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2012 DIGILAW 228 (BOM)

Mukund Balwant Athavale v. State of Maharashtra

2012-02-01

R.G.KETKAR

body2012
JUDGMENT Heard Mr. Sayaji Nangre, learned counsel for the applicant and Mrs. A.A. Mane, learned APP for the State. 2. The present application is filed u/s. 438 of the Code of Criminal Procedure, 1973 praying for enlarging the applicant on bail in the event of his arrest in connection with C.R.No. 1/2012 registered for offence punishable u/s. 420, 467, 468 r/w. 34 IPC (for short IPC). 3. The case of the complainant-Dinendra Babasaheb Kadam is that he had purchased one acre of land by paying Rs.80,000/-. He was enrolled as member of Gangotri Krishi Falodyan Vikas Sahakari Sallsta in the year 1996. He was also issued share certificate to that effect. On 3rd October, 2006 notice was issued by the said Society for holding Special General Meeting on 10th October, 2006. One of the subjects to be discussed was about sale of plots by the members who are interested to sell their riots to the buyer who has approached the Society. It is the case of the complainant that though he received the said notice, because of his commitment he could not attend the meeting on 10th October, 2006 as also he was not interested in selling his share. Subsequently on 23rd February, 2010, the complainant received letter alongwith cheque for Rs.1,00,000/-. Upon receipt of this letter, he made enquiries with the other Members of the Society and realized that the land was sold by the Managing Committee of the Society. He accordingly lodged a complaint with the Assistant Registrar, who in turn, appointed Mr. Gosavi as Investigating Officer. The said officer filed a detailed report against the applicant herein and other members of the Committee. It is the case of the complainant that the applicant and other members of the Managing Committee in collusion gave Power of Attorney to one Suresh Jadhav without his consent and the consent of other Members of the Society and thus sold 37 acres of land without prior permission of the complainant and thereby cheated the complainant. On that basis the complaint was lodged by him. Pursuant thereto, FIR was registered on 3rd January, 2012 u/s. 420 r/w. 34 I.P.C. at Nerul Police Station. 4. Mr. Nangre invited my attention to the notice dated 3rd October, 2006 which admittedly was received by the complainant. Subject No.4 pertained to discussion regarding sale of the Society's plot. On that basis the complaint was lodged by him. Pursuant thereto, FIR was registered on 3rd January, 2012 u/s. 420 r/w. 34 I.P.C. at Nerul Police Station. 4. Mr. Nangre invited my attention to the notice dated 3rd October, 2006 which admittedly was received by the complainant. Subject No.4 pertained to discussion regarding sale of the Society's plot. He further invited my attention to the resolution dated 10th October, 2006 passed in the Special General Meeting. That meeting was attended by 22 members out of 36 members and unanimously, resolution Nos. 1 & 4 were passed for selling the land of the Society. It was further resolved that one acre plot will be sold for Rs.1,05,000/-. 5. Pursuant to resolution, the permission of the Assistant Registrar was sought by letter dated 2nd November, 2006 and the said permission was accorded on 13th December, 2006. Pursuant to that, the plot of the Society was sold and even the complainant was issued the cheque in a sum of Rs. 1,00,000/-. He further submitted that the applicant is willing to handover, all original documents to the Police. 6. On the other hand, learned APP submitted that the resolution which was passed on 10th October, 2006 was not forwarded to the Assistant Registrar while seeking his permission. Prima facie, I do not find any substance in this submission. 7. Even in FIR, it is admitted that a notice was issued on 3rd October, 2006 intimating that the Special General Body Meeting will be convened on 10th October, 2006. Though the notice was received by the complainant, he did not remain present on 10th October, 2006. The explanation given by the complainant was that since he was not interested in selling his shares and because of his other commitments, he did not attend the meeting. 8. On 10th October, 2006 resolutions being Resolution Nos. 1 & 4 were passed and the permission of the Assistant Registrar was sought. The said permission was also accorded on 13th December, 2006. Not only that even by letter dated 23rd February, 2010 cheque of Rs.l,00,000/- was forwarded to the complainant. In view of this, prima facie, I do not find that the applicant could be said to have committed any offence punishable u/s.420 IPC. 9. The said permission was also accorded on 13th December, 2006. Not only that even by letter dated 23rd February, 2010 cheque of Rs.l,00,000/- was forwarded to the complainant. In view of this, prima facie, I do not find that the applicant could be said to have committed any offence punishable u/s.420 IPC. 9. In the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others [ (2011) 1 SCC 694 ] : [2010 ALL SCR 2725] the Apex Court has considered the parameters of Section 438 of Cr.P.C. The Apex Court has laid down the following factors and parameters to be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence, (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant Siddharam Satlingappa Mhetre of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant. (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." 10. The learned counsel for the applicant has submitted that the applicant has no antecedents. He has assured that he will furnish all the original documents to the Police authorities and he is ready and willing to attend the Police Station as per the directions of this Court. Having regard to the judgment of the Apex Court in the case of Siddharam Satlingappa Mhetre, [2010 ALL SCR 2725] (supra), in my opinion, the applicant has made out a case for grant of anticipatory bail. Hence, I pass the following order: 1. The applicant shall be enlarged on bail in the event of his arrest in connection with C.R.No.1/2012 registered with Nerul Police Station, District Raigad on his executing P.R. Bond of Rs. 50,000/- with two sureties in the like amount. 2. The applicant shall attend the Nerul Police station every Monday and Friday of a week between 10 a.m. and 2 p.m. for a period of two months and thereafter as and when required by the Police. 3. The applicant shall produce all the original documents before the Investigating Officer. He shall cooperate with the Investigating Agency. 4. Application is disposed of. Application allowed.