Bombay High Court
Nilesh Bandu Mhatre vs The State Of Maharashtra on 15 December, 2020
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
ANTICIPATORY BAIL APPLICATION [STAMP] NO.6721 OF 2020
Nilesh Bandu Mhatre ... Applicant
Versus
State of Maharashtra & Anr. ... Respondents
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Mr. Prashant Pandey, Advocate for the Applicant.
Ms. Rutuja Ambekar, APP for State/Respondent.
Ms. Jayshri Rajemahadik i/b. Kedar Patil, for the Intervenor.
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CORAM :- SARANG V. KOTWAL, J.
DATE :- 15th DECEMBER, 2020 P. C. :-
1. The Applicant is seeking anticipatory bail in connection with C.R. No.110/2020 registered at Shivaji Park Police Station, Mumbai on 7.5.2020 under Sections 420, 465, 467, 468, 471 read with Section 34 of the Indian Penal Code.
2. Heard Shri Prashant Pandey, learned Counsel for the Applicant, Ms. Rutuja Ambekar, lerned APP for the State and Ms. Jayshri Rajemahadik, learned Counsel for the Intervenor.
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3. The FIR is lodged by one Punit Agarwal. He has stated that he is connected with an oil extraction company, named as, Duganta Oil and Natural Gas Private Limited (for short, 'Duganta'). The earlier name of the Company was Arsh Corporate Service Private Limited. He has stated in his FIR that in January, 2019 he came to know about a tender process in respect of Oil & Natural Gas issued by the Central Government. The first informant submitted the tender. His company got the contract. He came to know about it on 14.2.2019. But for that the Company needed to deposit the Performance Bank Guarantee to the tune of Rs.7,20,40,000/- in the Oil & Natural Gas Department.
. Since 2013, the Applicant was known to the first informant. They were close friends. The Applicant was aware that the informant had got the tender. He was also aware that the time limit for furnishing the Performance Bank Guarantee was to come to an end on 8.2.2020. The informant told the Applicant that since time was consumed to change the name of the Company, nobody was willing to give him the bank guarantee. At that time, the Applicant represented to the informant that he was knowing certain people who 2 of 9 3 16.ABA-ST-6721-20.odt could give the bank guarantee. He told the informant that he would be required to pay 10% as deposit and 2% as commission on the aforementioned amount of Performance Bank Guarantee. Thus, the Applicant told the informant that he had to pay commission of Rs.86,40,000/-. The informant agreed. The Applicant told him that he would get the Performance Bank Guarantee from Bank of Maharashtra, Fort Branch. Subsequently, the Applicant told him that there was some problem with that Bank and that he would get such guarantee from Allahabad Bank, Senapati Bapat Marg Branch, Dadar (West).
. The first informant has stated in his FIR that on 31.1.2020, he transferred Rs.50 Lakhs through RTGS in the account of the present Applicant held with Bank of Baroda from the informant's another Company, namely, Vasudev Securities Private Limited. It was decided that the balance amount of Rs.36,40,000/- would be paid after the bank guarantee was issued and verified. The informant had given certain stamp papers and documents related to his company for obtaining the Performance Bank Guarantee.
3 of 9 4 16.ABA-ST-6721-20.odt . On 13.2.2020, the informant received a WhatsApp message from the Applicant that they had to collect the original bank guarantee and covering letter from Allahabad Bank, Dadar Branch on the next day i.e. on 14.2.2020. The informant received another message from the Applicant asking him to send a person with I.D. proof to collect the bank guarantee. On 15.2.2020, the informant sent his peon Manish Ghadi to Allahabad Bank, Dadar Branch. The Applicant sent photographs of the Performance Bank Guarantee on WhatsApp message. The informant was convinced that the bank guarantee was proper and, therefore, Manish Ghadi was sent to collect it. Said bank guarantee was submitted by the informant and the Applicant on 19.2.2020 with the Nodal Officer Dheeraj V. Singh at Noida. On 26.2.2020, the Applicant sent photos and messages regarding documents in respect of verification of the bank guarantee. The documents contained confirmation letter of Allahabad Bank. Therefore, the informant transferred Rs.30 Lakhs from his another company Vasudev Securities Private Limited in the account of the present Applicant.
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4. On 12.3.2020, the informant asked the Applicant for performance bank guarantee issuance and verification letter. The Applicant did not give satisfactory reply. Therefore, the informant sent his peon Manish Ghadi to meet the Manager Sahu. However, there was no such person working with the Bank. Thereafter his peon Manish Ghadi told him that the person who had given the Performance Bank Guarantee papers to him was not present in the Bank. The informant again verified with the Applicant as to whether the bank guarantee was genuine. On 13.3.2020, the informant received a phone call from one Prachi Agarwal working with Allahabad Bank. She asked the informant whether he had got the tender and whether the informant was in need of bank limit. The informant was not in Mumbai and, therefore, he could not meet her. The informant got suspicious. The informant asked the Officers of Allahabad Bank whether the performance bank guarantee papers were genuine or not. He did not receive proper answers. Therefore, he informed the DGH Officer at Noida that he was not sure whether the bank guarantee was genuine. On their instructions, the informant approached the police. He was convinced that the bank guarantee 5 of 9 6 16.ABA-ST-6721-20.odt was forged and he was cheated for a large amount.
5. Shri Pandey, learned Counsel for the Applicant submitted that the first informant himself had filed affidavit before the Authorities mentioning that the bank guarantee was genuine. He submitted that the WhatsApp chats mentioned in the FIR never took place and they are fabricated. He submitted that the Applicant's internet account was hacked by the informant and the email was fabricated. He submitted that there was no reason for the first informant to suddenly come to know about forgery of bank guarantee. He submitted that the Applicant has not committed any offence. He relied on bank transactions showing that there was transaction between the Applicant and the first informant.
6. According to the learned Counsel for the Applicant, the Applicant had paid Rs.2.48 Crores to the first informant and the Applicant has received Rs.80 Lakhs and for avoiding recovery of the balance amount, the Applicant is falsely implicated.
7. Learned A.P.P., on the other hand, opposed this Application by filing affidavit of the Investigating Officer. By the last order, the 6 of 9 7 16.ABA-ST-6721-20.odt Applicant was directed to cooperate with the investigation. The affidavit mentions that the Applicant had attended the police station, but, he did not cooperate with the investigation. The affidavit filed by the I.O. shows that they have carried out investigation in respect of the documents pertaining to and available with Allahabad Bank. The investigation regarding forged performance bank guarantee had revealed that the Applicant had got the forged performance bank guarantee prepared. He delivered it to the first informant with the help of persons, namely, Ashok Kumar Bose, Suraj Chouhan, Sidharth Sharma, Khan Afzal Mohd. and Mandar Tendulkar. It is further mentioned in the affidavit that the Applicant has used Rs.80 Lakhs given by the first informant for his personal use. According to the investigating agency, the Applicant has not utilized the amount of Rs.80 Lakhs for which it was given i.e. for obtaining genuine Performance Bank Guarantee.
8. The Applicant has three antecedents i.e. (I) C.R. No.109/2002 of Vile Parle Police Station under Sections 380, 467, 468, 471 & 420 of IPC, (II) C.R. No.43/2008 of Yellow Gate Police Station under Sections 465, 467, 468, 420 of IPC, and (III) C.R. 7 of 9 8 16.ABA-ST-6721-20.odt No.544/2007 of Sahar Police Station under Sections 465, 467, 468 & 420 read with 34 of IPC.
9. I have considered all these submissions. The offence is clearly made out in the FIR. It is not in dispute that the Performance Bank Guarantee in question, which is the subject matter of the first information report is a forged document. It was used for compliance of the requirement of the tender. It was submitted to the Nodal Officer. However, since it was forged, the tender was not awarded to the first informant. The fact remains that the Performance Bank Guarantee for huge amount was created for that purpose, which is a serious offence.
10. There are direct allegations against the present Applicant as he was the person who had obtained it, as mentioned in the FIR. Even the investigation reveals that the Applicant was instrumental in creating that forged document and then delivering it to the first informant with the help of other accused persons named in the affidavit of IO. Their names are revealed during investigation.
11. The amount which was given for obtaining the 8 of 9 9 16.ABA-ST-6721-20.odt Performance Bank Guarantee was utilized by the Applicant for his own purpose and was not given to any Bank for processing issuance of Performance Bank Guarantee.
12. The Applicant has criminal antecedents against him. The Applicant has not cooperated with the investigation. The offence is very serious. In this view of the matter, custodial interrogation of the present Applicant is absolutely necessary. No case for anticipatory bail is made out. The Application is rejected.
13. At this stage, learned Counsel for the Applicant prays for continuation of ad-interim relief for a few days. Since I have come to the conclusion that custodial interrogation of the Applicant is necessary and since the Applicant has not cooperated with the Digitally signed by Pradeepkumar investigation, this prayer is rejected.
Pradeepkumar P. Deshmane P. Deshmane Date:
2020.12.16 15:49:32 +0530 (SARANG V. KOTWAL, J.) Deshmane (PS) 9 of 9