Point of Law: Cancellation of Anticipatory Bail – Order granting anticipatory bail can be set aside on merits or even in the case of breach of conditions.

JUDGMENT :

1. This is an application for cancellation of anticipatory bail granted by the Sessions Court vide order dated 9th February, 2017. The application is preferred by the original complainant. The First Information Report (for short “FIR”) was lodged vide C.R. No. 13 of 2017 registered with Kandivali Police Station, Mumbai for offences under Sections 406 and 420 of Indian Penal Code (for short “IPC”).

2. The case of the complainant is that he used to provide gold for manufacturing ornaments to Chandrakant Patel who was conducting business in the name of P. B. Jewellers at Borivali. The complainant was acquainted with Sonal Makwana and Sanjay Bhadankar were working in the said factory. Ganesh Badal Mana was also working with them. P. B. Jewellors closed their business and shifted to Ahemadabad/Gujrat. Thereafter, Sonal Makwana, Sanjay Bhadankar and Ganesh Mana started the factory in the premises at Borivali. Sonal Makwana informed the complainant that she is working with Ganesh Mana (accused/respondent) and they are prepare ornaments and selling the same in the market. The complainant believed Sonal Makwana and handed over the gold for manufacturing ornaments to Ganesh Mana. On 12th October, 2016 gold weighing 1 Kg. valued Rs. 30,05,640/-was handed over to him in presence of Sonal Makwana and Sanjay Bhadankar. Similarly on 13th October, 2016, 1 Kg. gold was handed over to the accused valued Rs. 30,10,700/-. Sonal and Sanjay were present. Bill invoices were issued to the complainant. Sonal Makwana and Sanjay Bhadankar were available. The complainant was informed that accused is not attending place of work. Wife of the accused was called. She came to factory and abused the complainant. She stated that she is not aware about any transactions. Subsequently, complainant learnt that the accused have cheated others adopting similar modus. FIR was lodged against the accused for misappropriating the gold valued Rs.60,16,340/-.

3. The accused/respondent No.1 preferred an application for anticipatory bail before the Sessions Court. Interim protection was granted. The application was then finally heard and vide order dated 9th February, 2017 application was allowed.

4. The order granting anticipatory bail to respondent No.1 is under challenge in this application by original complainant. This application was preferred on 9th March, 2017. Notice was issued to respondent No.1 on 1st July, 2017. The notice was returned ‘unserved’ with remark “respondent is not found”. The respondent No.1 was resident of West Bengal, Madinipur. Subsequently, notice was served upon respondent No.1 and the advocate representing him had appeared on 20th December, 2018. Thereafter, the application was adjourned from time to time. On 8th February, 2019 time was granted to respondent No.1 to file reply. Thereafter, application was again adjourned and sometimes due to paucity of time matter did not reach for hearing. The respondent No.1 through his advocate had filed affidavit-in-reply on 11th February, 2019, opposing the prayers in this application on.

5. Learned counsel for the applicant submitted that there is total non application of mind by the learned Judge while granting anticipatory bail to Respondent No.1. The custodial interrogation of Respondent No.1 was necessary. Gold weighing 2 Kg. was entrusted to him. Huge loss is caused to the complainant. Other persons were also cheated in similar offence. After grant of anticipatory bail, two other FIRs were registered against Respondent No.1 vide C.R. No. 936 of 2020 at Kandivali Police Station for offences under Sections 420 & 406 of IPC and C.R. No. 29 of 2021 registered with Malad Police Station for offences under Section 420 & 406 of IPC. It is submitted that the learned Sessions Judge had misread the FIR. The tax invoices dated 13th October, 2016 were in the name of buyer i.e. respondent No.1 and document also mentioned that 60 days credit was given for payment. In spite of clear evidence to support the case