Judicial Analysis Court Copy Headnote Facts Arguments Court observation

BOMBAY HIGH COURT
C.V. Bhadang, J.
(Through Video Conference)
Bail Application No.271 of 2022
Alnesh Akil Somji – Applicant
versus
State of Maharashtra – Respondent
With Interim Application No.501 of 2022
In Bail Application No.271 of 2022
Yogesh Vishnu Dixit – Intervenor
Bail Application No.271 of 2022 with Interim Application No.501 of 2022
Decided on 25.4.2022

Counsel for the Parties:
For the Applicant: Mr. Subodh Desai, Mr. Kartik Garg, Mr. Ajay Vazirani, Mr. Dhiren Durante, Mr. Sahil Namavati i/b. Laxicon Law Partners
For the Respondent: Mr. A. R. Kapadnis, APP
For the Intervenor in IA No.501/2022:Mr. Amit Desai, Senior Advocate i/b. Mr. Shailesh Mhaske and Mr. Arfat Shaikh, Advocates
For the Intervenor:Mr. Satyavrat Joshi, Advocate

IMPORTANT POINT
Default bail (Statutory bail) – No subterfuge should be resorted to, to defeat indefeasible right of accused for default bail during interregnum when statutory period for filing charge-sheet or challan expires and submission of charge-sheet or challan in court.

Headnote:
Criminal Procedure Code, 1973 – Section 167(2) – Default bail (Statutory bail) – Provision setting out a time line for completion of investigation and corresponding right of accused to be released on bail when investigation is not completed within stipulated period, aims at balancing interest, both of investigation and personal liberty of accused – Investigation is within province and domain of investigating agency – However that does not mean that court, in almost all cases, would be bound by invocation of a particular section against accused by prosecuting agency – Label of section or provision invoked would not be decisive – To hold otherwise, would amount to placing said right at mercy of investigating agency and would indirectly result in Magistrate abdicating duty to enforce the right wherever necessary – Court would be required to look into generality of allegations made and material collected – In a given case where ex facie provision is not attracted court may not be bound by the same – Matter depends on facts and circumstances of each case. (Paras 12 and 13)
Result: Application allowed. Bail granted.

ORDER

C.V. Bhadang, J.—By this application the applicant (Accused No.1) is seeking bail under section 167(2) of the Criminal Procedure Code (Cr.P.C.) in Crime no 153/2021 PS Koregaon Park Pune, for the offence punishable under section 406, 409,420 read with Section 34 of Indian Penal Code (IPC) and Section 3 and 4 of the Maharashtra Protection of Depositors Act (MPID Act). The learned Special Judge at Pune by order dated 07.01.2022 has refused to release the applicant on default bail under Section 167(2) of CrPC.

2. The aforesaid crime is registered on the basis of the complaint dated 27.10.2021 lodged by the intervenor Yogesh Vishnu Dixit. The applicant is a builder by profession. According to the informant the applicant with his wife Dimple Somaji (Accused no 2) had induced him to invest amount in their venture M/s M.G. Enterprises and had accepted deposits from the informant and others assuring 24% p.a. returns. The informant claims to have invested a total amount of Rs.4000000/- for which returns were paid from 2016 to 2018. The informant had inverted a further amount of Rs. 500000/- in 2019. The applicant and the co-accused had failed to repay the principle and the interest amounting to Rs.66,90,000/-. The informant claims that the applicant and the co-accused had also defaulted in the matter of repayment of the principle and interest to Kiran Shetty, Maya Dwarkadas and others.

3. It appears that the applicant and his wife were arrested at Delhi Airport on 1.11.2021 and were produced before the Patiala Court at Delhi on 2.11.2021 and 48 hours transit remand was obtained. On 3.11.2021 they were produced before the Special Court (MPID) at Pune, when they were remanded to police custody (PCR) till 8.11.2021 which was further extended till 11.11.2021. From 11.11.2021, the applicant is in magisterial Custody Remand(MCR). The Accused No.2 Dimple Somji has been released on temporary bail inter alia on condition of payment of certain amount by the learned Special Court.

4. It appears that on 3.1.2022 the investigating officer filed a remand application dt.31.12.2021 intimating the special Court about addition of Section 409 of IPC on account of following circumstances which were revealed during the investigation.

(i) Under a Memorandum of understanding (MoU) dt 20.6.2015 one Vijay Damechya being owner of Flat no 6 in building Gagan Utopia at Pune being part of Palash Cooperative Housing Society (Said Society) had transferred the rights in respect of the said flat in favour of co accused Dimple Somji to which the said Society was a Consenting Party. The said building was constructed by builders Gagan Buidscapes LLP of which the applicant is one of the partners. Dimple Somji in turn had executed an allotment letter in respect of the said flat in favour of one Ritwik Sanghvi which is signed by the applicant as promoter/confirming party on behalf of the builders Gagan Buidscapes LLP (said LLP for short).

(ii) The statement of Ritwik Sanghavi and his brother Shailendra Saghavi came to be recorded during the course of the investigation in which it was revealed that these witnesses had invested a total amount of Rs.53,00,000/- in M G Enterprises of the applicant and his wife in the year 2018 by transfer in the account of Dimple Somji in Kotak Mahindra Bank. The applicant and the co-accused had assured interest @18% p.a. on the said amount and had failed to pay a total amount of Rs.1,01,89,886/- to the said witnesses including interest for the period from June 2018 to December 2021.

(iii) According to these witnesses, the allotment letter executed by Dimple in favour of Ritwik Sanghavi was by way of security for the amount invested and its return with interest. When a demand for the amount with interest was made the applicant avoided to repay the same. These witnesses claimed that when they went to the site of the flat they found that the building was constructed till four floors only as it had no sanction for higher floors. Thus