'service charge' and not as an investment with a guarantee that it will be made double by the present applicants. Since SEBI itself did not find any substance in the compliant, the complaint was rejected. It is submitted that the complainant's father and complainant himself sent e-mail letters to the company informing that they have taken services and in lieu thereof paid amount in question. Thus, the story of the prosecution is prima facie not trustworthy.

By place reliance on the judgment of Apex Court in the Cases of Bhagirath Singh Jadeja vs. State of Gujarat reorted in AIR 1984 SC 372 and Jitendra vs. State of M.P. reported in 2020 2 JLJ 191 it is argued that the fundamental principles of criminal jurisprudence is that a person is innocent unless he is found guilty. If there is prima facie material to substantiate that applicant is innocent and Court is satisfied that he will not misuse the liberty, the applicant may be enlarged on bail. Bail is the rule and jail is the exception. It is submitted that the Company is a registered company with the statutory Government organizations. There is no likelihood of applicants fleeing from justice. The relevant documentary evidence are already available with the prosecution and the complainant. The applicants will not tamper the evidence and material and therefore, they may be given benefit of bail.

The prayer is opposed by learned Counsel for the State. He submits that somebody will give Rs.65lacs only for giving advise is a an explanation which is difficult to swallow. Moreso when complainant resides at Ahmedabad and money given to applicants at Indore. The applicants remained in jail for a very limited period of about one month and therefore, bail applications may be rejected.

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.9371 of 2021 Ashif Shaikh Vs. State of M.P.

I have heard the parties at length.

Considering the nature of complaint reduced in writing and the rejection order of SEBI dated 18.11.2019 and other documents signed by the complainant, a prima facie case is made out.

Considering the aforesaid and without commenting on the merits of the case, I deem it proper to enlarge the applicants on bail. The applications filed by the applicants Manvendra Singh Bhadoriya and Vinit Satpute are allowed. The applicants are directed to be released on bail on their furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One Lac only) each with one solvent surety of the like amount to the satisfaction of the trial court for their regular appearance before the trial court during trial with a condition that they shall remain present before the court concerned during trial and shall also abide by the conditions enumerated under section 437(3) Cr.P.C." As noticed above, there is no dispute between the parties that

present matter is arising out of same Crime No.1036/2020 and

founded upon same nature of facts and circumstances.

The Hon'ble Apex Court in the case of (Siddharam

Sadingappa Mehtre V/s The State of Maharashtra) reported in

(2011) 1 SCC 694 laid down following parameters for the purpose of

considering an anticipatory bail application:-

112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused's likelihood to repeat similar or other offences;

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.9371 of 2021 Ashif Shaikh Vs. State of M.P.

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.-

Emphasis supplied:

If present case is tested on aforesaid parameters, it will be

clear that nature of accusation against present applicant is almost

similar qua Vinit Satpute. Both are Directors. The necessary

HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. No.9371 of 2021 Ashif Shaikh Vs. State of M.P.

documentary evidence is either in possession of complainant or in the

possession of prosecution. There is no scope of applicant's fleeing

from justice.

Considering the nature of accusation and the principles laid

down in para 113 of the said judgment, I deem it proper to grant

anticipatory bail to the applicant. Accordingly, the application for

grant of anticipatory bail is allowed.