Mohammad Imtiyaz Khan vs The State Of Maharashtra on 29 July, 2021

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Bombay High Court

Mohammad Imtiyaz Khan vs The State Of Maharashtra on 29 July, 2021

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.1543 OF 2021
Mohammad Imtiyaz Khan ... Applicant
V/s.
The State of Maharashtra ... Respondent
-------------------
Mr. Sandeep Ramakant Karnik a/w Mr. Niranjan Mundargi, Advocate
for the Applicant.
Ms. P.P. Shinde, APP for the Respondent - State.
Ms. Kalpana Trivedi, Advocate for Orig. Complainant.
Mr. Milind Nagpure, API, Amboli Police Station, Mumbai.
---------------------
Digitally signed

CORAM : SMT. SADHANA S. JADHAV, J.
by PALLAVI
MAHENDRA
PALLAVI WARGAONKAR
MAHENDRA
WARGAONKAR Date:
2021.07.29
13:29:28

DATED : 29th JULY 2021.
+0530

P.C. : (Through Video Conferencing)

1. The applicant herein is an accused in C.R. No.476/2019

registered with Amboli Police Station for the offences punishable under

section 409, 420, 406, 120-B of the Indian Penal Code along with

Sections 3, 4, 13 and 14 of the Maharashtra Ownership of Flats

(Regulation of the Promotion of Construction, Sale, Management and

Transfer) Act, 1963 (for short "MOFA Act").

2. The applicant had filed an application seeking enlargement

on bail in Crime No.476 of 2019 before the Additional Sessions Judge,

Borivali at Dindoshi. The learned Additional Sessions Judge Court
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Room No.13, Dindoshi (Borivali Division) granted bail to the applicant

under section 439 of Cr.P.C. In the course of arguments, it was brought

to the notice of the Additional Sessions Judge that the applicant herein

had issued four cheques to the first informant in lieu of the amount of

Rs.56,08,800/-. However, the said cheques were dishonoured on

presentation for encashment. The learned Sessions Judge, after

considering the facts of the case and after hearing both the parties had

formed an opinion that the investigation was not completed and

therefore, unless and until the accused deposited an amount of

Rs.56,08,800/-, no case for bail was made out. It was also observed as

follows:-

"The applicant is unable to complete the construction and
fulfill the terms and conditions of said allotment letter due
to cancellation of construction agreement by the said
society, therefore, it is just and proper to grant bail to the
applicant conditionally.

Bail application No.309 of 2020 is allowed.

Accused, Mohammad Imtiyaz Khan be released on bail on
depositing cash amount of Rs.56,08,800/- (Rupees Fifty Six
Lakhs Eight Thousand Eight Hundred Only)."

3. The order dated 11th March 2020 passed by the Additional

Sessions Judge, Borivali Division, Dindoshi is challenged before this

Court by filing the present bail application. It is the specific contention

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of the learned counsel for the applicant that the applicant had not

volunteered to make any payment. According to the learned counsel

for the applicant, the delay or inability to hand over the flat to the

informant was because of the cancellation of the development

agreement by the State with the firm of the applicant. It is submitted

that the construction of the second wing of the said project could not

be completed because of various procedural formalities. The delay was

not caused deliberately and the applicant had no role to play in the

delaying of the project. In fact, appropriate permissions were not

obtained and therefore, the society had cancelled the development

agreement. The learned counsel for the applicant has filed an affidavit

of the applicant before this Court on 3 rd March 2021. In the course of

hearing of the petition, the Investigating Officer has recorded the

additional statement of Mrs. Minal Sandeep Shenoy, the daughter of

the complainant on 6th July 2021.

4. The learned counsel has filed an affidavit dated 3rd March

2021 contending therein that he is ready to deposit the amount in the

Court under protest. The learned counsel has placed on record a

schedule for making the payment. The said proposal is denied by Mrs.

Minal Shenoy, the complainant.

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5. It is true that while adjudicating upon the application filed

under section 439 of Cr.P.C., the Courts cannot act as recovery agents.

In the case of Dilip Singh vs. The State of Madhya Pradesh and Anr. , in

Criminal Appeal No.53 of 2021 arising out of SLP (Cri.) No.10484 of

2019, the Supreme Court has observed as follows :-

"5. It is well settled by a plethora of decisions of this Court that
criminal proceedings are not for realization of disputed
dues. It is open to a Court to grant or refuse the prayer for
anticipatory bail, depending on the facts and circumstances
of the particular case. The factors to be taken into
consideration, while considering an application for bail are
the nature of accusation and the severity of the punishment
in the case of conviction and the nature of the materials
relied upon by the prosecution; reasonable apprehension of
tampering with the witnesses or apprehension of threat to
the complainant or the witnesses; reasonable possibility of
securing the presence of the accused at the time of trial or
the likelihood of his abscondence; character behaviour and
standing of the accused; and the circumstances which are
peculiar or the accused and larger interest of the public or
the State and similar other considerations. A criminal court,
exercising jurisdiction to grant bail/anticipatory bail, is not
expected to act as a recovery agent to realise the dues of
the complainant, and that too, without any trial."

6. In view of the above order, the order dated 11th March

2020 passed by the Additional Sessions Judge, Dindoshi (Borivali

Division) needs to be quashed and set aside.

7. The father of the complainant has paid the entire amount

to the applicant, it is therefore, necessary to protect the interest of the

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depositor. The learned counsel for the petitioner has filed the affidavit-

cum-undertaking before this Court on 3rd March 2021 contending

therein that the applicant shall deposit the amount as per the schedule

given by the applicant in the affidavit-cum-undertaking dated 3 rd

March 2021. The applicant shall abide by the undertaking given to the

Court. The said amount is without prejudice to the rights of the

applicant. The undertaking is given by the applicant voluntarily and

hence, the same is accepted.

8. The applicant has shown his bonafides to assure the

complainant that he has no intention to cheat. He had issued cheques

also. Hence, the applicant undertakes to deposit the amount in this

Court without prejudice to his rights, deserves to be accepted. The

schedule given by the applicant is as follows :-

"a. 20% of the said amount quantifying to Rs.11,21,760 to be
deposited before my release from jail.
b. Further 20% of the balance amount of Rs.44,87,040
quantifying to Rs.8,97,408 to be deposited within a period
of 3 months from date of release.
c. Further 20% of the balance amount of Rs.35,89,632
quantifying to Rs.7,17,927 to be deposited within a period
of 5 months from date of release.
d. Further 20% of the Balance amount of Rs.28,71,705

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quantifying to Rs.5,74,341 to be deposited within a period
of 7 months from date of release.
e. Balance amount quantifying to Rs.22,97,364 to be
deposited within a period of 12 months from the date of
release."

9. Since, the application seeking enlargement on bail is

pending for a longtime, the applicant shall deposit an amount of

Rs.11,21,760/- within two weeks after he is released from the jail. The

applicant at this stage has prayed for provisional cash bail. The request

is accepted. Hence, the following order :-

ORDER

(i) The order dated 11th March 2020 passed by the Additional Sessions Judge, Dindoshi (Borivali Division) is hereby quashed and set aside;

(ii) The applicant be enlarged on bail in Crime No. 476/2019 on furnishing P.R. bond in the sum of Rs.50,000/- and one or more solvent sureties in the like amount;

(iii) The applicant be released on provisional cash bail of Rs.50,000/- for a period of six weeks from the date of release within which he shall furnish one or more solvent sureties in the like amount;

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(iv) The applicant shall deposit his passport, if any, before the Court of Magistrate, Andheri Court;

(v) The applicant shall report to Amboli Police Station on the last Sunday of each month for six months.

(vi) The applicant shall abide by the schedule submitted before this Court;

(vii) Bail application is allowed and disposed of accordingly.




                                        (SMT. SADHANA S. JADHAV, J)




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