MHCC020034872024
IN THE COURT OF SESSION FOR GR. BOMBAY AT MUMBAI
BAIL APPLICATION NO. 528 OF 2024
Irfan Abdullatif Pathan
Room No. A/153, Near Murgan Mandir,
Dharavi, Mumbai – 400017
…
Applicant
…
Prosecution
Versus
The State of Maharashtra
(At the instance of Police Station,
Dharavi,
C.R.No.326/2023)
Appearance:
Mr. Waqar Nasir Pathan, Ld. Adv. for applicant.
Mr. J.N. Suryavanshi, Ld. Addl. P.P.
CORAM :
DATE :
HIS HONOUR ADDL.SESSIONS
JUDGE M. G. DESHPANDE
(C.R.No.16)
March 12, 2024
ORDER
1.

Applicant Irfan Abdullatif Pathan is one of the accused
persons in C.R.No.326 of 2023 registered with Dharavi Police Station
under Ss. 420, 34 IPC. He is praying for bail. Prosecution vide say
(Exh.2) strongly opposed the application contending that in the inquiry
after arrest of the applicant, he gave evasive answers and also stated
that he sustained loss in the business; therefore he cannot repay the
money. With this, it is contended to reject the application.

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BA No.528/2024
2.

Heard Ld. Adv. Mr. Waqar Nasir Pathan for the applicant
and Ld. SPP Mr. J. N. Suryavanshi. Following points arise for my
determination.

I am recording following findings thereon for the
reasons discussed below :-
POINTS
FINDINGS
1.

Whether the applicant-accused has made
out a strong prima-facie case to release him
on bail ?

Yes
2.

What Order ?

As per final order
REASONS
POINT NO.1.
THE FACTS INVOLVED IN C.R.No. 326 OF 2023
3.

Informant Shakil Sultan Habib Shaikh on 26.04.2023
lodged FIR alleging that, he came in contact with Mohd. Irfan Abdul
Latif Pathan (A1) during Covid-19 period i.e. June, 2020 and developed
acquaintance. At that time he used to visit his home. Out of the said
acquaintance, the Mohd. Irfan Abdul Latif Pathan suggested him to
begin Garment factory as garment machines were available at cheap
price due to Covid. At that time the informant told him that, he has no
business experience in garments. On this accused No.1 stated him
“’kfdy HkkbZ vki flQZ iSlk yxko eS vkidk iSlk Mqcus ugh nqaxk eq> ij fo’okl djks ”.
The informant stated accused No.1 that he (informant) had no money
at that time, but accused No.1 suggested him to draw bank loan. At that
time Alam Master was also with him and both of them placed rosy
picture before the informant that once in a life time everyone comes
across such opportunity to earn money. The accused No.1 further stated
him that, he has order of 4 garments worth Rs.40 Lakh. In this way, the
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informant got induced and took loan of Rs.17 Lakh from HDFC Bank,
Sion in October, 2020, by depositing title deeds of house of his mother.
EMI thereof was Rs.43,706. The accused No.1 then told the informant
that, he has no bank account; so that whole money should be kept in
the house of the informant. Thereafter, the informant was told that, the
accused No.1 had taken Gala on rent and further showed one Gala
having sewing machines. However, the accused No.1 did not show him
the rent agreement thereof and sent the copy thereof on phone.
Thereafter, informant went on paying to the accused No.1 for garment
business, but no profits or returns thereof were ever shared by the
accused No.1. Whenever the informant stated his inability to pay the
money, the accused No.1 used to state that, if the informant does not
pay him, his whole amount will go waste and nothing will be returned.
In this way, the informant got trapped in the situation and went on
paying money to the accused No.1 whenever it was demanded.
Sometimes he pay through Googlepay also.
4.

In the meantime on 10.12.2021 the informant again took
loan of Rs.5 Lakh from HDFC bank and in this way paid total Rs.22
Lakh to the accused No.1 and his associate Alam Master. Whenever the
accused No.1 was asked about accounts, he used to avoid the same. At
last the accused No.1 started saying that, he sustained loss in the factory
and could not receive the payments of the bills of the garment materials
which he had supplied to the customers. When the informant made
inquiry with Haji Garments, he came to know that, nothing was
supplied by the accused No.1 nor he did any work with them relating to
garments. In this way the informant came to know that he got cheated.
He approached accused No.1, but could not receive anything except
evasive answers. These are the facts.

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BA No.528/2024
5.

Careful examination of the say filed by the Investigating
Officer clearly indicate that the investigation has been completed way
back. Admittedly, chargesheet has been filed indicating the same. The
applicant was arrested on 24.10.2023.

His first bail application
preferred before the Ld. Metropolitan Magistrate, 12 th Court, Bandra,
was rejected on 07.11.2023. The copy of chargesheet clearly indicates
that all the materials including the bank statements, private notings in
the Notebook were seized by the Investigating Officer and thereafter
chargesheet was filed holding that investigation is over. It cannot be
ignored that the offence under Sec.420 IPC provides punishment with
imprisonment of either description for a terms which may extend to 7
years with find.
6.

Allegation against the applicant is that one Mohd. Alam
Jamshed Shaikh was always with the applicant and he (Alam) used to
say the informant to pay money to Irfan (applicant) as he (Alam) was
always with him (applicant).

Believing his words the informant
allegedly paid money to the applicant.

Apart from this, both the
informant and the applicant had executed a Partnership Deed
dt.29.11.2021 and also incorporated clause (13) therein for Arbitration.
Basically their dispute appears to be in respect of Partnership business.
The say of Investigating Officer clearly indicates that the main objection
for granting bail is non-refund of money.

Law is settled that
Investigating Officer cannot act as Recovery Officer.
7.

Apart from this, investigation is already over and
chargesheet has been filed in November, 2023. The Ld. Court of First
Instance vide Order dt.09.02.2024 made generation observations as to
how the record reflects enough material to connect the applicant with
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the allegations. There is no discussion on the material collected and
filed with the chargesheet. Apart from this, once the investigation is
over and chargesheet has been filed, the Ld. Court of First Instance
appears to have not considering the maximum punishment provided for
Sec.420 IPC. Not only this but admittedly eversince the chargesheet has
been filed (November, 2023) till date four months have been lapsed, but
charge has not been framed against the accused nor the trial has been
expedited noting that the applicant is an undertrial prisoner since
24.10.2023.

Once the investigation is over and prima-facie the
Agreement between the informant and the applicant exhibits a
Partnership dispute giving rise to civil liability, the applicant should not
have been kept behind bars for uncertain period, as repeatedly laid by
the Hon’ble Supreme Court in the case of Satender Kumar Antil Vs.
Central Bureau of Investigation & Anr. (2022)10 SCC 51. The Ld. Court
of First Instance has not given consideration for these guidelines. There
is no certainly when the charge will be framed, trial will begin and
conclude.

In such situation, keeping the applicant behind bars for
uncertain period for an offence under Sec.420 IPC is not justified.
Therefore, I hold that applicant has made out a strong prima-facie case.
Point No.1 is answered in the affirmative and following order is
passed :ORDER
1.

Bail Application No.528 of 2024 is allowed.

2.

Applicant Irfan Abdullatif Pathan be released on bail in
connection with C.R.No.326/2023 registered with
Dharavi Police Station on his executing P.R. bond of
Rs.15,000/- with like amount of surety.

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BA No.528/2024
3.

The applicant shall undertake not to threaten the
informant and prosecution witnesses, and also not to
tamper with the evidence of prosecution.

4.

The applicant shall undertake to attend each and every
date of the trial scrupulously, if not exempted.

5.

The applicant shall furnish his residential address with
proof thereof to the satisfaction of the Ld. Court of First
Instance.

6.

The applicant is permitted to furnish provisional cash
security of Rs.15,000/- for a period of two months, with
PR bond as directed above.

7.

Bail shall be furnished before the Ld. Court of First
Instance.

8.

The issue for further extension of time, if any, to furnish
surety, shall be considered and dealt with by the
Ld. Court of First Instance.

Dt.: 12.03.2024
Signed on
( M.G. Deshpande )
Additional Sessions Judge.
C.R.No.16, Gr. Bombay at Mumbai
: 12.03.2024
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BA No.528/2024
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
13.03.2024 at
hours
UPLOAD DATE AND TIME
Name of the Judge
Date
of
judgment/order
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
HHJ M. G. DESHPANDE
(COURT ROOM NO.16)
pronouncement
of 12.03.2024
Judgment/order signed by P.O. on
12.03.2024
Judgment/order uploaded on
13.03.2024