HEMANT

2025:BHC-AS:56320-DB

CHANDERSEN

SHIV

HEMANT

CHANDERSEN SHIV

Date: 2025.12.19 15:06:59 +0300

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.970 OF 2025

Kumar Shah and Anr. … Appellants

V/s.

Amit Masalia and Ors. … Respondents

Mr. Muthahhar Khan with Sachin Mhatre, Diksha Shirodkar, Ishita Kamath,

Smriti Sanjeev i/b Mhatre Law Associates for the Appellants.

Mr. Shirish Gupte, Senior Advocate with Mr. Piyush P. Hushing for

Respondent Nos.1 to 7.

Ms. Sangeeta D. Shinde APP for the Respondent-State. Mr. Vinayak Desure, API, Unit-8, MPID, EOW, Mumbai.

CORAM : BHARATI DANGRE &

SHYAM C. CHANDAK, JJ.

DATE : 17th DECEMBER, 2025

P.C:-

1) In furtherance of our direction issued, the Incharge Deputy Collector (ENC/REM), Malad, Mumbai has filed an affidavit dated 12/12/2025 offering the details of the property in hand of the Competent

Authority including the money lying in the bank account as well as shares.

The total valuation of the said property as per the said affidavit

is approximated at Rs.12,90,20,724.50. However, as on date the amount due and payable to the depositors is to the tune of Rs.17.38 crores.

Mr.Khan, learned Counsel for the Appellants has raised an objection as regards 25 flats standing on the land in village Kambalgaon the valuation of which has been taken into consideration and the Competent Authority is taking these flats to be contributing to a sum of Rs.4,16,04,836.00.

2) The learned Senior Counsel Mr. Gupte representing Respondent Nos.1 to 7, however, would invite our attention to another but crucial aspect of the matter and it being so set out in the impugned order dated 13/08/2025, being whether Flat No.203, ‘B’ Wing which is allowed to be released, could have been at all attached, in the wake of a clear cut finding rendered to the effect that the said flat was purchased by Accused No.5 and his wife jointly by agreement for sale dated 9/07/2009 from a developer M/s. Friends the Realtors, by obtaining a home loan from ICICI Bank in the year 2009.

Clearly pointing out that the period of offence, as per prosecution is from 2013 to 2015, a finding is rendered that the flat was purchased much prior to the occurrence of the crime and therefore, there cannot be a ground to even suspect that it was acquired from the money of the depositors.

The learned Senior Counsel Mr.Gupte would place reliance upon a decision of the Apex Court in a case of Ravindra Shah vs. State of Maharashtra & Ors., 2023 SCC Online SC 434 which have referred to the observations of the Apex Court K. K. Bhaskaran vs. State, (2011) 3 SCC 793, and the observations of Bombay High Court in the matter of Chandraprakash Wadhwani vs. State of Maharashtra3 has concluded that accepting the argument that untainted properties of persons who has not received any amount from or out of the deposits made by the investors ought to be attached and liquidated is not a submission to be accepted, though there may be a concern expressed on behalf of the investors to satisfy their claim.

3) The learned Senior Counsel Mr. Gupte has therefore urged the Court to also focus attention on this aspect of the matter as to whether the flat could have been at all subjected to attachment, being purchased much before the occurrence of offence when the accused persons are alleged to have accepted the deposits from the investors.

4) The aforesaid issue definitely deserve a deeper consideration as Mr.Khan, learned Counsel who has raised the challenge to the impugned order, releasing the subject flat also on the count that there are sufficient properties in the hand of the Competent Authority to satisfy the claim of the investors apart from the fact that concession was offered by the Competent Authority as regards the date of purchase of the flat being prior

3 (2022) 9 SCC 457

to time when the money was invested by the investors. In such circumstances, we are desirous of hearing the parties on this particular aspect.

Re-notify on 15^th January, 2026.

(SHYAM C. CHANDAK,