1
Cri BA No.530/2024
MHCC020034682024
IN THE COURT OF CITY CIVIL AND SESSIONS AT GRATER BOMBAY
COURT ROOM NO.23
(Presided over by Shri N. P. Tribhuwan, Additional Sessions Judge)
CRIMINAL BAIL APPLICATION NO.530 OF 2024
Applicant :
Mufid Khan
Age : 31 years, Occu. Tailor R/o : Gadhi
Zilampatti, Tahsil Kama, Dist. Dig, Rajasthan.
VERSUS
Respondent :
The State of Maharashtra,
Through Gamdevi Police Station
Mr. Sunil Pande, learned Advocate for applicant/accused.
Mrs. Ranjana Budhwant, learned APP for the State.
ORDER
(Delivered on 02/03/2024)
This is an application under Section 439 of Cr.P.C. for
releasing accused Mufid Khan on bail in Crime No.133/2023 for the
offences punishable under Section 420 of Indian Penal Code and
Section 66 (c) (d) of Information Technology Act, registered with
Gamdevi Police Station, Mumbai.
2.

Heard learned Counsel for accused and learned APP for the
State. Perused Bail Application, say/reply and other documents.
3.

It is case of prosecution that informant/complainant Smt.

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Cri BA No.530/2024
Kunjani Ishwar Avantramane has lodged report in Gamdevi Police
Station. She alleged that her husband is a Businessman. She has
account in ICICI Bank. On 24/02/2023, she made online search of
sweet shops. She found online sweet shop viz. Tiwari Brothers, Charni
Road. She and her husband were intending to distribute the sweets to
their
employees
on
the
occasion
of
Holi
Festival.

Mobile
No.9907872724 reflected on the site of said shop. Therefore, she made
phone call on the said mobile number. At that time, the recipient of the
said mobile has asked her to given order on Whatsapp No.8794278078.
Accordingly, she gave order of sweets on Whatsapp. The said person
asked her to make payment of Rs.3,000/- through Google Pay. Hence,
she has made payment through Google Pay. Thereafter, the said person
has told the informant for generating the bill, she has to type bill
No.39506. Thus, informant has typed the said number in Google Pay.
After typing said number in Google Pay, an amount of Rs.39,506/- came
to be deducted from her account. Hence, she inquired with the said
person, how an amount Rs.39,506/- deducted from her account. The
said person replied that mistakenly the said amount came to be
deducted and the same will be reversed if she would type said number
again in Google Pay. On typing of said number, again an amount of
Rs.39,506/- came to be deducted from her account. Thus, informant
realized that she is cheated by the said person.
4.

Learned Counsel for applicant argued that no Notice
u/Sec.41A of Cr.P.C. has been served to the accused. Notice u/Sec.41A
of Cr.P.C. is mandatory as per case law of Satender Kumar Antil V/s
CBI : Misc. Appln. No.1849/2021 in Special Leave Petition (Cri)
5191/2021 dt.11/7/2022, wherein Hon’ble Supreme Court held that
Section 41 of Cr.P.C. mandates the police officer to record his reasons in
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Cri BA No.530/2024
writing while making the arrest. Thus, a police officer is duty-bound to
record the reasons for arrest in writing. Similarly, the police officer shall
record reasons when he/she chooses not to arrest. There is no
requirement of the aforesaid procedure when the offense alleged is
more than seven years, among other reasons.
5.

However, in the present case, the reply filed by the
Investigating Officer indicates that he has given Notice u/Sec. 41(1)(b)
of Cr.P.C. to the accused.
6.

Learned Counsel for applicant/accused further argued that
accused was in police custody for 11 days but there was no progress in
the investigation. Accused himself is a victim and he is not aware of the
facts. His name is not in FIR and no role attributed to the applicant in
FIR. There is no recovery from accused. Entire record of crime has been
seized by the police. The evidence is in the nature of documentary and
in electronic form. Accused is no beneficiary of the alleged money.
Section 420 of IPC does not attract since there is no inducement from
inception. So also, Section 66 (C) (D) of IT Act is not applicable to
accused. There is no eye witness or concrete evidence against accused.
7.

He further argued that provisions of special Act i.e. I.T. Act
prevails over General Act i.e. IPC. On this point, he relied on case laws
of (i) Sharat Babu Digumarti V/s Govt of NCT : MANU/SC/1592/2016,
(ii) Gagan Harsh Sharma V/s State of Maharashtra : Cri.W.P.
No.4361/2018 dt.26/10/2018, Bom.H.C. (iii) Archana Rana V/s State
of Uttar Pradesh : Cri. Appeal No.167/2021 dt.01/03/2021, SC.
8.
laws:
Learned Counsel for accused also relied on following case
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Cri BA No.530/2024
(i) Maulana Mohammed Amir Rashadi V/s State of UP : (2012) 1 SCC
(Cri) 681
It is not in dispute and highlighted that the second respondent is
a sitting Member of Parliament facing several criminal cases. It is
also not in dispute that most of the cases ended in acquittal for
want of proper witnesses or pending trial. As observed by the
High Court, merely on the basis of criminal antecedents, the
claim of the second respondent cannot be rejected. In other
words, it is the duty of the Court to find out the role of the
accused in the case in which he has been charged and other
circumstances such as possibility of fleeing away from the
jurisdiction of the Court etc.
(ii) Suresh G.Motwadi V/s State of Maharashtra : 2004 (Supp.)
Bom.C.R. 521
Criminal Prosecution is not a proceeding for recovery of the dues
of the investors but is meant for punishing the guilty. Assuming
however, that in case of economic offences, the object of criminal
prosecution is to protect the investors and help them in recovery
of the money, I fail to see how the detention of the applicants in
the jail would aid the recovery. The money, if at all, would come
out of the running of the business of the companies. If the
applicants are in police custody, certainly the companies would
not be able to carry out the business as effectively as they would
be if the applicants are out of custody. There is therefore, no
substance in contention Nos. (iii) and (iv) which are hereby
rejected.
(iii) Amiya Kumar Gauri Shankar Jha V/s State of Maharashtra : Bail
Application No.751/2013, Bom.HC.
I have perused the application and annexures thereto. While it is
true that ordinarily the Applicant must apply for bail by
approaching the Sessions Court and particularly after the
application was rejected by the learned Trial Magistrate. Yet, what
I find is that the Applicant has been detained in custody for more
than 40 days. The Applicant himself has stated that all his bank
accounts are frozen. Even the documents in relation to the
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Cri BA No.530/2024
transactions and concerning the Company have been seized. The
Applicant was available for interrogation. Merely because the
prime accused is absconding does not mean that the Applicant
does not deserve to be enlarged on bail and his application does
not deserve to be considered.
9.

According
to
prosecution,
accused
has
used
the
aforementioned mobile number for cheating the informant. It revealed
in investigation that accused Sanji Khan, his Uncle, Juber and present
accused/applicant have in furtherance of their common intention
committed this offence. Yet accused Juben is not found. He is
absconded.
10.
bearing
Present accused is involved in same type of offences
Crime
No.22/2023,
24/2023,
26/2023
and
58/2023.

Investigation in the present crime is in progress. Yet prosecution has not
filed charge-sheet. Prima facie it seems that accused have cheated
innocent persons by preparing fake online shop of Tiwari Sweets. He is
resident of State of Rajasthan. If accused is released on bail, there is
every likelihood that he will cheat other persons by preparing fake
website. The duped sum yet to be recovered.
11.

The Hon’ble Delhi High Court in case law of Amit Sharma
Vs. State :2023 LiveLaw (Del) 979 observed that; when this trust in
online
transaction
is
shaken,
it
leaves
individuals
wary
and
apprehensive, rendering them vulnerable to financial exploitation. As a
result, the public becomes increasingly reluctant to engage in online
financial activities, which can significantly impede economic growth,
innovation and financial inclusion.
12.

Crimes like online cheating, forgery and fraud are very
serious non-bailable offences. In recent times, these offences have
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Cri BA No.530/2024
become much more worrying as they are been conducted through
electronic means, it is therefore necessary that strict and prompt action
is to be taken against such offences to keep India safe in these times.
The act of the accused in connivance with other accused seems to be a
well-planned and cultivated act, which hampers the well-being of a
society since such crimes have the effect of alluring innocent people
who fall victims into the hands of such fraudsters. Considering the
nature of offence and peculiar facts of this case, it is not desirable to
release accused on bail at this initial stage of investigation. Hence, I
pass following Order.
ORDER
Criminal Bail Application No.530 of 2024 stands rejected.

Date : 02/03/2024
(N.P. Tribhuwan)
Additional Sessions Judge,
CR.No.23, Gr. Mumbai.

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Cri BA No.530/2024
Direct dictated on computer on : 02.03.2024
Checked on
: 02.03.2024
Signed on
: 02.03.2024
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
02.03.2024 at 5.42 p.m.
UPLOAD DATE AND TIME
Mrs. K.S.Bhosale
NAME OF STENOGRAPHER
Name of the Judge (with CR No.) HHJ SHRI. N. P. TRIBHUVAN
(C.R.No.23)
Date of announcement of Order
02.03.2024
Order signed by P.O. on
02.03.2024
Order uploaded on
02.03.2024