Bombay High Court
Arif Ahmed Wasif Sayyed vs The State Of Maharashtra on 27 August, 2021
Author: Prakash D. Naik
Bench: Prakash D. Naik
rpa 1/9 2 ba 3616 2019, 181 2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.3616 OF 2019
Arif Ahmed Wasif Sayyed .. Applicant
Versus
State of Maharashtra .. Respondent
WITH
BAIL APPLICATION NO.181 OF 2020
Kedar Basha Shaikh .. Applicant
Versus
State of Maharashtra .. Respondent
......
Mr.Ishrat Khan, Advocate for the Applicant in BA 3616 of 2019.
Mr.Sujit Shelar, Advocate for the Applicant in BA 181 of 2020.
Mr.R.M. Pethe, APP for the Respondent - State.
......
CORAM : PRAKASH D. NAIK, J.
DATED : AUGUST 27, 2021.
P.C. :
The applicants have preferred application for bail in
connection with C.R.No.124 of 2019, registered with Malad Police
Station, Mumbai, for the ofences punishable under Sections 420,
465, 467, 468, 471 and 506 read with 34 or Indian Penal Code
("IPC", for short). Subsequently, Section 409 read with 120-B of
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IPC were added. First Information Report ("FIR", for short) was
registered on 26th February, 2019.
2 The case of the prosecution is that on 27th January,
2019 complainant and his wife had visited the Mall at Kandivali.
They were approached by one person who told them to fll up the
lucky draw coupon. On 18th February, 2019, the complainant
received a message about free gift provided to them and they
were called to collect the same on 23rd February, 2019 at Autos
Spam Spring Building, Malad, Mumbai. The complainant and his
wife visited the said place. They met two persons, Shahbaz
Shaikh and Imran. Several other persons had visited the said
premises. They were informed about the schemes of company. It
was represented that on depositing an amount of Rs.1,01,000/-,
the members would be entitled for stay at three star hotels for 35
days and nights in India and out of India. Membership of
Gymnasium situated near their house would be given to them for
one year. If they deposit more than one lakh, they would earn
returns of Rs.15,000/-. It was also insisted that it was last day for
becoming member of scheme and they should deposit amount
immediately. The complainant paid the amount of Rs.1,01,000/- to
Elite Group Company and also flled up the form/agreement. On
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inquiry, they were told that the applicant Arif Sayyed and Samar
Khan are the owners of the company. The amount was accepted
from several such persons and the promises made to them were
not fulflled. Statement of aggrieved persons were recorded and
on completing investigation, charge-sheet was fled.
3 The applicant in BA No.3616 of 2019, was arrested on
15th April, 2019, whereas, the applicant in BA No.181 of 2020,
was arrested on 3rd September, 2019.
4 Learned counsel for the applicant in both the
applications submitted that the allegations against them are
vague. They have not being played any role in making false
representation made to the aggrieved persons. They are not the
owners of the company. They are not benefciary of
misappropriated amount. No witnesses stated that applicants
have made false representation or induced them to deposit
amount. The applicant in B.A.181 of 2020, is not partner. There
are reversal entries relating to amount transferred into the bank
account of wife of said applicant. Investigation is completed and
the charge-sheet is fled. There is no evidence to constitute the
ofences under Sections 409 and 467 of IPC. All the ofences are
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triable by the Court of Magistrate. There are no criminal
antecedents against the applicant Arif Sayyed. Learned counsel
for the applicant in BA No.181 of 2020 submitted that although
other cases were registered against him, the transactions are
similar and the applicant is on bail in those cases. The applicants
are in custody for a period of about two years. Trial has not
commenced.
5 Learned APP submitted that there is evidence
showing involvement of the applicant in this case. They have
played vital role. They were active. They were directly concerned
with the Elite Group Company. Their bank account are frozen.
The statements of the victims indicate that false representations
were made to them. The applicant Arif Sayyed had executed leave
and licence agreement with the owner of the premises. The said
premises is used in conducting business of Elite Group of
Companies. Partnership deed collected during the course of
investigation shows that he is partner of concern. Licence issued
under the Shops and Establishment Act refects the name of the
applicant Arif Ahmed Sayyed, as the owner of Elite Group. Huge
amount was involved in the transaction. He relied upon bank
statement and halt upon the amount credited into the accounts
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and submitted that the misappropriated amount is the tune of
more than Rs.8 crores. There are criminal antecedents against
the applicant Kadar Basha Shaikh. He is involved in similar cases
at Hyderabad and State of Maharashtra.
6 In rejoinder learned advocate for the applicants urged
that the fgure of Rs.8 crores is infated by the investigating
agency. There is no evidence to substantiate the said allegations.
Learned advocate for applicant in Bail Application No.3616 of
2019, referred to entries in the bank statements of pages 418,
434, 441, 442, 444 of said application and submitted that, all the
entries were in relation to cheque return. There is no evidence of
any transactions of such huge amount. On the contrary, after
recording the statements of witnesses and after completing
investigation, the charge-sheet was fled stating that the amount
involved is Rs.1,16,37,000/-. The entries in the bank statement
relied upon by the prosecution does not indicate that these
transactions or the amount refected therein has any connection
with the amount collected from the investors. The statements of
aggrieved persons does not commensurate with the amount of
Rs.8 crores, as contended by learned APP.
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7 I have perused the documents on record. The
applicants are in custody for a period of about two yearss. The
case of the prosecution is that the amount was collected from
several persons by inducing them to invest the amount with
attractive ofers. The investigation is completed and charge-sheet
is fled. Although the applicant Kadar Shaikh is involved in other
cases. He is on bail in those cases. Learned counsel for the
applicant in BA No.181 of 2020, has relied upon the orders
passed by this Court in BA No.1347 of 2020 dated 20 th August,
2021, wherein this Court had considered the fact that although
there is prima facie material against the accused, detention
cannot be a pre-trial punishment, particularly since the ofence
punishable under Section 420 of IPC entails maximum
punishment of seven years imprisonment. The Court also noted
that the charge is not framed and the prosecution has cited
several witnesses. He also placed for consideration the order
passed by this Court in Criminal BA No.373 of 2011, in the case
of Raosaheb Patole Vs. State of Maharashtra dated 24 th March,
2011, wherein it was observed that the lower Court has refused
bail on the ground that there are several cases registered against
him. This Court granted bail on certain conditions. The charge-
sheet mentions that the amount involved in this ofence is
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Rs.1,16,37,000/-. The prosecution has now contended that the
bank statements collected by the investigating agency refers to
the account refected in the bank account is to the tune of more
than Rs.8 crores. It is pertinent to note that the charge-sheet
does not disclose this amount. It is not specifed as to how this
quantum is calculated. There is no material to draw an inference
that the amount was collected from investors. The learned
counsel for the applicants have contended that merely on account
of the fact that the amount refected in the bank account is to the
tune of Rs.8 crores, it cannot be assumed that it was the
misappropriated amount. The prosecution has also invoked
Sections 409 and 467 of IPC. Section 409 of IPC was added
subsequently Section 467 relates to the forgery of valuable
security, Will etc. Prosecution was not able to point out any
documents in the form of valuable security, which has been
allegedly forged. All the ofences are triable by the Magistrate.
Application of Section 409 is debatable. Considering the factual
aspects, applicants need not be detained further in custody.
Bail can be granted on certain conditions.
:: O R D E R ::
(i) Bail Application Nos.3616 of 2019 and 181 of 2020, are allowed;::: Uploaded on - 31/08/2021 ::: Downloaded on - 09/10/2021 11:54:54 :::
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(ii) Applicants in both the applications are directed to the released on bail in connection with C.R.No.124 of 2019, registered with Malad Police Station, Mumbai, on executing P.R. Bond in the sum of Rs.50,000/-, each, with one or more local sureties in the like amount;
(iv) Applicants shall attend concerned police station once in three months on frst Saturday of the month between 11:00 a.m. to 01:00 p.m., till further orders;
(v) Applicants shall provide the details about the place of the residence alongwith the authentic documents while executing the bail bond;
(vi) Applicants shall attend the trial Court regularly on the date of hearing, unless exempted by the Court;
(vii) Applicants shall deposit their Passports in the trial Court;
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(viii) If the applicants do not have Passport, they shall execute afidavit in that regard before the trial Court while executing bail bond;
(ix) Applicants are permitted to furnish cash bail in the sum of Rs.50,000/-, each, for a period of eight weeks, in lieu of surety;
(x) Bail Application Nos.3616 of 2019 and 181 of 2020, stand disposed of accordingly.
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