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u/s 420, 406, 423, 424 r/w Section 34 IPC – Anticipatory bail – Since the transaction is in the nature of commercial transaction and since the appellant has also shown his bonafide by depositing rupees one crore, pending further investigation, in our view, anticipatory bail could be granted to the appellant.= CRIMINAL APPEAL NOS. 2446-2447 OF 2014 (Arising out of SLP (Crl.) Nos. 3527-3528/2014) RAKESH BABAN BORHADE ..Appellant Versus STATE OF MAHARASHTRA & ANR. ..Respondents



CRIMINAL APPEAL NOS. 2446-2447 OF 2014
(Arising out of SLP (Crl.) Nos. 3527-3528/2014)



Leave granted.
2. These appeals by special leave challenge the Order dated
1.4.2014 passed by the Bombay High Court, in and by which, the High Court
dismissed the anticipatory bail applications filed by the appellant while
granting anticipatory bail to two other persons (Suresh Vallabhji Vora and
Rajnikant N. Parekh) arrayed as accused in the same case.
3. Case of the prosecution arises out of a private complaint
filed by M/s. Merit Magnum Construction alleging commission of offences
against the appellant and other accused u/s 420, 406, 423, 424 r/w Section
34 IPC wherein directions were issued by the Magistrate u/s 156 (3) Cr.P.C.
for proper investigation. Case of the complainant is that on 21.12.2005,
the seven companies through their Directors entered into a Memorandum of
Understanding (MOU) to sell the rights of their land to the complainant –
M/s. Merit Magnum Construction, formerly M/s Vimal Builders. Till 2006, the
complainant is said to have paid a sum of Rs.7,22,12,256/- to the said
companies. It is alleged that inspite of the timely payment of
Rs.7,22,12,256/-, the accused persons did not transfer the lands as
promised in the MOU. It is the case of the complainant that during the
period from 2005 to April 2013, the Directors and shareholders of the above
mentioned seven companies– Suresh V. Vora, Rajnikant N. Parekh and the
appellant– Rakesh Baban Borhade with common intention to deceive the
complainant company avoided transferring ownership rights, interest, shares
and related documents to the complainant company and also deliberately
suppressed several transactions relating to the property prior to MOU.
4. The Sessions Court dismissed the anticipatory bail application
filed by the appellant and other accused. Aggrieved by the same, the
accused persons moved the High Court, which vide its impugned order dated
1.4.2014 while granting bail to the other accused persons, dismissed the
application of the appellant. The appellant is before us, assailing the
correctness of the impugned order.
5. Mr. Ravindra Shrivastava, learned Senior Counsel for the
appellant contended that the appellant became Director of Alpha Omega Home
Fund Pvt. Ltd. only in November 2010 and that he was not a party to the MOU
dated 21.12.2005 as at that time he was neither a shareholder nor a
director of the said seven companies. Learned senior counsel has drawn our
attention to the challans and cheques at pages 283-288 of the SLP paperbook
and submitted that those cheques were meant for the companies mentioned
therein and the appellant was not a beneficiary of those cheques. It was
urged that in any event, entire case is based on documentary evidence which
is in the form of MOU dated 21.12.2005 and the registered sale agreements
and bank cheques and challans and hence, the custody of the appellant is
not at all required and the High Court was not justified in refusing
anticipatory bail to the appellant.
6. Mr. Shekhar Naphade, learned Senior Counsel for the second
respondent submitted that to unearth the trail of the transactions and the
money received by the appellant, a thorough interrogation is necessary and
the High Court rightly declined anticipatory bail to the appellant.
7. We have considered the submissions of the learned counsel for
the appearing parties and perused the impugned order and the materials on
8. Sub-section (1) of Section 438 has been amended by Cr.P.C.
(Amendment) Act 2005 (Act 25 of 2005), by which old sub-section (1) has
been substituted by new sub-sections (1), (1A) and (1B). The guiding
factors for grant of anticipatory bail have been mentioned in sub-section
(1) of Section 438 itself. The Court would grant or refuse anticipatory
bail after taking into consideration the following factors, namely:-
the nature and gravity of the accusation;

the antecedents of the applicant including the fact as to whether he has
previously undergone imprisonment on conviction by a Court in respect of
any cognizable offence;

the possibility of the applicant to flee from justice; and

where the accusation has been made with the object of injuring or
humiliating the applicant by having him so arrested.
Anticipatory bail is not to be granted as a matter of rule, but should be
granted only when a special case is made out and the Court is convinced
that the accused would not misuse his liberty. After analysing various
judgments and guidelines in Siddharam Satlingappa Mhetre vs. State of
Maharashtra and Ors., (2011) 1 SCC 694, this Court has enumerated the
parameters that can be taken into consideration by the courts while dealing
with the anticipatory bail.
9. In the light of the parameters laid down in Siddharam
Satlingappa Mhetre’s case, we have considered rival contentions of the
parties. The dispute between the parties revolves around MOU dated
21.12.2005 and the previous MOU dated 3.2.2005. The dispute is purely a
business transaction based on the said MOUs. According to the appellant-
accused, he sold the land belonging to his father in Survey No.75/18 to
M/s. Siddhivinayak Enterprises by sale deed dated 31.12.2007 as legal
representative of his father and there is no illegality involved in it.
Whether the appellant-accused has sold the property to M/s. Siddhivinayak
Enterprises in his capacity as the legal heir of his father or as a
representative of the company and whether there was any dishonest intention
to cheat the complainant remains to be seen only when the parties adduce
oral and documentary evidence.
10. When the Special Leave Petitions came up for hearing, by order
dated 9.5.2014 interim protection from arrest was granted to the appellant-
accused and without prejudice to the contentions, the appellant was
directed to deposit a sum of rupees one crore in the Registry of the
Supreme Court and in compliance of the said order, the appellant has
deposited rupees one crore. Since the transaction is in the nature of
commercial transaction and since the appellant has also shown his bonafide
by depositing rupees one crore, pending further investigation, in our view,
anticipatory bail could be granted to the appellant.
11. In the result, these appeals are allowed and the appellant is
granted anticipatory bail on his furnishing a personal bond of Rs.25,000/-
with two sureties of the like amount to the satisfaction of the trial
court. The appellant shall co-operate with the investigating agency.
Without prejudice to the contention of the parties, the complainant-second
respondent (M/s.Merit Magnum Construction) is permitted to withdraw rupees
one crore deposited by the appellant in this Court. Withdrawal of the said
amount of rupees one crore by the second respondent shall be subject to
the result of pending litigation between the parties or any other
litigation contemplated by the parties pertaining to the MOU dated
21.12.2005. The appeals stand disposed of accordingly.
(V. Gopala Gowda)
(R. Banumathi)
New Delhi;
November 19, 2014

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