Cri.B.A.No.1096/2022 Order below Exh.01 in Cri.B.A.No.1096/2022 CNR No.MHNS010047482022

(Hemant Purushottam Gosavi vs. State)

Hemant Gosavi has preferred this application for anticipatory bail praying therein that he may be released on bail in the event of arrest in connection with CR.No.I­399/2022 registered with Ambad police station for the offence punishable under Sec.406 r/w 34 of IPC, on the basis of FIR lodged by Rahul Sudhakar Pingale.

2.Bail application is filed on the ground that the applicant is innocent and has been falsely implicated in the case. That the applicant entered into agreement with the informant to give his vehicle on hire basis on monthly licence fee of Rs.24,000/­ p.m. The applicant has paid all the licence fee. That the applicant does not know Amol Andhale. The applicant is not aware about any cheque issued by Sandip Sandhu, who has been granted interim bail. The offence is not punishable for more than 7 years. The directions of Supreme Court given in Arnesh Kumar vs. State of Bihar is not followed. Nothing is to be recovered or discovered at the instance of applicant. The applicant is permanent resident of Nashik. He will not tamper with prosecution evidence or pressurize witnesses. He will co­operate with investigation. He is ready to abide by terms and conditions if any imposed by the Court. On these main grounds and others has prayed for bail.

3.Notice was issued to State. State appeared through Ld.APP Mr. Kotwal and filed say resisting for grant of application on the grounds that Hemant Gosavi and Rahul Sangle have pledged the vehicle with Amol Andhale of Ahmadnagar and taken amount of Rs.2 lacs from him. Thereafter they both have taken this vehicle from him and now the whereabouts of the vehicle are not known.

Hemant Gosavi is the main culprit. After news of the present FIR was flashed, Summerjeet Singh Aluwalia approached the police station and informed that even he was cheated by the accused in like manner. That the applicant will not co­operate with Investigating machinery. On these main grounds and others have prayed for rejection of the bail application.

4.Heard Ld. Advocate Mr.Javed Shaikh for applicant. Perused bail application. Heard Ld. APP Mr.Kotwal. Perused police papers and say filed by Ambad police station.

5.Ld.Adv.Mr.Javed reiterated all the contents made in the bail application. He stressed his arguments that from the facts, one can gather only civil dispute. He further submitted that nothing is to be recovered and discovered at the instance of applicant. So also, one of the accused is released on bail. Hence, has submitted that the bail application be allowed.

6.Per contra, Ld.APP Mr.Kotwal reiterated all the grounds mentioned in the say filed by Ambad police station.

7.On perusal of FIR as well as case papers, it is apparent that the informant who is the owner of Mahindra Pik­up vehicle No.

MH­15­GV­9096, entered into hire base agreement with Hemant Gosavi on licence fee of Rs.24,000/­ p.m. The FIR further suggests that Hemant Gosavi and Rahul Sangle illegally, unlawfully pledged the vehicle with Amol Andhale of Nagar and did not return the vehicle. Thereafter, Mr.Sandhu mediated and towards settlement of the hire fee, issued cheque of Rs.2 lacs, which on its presentation, was dishonoured as the account was closed.

8.It is settled principle that when the facts also make out ingredients of an offence, the person can institute civil litigation and also can approach the police machinery. In the instant case, there is an agreement on record between the applicant and the informant. However, the dispute raised by the informant travels beyond the scope of the agreement. Applicant was not authorized to pledge vehicle with the other party, but he did so and even collected amount of Rs. 2 lacs. He has deviated from the promises and assurance given to the complainant. His act falls within the ambit of the word ‘dishonestly uses’ used in Sec.405 of IPC. So also, he has violated the directions of the legal contract which he has made touching the discharge of the trust. Other than that, he along with co­accused Rahul Sangle has taken the vehicle from Amol Andhale and since then, its whereabouts are not known. Further investigation reveals that this is not the first time that the applicant has indulged into such activities. Even, one Summerjeetsingh Aluwalia has approached the Ambad police station raising his grievance against the applicant for having criminal breach of trust in like manner. The Mahindra Pik up Vehicle No.MH­15­G­9093 is yet to be seized.

9.The offence under Sec.406 of IPC is not punishable beyond 7 years. The Investigating Officer has produced on record material to disclose that he made attempts to serve notice as contemplated under the Arnesh Kumar’s Judgment passed by the Hon’ble Supreme Court. The record also shows that the applicant did not make himself available for investigation. As far as parity is concerned, the accused Sandhu mediated between the informant and the applicant and issued cheque which was dishonoured. He had no direct nexus with the transaction between applicant and informant. Here, the applicant is the prime accused and therefore, parity will not be applicable. Custodial interrogation of the accused is necessary. The Mahindra Pik­up vehicle is to be seized. Hence, the discretion can not be exercised in favour of the applicant. Hence, I proceed to pass following order :

ORDER
(1). Application stands rejected.

VARDHAN Digitally signed by VARDHAN PRATAPRAO PRATAPRAO DESAI DESAI Date: 2022.09.22 17:23:08 +0530 Nashik. ( V. P. Desai) Date : 22.09.2022 Additional Sessions Judge, Nashik.