CNR MHNS010013742022 No. Order below Exh. 1 in, Cri. Bail Application No. 399/2022
( Manoj Prakash Maheswhariaccused 1 & Smt. Sunita Monoj Maheswhariaccused 2 Vs. State )
This is an application, for prearrest bail u/s. 438 of Cr.P.C. in C.R. No. 45/2022 registered with Gangapur police station, Nashik u/s. 406,420 R/w.34 of Indian Penal Code(for short “IPC”).
2.Learned counsel Mr.M.Y. Kale for the applicants submits that, they are innocent person and have been falsely implicated. Applicant 1 has Heart problem and under treatment of doctor Hinduja National Hospital. Informant is engaged in money lending transactions. Initially, they have lend Rs. 7,00,000/towards which applicants has issued five cheques towards security. After its repayment,when they demanded for its return,informant did not returned and by misusing the three cheques by filing Rs. 5,00,000/ and Rs. 2,00,000/ and Rs.3,00,000/ filed a case u/s. 138 of N.I.Act. They also filed another case u/s. 138 of N.I.Act by filing two cheques amount of Rs.5,00,000/ and Rs. 20,00,000/. Thus, in all informant has wrongly shown Rs. 35,00,000/ alleging that, they paid the same to the applicants towards investment. In fact, informant had paid only Rs. 7,00,000/ which was returned to them. Another amount of Rs. 19,00,000/ was lent to them by informant, and informant did not pay amount of Rs. 35,00,000/ as alleged by them. Applicants are ready to abide by any of the terms and conditions to be imposed by this Court. They have got fixed and permanent place of residence and undertakes to cooperate investigation.
3.Learned A.P.P. Mr. R.M. Baghdane, by filing pursis (Exh.11) adopted say filed by I.O (Exh.10) and strongly objected this application. I.O. is present alongwith police case papers.
Original informant Prakash Dattatraya Sahane appeared in the court and also objected this application by filing his say (Exh.8 ) and written notes of argument (Exh.19). To butress his submission that, informant be heard,Learned Advocate Mr. V.B. Nehe for complainant/ victim relies on,
(i) Devender Kumar Singla vs. Baldev Krishan Singla, 2004 CJ(SC) 319,
(ii) The State of Uttar Pradesh vs. Aman Mittal & Anr., 2019 CJ(SC) 901
(iii)Jasmin B. Shah(B) vs. State of Jharkhand and another, 2002 CJ(Jhr) 309,
(iv) Sharan Khanna vs. Oil & Natural Gas Corporation Ltd., 2010 CJ(Bom) 2090, and
(v) Jagjeet Singh and Ors., vs. Ashish Mishra @ Monu & Anr., 2022 LiveLaw(SC)376.
Hence, I have to proceed in view of principle of law laid down in the rulings cited supra.
4.Thereafter, in reply to say of original informant (Exh.8),by filing his reply(Exh.17), applicants pray to confirm the order of interim bail dated 04.03.2022 passed below interim bail application(Exh.4).
5.In short, according to the applicants, this matter is pertaining to money lending transactions. The complainant had given complaint in the office of Police Commissioner on 02.03.2020. Thereafter, prearrest bail application was preferred vide Cri. Bail Application No. 1013/2020 wherein by order dated 27.08.2020 protection was granted by giving 72 hours notice prior to arrest. The complainant allegedly demanded return of cheque amount in the month of November 2020 from the applicants. As, the alleged cheques of Rs. 35,00,000/ issued by applicants to the complainant returned dishonoured, two complaints u/s. 138 of NI Act have been filed in respect of the above cheques. As, police did not take any action, the complainant moved an application before learned Judicial Magistrate, First Class, wherein by order dated 04.01.2022, direction was given u/s. 156(3) of Cr.P.C. for investigation on the basis of which FIR came to be registered.
Parties are known to each other. Admittedly, they had previous transactions in which money was returned by the applicants.
6.In this application, vide order passed below interim bail application(Exh.4) dated 24.03.2022, interim bail was granted to both applicants by this Court.
7.Learned A.P.P strongly opposed this application on the grounds that, offence is serious. Applicants have been named in the FIR. Investigation is incomplete. Property is to be recovered.
They may hamper or tamper prosecution witnesses and evidence.
However, parties are known to each other. This matter is pertaining to monetary transaction. Applicants state that, it was money lending transaction while informant states that, it was given towards investment. Police complaints had already been made prior to filing of above cases u/s. 138 of the N.I.Act. As,police did not take any action upon the complaint given by the informant, FIR
was registered in view of direction u/s. 156(3) of Cr.P.C.
Considering the facts and circumstances of the case, that two cases are pending u/s. 138 of N.I.Act pertaining to the above cheques, for investigation on above grounds custodial interrogation is not necessary. By imposing conditions, investigation can be carried out. Offences alleged are not punishable with death or life imprisonment. As, above Crime Number has been registered, the
apprehension in the mind of applicants of being harassed, man handled, arrested seems to be reasonable, warranting prearrest protection. Hence, the order.
ORDER
1.This application stands allowed.
2.Interim order dated 24.03.2022 passed below Exh.4 stands confirmed.
3.The applicants shall attend the police station on each Monday for one month in between 11.00 a.m. to 1.00 p.m.
( S.T. Tripathi) Date :27.04.2022. Additional Sessions Judge 7, Nashik.