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Order in BA no. 933/23
MHCC020158552023
BEFORE THE DESIGNATED COURT UNDER M.P.I.D. ACT
CITY CIVIL & SESSIONS COURT, MUMBAI
BAIL APPLICATION NO.933 OF 2023
IN
C. R. No. 692 OF 2021
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 Pankaj D. Jain for the Applicant.
Ld. SPP Seema Deshpande for the State/ Respondent.
CORAM : HIS HONOUR JUDGE
SHRI S. B. JOSHI
(Court Room no. 7)
DATE : 6th November, 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. 933/23
(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 Applicant came
with the case that he has been falsely implicated in the alleged
crime. The perusal of the allegations in the F.I.R. shows that he
had always returned the money invested by the Company.

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Order in BA no. 933/23
According to him, he had approached the complainant only for
housing loan for which the complainant agreed to provide the
same. Complainant insisted to give post dated cheque and
promissory note for the same but on giving post dated blank
cheque and promissory note to the complainant and receiving the
same by the complainant, he did not provide housing loan as
asked them. When he asked him about returning post dated
cheque and promissory note, informant told him that those have
been cancelled / destroyed.
4.

He further came with the case that the accused no.2 i.e. his
wife has been granted Anticipatory Bail by the Hon’ble High
Court of Judicature at Bombay. Now the charge-sheet in this
crime has been filed and therefore, on the ground of parity and
change in circumstances, he is entitled for enlarging him on bail.
He further came with the case that interim protection was also
granted to him before Hon’ble High Court of Judicature at
Bombay in Anticipatory Bail application filed by him but he could
not fulfill the condition passed in that interim order and
therefore, his application came to be rejected.

5.

According to Applicant, perusal of the charge-sheet show that
the persons who had allegedly given money to him under the
alleged gold scheme have recorded their statement and from
mere reading of the said statement it can be seen that they are far
away form truth. According to him, in the proceedings for grant
of Anticipatory Bail moved before Hon’ble High Court of
Judicature at Bombay, it has observed by the Hon’ble High Court
of Judicature at Bombay that no proof of having such cash and
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Order in BA no. 933/23
giving such cash has been put on record. Except the complainant
nobody has filed complaint against him before the Court and
Police Machinery. He further alleged that no provisions of MPID
Act can be invoked and those are not applicable to the facts in
this case. During investigation his bank accounts have been
freezed as well as immovable properties belonging to him have
been attached under the provision of MPID Act. Thus, according
to him, there being no material to show attract any one offence as
alleged and due to filing of the charge-sheet, it being change in
circumstances and grant of Anticipatory Bail to his wife coaccused by the Hon’ble High Court of Judicature at Bombay, on
parity present application be allowed on releasing him on bail.
6.

The Prosecution through Ld. SPP opposed this application
by filing say at Exhibit No.2 and thereby contended that the
amount under the fraud herein is to the tune of Rs.3,09,50,000/(Rupees Three Crores Nine Lakhs Fifty Thousand only) in which
the complainant and investors have their interest as they have not
been repaid as assured by the Applicant. The landed property
standing in the name of the Applicant as shown in the say of
EOW have been secured. Those are having valued to the tune of
Rs.3,25,80,378/- (Rupees Three Crores Twenty Five Lakhs Eighty
Thousand Three Hundred Seventy Eight only) but there is
outstanding loan of those properties by other banks and financial
Companies. Those banks and financial Companies pointed to take
symbolic possession under The Securitisation and Reconstruction
of Financial Assets and Enforcement, 2002 (hereinafter referred
as “SARFAESI Act”). Further investigation in respect of the bank
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Order in BA no. 933/23
accounts, locker and other landed properties standing in the
name of the Applicant is in progress under Section 173(8) of The
Code of Criminal Procedure, 1973. Thus, on these ground
Prosecution / EOW both submitted for rejection of the
application.
7.

While making his submissions, Ld. Counsel for the Applicant
submitted in the light of averment in the application and
submitted in short that there being change in circumstances due
to filing of the charge-sheet and grant of Anticipatory Bail to coaccused i.e. his wife, the present application be allowed.
According to him, earlier application filed under Section 439 of
The Code of Criminal Procedure, 1973 came to be rejected with
the observations that position as regard investigation is be cleared
on filing of the charge-sheet.
In support of his submission Ld. Counsel for the Applicant
8.

relied upon following observations in the following case laws
which are reproduced as under :-
9.

1.

Pankaj Bansal Vs. Union of India & Ors. reported in Criminal
Appeal Nos. 3051-3052 of 2023, which speaks in respect of
Article 22(1) of the constitution and Section 19 of
Prevention of Money Laundering Act.

2.

Ramesh Kumar Vs. The State of NCT of Delhi reported in
2023 LiveLaw (SC) 496, to show that bail can be granted in
respect of the circumstances i.e. any payment or any offer of
payment. No recovery of money can be made by the
Criminal Court.

In rebuttal, the Ld. Prosecutor submitted that as stated in the
say of EOW landed properties which are secured are having debt
of various banks and Financial Establishments and those banks
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Order in BA no. 933/23
and Financial Establishments have initiated proceeding for
seeking possession of
those properties as per SARFAESI Act.

Therefore, it cannot be said that the interest of the investors is
secured. Secondly, filing of the charge-sheet cannot be a ground
to claim bail as the investigation under Section 173(8) of The
Code of Criminal Procedure, 1973 is still in progress. The factum
as regard rejection of the bail under Section 439 of of The Code
of Criminal Procedure, 1973 by this Court earlier, and grant of
anticipatory bail to the wife of present Applicant and rejection of
anticipatory bail filed by the present Applicant are not disputed.
There is every possibility of increase in the investors. The end use
of the amount under defraud is yet to be finalized. Thus, in view
of investigation under Section 173(8) of The Code of Criminal
Procedure, 1973, the relief as prayed by the Applicant may not be
granted.
10.

The Ld. Counsel for the Intervenor argued today in this
matter by moving application at Exhibit No.6. His submission is
that there is ample evidence against the accused as it discloses
from the papers of the charge-sheet filed in this Court. By
showing the copies of relevant documents from the xerox copy of
the charge-sheet, the Ld. Counsel submitted that present
Applicant is prima facie beneficiary and has not obeyed directions
given by the Hon’ble High Court of Judicature at Bombay and
therefore, his Anticipatory Bail Application came to be rejected.
Secondly, the grant of the Anticipatory Bail to the wife of the
present Applicant / Accused is no ground to consider present
application. Thus, Ld. Counsel for the Intervenor submitted that
no property in the name of present Applicant is there. So it is very
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Order in BA no. 933/23
hard to satisfy the victims / investors in this case. Therefore, Ld.
Counsel submitted for rejection of this application.
In view of rival contentions and facts on record following
11.

points arise for my determination and findings are given for the
reasons mentioned thereunder are as follows:Sr.
No
POINTS
FINDINGS
1.

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

2.

What Order ?

As per final order.
REASONS
As to point nos. 1 and 2 :
12.

The case law in the matter of Sanjay Chandra (supra) if read
it shows that Principles governing the bail application. In the said
decision, Hon’ble Apex Court in para No.37 has pointed out the
Principles, which the court must consider while granting or
declining bail, have been culled out by Hon’ble Apex Court in the
case of Pralhad Singh Bharti vs. NCT, Delhi [(2001) 4 SCC 280]
thus:-
“The jurisdiction to grant bail has to be exercised on the
basis of well settled principles having regard to the
circumstances of each
case and not in an arbitrary
manner. While granting the bail, the court has to keep in
mind the nature of accusations, the nature of the
evidence in support thereof, the severity of the
punishment which conviction will entail, the character,
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behaviour,
means
and
standing
Order in BA no. 933/23
of
the
accused,
circumstances which are peculiar to the accused,
reasonable possibility of securing the presence of the
accused at the trial, reasonable apprehension of the
witnesses being
tampered with, the larger interests of
the public or State and similar other consideration. It
has also to be kept in mind that for the purposes of
granting the bail the legislature has used the words
“reasonable grounds for believing” instead of “the
evidence” which means the court dealing with the grant
of bail can only satisfy it (sic itself) as to whether there is
a genuine case against the accused and that the
prosecution will be able to produce prima facie evidence
in support of the charge. It is not expected, at this stage,
to have the evidence establishing the guilt of the accused
beyond reasonable doubt.”
13.

In the instant matter investigation against the Applicant is
over and charge-sheet is filed against him. This is not in dispute.
As per say of EOW / SPP total misappropriated / defraud amount
is Rs.3,09,50,000/- (Rupees Three Crores Nine Lakhs Fifty
Thousand only). Their say further speaks that the landed
properties standing in the name of Applicant are secured but it
has further transpired that on those properties a sum of
Rs.3,98,81,739/- (Rupees Three Crores Ninety Eight Lakhs Eighty
One Thousand Seven Hundred Thirty Nine only) is outstanding
towards
loan
and
the
concerned
bank
and
Financial
Establishments have taken its symbolic possession and further
proceeding under SARFAESI Act is in process.

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14.

Order in BA no. 933/23
It is well settled that filing of charge-sheet is itself a
substantial change in circumstances. So the present application
has to be considered on merits in view of the filing of the chargesheet. So it is necessary to examine whether the Applicant should
be continued in custody even after the investigation is over. The
perusal of the charge-sheet speaks that so many witnesses are
stating against this Applicant. But it is to point out that whatever
properties found in the name of the Applicant on those there is
loan outstanding and are likely to be possessed under SARFAESI
Act by the concern banks. So further investigation under Section
173(8) of The Code of Criminal Procedure, 1973 is stated to be
going on. In view of this, the Prosecution has every right to
proceed against the property if any further found in the name of
the Applicant as contemplated under MPID Act. The investigation
is over and the witnesses appears to be residing within the
jurisdiction of this Court. The Investigating Authority has
collected relevant documents and statements of the witnesses
have been recorded.

15.

It is also clear that it is not say of the EOW that since
granting judicial custody, this Applicant has ever tried to tamper
with the investigation process or the witnesses. Also it is not case
of the Prosecution that the Applicant has criminal antecedents or
has been previously convicted for the offences like herein or else.
It is also clear that though charge-sheet is filed but it is uncertain
as to how much time will take for the trial of the case in question.
The say of EOW is silent to show that there is material to show
that the Applicant make hurdle with the further investigation or
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Order in BA no. 933/23
intimate the witnesses. Also no material is placed to show that
this Applicant, since grant of judicial custody, uptill either himself
or through any body else has tried to tamper with the evidence of
the Prosecution or the witnesses.
16.

Besides this, it will be useful to quote the observation of
Hon’ble Apex Court in the said case i.e. Sanjay Chandra V/s. CBI
(2012)1 SCC 40 which reads as under :-
“43. ……..The trial may take considerable time and it
looks to us that the applicants, who are in jail, have to
remain in jail longer than the period of detention, had
they been convicted. It is not in the interest of justice
that
the
accused
should
be
in
jail
for
an
indefinite period. No doubt, the offence alleged
against the appellants is a serious one in terms of
alleged huge loss
to the State exchequer, that, by
itself, should not deter us from enlarging the
appellants
on
bail when there is no serious
contention of the respondent that the accused,
if
released on bail, would interfere with the trial
or tamper with evidence. We do not see any good
reason to detain the accused in custody, that too,
after
the
completion
of
the investigation and
filing of the chargesheet.” (emphasis added)
17.

The ratio of the aforesaid ruling can be applied to present
case. The trial of the case will take long time in completion. No
purpose will be served by keeping the Applicant behind bars for
indefinite period. There is no likelihood of the Applicant
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Order in BA no. 933/23
absconding. So in view of these peculiar circumstances of this
case, the case laws relied by the Applicant are squarely applicable
to the present case. In the circumstances the objection taken by
the Prosecution and Intervenor cannot be accepted as correct. As
regard interest of the Prosecution and Intervenor, care can be
taken by imposing certain conditions. As such the Applicant has
made out the application on merit and not on ground of parity for
grant of bail to him. As such the Point No.1 is answered in the
affirmative.
In view of reasoning and findings to Point No.1 as above,
the application deserves to be allowed. Hence, the Point No.2 is
answered as per following order :ORDER
1. The present Bail Application No.933 of 2023 is hereby
allowed, subject to following conditions by applicant
/accused :i. The applicant Kamlesh Rajendra Kumar Mehta be
released on executing a PR Bond of Rs. 1,00,000/(Rupees One Lakh Only) with furnishing one or two
solvent sureties in the like amount in connection with
crime vide 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 as well as Section 3 and 4 of The
Maharashtra Protection of Interest of Depositors Act,
1999.

ii. The applicant is permitted to furnish provisional cash
bail of Rs.1,00,000/- (Rupees One Lakh only) for a
period of three months.

iii. The applicant to make surety compliance before
concerned Court. The Registrar (S) to accept it at ATH.

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Order in BA no. 933/23
iv. The Applicant shall not leave Thane City without
informing the Investigating Officer.

v. The applicant shall not leave India without prior
permission of Court.
vi. The applicant shall attend each and every date of the
trial without fail.

vii. The applicant shall not tamper or hamper the
prosecution witnesses and evidence as well as
pressurize to any of the prosecution witness by any
manner.
The applicant shall co-operate in investigation, as
and whenever she required for interrogation, she shall
avail for the same.

viii.

ix. The applicant shall submit his proper considerable
residential address proof as well as telephone and cell
numbers with Respondent/I.O. in view of his contact.

x. The applicant shall submit his passport with respondent
/I.O. if any availed with him.

xi. The applicant shall not indulge in any criminal activity.
The applicant shall give details of the properties
owned by him within period of ten days of his release
and he shall not alienate the same without due
permission of the Special Court.

xii.

The breach of any one of the above conditions by the
applicant shall enable the Prosecution /Investigating
Officer to apply for the cancellation of his bail.

xiii.

3.

Accordingly, Respondent/I.O. to take the note of this order.

4.

The present Bail Application No. 933 of 2023 stands disposed of
accordingly.

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Order in BA no. 933/23
(Dictated and pronounced in the open Court.)
Digitally signed
by SANJAY
BHALCHANDRA
JOSHI
Date:
2023.11.07
13:19:31 +0530
Date : 06.11.2023.

Directly Dictated on
Draft given on
Signed on
: 06.11.2023.
: 06.11.2023.
: 06.11.2023.

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

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Order in BA no. 933/23
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT /ORDER”
07.11.2023 at 1.17 p.m.
UPLOADED DATE AND TIME
Ms. R. D. Tari
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
06.11.2023
Judgment /Order signed by P.O. on
06.11.2023
Judgment/Order uploaded on
07.11.2023