Bombay High Court
Rohit Awani Singh vs The State Of Maharashtra on 30 April, 2021
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO. 1282 OF 2021
Rohit Awani Singh .... Applicant
Versus
The State of Maharashtra .... Respondent
______
Dr.Abhinav Chandrachud a/w Sujay Gawde i/b Shree and
Company for the applicant.
Mr. Ajay Patil, APP for the State/Respondent.
______
CORAM :SARANG V. KOTWAL, J.
DATE : 30th APRIL, 2021
(Through Video Conferencing)
P.C. :
1. The applicant is seeking his release on bail in
connection with C.R.No. 263 of 2020 dated 05/12/2020
registered at Kharghar Police Station, Navi Mumbai under
sections 376(2)(n), 406, 313, 323, 504, 506 of the Indian
Penal Code. The applicant was arrested on 07/12/2020
and since then he is in custody. The charge-sheet was
filed on 03/02/2021 after completion of the investigation.
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2. Heard Dr. Abhinav Chandrachud, learned
counsel for the applicant and Mr. Ajay Patil, learned APP
for the State.
3. The FIR was lodged by the prosecutrix herself.
She was 45 years of the age at the time of lodging of the
FIR. She was residing with her 20 years old son. She was
married to her husband in the year 1998. According to
the prosecutrix, her divorce took place in the year 2016.
In the year 2009, she got acquainted with the present
applicant when she used to attend her Gym. Their
acquaintance had developed into friendship. By that time
she was having dispute with her husband. Therefore the
applicant and the informant became close. It is alleged in
the FIR that the applicant proposed for marriage. He
suggested to the informant that she should divorce her
husband. The informant consented. It is alleged that the
applicant used to avoid arranging any meeting between
the informant and his parents. The FIR further mentions
that in November 2010, the applicant was given Rs. 2.5
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lakhs by the informant on his request because his mother
was not well. In December 2010, he had taken Rs. 1.5
lakhs for Gym training. The FIR mentions that the
applicant had purchased a fat in April 2011 at Kharghar.
For the purpose of registration and transfer the informant
had paid Rs. 4 lakhs to the applicant. The informant
started residing separately from her husband since March
2011. It is alleged that the applicant represented to the
informant that he wanted to marry her and on this
inducement kept physical relations with the informant.
The FIR mentions that he kept physical relations on many
occasions, in the same fat which was purchased in April
2011. The FIR mentions that the physical relations were
kept against her wish. Whenever the applicant was
asked about marriage, he used to tell her that after she
obtained divorce from her husband, he would marry her.
The FIR further mentions that the applicant was
unemployed and requested for money from the informant
in January 2012. She had paid Rs. 2.5 lakhs. After that
he started business of supplying machineries and
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equipments for construction.
4. It is alleged in the FIR that in September 2012,
because of the informant's physical relations with the
applicant, she became pregnant but she was forced to
terminate her pregnancy by the applicant. She under
went the procedure in September 2012. After that the
applicant stopped communicating with the informant.
Whenever the informant used to ask for refund of her
money, he used to refuse. The informant came to know
in May 2013, that the applicant had got married to a third
person on 29/04/2013. The informant got disturbed and
stopped talking with the applicant. In January 2020, the
applicant again tried to establish communication with her.
He used to threaten her that he would spoil her name.
The informant therefore reluctantly met him. At that
time, he represented to her that he would give divorce to
his wife. In November 2015, he gave proposal to the
informant that she should invest in his business of
supplying machineries and equipment for construction
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and that he would pay Rs. 94,000/- per month as monthly
rent. The informant agreed. She paid Rs. 17 lakhs to the
applicant. The applicant imported machineries. He paid
the money as promised for one year. After that he told
the informant that he had taken divorce from his wife.
The applicant therefore against started residing with the
informant. Again the informant became pregnant.
There are allegations that on this occasion too, she was
made to terminate her pregnancy against her wish. The
informant came to know that the applicant had not
obtained divorce from his wife. She quarreled with him.
Even then the informant continued staying with the
applicant as husband and wife. In October 2016, again
he imported machineries and for that purpose took Rs. 14
lakhs from the informant. In October 2017, he obtained
Rs. 10 lakhs from her. In August 2017, the informant
transferred further amount from her account in the
account of one Anand Bihari and the applicant's firm.
She had given ornaments worth Rs. 16 lakhs to the
applicant. He mortgaged those ornaments and obtained
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loan. There are allegations that the applicant used to
have forcible sexual intercourse and used to beat the
informant. The informant even thereafter paid him more
money till February 2020. There are allegations that on
26/09/2020, the informant had seen the applicant with
another lady. There was quarrel between the informant
and that lady for which an NC was lodged at Kharghar
Police Station. After all these, the informant lodged her
FIR. Besides the allegations of rape, there were
allegations that she had paid Rs. 94,50,000/- to the
applicant which were misappropriated by him. On this
basis the FIR is lodged.
5. Dr. Chandrachud, learned Counsel for the
applicant submitted that the narration in the FIR itself
shows that it was a consensual relationship. It was not a
case of breach of promise amounting to rape. The
conduct of the parties show that there was no
misconception of fact in the mind of the informant and
therefore the ofence of rape is not made out at all. He
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relied on few judgments of the Hon'ble Supreme Court.
They are as follows:-
(i) Prashant Bharati Vs. State (NCT of
Delhi) reported in (2013) 9 SCC, 293.
(ii) Anurag Soni Vs. State of
Chhattisgarh reported in (2019) 13
SCC 1.
(iiI) Sonu @ Subhash Kumar Vs. State of
Uttar Pradesh and Anr. passed in Criminal
Appeal No. 233 of 2021.
6. Dr. Chandrachud, learned Counsel for the
applicant further submitted that the applicant had repaid
amount about Rs. 60,17,800/-. This is refected in the
applicant's bank details of SBI and HDFC. Gist of such
entries is tendered before the Court in the form of
compilation at page 65 to 68. He submitted that, as far
as the machineries were concerned for which allegedly
the informant had made payment, two MOU's were
entered into between the parties. The informant has legal
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remedies available to her. But they would be civil
remedies. On that count the applicant should not be
denied bail.
7. Learned APP Shri Patil opposed this application.
He relied on the averments in the FIR itself. The charge-
sheet contains the bank details and entries showing that
the amounts were transferred. He submitted that the
subsequent conduct of the applicant should also be taken
into account. Even after his arrest, the applicant has sold
machineries to his own companies. He submitted that
besides the allegations of rape, there are allegations of
misappropriation of property and criminal breach of trust
which should not be ignored. Shri Patil relied on NC
dated 29/12/2020 in which the informant had alleged that
the informant was threatened by the brother of the
applicant.
8. I have considered all these submissions and
with the assistance of both learned Counsels, I have
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perused the entire charge-sheet. An important
submissions made by Dr. Chandrachud is that the ofence
of rape is not made out and for that purpose he relied on
few judgments of the Hon'ble Supreme Court. Recently
this Court had an occasion to deal with such an issue in
Anticipatory Bail Application No. 1016 of 2021 in case of
Nitesh Gopi Paramel Vs. State of Maharashtra decided on
7th April 2021. In that case, though the bail was denied
to the accused, the ratio laid down by the Hon'ble
Supreme Court in cases of Anurag Soni (supra) and Sonu
@ Subhash Kumar (supra) was considered.
9. In Anurag Soni's case (supra) reference was
made to earlier judgments. In paragraph 12 it is held
thus :-
" The sum and substance of the
aforesaid decisions would be that if
it is established and proved that
from the inception the accused
who gave the promise to the
prosecutrix to marry, did not have
any intention to marry and the
prosecutrix gave the consent for
sexual intercourse on such an
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assurance by the accused that he
would marry her, such a consent
can be said to be a consent
obtained on a misconception of
fact as per Section 90 of IPC and,
in such a case, such a consent
would not excuse the ofender and
such an ofender can be said to
have committed the rape as
defined under section 375 of IPC
and can be convicted for the
ofence under Section 376 of the
IPC."
In the facts of that case it was held that the accused had
dishonest intentions and consent was given by the
prosecutrix on misconception of fact.
10. In the case of Sonu @ Subhash Kumar (supra),
the Hon'ble Supreme Court again elaborated the
principles on this issue. In that case, it was observed
that there were no allegations to the fact that the promise
to marry was given to the prosecutrix was false at the
inception and the proceedings against the accused in that
case were quashed.
11. In Prashant Bharti's case (supra) it was held
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that in the facts of that case, the assertion made by the
prosecutrix that she was induced to physical relations
established by the accused on the basis of promise to
marry her, was falsified.
12. Therefore, it is necessary to see the conduct of
the parties to decide whether the ofence of rape is made
out or not and as to whether the consent was given by
the prosecutrix under some misconception of facts. It is
of course a matter of trial to answer this issue
conclusively. However for the question of bail, conduct of
the parties can be taken into consideration to see
whether there is substance in the contention of the
applicant that the relationship was purely consensual and
no ofence of rape is made out. In every case the facts of
that particular case will have to be examined.
13. If the narration in the FIR which is reproduced
hereinabove is considered, it shows that the applicant and
the prosecutrix had got acquainted and had got friendly
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since the year 2009. Their relationship had continued for
about 10 years. In between, on two occasions, according
to the informant she underwent medical termination of
pregnancy. On one occasion, the informant came to know
that the applicant was married to another lady. During all
this period, till at least 2016, the informant herself was a
married lady and her divorce had not taken place.
Therefore, there is substance in the contention of the
applicant that the informant was very well aware of
various hurdles in both of them getting married.
Therefore, it is difcult to believe that the informant was
misled on the promise of marriage and had given consent
on that promise for sexual intercourse.
14. The charge-sheet contains statement of Doctor
who had carried out MTP procedure in the year 2016. He
has categorically mentioned that the procedure was
carried out with her consent.
15. It appears that triggering point for registration
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of this FIR is the incident dated 26/09/2020 when the
informant had seen the applicant with another lady.
Considering all these facts, it is difcult to observe that
the informant had given her consent for sexual
relationship based on some misconception of facts. She
was a married lady. She had not obtained divorce. The
applicant himself had got married in between. Inspite of
this the informant willingly kept physical relations with the
applicant. Divorce of the informant had taken place on
27/09/2017 as can be seen from the charge-sheet. Thus,
I find substantial force in the submissions of Dr.
Chandrachud that it was purely a consensual sexual
relationship and ofence of rape as defined under section
375 r/w Section 90 of the Indian Penal code is not made
out. Of course, it is made clear that these observations
are made for the purpose of deciding the bail application
and final conclusion on this issue can only be arrived at
during trial.
16. The next question would be about
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misappropriation of various amounts which the informant
had given to the applicant, amounting the ofence under
section 406 of IPC, as the applicant had not returned that
amount.
17. As mentioned earlier, the compilation given by
Dr. Chandrachud, which is taken on record shows that the
applicant had returned Rs. 60,17,800/- to the prosecutrix.
The allegations in the FIR are pertaining to the amount of
Rs. 94,50,000/-. The charge-sheet contains two MOU's.
Both of them are executed in the year 2017. Those are
in respect of the machineries which the applicant had
imported. Both of these MOU's mentioned that the
applicant was to pay certain amount per month as rental
charges to the informant. Thus there was a written
agreement between the parties. The legal efect of
breach of this promise can be decided before proper Civil
Forum. Admittedly the applicant had made payment
initially for some period. The prosecutrix has a remedy
to approach proper forum for breach of such MOU. That
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can be decided only by a Civil Forum in proper
proceedings if permissible in law.
18. Apart from this, narration in the FIR shows that
various amounts including the ornaments were given by
the informant to the applicant on many occasions over a
period of 10 years. Last payment was made in February
2020. The informant had not made any grievance about
loss of money immediately before the police. All these
allegations surfaced only after the relations between the
parties turned sour. The narration also shows that the
informant was very much aware of bad financial condition
of the present applicant and on every such occasion
financial help was extended by the informant knowing
fully well about this situation. There are no agreements
in respect of these advances. Therefore whether it will
amount to misappropriation of property and criminal
breach of trust will again have to be decided during the
trial.
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19. As far as the NC lodged in December 2020 is
concerned, the Police are free to take their independent
action on the allegations of the issuance of threats.
20. Considering these aspects the applicant has
made out a case for his release on bail. It is made clear
that all these observations in this order are restricted to
the consideration of grant of bail to the applicant. The
trial Court shall not be infuenced by these observations
while deciding the trial.
21. Hence the following order.
ORDER
(i) In connection with C.R. No. 263 of 2020 registered with Kharghar Police Station, Navi Mumbai, the Applicant is directed to be released on bail on his furnishing PR bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one or two sureties in the like amount.
(ii) Before being released on bail, the applicant shall deposit his passport, if any, y.s.patil 16 of 17 ::: Uploaded on - 30/04/2021 ::: Downloaded on - 09/09/2021 13:09:51 ::: 9-BA-1282-2021.odt with the Investigating Ofcer.
(iii) The applicant shall not make any eforts to contact the prosecutrix or other witnesses and shall not threaten the witnesses including the prosecutrix.
(iv) The applicant shall attend the concerned Police Station once every month till the charges are framed.
(v) The application stands disposed of accordingly.
(SARANG V. KOTWAL, J.)
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