CNR MHNS010035632020,
E.O.W.P.E.
No.
116/2019, registered
with Economic Offence
Wing, Mumbai for the
offence
punishable
under section 420 and
406 read with section
34 of the IPC.
Order below Exh.1 in Cri. Bail Application No.1254/2020.
{ Ganesh Ramesh Nibe Vs. State }
This is an application under section 438 of the Criminal
Procedure Code filed by applicant Ganesh Ramesh Nibe in Crime
No. E.O.W.P.E. No. 116/2019 registered with Economic Offence
Wing, Mumbai for the offences punishable under sections 420 and
406 read with section 34 of the Indian Penal Code ( for short ‘the
IPC’) for grant of prearrest bail. Preliminary/local inquiry of
E.O.W.P.E. No. 116/2019 is transferred and investigated by Pawan
Nagar
Police
Station
for
criminal
investigation/inquiry
of
circumscribing the offences punishable under sections 420 and 506
read with section 34 of the IPC. At the out set, the police station to
which the inquiry is transferred is not Pawan Nagar,but Ambad
police station, Nashik.
2.
Brief facts giving rise to this application can be narrated
as follows.
The Maharashtra State Electricity Distribution Company
Ltd. (for short ‘MSEDCL’) issued a tender inviting bids for electrical
infra project for different zones within the jurisdiction of Nashik
and the project value was estimated to the tune of Rs. 452.44
crores. The informant is a Public Limited Company named M/s.
Electrical Manufacturing Company Ltd. (for short ‘EMC’) based in
Kolkatta. The applicant is the director of Shrinwas Electricals GTD
..2..
Pvt. Ltd., A joint venture agreement dated 21.10.2013 to bid for
the said MSEDCL project was mutually agreed upon between the
two companies. After compliance, MSEDCL issued the letter of
Award in favour of EMC Ltd. as a principal contractor and
Shrinwas Electricals GTD Pvt. Ltd., as a sub contractor for the said
project. The project started from 01.01.2014. Allegedly issues arose
between the two companies. It is alleged that the applicant’s
company has forged the document and has requested MSEDCL to
transfer the funds in their personal account and have committed
criminal breach of trust with EMC Ltd., It is further alleged that the
applicant’s company along with MSEDCL officials has committed
forgery and has cheated EMC Ltd. by requesting MSEDCL to
transfer funds related to the project into the personal account of
the applicant’s company rather than to Escrow account and utilized
the amount for some other projects.
3.
The present complaint came to be lodged with
Economic Offence Wing, Mumbai for carrying out preliminary
investigation. Now, it is transferred to Ambad Police Station,
Nashik.
4.
The applicant contends that he is innocent and falsely
implicated in this crime. No direct role is attributed to him. He has
been granted anticipatory bail by the Hon’ble Sessions Court,
Mumbai since primafacie no case was made out against him. The
applicant has abided by the court’s order and cooperated in
investigation as and when called for. Ambad Police Station has no
jurisdiction to investigate the matter as the applicant’s office falls
within the jurisdiction of Indiranagar Police Station. The informant
has committed breach of contract. The informant has never sent
any written intimation to the applicant regarding cheating and
Cri. Bail Application No.1254/2020.
..3..
breach of trust. A simple legalized commercial transaction is given
the colour of heinous crime. The material facts are suppressed
while lodging the complaint. He is ready to settle the commercial
terms of the informant. The informant’s company has not provided
funds in time, and therefore, the applicant’s company has suffered
huge losses. It is not denied that amount of Rs. 5 crores which was
part of the project was transferred into the account of the
applicant’s company Bank rather than the Escrow account. It was
done after complying the legal procedure. All the allegations are
vague,evasive and improbable. There is nothing to be recovered
from or at the instance of the applicant. The police official with
hand in gloves with the informant are threatening the applicant
that they will surpass the order of Hon’ble Sessions Court, Mumbai
and will register a new case against him. Custodial interrogation of
the applicant is not required. He has deep social and cultural roots
in the society. He has permanent place of abode in Nashik. He has
no criminal antecedents. He is ready to abide with any condition
imposed by this court. Therefore, it is prayed by him that
anticipatory bail in the event of arrest be granted or in the
alternative protection of 72 hours notice prior to arrest be given to
him.
5.
In response to the show cause notice the respondent
State filed its reply at exh. 07. No offence is registered against the
applicant at Ambad police station. An application is filed by EMC
Ltd., against the applicant on 04.05.2019 to Economic Offences
Wing, Mumbai. On 09.03.2020, it was given to Ambad police
station. On 23.07.2020, it has been received by Ambad police
station. It is alleged that the applicant has received an amount of
..4..
Rs. 253.69 crores from the EMC Ltd., The project cost was Rs.
221.03 crores. The remaining amount of 32.66 crores has been
utilized by the applicant for various other purposes and thereby has
cheated the EMC company. The General Manager Manoj Lahoti of
EMC Ltd., is at present at Rajasthan and is not available for inquiry.
Hence, on all these grounds, the prosecution prayed for rejection of
the application.
6.
Learned DGP Mr. Ajay Misar has filed say overleaf the
application and contended therein that this court has no
jurisdiction to decide this matter. Hon’ble Addl. Sessions Judge,
Mumbai has already considered the prayer of the applicant and
passed order dated 20.01.2020. Hence, application may kindly be
disposed off.
7.
The learned advocate Mr. T.V. Punekar for the
applicant and the learned A.P.P. Ms. Patil for the prosecution have
advanced their respective arguments as per their contentions.
8.
The first fact to be noted is that there is no FIR
registered against the applicant at Ambad police station, Nashik. As
mentioned in the say of the prosecution preliminary inquiry on
application No. 233/2020 is in progress. In absence of FIR, the
allegations against the applicant are uncertain. It is also submitted
that the General Manager of the informant company is at Rajasthan
and not available for inquiry at present.
9.
It is pertinent to note that on receipt of notice from
E.O.W. Mumbai, the applicant has approached the Hon’ble City
Sessions Court, Greater Mumbai and has filed Anticipatory Bail
Application No. 87/2020. As per the copy at Exh. A/1 the
application came to be allowed by the Hon’ble Addl. Sessions
Judge, Mumbai. As per clause (2) the protection granted is as
Cri. Bail Application No.1254/2020.
..5..
under :
“(2) In the event of registration of the FIR on the basis
of above preliminary inquiry, investigation officer is
directed to give 72 hours notice to the applicant prior
to his arrest.”
10.
Therefore, in the event of registration of FIR on the
basis of preliminary inquiry in E.O.W.P.E. No. 116/2019 protection
has been granted to the applicant. It is submitted by Learned Adv.
Mr. Punekar for the applicant that this protection will not extend to
any offence likely to be registered at Ambad Police Station.
Therefore, on parity grounds he has prayed for similar order.
Learned APP has opposed this submissions.
11.
It is necessary to be seen as to whether the
apprehension of arrest is reasonable or not. Whether there is
reason to believe for the applicant that he may be arrested by
Ambad police station. It is well settled that mere fear of arrest is
not sufficient to hold that the apprehension is reasonable. There
are no circumstances on record which would point that Ambad
police are likely to arrest the applicant. There is no notice given to
the applicant to appear in person or for calling him for any inquiry.
Therefore, there are no circumstances to infer that the applicant
has reason to believe except his fear, that he may be arrested by
Ambad police Station.
12.
In the absence of FIR and on the basis of allegations in
the preliminary inquiry it would not be proper to embark on the
role and participation of the applicant. The details pertaining to
cheating and criminal breach of trust for the alleged huge amount
are not yet in the FIR. Therefore, it would be a premature stage to
consider the submissions of the applicant pertaining to alleged
..6..
cheating and criminal breach of trust. Therefore, passing any order
of anticipatory bail as of now would be a blanket protection. It is
not warranted and feasible at this stage.
13.
Thus, to sum up the entire discussion FIR is not yet
registered against the applicant at Ambad police station, Nashik.
He has been granted protection by the Hon’ble Addl. Sessions
Judge, Mumbai in the event of registration of FIR on the basis of
E.O.W.P.E. No. 116/2019. The apprehension that he would be
arrested by Ambad police station, Nashik is not reasonable and
genuine. There are no circumstances on record which would point
that he is likely to be arrested. He is not called for any inquiry by
Ambad police station nor any written notice is given to him till
today. Mere fear of arrest is not sufficient to exercise the discretion
vested in this court to grant anticipatory bail. Resultantly, I proceed
to pass following order.
ORDER
The application filed by applicant Ganesh Ramesh Nibe, is
hereby rejected.
(Dictated and pronounced in open court)
Samarendra
Prakashrao
Naik
Nimbalkar
05.10.2020.
Digitally signed by
Samarendra
Prakashrao Naik
Nimbalkar
Date: 2020.10.05
13:05:38 +0530
( S.P. NaikNimbalkar )
Additional Sessions Judge
Nashik.