RAKESH BABAN BORHADE Vs THE STATE OF MAHARASHTRA & ANR ETC.ETC.
Bench: DIPAK MISRA,R. BANUMATHI
Case number: Crl.A. No.-002446-002447 / 2014
Diary number: 13756 / 2014
Advocates: NAVIN PRAKASH Vs
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
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
O R D E R
R. BANUMATHI, J .
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.
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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
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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
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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 record.
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:-
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(i) the nature and gravity of the accusation;
(ii) 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;
(iii) the possibility of the applicant to flee from justice; and
(iv) 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
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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,
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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.
………………………..J. (V. Gopala Gowda)
………………………..J. (R. Banumathi)
New Delhi; November 19, 2014
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