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It is an application under section 438 of the code of criminal procedure (in short 'Gr.P.C') filled by the applicants Viz 1] Mehul Motilal Jethva and 2] Kalpesh Jayantibhai Patel for grant of pre-arrest bail in the connection with Crime No. I - 81/2022 registered with Dombivali Police station for an offence Punishable under Sections 420, 406, 504,506. r/w. Section 34 of the Indian Panel Code (in short IPC)
It is the case of prosecution that , both the applicants represented themselves are of re the representatives of M/S. Vishawam Properties and Designs. They represented to the informant• that they are authorized to sell the premises of Shree Krishna Plaza, Thakurli (E). After negotiations informant entered into an agreement with applicants to purchav Flat No. 1003, 10th floor at Shree Krishna Plaza for consideration of Rs. 5900 per sq. ft. Informant has paid an amount Rs. 29,70,000/- to them through cheque as mentioned in the report. But in the month of September 2021, informant could not complete the said transaction on aaccount of financial crisis, therefore, he requested applicants to return his amount. At that time informant came to know that applicants have taken Rs. 50000/- against the booking of the flat and remaining amount has been utilized for their own purpose. Applicants have returned the amount Rs. 10 Lalchs to the informant and for balance amount applicants have issued cheques in favour of informant as mentioned in the report. However, all the cheques have been dishonoured. Applicants have not repaid the balance amount nor interest thereof and thus it is alleged that applicants have cheated the informant.
It is contended by the applicants that they are innocent and have not committed any offence, but they have been falsely implicated in the aforesaid crime. Nothing is to be recovered or discovered from the applicants. The nature of dispute is of civil. Therefore, applicants deserve pre-arrest bail.
Prosecution resisted the application by filing say at Exh.7 by contending that applicants have cheated the informant and prosecution witnesses by taking from them an amount Rs. 46,17,200/-, therefore, applicants do not deserve pre-arrest bail.
It is submitted by the learned advocate of applicants that, the matter is of civil nature but it has been given criminal colour. Nothing is to be recovered or discovered from the applicants. The custodial interrogation of applicants is not necessary.Applocants are ready to abide by the conditions , if nay imposed while allowing the application. Thredore applicants deserve pre-arrest bail.
Heard the Investigating officers. He submitted that applicants have cheated the informant and prosecution Witnesses for lakhs of rupees and for recovery of the said amount, custodial interrogation of applicants is necessary.
I have given my thoughtful concideration to the rival submissions . Informant has received an amount Rs. 10 Lakhs from applicants and for balance amount applicants had issue the cheque. No doubt , those cheques have been dishonoured . However , informant can institute a leagal proceeding against the dishonour of cheques and simultaneously he can file a suit . No doubt, it appears that after cancelling agreement appllicants were expected to return the entire amount taken from the informant. Therefore, it appears that intention of applicants was not honest and it attracts essential ingredients of an offence under section 420 of IPC as well as section 406 of IPC. However, custodial interrogation of applicants is not necessary . The Investigation of the crime can be carried out without cusodial interrogation of applicants. Looking to the nature of offence and peculiar facts of the case, it appears to me that applicants deserve pre-arrest bail subject to conditions. Consequently, following order is passed.
Order