Bombay High Court
Sunil Devakinandan Zawar vs The State Of Maharashtra on 7 December, 2021
Author: V.G.Bisht
Bench: V.G.Bisht
J-BA-3910-2021.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 3910 OF 2021
Sunil Devakinandan Zawar ...Applicant
Versus
State of Maharashtra ...Respondent
......
Mr. Aniket U. Nikam a/w. Mr. Ravindra K. Adsure, Mr. Yash P.
Sonavane and Mr.Sidheshwar N. Biradar for the Applicant.
Mr. Pravin Chavan, Special Public Prosecutor a/w. Mr. H.J.
Dedhia, APP for the Respondent -State.
......
CORAM : V.G.BISHT, J.
RESERVED ON : 23RD NOVEMBER, 2021
PRONOUNCED ON : 7TH DECEMBER, 2021
PC:-
1. The present application has been moved by the
applicant under Section 439 of the Code of Criminal
Procedure in Crime No. 673 of 2020 registered with Deccan
Police Station, Pune City for offences punishable under
Sections 420, 464, 465, 467, 468, 471, 406, 409, 474, 477A,
225, 120B read with 34 of the Indian Penal Code (the IPC)
and Section 3 of the Maharashtra Protection of Interest of
Depositors (In Financial Establishments) Act, 1999 (for short,
"MPID Act").
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2. It is the case of prosecution that the informant and her
sister had invested monies with Bhaichand Hirachand Raisoni
Multi State Co-operative Credit Society, Jalgaon (for short,
BHRMSCCS). In all they had deposited Rs. 16,90,142/-. They
were promised that they would get more than Rs. 19 lacs,
however, the money was not returned. According to
prosecution, in the meantime, some investigation started and
consequently, a Liquidator, namely, Jitendra Kandhare was
appointed for BHRMSCCS.
3. The prosecution further alleges that the Liquidator
Jitendra Kandare, who is co-accused, along with applicant and
other co-accused hatched a conspiracy and in furtherance of
that created a fabricated website and thereby siphoned off the
monies of the BHRMSCCS by selling its property in less price,
also the monies of depositors and further bought receipts of
investors by paying them 30% of original amount and thereby
misappropriated remaining 70%.
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4. It is further seen that after conclusion of the
investigation, it revealed that all the accused including
applicant had misappropriated total amount of
Rs. 61,90,86,163/-. Accordingly, the First Information Report
came to be lodged.
5. Mr. Nikam, learned Counsel for the applicant, invited
my attention that the applicant purchased three properties by
following uniform process of E-tender. Learned Counsel also
invited my attention to the various charts filed on record
(Exhibit -C) to substantiate his submission. Further, learned
Counsel invited my attention to the List No. II (Exhibit -Y and
Z collectively) and then would submit that those sale deeds
till date are not challenged before the Competent Civil Court.
Even otherwise, according to learned Counsel, no offence
under the Maharashtra Protection of Interest of Depositors (in
Financial Establishments) Act, 1999 is made out inasmuch as
the applicant was not involved in collection of deposits on
behalf of BHRMSCCS with assurance of 13% per annum
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interest nor in any manner had accepted deposits from the
depositors. For all these reasons, the applicant deserves to be
enlarged on bail, argued learned Counsel. Learned Counsel
placed reliance in Ravindra Babulal Jain v. State of
Maharashtra1, K. Virupaksha and Another Versus State of
Karnataka and Another2, Virendra Khanna Versus State of
Karnataka by Banasawadi Police and Another3, Sanjay
Chandra Versus Central Bureau of Investigation4, Sheila
Sebastian Versus R. Jawaharaj and Another5, P. Chidambaram
Versus Director of Enforcement6 and Arnab Manoranjan
Goswami Versus State of Maharashtra and Others7
6. Learned Spl. PP, on the other hand, vehemently opposes
submissions by inviting my attention to the affidavit in reply
filed by the respondent -State. Learned Spl.PP impressed
upon me that whole tender process was manipulated by the
1 2015 SCC OnLine Bom 5002
2 (2020) 4 Supreme Court Cases 440
3 2021 SCC OnLine Kar 5032
4 (2012) 1 Supreme Court Cases 40
5 (2018) 7 Supreme Court Cases 581
6 (2020) 13 Supreme Court Cases 791
7 (2021) 2 Supreme Court Cases 427
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applicant in collusion with other accused. The Liquidator,
namely, Jitendra Kandhare and the applicant colluded with
each other to misappropriate the properties and funds of
BHRMSCCS and illegally disposed of the properties by
creating a manipulated website on which they had full control
and further illegally projected the loans to be repaid by
creating false entry that too by adjusting fixed deposit
receipts.
7. According to learned Spl. PP, while manipulating the
website, they took help of Krunal Shah, resident of
Ahmedabad, who was looking the business of applicant at
Ahmedabad. The said Krunal Shah was preparing website
and software for BHRMSCCS and had also installed software
at the office of applicant. Huge data has been found in the
hard disks seized from the office of applicant.
8. Learned Spl. PP has also indicated at paragraph 9.6 to
17 as to how the properties of BHRMSCCS were sold.
Although the property purchased by applicant may show a bit
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higher valuation than the market price but during
investigation, it revealed that the valuation was on higher side
than what was shown by the applicant at the time of
purchase.
9. Learned Spl. PP lastly submits that the offence
committed by applicant and others are of very serious in
nature as the same is against whole society. The whole
process of liquidation was frustrated by entering into a
systematic conspiracy aimed at misappropriating the public
monies. In such circumstances, the application deserves to be
rejected, argued learned Spl PP. Learned Spl. PP placed
reliance in Dukhishyam Benupani, Asstt. Director,
Enforcement Directorate (FERA) Versus Arun Kumar Bajoria 8,
State Rep. By the C.B.I. Versus Anil Sharma 9, Adri Dharan Das
Versus State of West Bengal10, Abhay R. Sinha and others Vs.
State of Maharashtra and others11, Harshad S Mehta Vs. Union
8 (1998) 1 SCC 52
9 (1997) 7 SCC 187
10 (2005) Cri.LJ SC 1706
11 (2000) O BomCR (Cri) 307
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of India Anr.12 and Ajay Kumar Jain, I.P.S. Vs. State of
Maharashtra13.
10. During the course of submission, learned Spl. PP filed
certain statements of prosecution witnesses so as to bring
home charges against the applicant.
11. The first statement is of Rajendra Vasantrao Ingole.
According to this witness, he had invested Rs. 3,60, 59, 357/-
and as he was in need of moneys so he went to the office of
BHRMSCCS. However, later on, he came to know about the
registration of offence against the Directors of BHRMSCCS. In
the month of November, 2015, after the appointment of
Liquidator, namely, Jitendra Kandare, he met him, however,
Kandare told him that since BHRMSCCS have gone into
liquidation, he would not get anything. At the same time, he
also suggested that he may get his amount in a phased
manner that too without interest and within a period of 10
years. The said Kandare then rang up a party and took this
12 (1992) 3 Crimes 645
13 (2000) 4 Crimes 27
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witness to his house, who is none other than the present
applicant and another was Suraj Zawar, son of applicant. The
applicant purportedly told this witness that BHRMSCCS is
almost gone and asked him to give his deposit receipts to him
and that he would give him 30% of the total deposit receipts.
When this witness refused, the applicant offered him 40%.
When this witness further refused, Jitendra Kandare told him
that he would get whole amount and thus obtained all the
deposit receipts from him.
12. The above statement prima facie goes to show that the
Liquidator, namely, Jitendra Kandare was well connected with
the applicant and therefore, had taken this witness to the
latter's house so that they can bargain the deposit receipts by
making payment of only 40% of the original amount
deposited by this witness.
13. Next witness is Ramesh Shantaram Umale, who at the
relevant time was working as a computer operator with Shree
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Sai Marketing and Trading Company belonging to applicant.
His statement shows that the applicant had got prepared all
the documents of the investors of BHRMSCCS, namely,
consent letter, affidavit, and nil loan certificates on the basis
of drafting supplied by Jitendra Kandare. His statement
further shows that Krunal Shah of Ahmedabad had also
prepared software of BHRMSCCS having all the information
of the investors and the said software was online connected to
BHRMSCCS. The password was known to Mahavir Jain and
he had taught this witness as to how to view all the
information. His statement further shows that Jitendra
Kandare always used to visit his office.
14. From the above statement, it is very much clear that it
was the accused Jitendra Kandare, who had provided all the
information of the investors to the applicant and the
applicant, on his part, had asked this witness, after supplying
all the documents relating to BHRMSCCS, to prepare those
documents.
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15. The third statement is that of Anil Shrikant Sutar, an
investor, who had invested Rs. 50,000/- in BHRMSCCS.
According to him, he has been given only Rs. 10,000/- till
date and not the remaining amount by the BHRMSCCS.
16. Dheeraj Ramchandra Joshi is a tenderer, who had
participated in a bid and had deposited necessary amounts of
the tender amount. However, his tender was rejected. He
alleges that his tender was illegally rejected by Jitendra
Kandare.
17. Ketan Vijay Malu states that he knows applicant. In the
year 2017, he was told by applicant that BHRMSCCS has
gone into liquidation and the tender in respect of its property
is to be published and therefore, asked him to fill the tender
on his behalf. Accordingly, he participated in the tender
process on his behalf.
18. His statement lastly shows that when he was shown the
tender form, he found that it was not having his signature
although it was having his name, email id and phone number
etc.
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19. This also goes to show that the applicant had made this
witness to stand as a dummy tenderer in his place inasmuch
as rest of the thing like deposit amount of the tender and
other formalities were done by applicant so as to grab the
property of BHRMSCCS. Similar are the statements of Kailash
Omprakash Dhut, Rohit Pravin Kothari, Niranjan Pravin
Kothari, Prashant Prabhakar Mahamunkar, Anupam Sharad
Kulkarni and Arun Natthu Sonar.
20. Lastly, there are supplementary statements of Deepak
Shreepatrao Shinde and Sunil Shamlal Kalantri.
21. The statement of Deepak S. Shinde also shows that he
had also participated in a tender on the say of applicant. It is
also his statement that Jitendra Kandare and Mahavir Jain
used to bring all the papers pertaining to BHRMSCCS to the
office of applicant.
22. Similarly, the supplementary statement of Sunil S.
Kalantri shows that Jitendra Kandare always used to visit the
office of applicant and have meeting with applicant in his
chamber.
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23. From the above, it is prima facie clear that the
Liquidator and other officials were closely hand in glove with
the applicant. Not only the Liquidator provided all the
necessary information of investors of BHRMSCCS to the
applicant but also used to regularly visit and had meeting with
the applicant. It is also clear that the applicant, at the instance
of Jitendra Kandare, was in habit of offering 30% to 40% of
the fixed deposit receipts to the hapless investors. Even they
had prepared the website with all necessary details inasmuch
as the same was connected to official website of the
BHRMSCCS. The modus operandi appears to be very much
clear and prima facie the participation and main role of
applicant along with Liquidator, namely, Jitendra Kandare is
there.
24. The learned Counsel for the applicant has filed List No.
II showing the purchase price and as also Government
valuation which apparently shows that the purchase price is
more than the Government valuation. I have pointed out from
the affidavit of the investigating officer that in respect of
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certain properties the Government valuation was shown less
than the original price of the properties. It is also revealed
during investigation that the valuation was much on the
higher side than the valuation shown at the time of sale.
25. It may be noted that the provision of MPID Act will not
be attracted against applicant but then provisions of IPC are
already there to take care of role of applicant in whole
episode.
26. I have carefully gone through the judgments filed by
either side. In view of facts and circumstances of the case, I do
not find applicable to the case in hand.
27. Having regard to the material on record, in my
considered opinion, the offence is of grave nature involving
crores of public monies and as also the involvement of
properties belonging to BHRMSCCS.
28. Having regard to the material on record, in the light of
above discussion, I do not find this is a fit case where the
applicant can be enlarged on bail.
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29. For the aforesaid reasons, I do not find merit in the
application and therefore, I am not inclined to allow the
application. Hence the following order :
ORDER
The bail application is rejected.
(V.G.BISHT, J. ) Digitally signed by TRUPTI TRUPTI SADANAND SADANAND BAMNE BAMNE Date:
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