B.A.No,175/2024
1
MHCC020033742024
Dt.12.03.2024
BEFORE THE DESIGNATED COURT UNDER M. P. I. D. ACT
CITY CIVIL & SESSIONS COURT, MUMBAI
BAIL APPLICATION NO. 175 OF 2024
IN
CRIME NO. 404 OF 2023
IN
REMAND APPLICATION NO. 178 OF 2024
State of Maharashtra
Through
Kandivali
Station
Police
…Complainant/Respondent
Versus
Umesh Shivram Naik
…Applicant /accused no.3
Occ.: Service, Aged.: 54 yrs.,
R/o : 202 Sai Niwas Navghar Road,
Near Water Tank, Samarth Ramdas
Nagar, Vasai Road, East
Mumbai.
Coram : HHJ Abhijeet A. Nandgaonkar
(Court No. 20)
Date: 12.03.2024
Appearance:
Ld. Adv. Mr. Maheshchandra Gupta for the Applicant.
Ld. APP. Ms. Chaitrali Panshikar for the Respondent/State-EOW.
ORDER
(Dictated and pronounced in open court)
By way of this application, applicant/accused No.3 Umesh
Shivram Naik prayed for grant of bail under Section 437 of the Code of
Criminal Procedure, 1973 (here in after referred as “CrPC” ) in connection
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with Crime No. 404/2023 registered with Kandivali Police station for
the offence punishable under section 420, 406, 34 of Indian Penal Code
(here in after referred as IPC) with section 3 and 4 of Maharashtra
Protection of Interest of Depositors ( In Financial Establishment ) Act
1999 ( here in after referred as MPID Act).
2.

Ld. Adv. Mr. Gupta appearing for the accused/applicant submitted
that, on the complaint of Mr. Vinay Baburao Goriwale the above offence
having Crime no. 404/2023 same to be registered with Kandivali Police
Station, Mumbai on 18.06.2023. In that crime the applicant/accused
No.3 Umesh Naik came to be arrested on 08.02.203 and he is in
Magistrate Custody of this court.
3.

Ld. Adv. Mr. Gupta appearing for the accused/applicant submitted
that, he is respectable citizen and commands a prominent standing in
society and among business associate. He has no criminal antecedents
whatsoever, apart from the proceedings rising from and related to the
subject matter. Applicant is not promoter, director, manager or an
employee in the firm named HAPPINESS 4 ALL. The applicant himself
is a victim in the said matter as invested his hard earned money about
Rs.12,00,000/- from time to time with accused No.1 and his invested
amount is pending due from accused No.1.
4.

Ld. Adv. Mr. Gupta appearing for the accused/applicant submitted
that, the allegation made in the FIR are absolute false, baseless and
misconceived. All the allegation made by the complainant are premised
and conjecture and surmises. There is nothing on record to substantiate
the allegations. On perusal of FIR itself shows that allegations made
against the applicant/accused are absolutely false and frivolous. Prima
facie no offence , much less a cognizable offence is made out against the
applicant. Original complainant has not deposited a single rupee subject
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Dt.12.03.2024
to alleged amount to the applicant/accused. The transaction described
by the complainant are not sufficient to support documentary evidence
to prove their genuineness. The applicant/accused initially received
some
amount
in
the
form
of
interest
from
accused
No.1.

Applicant/accused does know the witnesses i.e. Smt Pankaja Mangesh
Lad, Deepak Kumar Ravindra Sinha and Harishchandra Virappa Amin
and the applicant/accused is not concerned with these people neither
have involvement with them.
5.

Ld. Adv. Mr. Gupta appearing for the accused/applicant submitted
that, FIR is lodged after 15 months, i.e. after last cause of action dated
16.04.2022. Applicant/accused has no involvement in the transaction
which took place between the complainant and accused No.1.
Complainant and accused No.1 both have signed stamp papers duly
notarized, and the applicant was not even present to witness the signing
and
all
allegation
made
against
applicant/accused
are
oral.

Applicant/accused has not received single paise from the complainant
in his account. Thus offence under Sections 420 and 406 of IPC and
offence under Sections 3 and 4 of the MPID Act are not attracted and
applicable to him.
6.

Ld. Adv. Mr. Gupta appearing for the accused/applicant submitted
that, applicant is innocent and falsely implicated in this case.
Applicant/accused is ready and willing to abide by the condition
imposed on him if bail is granted. He will not indulge into activities of
tempering prosecution evidence or witnesses. Applicant is ready and
willing to give surety or cash security in lieu of surety as per direction of
this Court. Hence he prayed that applicant/accused be released on bail
on suitable terms and conditions as deem fit and proper.

B.A.175/2024
7.

Dt.12.03.2024
Say of the investigating officer and Ld. APP is called.

Investigating officer through Ld. APP filed their say vide Exh.2. I.O.
through Ld. APP submitted that applicant/accused is arrested on
08.02.2024 and was in P.C.R. till 20.02.2024 and presently he is lodged
in M.C.R. in Bombay Central Prison. During the course of investigation,
it is revealed that wanted accused Deepak Mhaskar have transferred
money from his bank account to present applicant/accused having his
bank accounts with Bassien Catholic Co-op Bank Ltd. Vasai (West) and
Union Bank Vasai (West). During interrogation of Applicant/accused, he
has replied in evasive answer and has not co-operated police in the
investigation. Main accused Deepak Mhaskar is absconding and not
traceable.
8.

I.O. through Ld. APP submitted that, twice notices were issued to
present applicant/accused under Section 41(A)(1) of the Cr.P.C., but
applicant/accused has chosen to remain absent and was residing in
society and was found hiding his identity. Applicant/accused and
accused Shyamsundar Madhukar Malvankar have approached this court
for seeking pre arrest bail vide Anticipatory Bail Application No.
1832/2023 which was extensively heard by presiding Judge of court
room No. 7 Designated MPID Act and came to be rejected on
09.10.2023 on merit. Since then both the accused and main accused
also applicant/accused and his companion living in society by hiding
their original identity. Then applicant/accused thereafter came to be
arrested on 08.02.2024 and taken into P.C.R. and then remanded
judicial custody.
9.

I.O. through Ld. APP submitted that During the investigation it is
revealed that applicant/accused and other accused Deepak Mhaskar and
Shyamsundar Malvankar in connivance with each other has told the
complainant and other investors that HAPPINESS 4 ALL is company
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registered SEBI and Reserve Bank of India and lured the complainant
and other investors and insisted them to invest their amount by
showing rosy picture and assuring to give handsome return on their
invested amount and received near about amount of Rs. 53,05,000/from them and failed to return the same. It is also revealed that
alongwith complainant there are other investors i.e. Smt. Pankaja
Mangesh Lad, Mr. Harishchandra Virappa Amin and Deepak Kumar
Ravindra Sinha
whose amount are also not repaid as assured by
accused No.1 Deepak Mhaskar as per their statement.
10.

I.O. through Ld. APP submitted that, The complainant Vinay
Baburao Goriwale is LTC agent. Accused Deepak Deepak Mhaskar,
Shyamsundar Malwankar and present applicant/accused have given
assurance to complainant to give handsome return by investing his
money in a company by name HAPPINESS 4 ALL and forced the
complainant to sold his house to Smt Vimala Jaiswal
for Rs.

47,00,000/- and said amount has been invested by him in various
account with accused No.1 Deepak Mhaskar by believing version of
applicant/accused and accused Shyamsundar Malwankar. Therefore,
amount of Rs. 53,05,000/-of the complainant and other investors have
been defrauded.
11.

I.O. through Ld. APP submitted that, during the course of
investigation it is also revealed that, applicant/accused has deceived
other investors also. Hence prosecution needs time to collect their
information and to record their statements. If applicant is released on
bail he may tamper important documentary evidence and prosecution
witnesses. If applicant is released on bail he may again indulge in
similar activities. Applicant/accused may jump over the conditions if
bail is granted and may not remain present for trial. Hence, prosecution
strongly objected the bail application and prayed to reject the same.

B.A.175/2024
12.

Dt.12.03.2024
Heard Ld. Advocate Mr. Maheshchandra Gupta for the
applicant/accused and Ld. APP Ms. Chaitrali Panshikar for the StateEOW alongwith investigating officer Mr. Kiran Sanap for the Kandiwali
Police station. Perused application, documents and submissions of
respective parties.
13.

On query by this Court, Ld. Advocate for the applicant/accused
during the course of argument submitted bank statement of accused
alongwith copy of order passed by designated Court No.7 under MPID
Act,
below Anticipatory Bail Application No. 584 of 2024 dated
06.03.2024. During the course of argument Ld. APP strongly raised
objection due to rejection of earlier Anticipatory Bail Application No.
1832 of 2023 filed by Umesh Shivram Nail and Shyamsundar Madhukar
Malwankar by designated Court No.7 under MPID Act as not
maintainable.
14.

When the query was raised about non mentioning about earlier
application of bail in the present bail application and orders on the
same and not supplying copy of anticipatory bail orders as per direction
of Hon’ble Apex Court, the ld. Adv for the applicant /accused failed to
give reasons for the same. It means, applicant /accused has not
mentioned about rejection of the anticipatory bail orders and that he
was taken into MCR after his arrest on 08.02.2024. This is willfully
suppression fact of rejection of anticipatory bail application and orders
or it inadvertently did not mention for the reason best known to the
applicant/accused.
15.

However it is admitted that, by filing bank statement of
applicant/accused, it is clear that by NEFT from absconding accused
No.1 Deepak Mhaskar, the applicant/accused has received Rs. 50,000/on 21.12.2018 as per bank statement of Bassien Catholic Co-op Bank
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Ltd. Vasai (West) and Union Bank Vasai (West) its makes clear that
applicant/accused has received amount from
accused no.1 Deepak
Mhaskar from time to time. It means that he is also one of the recipient
of the amount which is invested by the investors with accused No.1
Deepak Mhaskar.
16.

As per the complaint, it is applicant/accused who hatched the
investors by luring them of giving handsome returns on their
investments and received amount with valuable gifts such as motor car,
mobile etc. for bringing more investors, even though having knowledge
about the same. Thus considering the gravity of offence, applicant
/accused and accused Shyamsundar Malwankar insisted complainant
Vinay Baburao Goriwale who is LIC agent to sale his own house and
invest amount received from sale transaction in accused No.1’s company
HAPPINESS 4 ALL and accepted that amount, but failed to return as
assured thereby committed an offence punishable under Sections 3 and
4 of the MPID Act which has been specifically made out against the
applicant/accused. Applicant/accused Umesh Naik and Shyamsundar
Malwankar have not only contacted investors but also gave them full
assurance that the company of Accused No.1 Deepak Mhaskar
HAPPINESS 4 ALL is registered company with SEBI and Reserve Bank
of India and thus attracted investors to invest their amount on 8.5 %
interest per month and when received amount without payment ran
away. Now
Deepak Mhaskar and Shyamsundar Malwankar are not
traceable and absconding.
17.

Present applicant/accused Umesh Naik was also not traceable he
was arrested by huge endeavor taken by the police on 08.02.2024
though FIR has been lodged vide crime No. 404/2023. Therefore when
the investigation is still going on, and it has revealed that
applicant/accused has played vital role in commission of the offence
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Dt.12.03.2024
having prima facie case has been made out by the prosecution. If the
applicant/accused
is released on bail, there are chance of his
absconding and he may tamper documentary evidence and prosecution
witnesses. At this prima facie amount of Rs.53,05,000/- involved, and
other investors yet to be come forward and their statements are not yet
recorded the amount may increase due to which pre arrest bail
application of applicant/accused came to be rejected on merit.
18.

Ld. Adv. For the applicant/accused has relied on the observation
of Hon’ble Supreme Court in Special Leave Petition (Cri) Nos 834-835
of 2023 (Diary No. 41186 of 2022) decided on 16-01-2023, In the case
of Bimla Tiwari Vs. State of Bihar wherein it is observed that, “ Process
of Criminal Law, particularly in matters of grant of bail, is not skin to
money recovery proceedings. The process of criminal law cannot be
utilized for arm twisting and money recovery, as recovery of money is
essentially with the realm of civil Proceedings”.
19.

The Ld.

Adv. For the applicant/accused also relied upon the
observation of Hon’ble Supreme Court of India in C. B. I. –vs— P. S.
Jayaprakash and othr. (2023)1SCC 314 where in it is observed that, “ In
case of multiple accused, there is need to consider role of each accused
and nature of allegations against each of them”.
20.

Ld. App has also relied on the judgment of Apex Court in case of
Nimmagadda Prasad Vs. Central Bureau of Investigation in Criminal
Appeal No. 728 of 2013 (Arising out of SLP (Cri.) No. 9706 of 2012
decided on 09-05-2013, and in case of Y. S. Jagmohan Reddy .Vs.
Central Bureau of Investigation in Criminal Appeal No. 730 of 2013
(Arising out of SLP (Cri.) No. 3404 of 2013 decided on 09-05-2013,
wherein it held that, “While granting bail, the court has to keep in mind
the nature of accusations, the nature of evidence in support thereof, the
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severity of the punishment which conviction will entail, the character
of the accused, circumstances which are peculiar to the accused,
reasonable possibility of securing the presence of the accused at the
trail, reasonable apprehension of the witnesses being tampered with,
the larger interest of the public/state and other similar considerations.
It has also to be kept in mind that for the purpose of granting 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 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.
Economic offenses constitute a class apart and need to be visited
with a different approach in the matter of bail. The economic offence
having deep rooted conspiracies and involving huge loss of public funds
needs to be viewed seriously and considered as grave offences affecting
the economy of the country as a whole and thereby posing serious
threat to the financial health of the country.”
21.

Ld. App has also relied on the judgment of Hon’ble Apex Court in
case of Y. S. Jagmohan Reddy .Vs. Central Bureau of Investigation in
Criminal Appeal No. 730 of 2013 (Arising out of SLP (Cri.) No. 3404 of
2013 decided on 09-05-2013, wherein it held that,” While granting
bail , the court has to keep in mind the nature of the accusations, the
nature of evidence in support thereof, the severity of the punishment
which conviction will entail , the character of the accused,
circumstances which are peculiar to the accused, reasonable possibility
of securing the presence of the accused at the trail reasonable
apprehension of the witnesses being tempered with the larger interest
of the public/state and other similar considerations”.

B.A.175/2024
22.

Dt.12.03.2024
In view of above discussion, being the offence is of serious
economic fraud and considering the facts and circumstances alongwith
the gravity of the offence, the applicant/accused is not entitled to be
released on bail at this stage even though he is one of the victim being
investor in this offence. But being having active participation in
commission of the offence and beneficiary of the proceeds of the crime,
he is not entitled to be released on even stringent conditions of the bail.
Hence
the
application
for
grant
of
bail
moved
by
the
applicant/accuseddeserves to be rejected. Hence I procced to pas
following order.
ORDER
1.

Bail
application
Applicant/Accused
No.

No.
3
–
175/2024
Umesh
moved
Shivram
by
Naik
in
C.R.No.404/2023 registered with Kandivali Police Station for the
offence punishable under Sections 420 and 406 r/w 34 of IPC
and under Section 3 and 4 of MPID Act in R.A.No.178/2024 is
rejected.
2.

Case papers be filed.

3.

Concerned authority to take note.

4.

Accordingly, Bail Application No. 175/2024 is disposed of
(Abhijeet A. Nandgaonkar )
Special Judge, C.R.NO.20
City Civil & Sessions Court,
Gr. Bombay.

12/03/2024
Dictated on
Transcribed on
Signed on
:
:
:
12.03.2024
12.03.2024
12.03.2024
B.A.175/2024
Dt.12.03.2024
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”.
12.03.2024
Mrs. R.R.Hate
Name of the Judge
HHJ Shri Abhijeet A.
Nandgaonkar
Date of Pronouncement of
judgment/order
12.03.2024
Judgment and order signed by 12.03.2024
P.O.
Judgment/order uploaded on
12.03.2024