Order on BA No.101/24 MHCC020006812024 BEFORE THE DESIGNATED COURT UNDER M.P.I.D. ACT
CITY CIVIL & SESSIONS COURT, MUMBAI ORDER ON BAIL APPLICATION NO.101 OF 2024
IN C.R. No.61 of 2023
Jayesh Vinod Tanna
Age : 60 years,
Having his office address at Plot No.1,
Ram Kripa Building,
Devji Bhimji Lane, Mathuradas Road,
Kandivali (West), Mumbai-400067. ] Applicant/ ]… Accused
Versus
The State of Maharashtra
(Through EOW, Housing Unit-2, Mumbai) ] ]… Respondent
Appearances:Ld. Advocate Pawan Mali along with Ld. Advocate Kunal Ambulkar for
the Applicant.
Ld. SPP Seema Deshpande for the State/ Respondent.
Ld. Advocate Dilip Shukla for the Intervenor – Bhavin Narhari Bharor.
CORAM : HER HONOUR JUDGE ADITEE UDAY KADAM, (Court Room no. 7)
DATE : 23rd February, 2024.
ORAL ORDER
1.The present application is moved by the Applicant/Accused Jayesh Vinod Tanna resident of Kandivali(W), Mumbai, under Section 439 of The Code of Criminal Procedure, 1973 for grant of
regular bail.
2.A case being C.R. No.61 of 2023 is registered with EOW, Mumbai (C.R. No.658 of 2023 registered with Goregaon Police Station) against the present Applicant for the offence punishable under Sections 406, 409, 420, 448 r/w Section 34 of the Indian Penal Code, 1860 (hereinafter referred as “IPC”) as well as under Sections 3, 4, 5, 8, 13 of Maharashtra Ownership Flat Act (hereinafter referred as “MOFA Act”).
3.Application is resisted by the Prosecution by filing its say at Exhibit No.02 & 05. The intervention application of first informant/intervenor – Bhavin Narhari Bharor is allowed vide order dated 18.01.2024 and resisted present application.
4. Prosecution case in nutshell is as under :- Informant booked a residential flat in the project of applicant namely ‘Sai Siddhi Developers’ at Goregaon (West), Mumbai. Booking was done on 30.09.2012 for purchase of Flat No.B/1203. Accordingly, agreement was registered on 17.01.2013. Since
thereafter, on time to time informant has paid amount of Rs.1,62,75,000/- (Rupees One Crore Sixty Two Lakhs Seventy Five Thousand only) to Sai Siddhi Developers. Possession of the flat was required to be given in December 2013. But for one or other reason, applicant delayed to give possession of the flat to
the informant. In the same manner, there are other 27 investors, who have invested their hard-earn money in the project, but return was not given to them as promised. Applicant has accepted amount of Rs.40 Crores but did not complete the construction and thereby, duped the investors for unlawful gain. Hence, the report came to be lodged against the applicant.
5.Heard the Ld. Advocate for the Applicant, Ld. SPP for the Prosecution, Investigating Officer and Ld. Advocate for the Intervenor.
6.Ld. Advocate for the applicant submitted that, the applicant came to be arrested on 16.12.2023. Charge-sheet is not yet filed. Admittedly, informant and other investors have invested the amounts in the project. Agreement to Sale were registered to that effect. But unfortunately, during the period dispute arose in between developers and original society. Various litigation to that effect were going on. Informant was well aware about the changing circumstances. This aspect, clearly shows that there was
no element of cheating on part of applicant. Basically, it is a civil dispute, based on documentary evidence. Non sanction of FSI caused delay to complete the project. Various disputes are going on before different forums. No criminality can be attracted in such transactions which are purely based on contractual obligations. Applicant is not an agent and therefore, Section 409 of IPC would not get attracted. Applicant was deprived from his rights of development and therefore, he is actually victim. Thus, Ld. Advocate for the applicant submitted that no case made out by the prosecution to languish the applicant behind bar. He be released on bail.
7.Per contra, Ld. SPP and the Ld. Advocate for the intervenor submitted in one tune that, the applicant acted in deceptive manner since inception and collected huge amount from various investors. He has allured investors with a promise to give possession of residential flats in the project till December 2013.
All poor investors were in hope that, they will get the possession of their flats even after some delay. Applicant have constructed two wings in the project i.e. A and B. Intentionally, he has not completed the construction in A wing for the flats of original investors i.e. old Society and though he has accepted huge funds from the investors, he has not completed the project within time. Thereafter, old Society has filed various litigation against the applicant by which members of the Society got possession in the
wing which was constructed to the extent of 80%. But the new investors like informant did not get anything. Conduct of the applicant reflects that he has used the funds invested by the investors, for his personal purpose. There are entries in bank statements that, since 2013 amounts were received to his
personal account from the account of Sai Siddhi Developers. There are many other offences lodged against him of the same nature. Modus operandi applied by the applicant to commit offence is same. Anticipatory bail application filed by the applicant was rejected. Other two accused are absconding, who are near relative of the applicant. Thus, it is submitted that, considering all these aspects, this application be rejected.
8.On perusal of record it reveals that, applicant is a builder and developer by profession. Admittedly, informant and other investors have invested huge funds in the project with the hope that, they will get return i.e. residential flat out of it. It reflects that the investors have invested the amounts which is their hard- earn money and some of them even raised an amount by taking loan. They are paying the installments of the said loan. The applicant could not complete the project due to his own fault. His
conduct would not be categorized as civil dispute. There is prima facie evidence to indicate that he has diverted the amounts received for the project to his personal account. Other accused, who are also the Directors of Sai Siddhi Developers are absconding. They left the country. Record reflects that there are in all 9 offences registered against the applicant of the same nature. As such conduct of the applicant prima facie reflects that, he has duped many investors to secure unlawful gain and
misappropriated the funds invested by various investors.
9.Nature and the accusation against the applicant is quite serious. Charge under Section 409 of IPC is made applicable which is punishable up to life imprisonment. Considering the conduct of other Directors that they are absconding, there is every possibility that this applicant may flee away from the
justice, if released on bail. Huge funds of public at large is involved. There are several criminal cases pending against the applicant. All these aspects cumulatively reflects that the application
filed by the applicant does not deserves consideration. Hence, the following order :ORDER
1. The present Bail Application No.101 of 2024 filed by the Applicant Jayesh Vinod Tanna in connection with C.R. No.61 of 2023 is registered with EOW, Mumbai (C.R. No.658 of 2023 registered with Goregaon Police Station) against the present Applicant for the offence punishable under Sections 406, 409,
420, 448 r/w Section 34 of the Indian Penal Code, 1860 as well as Sections 3, 4, 5, 8, 13 Maharashtra Ownership Flat Act is hereby rejected.
2. The present Bail Application No.101 of 2024 stands disposed of accordingly.
(Dictated and pronounced in the open Court.)
Date: 23/02/2024 Mumbai sd/(ADITEE UDAY KADAM) Designated Judge under The Maharashtra Protection of Interest of Depositors Act, 1999, for Gr. Bombay Dictated directly on computer: 23/02/2024 Signed by HHJ on : 23/02/2024 :7: Order on BA No.101/24 “CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED JUDGMENT /ORDER” 26.02.2024 at 10.35 a.m.
UPLOADED DATE AND TIME Ms. R. D. Tari NAME OF STENOGRAPHER Name of the Judge (with Court Room no.) H.H.J. A. U. Kadam C.R. No.07 Date of Pronouncement of Judgment/Order 23.02.2024
Judgment /Order signed by P.O. on 23.02.2024 Judgment/Order uploaded on 26.02.2024