MHCC020069732024
IN THE SESSIONS COURT FOR GREATER MUMBAI
AT MAZGAON MUMBAI
CRIMINAL BAIL APPLICATION NO.1125 OF 2024
(CRIME NO.159 OF 2022, SHIVAJI PARK POLICE STATION)
Nagesh Malhari Ohal
]
Age: 44 years, Occ: Business
]
R/o. 507, A Wing, 5th floor, Shivmurti
]
C.H.S., Metro Building, Worli,
]
Mumbai400 018.
]
(Presently in J/C at Arthur Road Jail.
]
… Applicant/
Accused
Vs.
The State of Maharashtra,
]
(At the instance of Shivaji Park police
]
station vide their C.R. No.159/2022).
]
… Respondent
Appearances :
Smt. Neetu Singh, Ld. Adv. for applicant.
Shri.S. D. Gawde, Ld. A.P.P. for respondent/State.
CORAM : SHRI. VISHAL S. GAIKE,
ADDL. SESSIONS JUDGE,
COURT ROOM NO.32.
DATE : 17/05/2024
ORDER
1.
This is the second bail application in this court on behalf
of the present applicant/accused No.2 for regular bail under Section
439 of the Code of Criminal Procedure in connection with Crime
No.159 of 2022 registered at Shivaji Park police station for the offence
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Cri. BA 11252024
punishable under Sections 420 r/w. 34 of the Indian Penal Code. The
first bail application i.e. Criminal BA 1973 of 2023 was rejected on
04.09.2023. Thereafter, bail application filed before the Trial Court was
rejected on 20.04.2024 and against the said order, the applicant has
approached this Court.
2.
The case of the prosecution, in brief, is that, complainant
Mangala Pol, gave report that she was searching for accommodation in
the vicinity of Worli, Mumbai and the surrounding areas but, the
present applicant/accused no.2 along with the accused No.1 Asha
Kokitkar and accused No.3 Uday Gawade have cheated her. That, in
and around October2019 one Mr. Deepak Padwal who is the
neighbour of the complainant introduced Smt. Asha Kokitkar and Uday
Gawade for buying MHADA Room. The accused Nos.1 to 3 promised
her to help for purchasing a MHADA Room therefore, she gave a token
amount of Rs.101/ to Asha Kokitkar and they promised to find a
MHADA flat in next 34 months.
3.
It is further alleged that the accused Asha Kokitkar
informed the informant that the room cost will be Rs.34,50,000/
located at Prabhadevi, Century Mills, Mumbai on the 16 th floor. The
accused Nos.1 and 3 told the informant that Rs.20 Lakhs shall have to
be paid in cash and remaining amount of Rs.14,50,000/ can be paid by
loan as per the deal. The said flat at 16 th floor was then shown to
informant but she was not interested to purchase said flat due to old
age of her husband.
4.
Thereafter, another SRA project flat at Kamala Mills was
shown by the accused No.1 and 3 to the complainant and she then
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Cri. BA 11252024
conveyed her willingness to purchase the same. Then, on 22/12/2019
complainant transferred Rs.2,00,000/ Lakhs by cheque to the accused
Nos.1 and 3 and after two days again transferred Rs.4,00,000/ to
them.
5.
On 21/01/2020 a M.O.U. was executed between the
accused No.1 Asha Kokitkar and accused No.3 Uday Gawade and the
complainant. As per M.O.U. the complainant transferred Rs.50,000/ in
the accounts of the accused Nos.1 and 3 on 21/03/2020 and also
further transferred a sum of Rs.2,00,000/ to the accounts of the
accused Nos.1 and 3.
6.
That, on 02/09/2020 the accused Nos.1 and 3 showed
another flat to the complainant. On 23/10/2020 the complainant was
then introduced by the accused no.1 to the present applicant/accused
No.2 saying that the present applicant/accused No.2 is the bodyguard
of Member of Parliament Mr. Narayan Rane. Applicant/accused No.1
told to the complainant that the remaining work for the flat will be
done by the present applicant/accused No.2 and she should transfer the
remaining amount to the account of applicant/accused No.2 and
accordingly the complainant transferred Rs.5,00,000/ on 23/03/2020,
Rs.2,00,000/ on 04/12/2020 in his account No.033401509104.
Thereafter, accused No.1 Asha Kokitkar told to the complainant that
the flat cannot be given to her and they will refund the money to the
complainant.
7.
Thereafter, the accused did not refund money to the
complainant as promised by them. On 23/10/2021 the present
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applicant/accused No.2 met with the husband of the complainant and
gave cheque No.123291 of Rs.5,00,000/ which was deposited with the
banker of the complainant and the said cheque was dishonoured.
Therefore, a complaint U/s. 138 of the Negotiable Instruments Act was
filed by the complainant against the accused at Ld. M. M. Court at
Bandra, Mumbai which is pending.
8.
The say of the investigating officer was called. The Senior
Inspector of the concerned police station has filed reply at Exh.3
through the learned APP. He has stated that, from the total amount
which was obtained from the complainant by cheating her, an amount
of Rs. 12,00,000/ was received by the present applicant. He had given
the said money to his accomplice for purchasing MHADA room.
Applicant may threaten the complainant and witnesses and commit any
cognizable offence if he is released on bail. He may not remain present
before the Trial Court hence, application may be rejected.
9.
Heard both the parties. Learned counsel for the applicant
submitted that, the applicant has been falsely implicated in this case
and as such he has nothing to do with alleged crime. He is the man of
family and he is the only bread earning member of his family. The
accused No.1 Asha Laxman Kokitkar and accused No. 3 Uday Gawade
were granted anticipatory bail. The chargesheet was filed on
05.12.2022 against all the three accused which was registered as
Criminal Case No.1187/PW/2022 and is pending before the Additional
Chief Metropolitan Magistrate, 5th Court, Dadar (at Sewree), Mumbai.
10.
That, the accused is behind the bars since 08.10.2022 and
till today no charge has been framed against the applicant and other
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accused. For the last 48 Court dates, the accused not produced in the
Trial Court. The delay in trial is not attributable to the applicant and
without framing of charge he is behind the bars for more than one and
the half year. Therefore, bail may kindly be granted to the applicant
and he may kindly be released on bail. He is ready to abide any
condition which may be imposed upon him in the event of his bail
application is allowed.
11.
Learned APP for the State vehemently opposed the
application and reiterated the contents of reply given by the concerned
police station on the present bail application.
12.
I have given a thoughtful consideration to the submissions
made by the parties and to the documents filed along with the
chargesheet. For deciding the present bail application which primarily
is filed on the ground of delay in trial, there is no need for discussing
the facts of the prosecution’s case. It is an admitted position that
accused was arrested on 08.10.2022 and in the month of December a
chargesheet was filed in the Trial Court which was registered as
Criminal Case No.1187/PW/2022 and is since pending for framing of
charge against the accused. The coaccused have been separately
granted anticipatory bail by the Hon’ble Bombay High Court and by the
City Sessions Court, Mumbai.
13.
That, the Supreme Court of India in the matter of Manish
Sisodia Vs. Central Bureau of Investigation reported in 2003
LiveLaw (SC) 934 had observed that, “detention or jail before being
pronounced guilty of an offence should not become punishment
6
without trial”.
Cri. BA 11252024
The Hon’ble Apex Court held that, the right to speedy
trial is a fundamental right within the scope of Article 21 of the
Constitution. If the trial is unnecessarily delayed for no fault of the
accused, the Court must exercise its power to grant bail. The
constitutional mandate is the higher law, and it is the basic right of the
person charged of an offence and not convicted, that he should be
ensured and given a speedy trial.
14.
In the present case, the chargesheet was filed in the month
of December 2022 but, till today the charge has not been framed in the
Trial Court. The delay in framing of charge and proceeding with the
trial is not due to any fault of the present applicant. Therefore, his right
to speedy trial has been infringed. Hence, in the light of directions of
Hon’ble Apex Court in the matter of Manish Sisodia (Supra), I am
inclined to grant bail to the applicant, solely on the ground of
unnecessary and inordinate delay in his trial. In the result, I proceed to
pass the following order.
ORDER
1.
Criminal Bail Application No.1125 of 2024 is hereby
allowed.
2.
Applicant Nagesh Malhari Ohal, arrested in C.R.No.159 of
2022 registered at Shivaji Park police station for the offence punishable
under Sections 420 r/w. 34 of the Indian Penal Code and presently
lodged in Judicial Custody in Criminal Case No.1187/PW/2022, shall
be released on bail on executing his P.R. bond of Rs.25,000/ (Rupees
Twenty Five Thousand Only) with provisional cash surety of the same
amount for a period of Eight weeks only from today on following
conditions :
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Cri. BA 11252024
(a) He shall furnish one or two solvent surety/sureties in the
Trial Court for an amount of Rs.25,000/ after eight weeks i.e.
after the end of period of provisional cash surety ;
(b) He shall furnish his detail address, mobile/contact number,
address proof and identity proof at the time of furnishing bail ;
(c) In case of change of his residence or mobile/contact
number, he shall inform it to the Trial Court and to the
concerned police station ;
(d) He shall regularly attend the Trial Court unless specifically
exempted by it;
(e) He shall not leave Mumbai City and its Sub Urban Districts
without the permission of Trial Court ;
(f)
He shall not give any threat or pressurise the complainant
and witnesses in any manner which may dissuade them from
disclosing any facts of the case to the police officer or to the Trial
Court;
(g)
3.
4.
He shall not tamper with the prosecution evidence.
Bail shall be furnished before the Trial Court.
Bail Application is disposed off accordingly.
Digitally signed
by VISHAL
SADASHIVRAO
VISHAL
GAIKE
SADASHIVRAO
Date:
GAIKE
2024.04.21
08:30:48
+0530
( VISHAL SADASHIVRAO GAIKE )
ADDL. SESSIONS JUDGE,
Date :17/05/2024. CITY CIVIL & SESSIONS COURT, MAZGAON
MUMBAI.
Directly typed on Computer on
Printed on
Checked and Signed on
: 17/05/2024.
: 17/05/2024.
: 17/05/2024.
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Cri. BA 11252024
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME
17.05.2024 at 4.05 pm
NAME OF STENOGRAPHER
Rupali S. Bhor
Name of the Judge ( With Court H.H.J. Shri Vishal S. Gaike
Room No.)
(Court Room No.32)
Date
of
Pronouncement
JUDGMENT/ORDER
of 17/05/2024
JUDGMENT/ORDER signed by
P.O. on
17/05/2024
JUDGMENT/ORDER uploaded on
17/05/2024