IMPORTANT POINT
When the accused shows his bona fide, anticipatory bail may be granted to him.

ORDER

R. BANUMATHI, J.

Leave granted.

2. These appeals by special leave challenge the Order dated 1.4.2014 passed by the Bombay High Court, in and by which, the High Court dismissed the anticipatory bail applications filed by the appellant while granting anticipatory bail to two other persons (Suresh Vallabhji Vora and Rajnikant N. Parekh) arrayed as accused in the same case.

3. Case of the prosecution arises out of a private complaint filed by M/s. Merit Magnum Construction alleging commission of offences against the appellant and other accused u/s 420, 406, 423, 424 r/w Section 34 IPC wherein directions were issued by the Magistrate u/s 156 (3) Cr.P.C. for proper investigation. Case of the complainant is that on 21.12.2005, the seven companies through their Directors entered into a Memorandum of Understanding (MOU) to sell the rights of their land to the complainant -M/s. Merit Magnum Construction, formerly M/s Vimal Builders. Till 2006, the complainant is said to have paid a sum of Rs.7,22,12,256/-to the said companies. It is alleged that inspite of the timely payment of Rs.7,22,12,256/-, the accused persons did not transfer the lands as promised in the MOU. It is the case of the complainant that during the period from 2005 to April 2013, the Directors and shareholders of the above mentioned seven companies– Suresh V. Vora, Rajnikant N. Parekh and the appellant– Rakesh Baban Borhade with common intention to deceive the complainant company avoided transferring ownership rights, interest, shares and related documents to the complainant company and also deliberately suppressed several transactions relating to the property prior to MOU.

4. The Sessions Court dismissed the anticipatory bail application filed by the appellant and other accused. Aggrieved by the same, the accused persons moved the High Court, which vide its impugned order dated 1.4.2014 while granting bail to the other accused persons, dismissed the application of the appellant. The appellant is before us, assailing the correctness of the impugned order.

5. Mr. Ravindra Shrivastava, learned Senior Counsel for the appellant contended that the appellant became Director of Alpha Omega Home Fund Pvt. Ltd. only in November 2010 and that he was not a party to the MOU dated 21.12.2005 as at that time he was neither a shareholder nor a director of the said seven companies. Learned senior counsel has drawn our attention to the challans and cheques at pages 283-288 of the SLP paperbook and submitted that those cheques were meant for the companies mentioned therein and the appellant was not a beneficiary of those cheques. It was urged that in any event, entire case is based on documentary evidence which is in the form of MOU dated 21.12.2005 and the registered sale agreements and bank cheques and challans and hence, the custody of the appellant is not at all required and the High Court was not justified in refusing anticipatory bail to the appellant.

6. Mr. Shekhar Naphade, learned Senior Counsel for the second respondent submitted that to unearth the trail of the transactions and the money received by the appellant, a thorough interrogation is necessary and the High Court rightly declined anticipatory bail to the appellant.

7. We have considered the submissions of the learned counsel for the appearing parties and perused the impugned order and the materials on record.

8. Sub-section (1) of Section 438 has been amended by Cr.P.C. (Amendment) Act 2005 (Act 25 of 2005), by which old sub-section (1) has been substituted by new sub-sections (1), (1A) and (1B). The guiding factors for grant of anticipatory bail have been mentioned in sub-section (1) of Section 438 itself. The Court would grant or refuse anticipatory bail after taking into consideration the following factors, namely:-

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any