Cri. Bail Appl. No.1182 of 2022 (Or Exh.1)

IN THE COURT OF ADDITIONAL SESSIONS JUDGE, NASHIK AT – NASHIK. ( Presided over by Mr. M. H. Shaikh) Criminal Bail Application. No.1182 of 2022
CNR No. MHNS010050572022

1.Sushant Aboni Paul
Age : 37 years, Occu.: Business

2.Manju Sushant Paul
Age : 37 years, Occu.: Business
Both R/o : Flat No.503, Apple
Woods, Ashoka Marg, Nashik. … Applicants/accused.

VERSUS

State of Maharashtra Through­ Nashik Road Police Station ( C. R. No.I­159 of 2022) … Respondent/State.

Appearance :
Ld. Adv. Shri. Vivekanand V. Krishnan for the Applicants/Accused.

Ld. A.P.P. Shri. Sachin Gorwadkar for the Respondent/State.

Complainant/Intervenor Ld./Dr. Shri. Sanjay Kanoji.

Shri. Shinde, P.S.I. (I.O.), Nashik­Road Police Station.

ORDER BELOW EXH. NO.1 ( Delivered on 11 th Day of January, 2023)

1.This is an application filed under Section 438 of Criminal Procedure Code for grant of anticipatory bail in C. R. No.I­159 of 2022 registered with the respondent Nashik­Road Police Station for an offence punishable under Sections 420, 468, 406, 409, 199, 448, 504 and 506 of the Indian Penal Code ( for short, “I.P.C. ”)

2.As per the applicants, the prosecution story in nut shell is as under :­

It is alleged that, the accused persons and the Ld. Complainant had entered into an agreement for an investment in the Mahalaxmi Enterprises of the present applicants. The Ld. Complainant had deposited an amount of Rs.5,00,000/­. It was agreed that the present applicants would pay Rs.4,500/­ every 20 days and due to certain dues not paid, the Ld. Complainant filed a private compliant bearing Cr. M.A. No.117 of 2022 before the Ld. J.M.F.C., Nashik­Road and thereafter the F.I.R. No.159 of 2022 came to be lodged against the present applicants and their father.

3.It is the case of the applicants that, they are innocent and falsely implicated in this case. There are no specific allegations against the applicants. There were two separate proceedings under the Negotiable Instruments Act, initiated by the Ld. Complainant against the applicants bearing No.S.C.C. No.263 of 2022 and S.C.C. No.264 of 2022 respectively.

The said proceedings came to be disposed off, in view of compromise between the applicants and the Ld. Complainant in the Lok­Adalat held on 13.08.2022. Nothing is to be recovered or discovered from the applicants.

Applicants are ready to abide by the terms and conditions, which will be imposed by the Court. Ready to co­operate the I.O. in the investigation.

There are no criminal antecedents of the applicants. Therefore, prayed to allow the application on any terms.

4.Respondent filed their say vide Exh.7 and strongly objected on the ground that, the Mahalaxmi Enterprises is a bogus Company and it does not exists. Investigation as regards the said Company is required to be made with the applicants. Investigation as regards whether the Ld. Complainant received the amount as per the awards of the LokAdalat. The applicants may threaten the Ld. Complainant and the witnesses. Custodial interrogation of the applicants is necessary for the further investigation of the case. Therefore, prayed to reject the application.

5.The said say Exh.7 is filed by the I.O. of C.R. No.160 of 2022 and not the I.O. of C.R. No.159 of 2022. Moreover, the said say was filed of C.R. No.160 of 2022 and not of C.R. No.159 of 2022.

6.In this matter, Ld. Complainant appeared vide Exh.8 as an intervenor and he was allowed to intervene in the matter.

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

8.Ld. Advocate for the applicants placed reliance upon the following authority :­
(1) “Youth Bar Association of India v/s Union of India (UOI) reported in AIR 2016 S.C. 4136.”
In this authority, “Their Lordships directed to upload each and every F.I.R. registered in all the Police Stations within the territory of India on the Official Website of the Police of all States.”

9. Ld. Complainant placed reliance upon the following authorities :­
(1)“A dri Dharan Das v/s State of West Bengal Appeal (Crl.) 326 of 2005 decided on 21.02.2005 by the Hon’ble Supreme Court”.

(2) “D.K. Ganesh Babu v/s P.T. Manokaran and Others Appeal (crl.) 249 of 2007 decided on 23.02, 2007 by the Hon’ble Supreme Court”.

(3) “Jai Prakash Singh vs State Of Bihar and Another in Criminal Appeal Nos. 525­526 of 2012 (Arising out of SLP(Crl.) Nos.304305 of 2012) decided on 14.03,2012 by the Hon’ble Supreme Court”.

(4) “P. Chidambaram v/s Directorate of Enforcement in Criminal Appeal No. 1340 2019 (Arising out of SLP(Crl.) No.7523 of 2019) decided on 05.09.2019 by the Hon’ble Supreme Court”.

(5) “Mohan Singh v/s Late Amer Singh Thr. The Lrs., decided on 1st S eptember, 1998 by the Hon’ble Bombay High Court”.

(6) “Narsinh Mahadeo Taklikar vs The Solapur Municipal, reported i n equivalent citation 1997 (2) Bom CR 357 decided on 1 October, 1996 by the Hon’ble Bombay High Court”.

(7) “Firm Ganpat Ram Rajkumar vs Kalu Ram & Ors, reported in e quivalent citations AIR 2285, 1989 SCR Supl. (1) 223 decided on 22 September, 1989 by the Hon’ble Supreme Court”.

(8) “Ram Kumar v/s State of Uttar Pradesh & Others in Civil Appeal No. 4258 of 2022 decided on 28.09. 2022 by the Hon’ble Supreme Court”.

(9) “Rajwinder Singh v/s State of Punjab decided on 11.08.2015 by t he Punjab­Haryana High Court”.

(10) “S.P. Chengalvaraya Naidu (Dead) v/s Jagannath (Dead) by LRs. and Others, reported in equivalent citations AIR 1994 SC 853, decided on 27.10.1993 by the Hon’ble Supreme Court”.

(11) “Sadhna Chaudhary v/s The State of Rajasthan and Another in Criminal Appeal No. 936 of 2022 (Arising out of S.L.P.(Crl.) No. 8477 of 2021) de cided on 12.07.2022 by the Hon’ble Supreme Court”.

10.Upon going through the above authorities, the observations of the Hon’ble Apex Court and the Hon’ble High Courts, which can be culled out are as under :­

(a) “Jurisdictional scope of interference of the Court in the process of investigation is limited while dealing with the application under Section 438 of Cr.P.C. Ordinarily the Court should not interfere in the investigation and stall the investigation.”
(b) “The accused should opt for regular bail before the Ld. Trial Court. ”
(c) “Anticipatory bail is to be granted in exceptional cases and wherein applicant is being falsely implicated.”
(d) “Pre­arrest bail is to be granted sparingly, as it is an extraordinary remedy.”
(e) “If the false affidavit is filed, a proceeding under Section 340 of Cr.P.C. is to be initiated.”
(f) “If the false statements are made, then the Hon’ble Bombay High Court had imposed costs of Rs.5,000/­ in the civil matter.”
(g) “If the Civil Court order is disobeyed the Hon’ble Court directed to comply it.”
(h) “If the order is obtained by the fraud, then the Hon’ble Apex Court held that, the party does not deserve any order in their favour. ”
(i) “If the Court is misled, then the Hon’ble Punjab and Harayana High Court had imposed costs of Rs.30,000/­ to be paid to Punjab Legal Services Authority.”
(j) “Judgment and Decree obtained by fraud is nullity.”

11.Upon hearing and going through the material placed on record, what can be gathered is that, co­accused Aboni Paul had applied for pre­arrest bail before this Court bearing ABA No.688 of 2022, which came to be turned down. Applicant No.2 Manju Paul also applied for pre­arrest bail before this Court, but later on had withdrawn the same. Both these bail applications were for F.I.R. No.160 of 2022 of Nashik­Road Police Station.

Against the rejection of ABA No.688 of 2022, co­accused Aboni Paul filed an application before the Hon’ble High Court for pre­arrest bail. Perusal of the bail application filed before the Hon’ble High Court reflects that, the F.I.R. number was mentioned as F.I.R. No.159 of 2022. Perusal of order of the Hon’ble High Court reflects that, the contentions of F.I.R. No.160 of 2022 was considered and the bail was granted. Thereafter, the applicants have filed the present application before this Court.

12.In this matter, Ld. Complainant appeared and pointed out to the Court that, there are two F.I.R.’s wherein he is the complainant and the applicants and co­accused Aboni Paul are the accused person and the F.I.R. numbers are 159 of 2022 and 160 of 2022. It seems that, thereafter also the Ld. Advocate for the applicants did not verify from the applicants about the two F.I.R.’s and maintained his argument that, only F.I.R. No.159 of 2022 is uploaded on the Website and F.I.R. No.160 of 2022 is not uploaded.

However, the I.O. filed the report stating that, both the F.I.R.’s are uploaded on their Website. He also explained that, the F.I.R. No.159 of 2022 was wrongly uploaded by the staff of Nashik­Road Police Station and they are in the process of correcting the mistake. He also explained that, the F.I.R.

No.160 of 2022 is being investigated by him and F.I.R. No.159 of 2022 is not being investigated. Thereafter, also the Ld. Advocate for the applicants did not sought withdrawal of the application. After rejection of amendment application Exh.49 filed by the applicants, Ld. Advocate for the applicants filed the pursis informing the Court that, they wish to withdraw the case with liberty to file a fresh application. The said pursis came to be seen and filed and as it was not an application for withdrawal of case. Therefore, no permission was granted as sought by the Ld. Advocate for the applicants.

Therefore, this Court is considering the said case on merits i.e. F.I.R. No.160 of 2022 of the Nashik­Road Police Station.

13.In this backdrop, if we consider the merit of this case, one will find that, the Ld. Complainant was induced by the applicants and the co­accused to invest in their Firm and they will give profits periodically to the Ld. Complainant. Thereafter, as they did not comply their words and the covenants of the written agreement. Therefore, the Ld. Complainant made a written application to the Nashik­Road Police Station. Thereafter, the applicants also filed an application against the Ld. Complainant. The said application was inquired by the Police of the Nashik­Road Police Station, wherein the statement of the Ld. Complainant came to be recorded. It seems that, thereafter on the strength of dishonored cheques, complaints under Section 138 of the Negotiable Instruments Act came to be filed and they came to be settled amicably between the parties before the Lok­Adalat and the awards were passed. However, some part payment was made and the remaining payment was not made. Therefore, the Ld. Complainant filed the execution proceeding before the Ld. Civil Court.

14.Now, whether the ground of parity is applicable to the applicants. The answer to this question is in Negative because the role of co­accused Aboni Paul was of guarantor and role of these applicants is of borrowers. Therefore, the rule of parity is not applicable to the applicants.

Moreover, the order of the Hon’ble High Court is obtained by playing fraud is the contention of the Ld. Complainant. Therefore, on this ground also, this Court is not incline to grant the application. The I.O. also objected for grant of bail on the grounds set­out by him in the say. Investigation is stands still since the F.I.R. came to be registered. Custodial interrogation of the applicants is necessary. There is a prima­facie case made out by the Ld.

Complainant in the complaint followed by the fact that, the applicants amicably settled the complaints filed by the Ld. Complainant under Section 138 of the N.I. Act and thereafter did not comply the awards passed by the Ld. Lok­Adalat. Therefore, on this score also applicants are not entitle for pre­arrest bail.

15.Now, coming to the aspects that, the applicants made misleading statements, filed false affidavits, mentioned F.I.R. No.159 of 2022 instead of F.I.R. No.160 of 2022 in the application before this Court as well as the co­accused Aboni Paul mentioned F.I.R. No.159 of 2022 instead of F.I.R. No.160 of 2022 before the Hon’ble High Court while obtaining bail. Further, the applicants have placed the copy of F.I.R.

No.159 of 2022 in this matter and asking the relief for F.I.R. No.160 of 2022. So also made a false statement that, on the direction of Ld. J.M.F.C., Nashik­Road in M.A. No.117 of 2022 the F.I.R. No.159 of 2022 was registered and so also suppressed the fact that the ABA No.691 of 2022 filed by applicant No.2, which was withdrawn is not mentioned in this application.

16.Chapter­X of the Indian Penal Code provides for contempt of the lawful authority of public servants. There is a bar for taking cognizance under Section 195 of Cr.P.C. for the provisions of Chapter­X of the Indian Penal Code except upon a written complaint by the authority under Section 340 of Cr.P.C. This Court upon going through the entire record and the authorities relied by the Ld. Complainant, what can be gathered is that, it is not mandatory for the Court to file a written complaint for the provisions of Chapter­X of I.P.C. Because of the two F.I.R.’s registered by the Nashik­ Road Police, there might be some mistake inadvertently or intentionally by the applicants. There might be a mistake by the Ld. Advocate before the Hon’ble High Court. This Court finds that, it is not expedient in the interest of justice to inquire to the offences coming under Chapter­X of the I.P.C.

17. As far as, the false statements made by the I.O. is concerned, i.e. report to the Nashik­Road about F.I.R. No.159 of 2022, copies of Lok­ Adalat awards supplied by the Ld. Complainant and disobeying orders of this Court is concerned, this Court finds that these are minor things, which did not affect the administration of justice, as the Ld. Complainant has at the proper time informed the Court about the same. Therefore, this Court finds that, it is not expedient in the interest of justice to pass any order against the I.O. In this regard, adverse inference is drawn against the I.O.

18.As far as, the applicants despite order of this Court did not appear before the Court is concerned, this Court finds that, they might be apprehending their arrest. Therefore, they might not have appeared in the matter. For that it is not necessary to pass any order against them. Rejection of this application will suffice the purpose.

19.For the forgoing reasons and discussions and in the facts and circumstances of the case,as this Court finds that, custodial interrogation of the applicants is necessary. In the result, the application fails, hence the order.

O R D E R

Criminal Bail Application No.1182 of 2022 stands rejected.

MUSHTAQUE Digitally signed by MUSHTAQUE HUSSAIN HUSSAIN SHAIKH SHAIKH Date: 2023.01.11 17:40:10 +0530 Place : Nashik. (M. H. Shaikh) Date : 11/01/2023 Additional Sessions Judge, Nashik.