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HIGH COURT OF BOMBAY
C. V. BHADANG, J
Alnesh Akil Somji – Appellant
Versus
The State of Maharashtra – Respondent
Bail Application No. 271 of 2022 | Interim Application No. 501 of 2022
For the Appellants/Petitioners: Mr. Subodh Desai, Mr. Kartik Garg, Mr. Ajay Vazirani, Mr. Dhiren Durante, Mr. Sahil Namavati
For the Respondents: Mr. A. R. Kapadnis
The right to default bail under Section 167(2) cannot be overridden by late charges without violating the accused's personal liberty.
Headnote:(A) Criminal Procedure Code, 1973 - Section 167(2) - Indian Penal Code, 1860 - Sections 406, 409, 420 - Maharashtra Protection of Depositors Act - Bail application on default - The applicant sought bail arguing that the prosecution did not file the charge sheet within the statutory period as per initial charges invoked - The Court found that the prosecution’s invocation of Section 409 did not extend the period beyond 60 days, thus granting bail under Section 167(2). (Paras 10-12, 22, 23)
(B) Rights of Accused - Fundamental right under Article 21 of the Constitution - The Court emphasized that violation of the statutory right to default bail results in illegal detention. (Paras 11, 12)
Facts of the case:
The applicant was accused of fraudulently accepting deposits without repaying them, leading to multiple complaints against him. He was arrested, and a bail application was denied based on the prosecution’s classification of charges.
Findings of Court:
The right to bail under Section 167(2) was recognized as in-defeasible if not honored within the specified timeframe.
Issues: The main issue was the applicability of Section 409 of IPC concerning the defendant's association within a partnership.
Ratio Decidendi: The court reiterated that the right conferred by Section 167(2) cannot be compromised by the mere addition of charges if it infringes upon personal liberty due to delayed charge sheets.
Result: The Applicant Alnesh Akil Somji was granted bail on execution of a PR bond.
| Table of Content |
|---|
| 1. application for bail seeking release based on default right. (Para 1 , 2) |
| 2. examination of the applicability of section 409 ipc. (Para 4 , 15 , 19) |
| 3. court recognizes the principle of default bail. (Para 8 , 12 , 22) |
ORDER
1. By this application the applicant (Accused no1 ) 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 4 06 , 409,420 read with Section 3 4 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 interalia 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 4 09 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 applic
