Cri. Bail Appl. No.688 of 2022 (Or Exh.1)
1
IN THE COURT OF ADDITIONAL SESSIONS JUDGE, NASHIK
AT – NASHIK.
(Presided over by Mr. M. H. Shaikh)
Criminal Bail Application. No.688 of 2022
CNR No.MHNS010027502022
Aboni Nivaran Paul
Age : 76 years, Occ : Retired
R/o : 304, Apple Woods Apartment,
Ashoka Marg, Nashik, Tal. & Dist.Nashik.

… Applicant/accused.

V/S
State of Maharashtra
Through : Nashik Road Police Station,
Nashik. (C.R. No.I­160/2022)
… Respondent/State.

Appearance :
Ld. Adv. Shri. A. C. Pradhan for Applicant.
Ld. A.P.P. Shri. Sachin Gorwadkar for Respondent.
Complainant in person.
ORDER BELOW EXH. N0.1
(Delivered on 24th June, 2022)
1.

This is an application filed under Section 438 of Criminal
Procedure Code for grant of anticipatory bail in C. R. No.I­160/2022
registered with the respondent Nashik Road Police Station for an offence
punishable under Sections 420, 468, 406, 409, 199, 448, 504 and 506 of the
Indian Penal Code.
2.

Perusal of F.I.R. reflects that, applicant and other two accused
persons in furtherance of their common intention insisted the complainant
to invest the amount of Rs.5,00,000/­ in Mahalaxmi Enterprises. They also
Cri. Bail Appl. No.688 of 2022 (Or Exh.1)
2
said that, they will give Rs.4,500/­ as a profit after every 20 days whether
there will be profit or loss to the said Enterprises. Accordingly, an
agreement was executed between the partners of Mahalaxmi Enterprises i.e.
accused Nos.1 and 2 and the complainant, which came to be notarized.
Applicant being the father of accused No.2 and father­in­law of accused
No.1 took the responsibility of the said transaction. The amount of
Rs.5,00,000/­ was to be repaid within a stipulated period. However, the
applicant and the accused persons did not pay the profit as agreed as also
did not repay the investment amount to the complainant. Instead, the
applicant and the accused persons entered the place of the complainant and
abused and threatened him. It also revealed that, there is no Firm in
existence by name Mahalaxmi Enterprises. The matter came to be reported
to the Police.
3.

It is the case of the applicant that, he is innocent and falsely
implicated in this case only because of his relation with the other accused
persons. Nothing is to be recovered from the applicant. Applicant is senior
citizen and ready to co­operate the I.O. in the investigation. Therefore,
prayed to allow the application on any terms.
4.

Respondent filed their say vide Exh.6 and strongly objected
on the ground that, the license of Mahalaxmi Enterprises is to seized. The
agreement is to be seized. Custodial interrogation of the applicant is
necessary for the further investigation of the case. Therefore, prayed to
reject the application.
5.

In this matter, complainant appeared vide Exh.7 as an
intervenor and he was allowed to assist the Ld. A.P.P. and file written
argument and make brief submissions. However, the complainant did not
file written argument.

Cri. Bail Appl. No.688 of 2022 (Or Exh.1)
3
6.

Heard Ld. Advocate for the applicant, Ld. A.P.P. for the
Respondent/State and the complainant in person. Gone through the
documents filed by the applicant and the complainant. So also gone through
the authorities relied by the complainant.
7.

Upon hearing and going through the material placed on
record, what can be gathered is that, the applicant and other accused
persons in furtherance of their common intention insisted the complainant
to invest the amount and accordingly he invested the amount, but the
applicant and the other accused persons did not pay the profit as agreed in
the agreement, so also did not repay the investment amount of
Rs.5,00,000/­. Moreover, the Cheque which was issued by the accused No.1
as a security also when presented with the Banker of the complainant, it
came to be dishonoured and complaint is filed with the Ld. J.M.F.C.,
Nashik Road. The applicant has come with the case that, as nothing is to be
recovered from him as he stood as a guarantor only. It is the case of the
applicant that, he is being falsely implicated in this case. The allegations
and the counter allegations shall be dealt with by the Ld. J.M.F.C., when
the matter will ripe­up for hearing. It will be to early to make any
observations in this regard.
8.

This Court is only required to deal with whether the case is
true or false and whether custodial interrogation is necessary or not. Prima­
facie it is seen that, the applicant stood as a guarantor for the transaction
between the complainant and the accused Nos.1 and 2. It is the allegation of
the complainant that, applicant is the mastermind behind the said
transaction. However, if we perused the agreement, one will find that the
applicant stood as a guarantor for the repayment of investment amount as
well as payment of profit as agreed. Moreover, it is the allegations of the
Cri. Bail Appl. No.688 of 2022 (Or Exh.1)
4
complainant that, there is no such Firm by name Mahalaxmi Enterprises in
existence. The address shown of the said Enterprises is in a residential
building. Therefore, this Court finds that, there is a prima­facie case made
out by the prosecution. As far as, custodial interrogation is concerned, for
the progress of investigation in right direction, it is necessary that applicant
is interrogated as regards whether Mahalaxmi Enterprises is in existence or
not. If, the applicant would have not been the relatives of the accused Nos.1
and 2, then the question would been otherwise, but the applicant is the
relative of the accused persons, therefore, his custodial interrogation as
regard existence or non­existence of Mahalaxmi Enterprises is necessary.
Moreover, though the original agreement is in the custody of the
complainant and the copy with the I.O. still the same is required to be
confronted to the applicant while he will be in custody. Therefore, this
Court finds that, custodial interrogation of the applicant with the Police is
of utmost important and necessary otherwise the investigation will stand
still.
9.

As far as the authority relied by the complainant i.e. “D. K.

Ganeshbabu v/s P. T. Manokaran and others, decided on 23.02.2007 by
the Hon’ble Apex Court”, wherein the question of surrender before the Ld.
Trial Court and furnishing surety and moving for regular bail before the
concerned Court was ordered. However in “Sushila Agrawal v/s State of
N.C.T. of Delhi”, which is a celebrated Judgment wherein the larger Bench
of the Hon’ble Apex Court held that, “anticipatory bail can not be for a
limited period and overruled the earlier Judgments observing that, after
obtaining pre­arrest bail the applicant has to move the regular Court Under
Section 437 or 439 of Cr. P.C. Therefore, the authority relied by the
complainant can not be said to be applicable to our case in hand.

Cri. Bail Appl. No.688 of 2022 (Or Exh.1)
5
10.

Complainant relied upon “Jaiprakash Singh v/s State of
Bihar and Others” and “Adri Dharam v/s State of West Bengal”. In these
cases Their Lordships held that, anticipatory bail is to be granted in
exceptional cases and wherein the applicant is being falsely implicated.
This is the settled Law while deciding the pre­arrest bail applications.
11.

Complainant relied upon “P. Chidambaram v/s D. E.”, in this
authority Their Lordships held that, pre­arrest bail being an extraordinary
remedy is to be granted sparingly. This is also the settled principle of Law
while deciding the pre­arrest bail application.
12.

Complainant orally objected by saying that, the applicant does
not have any immovable property at Nashik and the affidavit in that regard
is false and therefore initiate action against the applicant as per Law. Ld.
Advocate for the applicant sought time to file document, but filed the I.T.
Returns of the applicant No.1 which do not show that the applicant is the
owner of any immovable property. The Court did not direct the applicant to
produce the document concerning ownership of any immovable property.
Admittedly, there is an affidavit of applicant saying that he is having
immovable property at Nashik. Complainant did not file a counter affidavit
in this regard and only orally objected by saying that the affidavit is false. It
is not sufficient to hold that, affidavit is false, when the complainant
himself has incorporated in the agreement a clause that the applicant and
the accused Nos.1 and 2 will be liable for Civil as well as Criminal action
and further for attachment of their movable and immovable property.
Therefore, the complainant was aware about the applicant and accused
Nos.1 and 2 having movable and immovable properties at Nashik.
Moreover, accused No.1 and complainant belong to same community and
they are know to each other since long and it is evident from the contents of
Cri. Bail Appl. No.688 of 2022 (Or Exh.1)
6
the agreement. Therefore, it can not be said that, the affidavit filed by the
applicant is false.
13.

The authorities relied in this regard say that, if the Court’s
record is tampered and the false affidavit is filed, then the Court can initiate
an action and file a complaint and also initiate contempt proceeding. The
said observations of the Hon’ble Apex Court and the Hon’ble High courts
are the settled principles of Law. In our case in hand, this Court finds that,
the affidavit to be false is not proved. Therefore, there is no question of
initiating any action under Section 340 of Cr. P.C. or contempt inquiry.
Moreover, contempt inquiry is to be initiated in exceptional circumstances
where the Court is of the opinion that perjury has been committed by the
party deliberately and mere surmise or suspicion is not sufficient.
14.

For the forgoing reasons and discussions and in the facts and
circumstances of the case,as this Court finds that, custodial interrogation of
the applicant is necessary. In the result, the application fails, hence the
order.
ORDER
Criminal Bail Application No.688 of 2022
is rejected and disposed off accordingly.
MUSHTAQUE
HUSSAIN
SHAIKH
Place : Nashik.
Date : 24/06/2022
Digitally signed by
MUSHTAQUE
HUSSAIN SHAIKH
Date: 2022.06.24
16:25:50 +0530
(M. H. Shaikh)
Additional Sessions Judge, Nashik.