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HIGH COURT OF BOMBAY
N.J. JAMADAR, J
Jitesh Amritlal Vakharia – Appellant
Versus
The State of Maharashtra – Respondent
Anticipatory Bail Application No. 2488 of 2019 | Anticipatory Bail Application No. 2489 of 2019
For the Appellants/Petitioners: Mr. Amin Solkar, Mr. Vikram Sutaria
For the Respondents: Mrs. S.V. Sonavane, APP
Absence of direct evidence against applicants justifies anticipatory bail in fraud allegations.
Headnote:(A) Indian Penal Code, 1860 - Sections 120-B, 420, 465, 467, 468, 471 - Code of Criminal Procedure, 1879 - Section 438 - Anticipatory bail - Applicants accused of forgery and fraud in loan transactions - The absence of direct allegations or evidence against the applicants, and their roles limited to introducing customers to the developers, justified the grant of anticipatory bail. (Paras 1 to 10)
(B) Burden of proof - The State’s inability to connect the applicants directly to the alleged offenses negates the necessity for custodial interrogation, allowing the relief sought. (Para 11)
Facts of the case:
The applications for anticipatory bail arise out of allegations of fraud involving forged documents leading to financial crimes. The applicants were not named in the FIR initially and their connection to the fraud was tenuous.
Findings of Court:
The Court found that there was not sufficient evidence linking the applicants to the fraudulent activities and ruled that custodial interrogation was not required.
Issues: Key issues were whether the applicants were directly implicated in the alleged fraud and whether pre-arrest bail should be granted given their non-involvement in the FIR.
Ratio Decidendi: The Court highlighted that without concrete allegations or sufficient evidence against the applicants, the application for bail was warranted.
Result: Anticipatory bail applications allowed.
| Table of Content |
|---|
| 1. overview of fraud allegations and client involvement. (Para 1 , 2 , 3) |
| 2. defence arguments against charges presented to the court. (Para 4 , 5) |
| 3. court's evaluation of evidence and articulation of findings. (Para 6 , 7 , 8 , 9 , 10) |
| 4. court's rationale for granting bail based on lack of evidence. (Para 11) |
1.The applicants who have been arraigned in C.R. No. 346 of 2016 registered with Kalyan police station for the offences punishable under section 120-B, 420, 465, 467, 468, 471 read with 34 of Indian Penal Code , 1860 (the Penal Code) have preferred these applications for grant of pre arrest bail under section 438 of Code of Criminal Procedure , 1879 (the Code).
2.The background facts can be stated as under:
a] Mr. Tarabh Patel claimed to be a partner of M/s. Nidhi Developers. The said frm was developing a residential complex, “Ganesh Park” at Titwala, District Thane. Mr. Patel lodged a report with Kalyan police station with the allegations that six fats purchasers had availed loan from various banks and fnancial institutions on the basis of forged agreement for sale and documents purported to have been issued by M/s.Nidhi Developers, despite having already availed loan from one of the banks on the basis of original agreement for sale and documents evidencing the transaction. The amount of loan so fraudulently obtained was transferred to the account of one Rajkumar Nadar by opening fctitious accounts in the name of M/s. Nidhi Developers. The applicants were not named as the accused in the said frst information report. Eventually, the charge sheet was lodged against Nilesh Sawant and others including Kintesh, the applicant in ABA No. 2489 of 2019.
b] In the meanwhile, Mr. Shivaji Bichkar, the Collection Manager of ‘Indiabulls Housing Finance Limited Co., lodged a report on 5th December, 2017 to the effect that the loans were fraudulently obtained by the persons who had purported to book the fats in the said scheme by submitting forged and fabricated documents, leading to registration of C.R. No. 443 of 2017 with Vashi police station for the offences punishable under section 465, 466, 467, 468, 471 and 420 read with 34 of the Penal Code. During the course of investigation in the said crime, Mr. Tarabh Patel, who had lodged frst information report No. 346 of 2016, came to be arrested as it transpired that he was involved in the said fraud. Mr. Jitesh, the applicant in ABA. No. 2488 of 2019 was also arrested and he was released on bail. Mr. Kintesh, the applicant in ABA No. 2489 of 2019, was shown as an absconding accused. In the remand report, it was alleged that applicant Jitesh had represented himself to be one Rohan Sharma, and both the applicants were instrumental in preparing forged documents and siphoning of the funds from the banks and fnancial institutions on the basis of forged documents.
C] Apprehending that the applicants would be arrested in C.R. No. 346 of 2016, registered with Kalyan police station, the applicants preferred application for anticipatory bail. Initially the interim protection was granted by the learned Additional Sessions Judge, Kalyan. By an order dated 15th October, 2019, the learned Sessions Judge was, however, persuaded to reject the application for pre arrest bail opining, inter alia, that the applicants were the members of the gang of Nilesh Sawant, who prepared false and fabricated documents. It was observed that the applicants were also involved in forgery of the documents and deceived the banks and fnancial institutions to the tune of Rs. 1,05,36,250/- and, thus, the applicants were not entitled for the relief of pre-arrest bail. The interim protection was, however, continued till 15th November, 2019.
d] By an order dated 15th November, 2019, this Court, after noting that the interim protection granted by the learned Sessions Judge was then still in operation, granted the interim relief of pre arrest bail.
3. The substance of the application is that the applicants were not
