Bombay High Court
Gautam Eknath Fanase vs The State Of Maharashtra on 15 March, 2022
Author: M.G. Sewlikar
Bench: M.G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO. 1435 OF 2021
Shaileshkumar S/o Narbada Dube Applicant
Versus
The State of Maharashtra Respondent
Mr. S. S. Gangakhedkar, Advocate for the applicant.
Mr. G. O. Wattamwar, APP for respondent/State.
WITH
BAIL APPLICATION NO. 1698 OF 2021
Gautam S/o Eknath Fanase Applicant
Versus
The State of Maharashtra Respondents
Mr. G. K. Naik Thigale, Advocate for the applicant.
Mr. G. O. Wattamwar, APP for respondent/State.
CORAM : M.G. Sewlikar, J.
RESERVED ON : 15th FEBRUARY, 2022.
PRONOUNCED ON : 15th MARCH, 2022.
PER COURT :
1. Both these applications are disposed of by common order
as they arise out of the same offence.
2. Both these applicants have fled these applications under
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Section 439 of the Code of Criminal Procedure for releasing them on
bail in connection with Crime No. 0153/2021 registered with Vasmat
City Police Station, Dist. Hingoli, for the offences punishable under
Sections 420, 463, 464, 468, 471, 473, 120-B, 201 read with Section
34 of the Indian Penal Code.
3. Facts leading to these applications in nutshell are that
one Akshay Kishor Mahajan is the friend of the informant by the
name of Pandit Sudhakar Dhavale. Through Akshay Mahajan, the
informant got acquainted with Santosh Banwarilal. The said
Santosh Banwarilal misrepresented the informant that he would
help the unemployed people in getting employment in Government
sector i.e. Railway Department. Therefore, on 19 th July, 2018,
informant paid Rs. 1,50,000/- to Santosh Banwarilal. Again on 21 st
September, 2018, the informant paid Rs. 40,000/- to Santosh
Banwarilal for the same cause. Again on 26 th September, 2018, he
paid Rs. 1,00,000/- to Santosh Banwarilal. Informant again paid Rs.
30,000/- to said Santosh Banwarilal on 20th November, 2018 and 31st
July 2019. In this manner, he paid Rs. 3,50,000/- to Santosh
Banwarilal. The informant kept on asking said Santosh Banwarilal
as to when the informant would get the call letter. Said Sntosh
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Banwarilal demanded Rs. 5,00,000/- for being paid to the offcer and
Rs. 1,50,000/- to be paid to the clerk and stated that the informant
would get the letter of appointment within eight days. Informant paid
this amount to Santosh Banwarilal in the presence of Shubham
Manoj Shewate and Dinesh Vainath Parswale. Informant again
called up Santosh Banwarilal. He told the informant that the offcer
had gone on leave for eight days. Thereafter, he waited for eight days
and again called up said Santosh Banwarilal but his phone was
switched off. Thereafter, he realised that he was cheated by Santosh
Banwarilal. Accordingly, he lodged report in the police station.
4. Investigation was taken up. Statements of the witnesses
were recorded. During investigation, it transpired that one Ravindra
Dayanidhi Shankhuwa and Narendra Vishnudev Prasad were also
involved in this racket of deceiving the people by inducing them to
pay money on the assurance of giving employment in Government
sector. During the interrogation of Ravindra Shankhuwa, the name
of Gautam Eknath Fanase, applicant in Bail Application No.
1698/2021 was disclosed. During investigation, the name of one
Abhay Meghashyam Redkar was also disclosed. In the interrogation
of Abhya Meghashyam Redkar, name of Shaileshkumar Narbada
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Dube, applicant in Bail Application No. 1435/2021 came to be
disclosed.
5. Heard Shri Gangakhedkar, learned counsel for the
applicant in Bail Application No. 1485/2021, Shri Naik Thigle,
learned counsel for the applicant in Bail Application No. 1698/2021
and Shri Wattamwar, learned APP for the State.
6. Learned counsel Shri Gangakhedkar submitted that the
name of the applicant Shaileshkumar Dube does not appear in the
First Information Report. The First Information Report is lodged after
an inordinate delay of two years. According to the informant, the
alleged payment was made on 19 th July, 2018, whereas First
Information Report came to be lodged on 13 th May, 2021. He further
submitted that the name of applicant Shaileshkumar Dube came to
be disclosed during interrogation of accused Santoshkumar Saroj
also called as Pandy. However, the same cannot be used against the
applicant in view of provisions of Section 25 and 27 of the Evidence
Act. There is no recovery from the applicant. No witness states that
any amount was paid to the applicant by any of the witnesses. He
further submitted that statement of one Anita Ishwarlal Sonawane
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shows that she had paid Rs. 2,00,000/- to accused No. 7 Abhay
Redkar. Accused No. 7 introduced applicant Shaileshkumar Dube to
Anita Sonawane. At the instance of accused No. 7, an amount of
Rs. 2,60,000/- was transferred from the account of Shilpa Shinde in
the account of one Khedapatti Constructions. Statement of Rupali
Jadhav shows that she paid Rs. 1,00,000/- to accused no. 7 and
Rs. 2,00,000/- to accused No. 1 and 7 in cash. However, there is no
allegation that the amount was paid to the applicant. Statement of
witness Santosh Gharat shows that amount of Rs. 1,00,000/- was
paid to Khedapatti Construction.
7. Learned counsel Shri Naik Thigle submits that all the
witnesses of the prosecution reside at different places. Therefore,
there is no possibility of tampering the evidence by the applicant. He
also submitted that there is delay of two years in lodging the First
Information Report for which, no explanation is forthcoming. He
submitted that the only allegation against the applicant is handing
over of amount of Rs. 1,90,000/- in cash by witness Ganesh Eknath
Parab. His statement is recorded after two months of lodging of the
First Information Report. There is no material to connect the
applicant with the present offence. He submitted that the
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prosecution has recorded statement of Bhushan Devlikar from whom
some documents have been recovered which are of 2017 origin. Mere
recovery of documents from the applicant does not indicate any
involvement of the applicant in the alleged offence. Only on the basis
of statement of accused Ravindra Shankhuwa, the applicant is
implicated in this crime. ` He further submitted that the wife of
Ganesh Parab does not state that she was qualifed for such post.
Her educational qualifcation and post applied for is also not
mentioned by witness Ganesh Parab. He submitted that wife of
Ganesh Parab wanted job by illegal means. Therefore, no offence as
alleged is made out. He placed reliance on the case of Dataram
Singh vs. State of Uttar Pradesh reported in (2018)3 SCC 22.
8. Learned APP Shri Wattamwar submitted that the
Investigating Offcer submitted two mobile phones and one ICICI
Bank ATM Card and one Bandhan Bank ATM Card along with
Rs.1,48,000/- found in the black bag from applicant Shaileshkumar
Dube. He further submitted that one Rane had introduced applicant
Shaileshkumar to witness Anita as a High Ranking Offcer in the
railway department and she was asked to deposit amount in the
account of Khedapatti Construction Pvt. Company. Therefore, Anita
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Sonawane and her husband transferred amount of Rs. 2,60,000/-
from the account of Shilpa Shinde in the account of Khedapatti
Construction. These details are furnished in supplementary charge-
sheet. He further submitted that witness Rupali Jadhav has stated
in her statement that the applicant and other accused persons gave
fabricated/forged appointment order of Clerk/T.C. Applicant used
the water mark of railway department while issuing fabricated
appointment order and joining letter to the witness Rupali Jadhav.
Witness Santosh Gharat also stated that he deposited Rs. 1,00,000/-
in the account of Khedapatti Constructions. Applicant
Shaileshkumar and Ravindra Shankhuwa met Santosh Gharat and
on his Android handset forwarded a fabricated/forged ID Card and
also issued letter for training. Witness Rajeshri Mhaskar has stated
that applicant Shaileshkumar Dube gave forged appointment order of
the post of Clerk/T.C. Applicant Shaileshkumar has taken
Rs.1,00,000/- from her. She further stated that applicant said to her
that her earlier order was cancelled and issued another order of
appointment of the post of Clerk at Danapur in railway department.
Crime No. 403/2021 under Sections 376, 506, 420, 120-B of the
Indian Penal Code is registered against the applicant with Maviya
Police Station, Delhi.
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9. He further submitted that incriminating articles have
been seized from the house of applicant Gautam Fanase. Forged
selection list of Bombay Municipal Corporation is seized from the
applicant. Forged and fabricated receipt of fnger print is also seized.
Witness Ganesh Parab has stated that applicant posed himself as
offcer of Bombay Municipal Corporation. He submitted that
following offences are registered against the applicant :-
i) Crime No. 149/2008, registered with Kulaba Police Station,
under Section 420 of the Indian Penal Code.
ii) Crime No. 249/2010 under Section 420 of the Indian Penal
Code registered with Kulaba Police Station.
iii) Crime No. 67/2020 under Sections 420,465, 467 of the Indian
Penal Code registered with Bhaykhala Police Station Mumbai which
is pending.
10. I have given thoughtful consideration to the submissions
of all the learned counsel.
11. Applicants Shaileshkumar Dube and Gautam Fanase are
alleged to have cheated Ganesh Eknath Parab, Rupali Jadhav, Anita
Sonawane and Bhushan Devlikar. Name of applicant Shileshkumar
Dube came to be revealed from the interrogation of Abhay
Meghshyam Redkar. Applicant Shaileshkukmar Dube was arrested
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from Jupati Bangla, Andhra Pradesh, from construction site.
Applicant Gautam Fanase was working in Bombay Municipal
Corporation. However, because of his activities, it seems that he
came to be dismissed from the services.
12. So far as applicant Gautam Fanase is concerned, the
only statement recorded against him is of Ganesh Eknath Parab.
Witness Ganesh Eknath Parab has stated that applicant Gautam
Fanase was introduced to him by accused Ravindra Shankhuwa.
Ravindra Shankhuwa asked him whether he was interested in
Government service. Ganesh Parab stated that he was not interested
in it but his wife was interested in Government service. He and his
wife Supriya were introduced to Gautam Fanase by accused Ravindra
Shankhuwa. He has further stated that his wife's thumb
impressions were taken. An amount of Rs. 2,00,000/- was
demanded but he paid Rs. 1,00,000/- to Gautam Fanase. Thereafter
they paid Rs. 90,000/- to Gautam Fanase. He was assured that he
would get the order in a few days. It is, thus, clear that Ganesh
Parab is the only witness who is alleged to have been cheated by
applicant Gautam Fanase. Another piece of evidence collected by
prosecution is various duplicate orders.
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13. Prosecution has seized one JIO LYF Mobile handset
with SIM Card bearing No. 9307478143, three copies of order bearing
No. 1224/10-11-2017 issued by Commissioner, Mumbai Municipal
Corporation regarding wait list of 74 candidates, Receipt of payment
of Rs.36,640/- and receipts in favour of eight candidates towards
payment of Rs. 3960/-. This is the only evidence, the prosecution
has collected against applicant Gautam. Mere seizure of these
documents does not show the involvement of the applicant Gautam
Fanase. It was argued that three crimes are pending against the
applicant. However, despite clear directions from this Court, the
prosecution has not placed on record anything to show that charge-
sheet has been fled in those cases and the status of those cases.
Therefore, merely mentioning that crimes are registered against the
applicant, does not behove the prosecution to contend that applicant
Gautam Fanase has so many cases registered against him.
14. Statement of Bhushan Devlankar shows that he got
acquainted with Santoshkumar Banwarilal @ Pande. Said
Santoshkumar Banwarilal asked him whether he wanted a job in
Bombay Municipal Corporation. He consented for it. Thereafter, he
was introduced to applicant Gautam Fanase, Ravindra Shankhuwa
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and Narendra Prasad. Accordingly, he deposited amount of
Rs. 1,50,000/- in the account of Santoshkumar Banwarilal bearing
No. 001101590943 in ICICI Bank. On 29 th January, 2018, he again
deposited amount of Rs.20,000/-. On 4th December, 2018, he again
deposited amount of Rs. 50,000/- in the account of Santoshkumar
Banwarilal. On 7th January, 2019, he paid Rs. 10,000/- to accused
Santoshkumar Banwarilal and Ravindra Shankhuwa. Similarly, he
paid Rs. 15,000/- on 16th February, 2019, Rs.10,000/- on 6th March,
2019, Rs. 10,000/- on 7th March, 2019, Rs. 10,000/- on 8th March,
2019, Rs.10,000/- on 11th March, 2019, Rs. 15,000/- on 4th April,
2019, Rs. 5,000/- on 27th June, 2019, Rs. 1,000/- on 10th July, 2019,
Rs. 800/- on 20th July, 2019, Rs. 15,000/- on 30th November, 2019 to
accused Santoshkumar Banwarilal and Ravindra Shankhuwa. Later
on, he was told that the job in Bombay Municipal Corporation cannot
be given. Therefore, he was given the order of Railway Department.
This shows that no amount was paid to applicant Gautam Fanase
but it was paid to accused Santoshkumar Banwarilal and Ravindra
Shankhuwa. Therefore, this evidence is of no assistance to the
prosecution.
15. This takes me to the evidence against applicant
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Shaileshkumar Dube. Witness Rupali Jadhav has stated that she
was introduced to accused Abhay Redkar @ Rane through Social
Worker Savita Bankar. The said Rane misrepresented her and
Rajashri Mhaskar that he had good relations with high ranking
offcers in Railway Department, FCI and Agricultural Department.
Accordingly, witness Rupali Jadhav showed interest in getting the job.
Abhay Rane assured her that she would get a job in Railway
Department as a clerk and demanded Rs.7,00,000/-. She paid
Rs. 1,00,000/- to Abhay Rane in the presence of Savita Bankar. She
was called to Delhi by Abhay Rane. At Delhi she met applicant
Shaileshkumar Dube, Ravindra Shankhuwa and Narendra Prasad
and it was represented to her that there was no vacancy at Delhi and
she was taken to Kota, Rajasthan. She and Rajashri Mhaskar went
to Kota along with Abhay Rane. Abhay Rane and Ravindra
Shankhuwa demanded Rs. 2,00,000/- in cash and both of them
paid the amount to them. Thereafter applicant Shaileshkumar Dube
gave them order of Clerk/T.C. at Kota, Rajasthan. Again she was told
that this order was cancelled and she was given order of Clerk at
Danapur Railway, Patna. She worked at Patna for 6/7 months on
temporary basis. Thereafter she realised that applicant
Shaileshkumar Dube had given fake order to her.
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16. Similar is the statement of witness Rajashri Mhaskar.
Statement of Anita Sonawane has been recorded. She has stated in
her statement that her husband got acquainted with Abhay Rane.
Abhay Rane represented her husband that he had good relations
with high ranking offcers in Railway Department, FCI and
Agricultural Department. Abhay Rane demanded Rs. 2,00,000/- for
giving job and accordingly, that amount was paid to him. Said Rane
called her and her husband to Delhi. They stayed in Priyanka hotel
for 7/8 days. Both of them were introduced to applicant Shailesh
Dube by mis-representing that applicant was a high rank offcer in
Railway Department. She deposited amount of Rs. 2,60,000/- in the
account of Khedapatti Construction from the account of Shilpa
Shinde. Said Rane again demanded Rs. 1,00,000/- to be paid to
Ravindra Shankhuwa. Accordingly, that amount was paid to
Ravindra Shankhuwa. Applicant Shaileshkumar Dube gave her
order of TC Group-C and they were asked to go back to their village.
Thereafter they called applicant Shaileshkumar Dube and Abhay
Rane. But they did not pick up the calls. Then they realised that
they have been cheated.
17. So far as Rupali Jadhav and Rajashri Mhaskar are
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concerned, they were given a job. According to them, it was on
temporary post. It is not their contention that they were not given
any job at all. What was the nature of that job would be clear only
during the trial. So far as amount paid to applicant Shaileshkumar
Dube by Anita Sonawane is concerned, she did not directly pay the
amount to applicant Shaileshkumar Dube. It was deposited by
Shilpa Shinde at the instance of Anita Sonawane. However, statement
of Shilpa Shinde is not recorded. Therefore, at this prima facie stage,
it cannot be said that the amount was paid by Anita Sonawane.
18. Moreover, both the applicants are behind bars since 25 th
June, 2021 and 16th June, 2021 respectively. All the offences are
triable by Magistrate. Charge-sheet is fled. It was submitted that
applicant Shailesh is from Andhra Pradesh and he is not likely to be
available for trial. He can be released on bail on putting stringent
conditions. In this view of the matter, following order is passed :-
ORDER
i) Both the applications are allowed.
ii) Shaileshkumar S/o Narbada Dube, applicant in ::: Uploaded on - 17/03/2022 ::: Downloaded on - 18/03/2022 01:33:04 :::
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ba1435.21.odt Bail Application No. 1435/2021, be released on PR Bond of Rs.1,00,000/- with one local solvent surety in the like amount in connection with Crime No. 0153/2021 registered with Basmath City Police Station, Dist. Hingoli, for the offences punishable under Sections 420, 463, 464, 468, 471, 473, 120(B), 201 read with Section 34 of the Indian Penal Code, on the following conditions :-
a) He shall not leave the jurisdiction of the concerned Court without the permission of the concerned Court.
b) He shall not tamper prosecution evidence.
c) If he commits the similar offence again, his bail shall stand cancelled.
d) He shall deposit his passport, if any, with the concerned Police Station.
e) He shall not travel abroad without prior permission of the concerned Court.
f) He shall furnish his address in detail and mobile phone number with the concerned Court and the concerned Police Station and the concerned Police Inspector to verify the same.::: Uploaded on - 17/03/2022 ::: Downloaded on - 18/03/2022 01:33:04 :::
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g) He shall attend the concerned Police Station on every 2nd and 4th Sunday till the conclusion of the trial.
iii) Gautam S/o Eknath Fanase, applicant in Bail Application No. 1698/2021, be released on PR Bond of Rs. 50,000/- (Rs. Fifty Thousand) with one solvent local surety in the like amount in connection with Crime No. 0153/2021 registered with Basmath City Police Station, Dist. Hingoli, for the offences punishable under Sections 420, 463, 464, 468, 471, 473, 120(B), 201 read with Section 34 of the Indian Penal Code on following conditions :-
a) He shall not leave the jurisdiction of the concerned Court without the permission of the concerned Court.
b) He shall not tamper prosecution evidence.
c) If he commits the similar offence again, his bail shall stand cancelled.
d) He shall deposit his passport, if any, with the concerned Police Station.
e) He shall not travel abroad without prior permission of the concerned Court.::: Uploaded on - 17/03/2022 ::: Downloaded on - 18/03/2022 01:33:04 :::
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f) He shall furnish his address in detail and mobile phone number with the concerned Court and the concerned Police Station and the concerned Police Inspector to verify the same.
g) He shall attend the concerned Police Station on every 2nd and 4th Sunday till the conclusion of the trial.
iv) Both the applications stand disposed of.
v) It is clarifed that the observations made in the above order are restricted to the decision of these applicationa only and the trial Court shall not get influenced by the same and can come to its independent conclusion during trial.
( M. G. SEWLIKAR ) Judge dyb ::: Uploaded on - 17/03/2022 ::: Downloaded on - 18/03/2022 01:33:04 :::