Bombay High Court
Markas Yohan Thorat vs The State Of Maharashtra on 16 December, 2020
Author: Prakash D. Naik
Bench: Prakash D. Naik
1-BA No. 909-2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.909 OF 2020
Markas Yohan Thorat
An Indian Inhabitant, Aged 66 years,
A Senior Citizen, Occ : Business.
R/at. Nagacha Khadak, Near Petrol Pump,
Murbad, Thane, 421 401. ... Applicant
Versus
The State of Maharashtra ... Respondent
.....
Mr. I. S. Thakur i/b Mr. Arjun Singh Thakur i/b M/s Global Juris
Consults, Advocates for the Applicant.
Ms. A. A. Takalkar, APP for the Respondent - State.
Ms. Shetye, W.P.I. EOW, Unit-7, Mumbai, Present.
.....
CORAM : PRAKASH D. NAIK, J.
DATE : 16th DECEMBER, 2020.
PER COURT:
1. This is an application for bail in connection with C.R.
No. 11 of 2017, registered with Bhoiwada Police Station, Mumbai,
for offences punishable under Sections 409, 420, 120B of Indian
Penal Code (hereinafter referred to as "IPC" for short) and Sections 3
Digitally
signed by
RajeP. RajeP. Aher and 4 of Maharashtra Protection of Interest of Depositors (in
Date:
Aher 2020.12.17
17:13:33
+0530 Financial Establishments) Act (hereinafter referred to as "MPID Act"
for short) read with Sections 3, 4 & 5 of Prize Chits and Money
Sajakali Jamadar 1 of 9
1-BA No. 909-2020.doc
Circulation Scheme (Banning) Act, 1978. The First Information
Report (hereinafter referred to as "FIR" for short) was registered on
16th January, 2017. The investigation was taken over by EOW,
Mumbai, vide C.R. No.08 of 2017.
2. The prosecution case is that, the informant has alleged
that accused Temple Rose Real Estate Private Limited, its Directors
and others had accepted deposits from investors by floating buyback,
Guaranteed Double Income, Income Growth Plan, etc. Schemes.
They induced investors by making promise of more profits on the
investments and after maturity failed to return the assured benefits.
The informant was duped for an amount of Rs. 37,38,775/- other
investors were cheated for crores. The applicant was arrested on 5 th
August, 2017 in another case and in the present case he was arrested
on 5th February, 2018. On completing investigation, charge-sheet is
filed. Case is numbered as MPID Special Case No.12 of 2018.
3. The applicant had preferred Criminal Bail Application
No.2990 of 2018 before this Court which was rejected by order dated
26th February, 2019. Subsequently, he preferred another application
for bail before this Court which has been rejected by order dated 3 rd
February, 2020. However, the trial Court was requested to conclude
the trial within a period of Six months and liberty was granted to
Sajakali Jamadar 2 of 9
1-BA No. 909-2020.doc
applicant to prefer fresh application for bail in the event trial is not
concluded within a period of Six Months.
4. Learned advocate for the applicant submitted that the
applicant is in custody in this case from 5th February, 2018, for a
period of about Two years and Ten months. There is no progress in
trial. Charge is not yet framed. The applicant is senior citizen aged
about 66 years. It is not clear as to when the trial would commence
and concluded. The prosecution is relying upon list of fifty witnesses.
He further submitted that total earning out of the salary and other
benefits of applicant were to the tune of Rs.2,16,00,000/-. Except the
applicant and co-accused Keshav Ibdya, all other accused are on bail.
The properties of the company were attached. He relied on the
Notification issued by the Government under the provisions of MPID
Act. The family members of the applicant has filed undertaking
before this Court stating that, the properties i.e. plot of land bearing
Survey No.385, Mauze Kadam Vasti, Lone Haveli, Dist. Pune and
Row house bearing No.38, Amar Nagar, on a part of land bearing
No.261/26/2 at Solapur Road, Hadapsar, Pune are owned by them
and they have no objection for auction proceedings to be undertaken
under the provisions of MPID Act. Learned counsel for the applicant
tendered the valuation report in respect to the properties. The value
Sajakali Jamadar 3 of 9
1-BA No. 909-2020.doc
of the row house in 2018 was Rs.1,08,62,253/- and the value of the
plot referred to above is Rs.19,64,020/-. The said valuation report is
given by Sub-registrar, Haveli, Pune City. The said document is taken
on record and marked as "A" for identification. It is submitted that
the properties of the company are also attached under the provisions
of MPID Act. While rejecting previous applicaton by order dated 26 th
February, 2019 it was observed that, properties were purchased in
the name of accused and relatives and no Notification was issued
regarding properties of company and its Directors. However,
Notification has been issued and properties were attached. The
applicant is ailing and he was admitted Sasoon hospital and was
discharged. While rejecting subsequent application by order dated 3 rd
February, 2020 this Court had also taken into consideration that
applicant had earned Rs.2,16,64,472/- and properties were
purchased by him out of funds of investment. The properties are
under attachment. The amount earned is secured. The applicant has
not delayed trial. He relied on Roznama of trial Court proceedings.
The co-accused Devidas Sajnani was granted temporary bail on
medical ground by this Court in C.R. No.275 of 2017 registered with
Chatushrungi Police Station, Pune. The cash vouchers were signed by
applicant along with chairman of company Mr. Devidas Sajnani and
the amount withdrawn was exculsively used for purshaing various
Sajakali Jamadar 4 of 9
1-BA No. 909-2020.doc
properties, obtaining permissions etc. The witnessess have not
referred to inducement by applicant. The applicant cannot be
detained in custody for indefinite period. In support of his
submissions he relied on the decisions of the Supreme Court in the
case of Sharad T. Kabra V/s. Union of India , 2017(4) Crimes (SC)
448, wherein it was observed that the accused was in custody for
more than two years facing charges for offences under Sections 420,
467, 468, 471, & 120B of IPC, the trial has not commenced. Even the
charges have not been framed against the accused. It is submitted
that punishment for offence under Section 467 is imprisonment for
life or up to Ten years. Reliance is also placed on the decision of the
Supreme Court in the case of Pravat Kumar Dash V/s. Vs. Central
Bureau of Investigation 2017(8) SCC 453, in that case the accused
was prosecuted for offences under Section 420, 467, 468, 471, 406,
417, 418, 422, 120(B) of IPC. The accused was directed to be
released on bail. It was observed that, despite several extensions of
time for completion of remaining part of investigation, the
investigation was not completed. Learned counsel also relied upon
the decision in the Case of Mehmood Mohammed Sayeed V/s. State
of Maharashtra AIR 2002 (SC) 482. The accused was prosecuted for
offences under Sections 463, 467, 461, 419 & 120 of IPC. Bail was
granted as it was not certain as to how long trial will take
Sajakali Jamadar 5 of 9
1-BA No. 909-2020.doc
considering conditions of trial Court particularly in Maharashtra.
Reliance is also placed on the decision of the Apex Court in the Case
of Vivek Kumar V/s. State of U.P. AIR 2000, (SC) 3406, the accused
was prosecuted for offence under Sections 394 & 395 r/w Section
149 of IPC. The accused was in jail for a long period and the trial had
not commenced. It is submitted that punishment for offence under
Sections 394 & 395 of IPC is life imprisonment or up to Ten years. He
also relied upon several orders passed by this Court, granting bail to
the accused.
5. Learned APP submitted that the previous applications of
the applicant were rejected. On instructions it is submitted that,
further investigation is still in progress and hence final charge-sheet
could not be filed. Hence trial had not commenced. In the charge-
sheet which is filed against the applicant, the prosecution has listed
about 50 witnesses. Learned APP tendered the report of the
Investigating Officer wherein it is mentioned that the investigation
revealed that the applicant had earned the amount of
Rs.2,16,64,472/- towards commission, salary, interest & dividend etc.
The report also mentions that the properties were purchased in the
name of applicant and his family members. The properties situated at
Murbad Road, Nagcha Khadak House No. 1179, valued at about
Sajakali Jamadar 6 of 9
1-BA No. 909-2020.doc
Rs.20,00,000/-. Row house No.38 at Solapur Road, Hadapsar Pune is
having valued of Rs.35,00,000/-. Plot on mouje Kadam Vasti, Loni,
Haveli, is valued Rs. 7,00,000/-. Property bearing S.No. 510, Mouje
Ambegaon, Tal. Murbad, Dist. Thane is valued of Rs.7,00,000/- and
property bearing S.No.111, Mouje Aantroli, Taluka Velhe, Dist.Pune
is valued Rs.50,00,000/-. The total value of properties is One Crore
Nineteen Lakhs. Learned APP on instructions submitted that this was
tentative valuation. All these properties are attached. The report is
taken on record and marked as 'X' for identification.
6. It is noted that, the applicant is in custody for a period of
about Two years and Ten months. While rejecting the previous
application, trial was expedited and liberty was granted to prefer
fresh application for bail. Trial has not commenced. As stated by
learned APP further investigation is still in progress and further
charge-sheet is yet to be filed. Several other accused are already on
bail. The applicant is senior citizen. It is not clear as to when the trial
would commence. The applicant has not delayed the trial. The
Notification issued by the government under Section 4(1), 5 & 8 of
MPID Act has been placed on record by learned advocate for
applicant. The Notification mentions that the properties specified in
the schedule are alleged to have been acquired by the financial
Sajakali Jamadar 7 of 9
1-BA No. 909-2020.doc
establishments and their chairman/directors from and out of deposits
collected by establishment. The list of immovable properties attached
is provided. The properties are in the name of company and the
accused including applicant. There are several properties divided into
parts situated at Sogaon, Shahapur, Thane, Pimloli, Karjat, Raigad,
Parhe, Murbad, Thane, Umroli, Mahad, Pune, Satara, Kerala,
Tamilnadu etc. The Notification also contains list of bank accounts
attached. Taking into consideration the aforesaid circumstances, bail
can be granted to the applicant. Hence, I pass the following order.
ORDER
(i) Bail Application No.909 of 2020, is allowed;
(ii) The applicant is directed to be released on bail in connection with C.R. No. 11 of 2017, registered with Bhoiwada Police Station, Mumbai,, investigated by EOW vide C.R. No.8 of 2017 on executing P.R. Bond in the sum of Rs.1,00,000/-, with one or more sureties in the like amount;
(iii) The applicant shall report E.O.W. Unit -7, Mumbai once in a month on first Saturday of the month between 11:00 a.m. to 1:00 p.m. till further order;
(iv) The applicant shall give an undertaking that he has no objection for sale of the attached properties except the Sajakali Jamadar 8 of 9 1-BA No. 909-2020.doc property which is ancestral house at Murbad Road, Nagcha Khadak house No.1179, Murbad, Dist. Thane.
(v) Relatives of the applicant Snehal Markas Thorat, Vishwas Markas Thorat, Rebecca Markas Thorat and Sagar Markas Thorat shall file a fresh undertaking in respect to the properties viz. Plot of land bearing Survey No.385, Mauze Kadam Vasti Loni, Haveli, Dist. Pune, Row house bearing No.38, Amar Nagar, on plot No.261/26/2, Solapur Road, Hadapsar, Pune, stating that they have no objection to auction proceedings to be undertaken under the provisions of MPID for sale of properties.
(vi) Both undertakings shall be filed before trial Court while executing bail bond.
(vii) Application stands disposed of accordingly.
7. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
(PRAKASH D. NAIK, J.)
Sajakali Jamadar 9 of 9