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Order in BA no. 747/23
MHCC020129952023
BEFORE THE DESIGNATED COURT UNDER M.P.I.D. ACT
CITY CIVIL & SESSIONS COURT, MUMBAI
BAIL APPLICATION NO.747 OF 2023
IN
R. A. No. 966 OF 2023
Kamlesh Rajendra Kumar Mehta
Aged : 45 years, Occ : Business
Residing at 602, Mahavir Terrace,
Andheri (W), Mumbai-400 058.

]
]
] Applicant/
]… Accused
Versus
The State of Maharashtra
(Through D. N. Nagar Police Station)
]
]… Respondent
Appearances:Ld. Advocate Sudeep Pasbola for the Applicant.
Ld. SPP Seema Deshpande for the State/ Respondent.
Ld. Advocate Prakash Wagh for Intervenor/ Original Complainant.
CORAM : HIS HONOUR JUDGE
SHRI S. B. JOSHI
(Court Room no. 7)
DATE : 18th September, 2023.
ORAL ORDER
1.

The present application is moved by the Applicant Kamlesh
Rajendra Kumar Mehta resident of Andheri (W), Mumbai under
Section 439 of The Code of Criminal Procedure, 1973 for grant of
regular bail in connection with C.R. No. 692 of 2021 registered
with D. N. Nagar Police Station for the offences punishable under
Sections 406, 420 r/w Section 34 of the Indian Penal Code, 1860
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Order in BA no. 747/23
(hereinafter referred as “IPC”) as well as Section 3 and 4 of The
Maharashtra Protection of Interest of Depositors Act, 1999
(hereinafter referred to as “M.P.I.D. Act”).
2.

The Prosecution case in brief is that as per the information
given by the first informant namely Rakesh Champalal Kothari,
during the period April 2019 to uptill, the Applicant and his wife
namely Sunita Kothari both had induced him and other investors
to invest the sum in a gold scheme by giving them assurance of
heavy returns. Accordingly, during the above said period, the
informant made investment of Rs.29,00,000/- (Rupees Twenty
Nine Lakhs only), Rs.30,00,000/- (Rupees Thirty Lakhs only),
Rs.30,00,000/- (Rupees Thirty Lakhs only), Rs.30,00,000/(Rupees Thirty Lakhs only) on dated 10.04.2019, 30.04.2019,
30.05.2019, 30.06.2019 respectively as the Applicant and his wife
both had assured that they will offer interest on the above said
sum invested in the scheme @ 36%. Thus, by keeping faith on
their submission and assurance, the informant made deposit of
above said sum in the scheme induced by Applicant and his wife,
the Applicant and his wife both have not kept their words and
faith to give him interest accumulated thereon at the above said
rate as well as failed to pay the principal amount invested in
question and thus, they have committed the offence under
Sections 406 and 420 r/w Section 34 of IPC.

3.

The Applicant by moving this application denied all the
allegations made against him in toto and claimed relief of
granting him bail that he has been falsely implicated in this
crime, he has already returned the money invested by the
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Order in BA no. 747/23
complainant. The complainant had blank cheque belonging to
him (Applicant) in his possession but the complainant did not
encash the same due to Covid-19 Pandemic, he suffered financial
instability and therefore, he could not repay the sum. In fact, he
has no mens rea or intention of cheating. He further submitted
that his wife had been enlarged on Anticipatory Bail by order of
Hon’ble High Court dated 28.03.2022. However, he is in jail since
01.08.2023 and during custody period he co-operated with the
Investigating Authority. Thus, he prayed for releasing him on bail
by adding further that he is ready to abide with the condition if
any imposed by this Court.
4.

The Prosecution through Ld. SPP opposed this application
by filing say at Exhibit No.2 on ground that this Applicant has
moved application before Hon’ble High Court for grant of
Anticipatory Bail. In the said proceeding interim protection was
granted to him as the Applicant had given his affidavit containing
that he be returned the sum of Rs.1,19,00,000/- (Rupees One
Crores Nineteen Lakhs only) received from the first informant but
if he failed to repay the same and therefore, interim protection
granted to the Applicant came to be rejected and also his main
application for Anticipatory Bail came to be rejected. It is further
contended that if present Applicant released on bail then
possibility of tampering the investigation as well as witnesses at
the hands of the Applicant can not be ruled out. The end use of
the alleged amount under misappropriation is yet to be traced
out. It is learnt that present Applicant had purchased the landed
properties in the State of Rajasthan and Gujarat and in that view
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Order in BA no. 747/23
investigation is going on. Likewise, it is noticed that present
Applicant has his locker and bank account with Canara Bank,
South Indian Bank and Janaseva Bank as well as other bank and
in that light investigation is in progress. Likewise, the amount of
Rs.3,98,81,739/- (Rupees Three Crores Ninety Eight Lakhs Eighty
One Thousand Seven Hundred Thirty Nine only) is due towars
outstanding for loan and the concern bank and finance Company
have obtained the symbolic possession of his landed property
and proceeding for obtain possession of the same is under process
under the Provision of SERFESI Act. Act. Thus, on these grounds
the Prosecution through Investigating Officer submitted for
rejection of the application.
5. Heard both side. In view of rival contentions and facts on record
following points arise for my determination and findings are
given for the reasons mentioned thereunder are as follows:Sr.
No
1.

2.

POINTS
FINDINGS
Whether the applicant Kamlesh Rajendra
Kumar Mehta is entitled for his release
under Section 439 of Cr.P.C. as prayed?

In the Negative.

What Order ?

As per final order.
REASONS
As to point nos. 1 and 2 :
6.

In the course of arguments, Ld. Advocate for the Applicant
has submitted that the Applicant has been granted interim bail by
the Hon’ble High Court and the Applicant had filed is affidavit to
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Order in BA no. 747/23
return the sum of Rs.1,19,00,000/- (Rupees One Crores Nineteen
Lakhs only to the first informant Rakesh Kothari but failed to
comply the same, therefore, his Anticipatory Bail Application
came to be rejected. However, during investigation, the landed
five immovable properties belonging to the Applicant have been
seized as well as his bank accounts at State Bank of India, Canara
Bank, South Indian Bank and Axis Bank have been freezed by the
Investigating Authority. Now, nothing remained to be investigated
or recovered. Only charge-sheet is remained to be filed. The
Applicant is in jail since 01.08.2023. Thus, according to Ld.
Counsel now no purpose will be served by keeping the Applicant
behind bars.
7.

In rebuttal, Ld. SPP submitted that still charge-sheet is not
filed as investigation is in progress. Though the say of
Investigating Officer shows that landed properties belonging to
Applicant has been secured but it is further contended that the
valuation of those properties is Rs.3,25,80,378/- (Rupees Three
Crores Twenty Five Lakhas Eighty Thousand Three Hundred
Seventy Eight only). However, on those properties, this Applicant
has raised loan and uptill a sum of Rs.3,98,81,739/- (Rupees
Three Crores Ninety Eight Lakhs Eighty One Thousand Seven
Hundred Thirty Nine only) is outstanding. Therefore, the
concerned bank officials have initiated proceedings under
SERFESI Act by taking symbolic possession of those properties. So
nothing is secured. The bank balance in the bank accounts of the
Applicant is meagre one i.e. Rs.71,947.39 paise. So also his
lockers are yet to be checked. In these situation, if he released on
bail then there is possibility of disposing of the movable valuables
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Order in BA no. 747/23
from the lockers. As well as this Applicant has purchased the
landed properties in the State of Gujarat and Rajasthan from the
amount defrauded, the details of the same are yet to be traced
out and in that light investigation is going on. If he released then
he will dispose of those properties. Thus, the Prosecution objected
the application.
The Intervenor though appeared but failed to argue his
8.

side.
9.

Coming to the facts of the instant matter, the alleged
misappropriated
/
cheated
amount
is
to
the
tune
of
Rs.5,09,50,000/- (Rupees Five Crores Nine Lakhs Fifty Thousand
only) including the amount invested by the other investors. The
sum of Rs.1,19,00,000/- (Rupees One Crores Nineteen Lakhs only
is stated to be invested by the first informant. There is no dispute
on this. Also it is undisputed that this Applicant had moved one
Anticipatory Bail Application before the Hon’ble High Court and
had been granted interim bail as he had filed affidavit before
Hon’ble High Court stating that he will make deposit of the sum
of Rs.1,19,00,000/- (Rupees One Crores Nineteen Lakhs only)
invested by the first informant. But it is stated that as he failed to
comply said affidavit as such his Anticipatory Bail Application
came to be rejected on 01.08.2023. Now by moving this
application he has prayed for his release on bail, but he has not
given any explanation as to why the undertaking given by way of
filing affidavit has not been fulfilled. The averments in this
application are silent on that point. Prima facie it appears that the
applicant on his own accord his failed to meet the liability of the
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Order in BA no. 747/23
first informant. Nothing is on record to show that he has tried to
ensure that the claims of the investors including first informant
are met at the earliest or how he will be able to fulfill his
commitment given in his affidavit as to repayment of said sum.
10.

Besides this, though the landed five properties as mentioned
in the say of Investigating Officer are stated to be secured. But it
is further pointed out that those are in symbolic possession of the
banks for the outstanding towards loan, which is stated to be
raised by the Applicant. So it can not be said that properties of
the Applicant are secured. Furthermore, it is case of the
Investigating Officer as stated in his say that this Applicant has
purchased properties in State of Gujarat and Rajasthan but details
of the same are going to be obtained by making investigation
which is going on. Whatever, the bank accounts of the Applicant
are stated to be seized the amount lying therein is meagre one for
making repayment of the investors including the first informant.
Thus, prima facie this shows that the Applicant has collected the
amount from the investors just with a mala fide intention to
cause cheating with them. The say of the Investigating Officer
shows that the lockers in the name of the Applicant are to be
inspected and investigation of the offence is not yet over. Chargesheet is not filed. The properties, which are sufficient for
repayment to the investors, are not yet secured / attached. The
position is not clear and it will be clear on filing of the chargesheet. For all the aforesaid reasons, the applicant has not made
out his case for granting him regular bail. As such the Point no.1
is answered in the Negative.

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Order in BA no. 747/23
In view of reasoning and findings to Point No.1 as above,
the application deserves to be rejected. Hence, the Point No.2 is
answered as per following order :ORDER
1. The present Bail Application No. 747 of 2023 filed by the
Applicant Kamlesh Rajendra Kumar Mehta in connection with
C.R. No.692 of 2021 registered with D. N. Nagar Police Station
against the present applicant for the offence punishable under
Sections 406, 420 r/w Section 34 of the Indian Penal Code, 1860,
as well as Section 3 and 4 of The Maharashtra Protection of
Interest of Depositors Act, 1999 is hereby rejected.

2. Accordingly, Respondent/I.O. to take the note of this order.
3. The present Bail Application No. 747 of 2023 stands disposed of
accordingly.

4.

(Dictated and pronounced in the open Court.)
Digitally signed
by SANJAY
BHALCHANDRA
JOSHI
Date: 2023.09.20
17:20:52 +0530
Date : 18.09.2023.

Directly Dictated on
Draft given on
Signed on
: 18.09.2023.
: 20.09.2023.
: 20.09.2023.

( S. B. Joshi)
Designated Judge and Addl.
Sessions Judge, City Civil &
Sessions Court, Mumbai.

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Order in BA no. 747/23
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT /ORDER”
20.09.2023 at 5.15 p.m.
UPLOADED DATE AND TIME
Mrs. G. P. Acharekar
NAME OF STENOGRAPHER
Name of the Judge (with Court Room no.)

H.H.J. S. B. Joshi
C.R. No.07
Date of Pronouncement of Judgment/Order
18.09.2023
Judgment /Order signed by P.O. on
20.09.2023
Judgment/Order uploaded on
20.09.2023