B.A. No. 932/2022.
MHCC020052922022
IN THE COURT OF ADDITIONAL SESSIONS JUDGE MUMBAI,
AT GR. BOMBAY
BAIL APPLICATION NO. 932 OF 2022.
IN
C.C.NO. 1200/PW/2022.
IN
C.R. No 47 of 2021.
Vivek Sunil Sabharwal
… Applicant
Versus
The State of Maharashtra,
(At the instance of North Region Cyber
Police Station Vide C. R. No. 47 of 2021.)
… Respondent
Appearances :
Ld. Adv. Mr. Bhavke h/f Adv. Tushar Lavhate
for the applicant/ accused.
Ld. A.P.P. Mr. Abhijeet Gondwal for state present.
CORAM : H.H. THE ADDITIONAL SESSIONS JUDGE
DR. A. A. JOGLEKAR (C.R.NO.37)
DATED :18th JULY, 2022
Page 1 of 7
B.A. No. 932/2022.
ORDER
By this application the applicant/accused Vivek Sunil
Sabharwal seeks to be enlarged on bail under Section 439 of the Code
of Criminal Procedure, (In short, “Cr.P.C”), as they being accused in
C.R. No.47 of 2021 registered with North Region Cyber Police Station
for the offences punishable under Sections 420, 419, 465, 468, 471 and
34 of the Indian Penal Code (Iin short “IPC”) and Sections 66(C) and
66(D) of the Information Technology Act (In short “IT Act”).
THE BRIEF FACTS OF THE APPLICANT’S CASE ENSUES AS UNDER,
2.
The informant is a real estate broker and has his savings account
with Corporation Bank, and as Corporation bank has now merged with
Union Bank said savings account is now with Union Bank. During the
period from 24/05/2021 until 16/06/2021 Applicant/accused had
called the informant stating himself as an office bearer of the
Corporation bank and in the guise of same, had obtained bank account
number self attested other card PAN card for ablation of KYC and
accordingly had shared a link qua email having similarity with that of
the email ID of the Union Bank, with the informant. Thereafter, upon
receipt of such details from the informant, Applicant/accused directly
called the Union Bank authorities and updated his own mobile number
upon the informant’s account and thereby withdrew an amount of ₹
816,258. Thereafter, police registered an offence under the sections ibid
against the unknown accused and initiated a further investigation. Upon
further investigation it revealed that, the individual who called the bank
authorities for updating the mobile number at the bank records and the
savings account of the informant were one and the same. It also
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B.A. No. 932/2022.
revealed that the said individual had operated through is a similar
modus operandi in other states also. Accordingly, the sleuth of North
region Cyber police station raised the Applicant accused and he was
arrested from Burari, Delhi. Upon appropriate compliances, personal
search of the Applicant/accused and also research of his residence was
conducted, and 5 mobile phones for debit cards to forged Aadhar cards,
1 forged driving license, 35 forged stamps made in the name of various
companies and 39 letter heads were seized. It had also revealed that the
Applicant/accused had got prepared fake email ID is of various
nationalized banks from an individual residing at Ahmedabad namely
Birenbhai Patel. Accordingly, the said individual namely Birenbhai Patel
was also arrayed in the offence.
3.
Ld. advocate for applicant/accused states that, the
Applicant accused is falsely implicated and is arrested merely on
suspicion. It is also evident that the full name and the description of the
Applicant/accused is not mentioned in the FIR, and the same is lodged
against some other persons. It is further stated that the alleged case
totally rests on the circumstantial electronic evidence which is relied by
the prosecution, and it is in the form of secondary evidence science
abiding the statutory procedure of law. Also, there is no any legally
admissible evidence on record to link the present Applicant/accused
with the present crime, more especially pertaining to the withdrawal of
amount from the account of the informant. It is further stated that
chargesheet has been filed in the matter and therefore further
detention behind bars is not necessitated. In view of the same, the Ld.
Advocate for applicant/accused prayed for enlargement of the
applicant/accused on bail.
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B.A. No. 932/2022.
4.
Per contra the prosecution has filed their reply vide exhibit
2, and inter alia have resisted the application upon various grounds. It is
categorically stated that, another such offence is registered with BKC
Cyber police station and it has also revealed that the Applicant/accused
is habitual in conducting such offences. The modus operandi opted by
the Applicant/accused while conducting such offences is, he keeps on
changing his place of residence. It is further stated that the
Applicant/accused has prepared forged email ID of various nationalized
banks with the help of accused No. 2 Biren Patel. The learned
prosecutor further states that the amount withdrawn by the
Applicant/accused is not yet recovered. Further, the prosecution
apprehends abscondance and tampering of prosecution evidence.
Lastly, the Ld. Prosecutor prayed for rejection of application.
5.
Heard learned advocate for Applicant/accused, and learned
prosecutor for the state. Perused application and reply.
6.
On meticulous examination of the case record it evinces to
myself that admittedly, the alleged amount held in the savings account
of the informant was withdrawn by the Applicant/accused and in this
regard
a
mere
technical
defence
has
been
taken
by
the
Applicant/accused pertaining to the circumstantial/secondary evidence.
Apart from the same it is also evident that the mobile number used by
the Applicant/accused while allegedly updating the KYC information
with the bank authorities was one and the same and there is no
explanation with regard to this particular fact.
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B.A. No. 932/2022.
7.
Moreover, while deciding an application for bail it is settled
that the Court is required to see whether the primafacie case exists or
not. It is not necessary to make roving enquiry or examining the merits
of prosecution case.
8.
Further it is also evident that the Applicant/accused had
preferred a bail application before the learned magistrate court upon
same set of facts postfiling of chargesheet and the said application was
rejected by the learned magistrate court. Therefore, post rejection of the
bail application by the magistrate court, the Applicant/accused has
failed to propel out such a substantial change in circumstance in order
to avail the benefit of enlargement on bail. Learned advocate for
Applicant/accused has filed and relied upon various case laws which
ensue as under: –
1. Moti Ram & Ors Vs. State of M. P., 1978 AIR 1594.
2. Anvar P. V. Vs. P. K. Basheer and others, Civil Appeal
No. 4226/2012, decided on 18.09.2014.
3. Sonu @ Amar Vs. State of Haryana, Criminal Appeal
No. 1418/2013, decided on 18.07.2017.
4. Sanjay Chandra Vs. CBI, Criminal Appeal No.
2178/2011 (Arising out of SLP (Crl.) No. 5650/2011),
decided on 23.11.2011.
5. Sujit Tiwari Vs. State of Gujarat & Anr., Criminal
Appeal No. 1897/2019 (@ Special Leave Petition
(Criminal) No. 3478/2019), decided on 28.01.2020.
9.
Considering the conspectus of the aforesaid case laws, I do
humbly submits that, majority of case laws are at the stage of appeal
qua post appreciation of matter on merits. Considering the same, in
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B.A. No. 932/2022.
view of the instant case it is evident that, the evidence in the matter is
not yet assailed and therefore, it would be premature at this juncture.
Also, the said case laws are pertaining to the general principles
pertaining to grant of refusal of bail it is evident that the accused is well
acquainted with generating such fake IDs of various Nationalized Banks
and obtains such aid from the other individuals, also has used a SIM
Card held in the name of another individual Manjeet and has used the
bank account to that effect and therefore, the role of the
applicant/accused is apparently established.
10.
Thus, as stated herein above, this being the 2 nd application,
postfiling of chargesheet and that post rejection of such application by
the learned magistrate the very mental ability lies under speculation. So
also as stated by the learned prosecutor the quantum of the amount
withdrawn by the Applicant/accused is too high and till date there is no
recovery. In the backdrop of the aforesaid facts, I hold that, as the
application deserves no consideration. Hence, order infra: –
ORDER
Bail Application No. 932/2022 stands rejected and
disposed of accordingly.
DR.
ABHAY
AVINASH
JOGLEKAR
Date : 18.07.2022
Digitally signed by
DR. ABHAY
AVINASH
JOGLEKAR
Date: 2022.07.22
17:40:25 +0530
(DR. A. A. JOGLEKAR)
Additional Sessions Judge,
City Civil & Sessions Court,
Gr. Bombay (C.R.37)
.
Dictated on
: 18.07.2022.
Transcribed on : 19.07.2022.
HHJ signed on : 22.07.2022.
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B.A. No. 932/2022.
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