Final Order 1

Order Details: Order
Pdf Text: 1 C.N.R. No.MHMM13-0239072025
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS),
30TH COURT, KURLA, MUMBAI.
Misc. No. :-2797/M/2025 ( In C.R. No.442/2021, Matunga P.Stn.)
Shailesh Jayantilal Malde & Others. … Applicant.
V/s.
1. Sr. Inspector of Police,
(Matunga Police Station)
2. Karan Atul Malde (Intervener)
...Respondents.
ORDER PASSED BELOW EXH.1
1. Read application & supporting affidavit, say of Ld. A.P.P. and
say of Intervener Shri.Karan Atul Malde. Perused charge-sheet in C.C.
No.1905/PW/2023 arising out of crime No.442/2021 registered at
Matunga Police Station against applicants and daughter-in-law of
applicant no.1 Hetal Malde. Heard all the parties and considered all the
documents on record.
2. On the complaint of Shri.Karan Atul Malde (Intervener) an
FIR bearing 442/2021 dated 01.08.2021 for the alleged offence
punishable under Section 403, 406, 420, 465, 467, 468, 471 r/w. 34 of
the Indian Penal Code, 1860 against applicants and Hetal Malde has
been filed at Matunga Police Station. It is reveals that Karan Malde is
the nephew of Shailesh Malde and cousin brother of Kewal Malde. It is
alleged that Kewal Malde being Chartered Accountant was looking after
financial transactions of informant’s family including saving accounts,
business accounts and PPF accounts. It is further alleged that, having
knowledge of accounts and its details, Kewal Malde misappropriated
amounts from PPF accounts by using saving accounts and transfering
them to their accounts behind the back and without the consent of
informant or his family members.
3. In the FIR misappropriation of amount of Rs.3,72,984/-
was claimed. As per the charge-sheet, during investigation it is found
that around Rs.49,57,393/- has been transferred to the accounts of
Mrs.Hetal Malde and Shailesh Malde by Kewal Malde with the help of
mobile and Google App, internet banking etc. The detail report about
the exact amounts transferred from accounts of informant and his
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family members to the accounts of accused and his family members is
filed by the Investigating Officer dated 11.08.2026.
4. By the present application, the applicants seek de-freezing
of the bank account standing in the name of “Kewal Store”, Proprietor
Shailesh Malde, applicant no.1 being the holder of account, which came
to be frozen by the Investigating Officer under Section 102 of the Code
of Criminal Procedure during the investigation of C.R. No. 442/2021
registered with Matunga Police Station.
5. Heard the learned Advocate for the applicant, the learned
APP for the State and the learned Advocate appearing for the
intervener/original informant. The charge-sheet, investigation papers
and documents placed on record have been perused.
6. It is the case of the prosecution that during investigation it
was revealed that amounts belonging to the informant and his family
members were transferred into the bank accounts of the accused. The
prosecution has relied upon the statements of bank officials, bank
records and other material collected during investigation. According to
the charge-sheet, the total amount allegedly transferred from the
accounts of the informant and his family members to the accounts of
the accused aggregates to Rs.49,57,390/-. It is therefore contended that
the frozen accounts are directly connected with the alleged commission
of the offences and deserve to remain protected.
7. The learned APP relied upon the decisions in State of
Maharashtra v. Tapas D. Neogy, Teesta Atul Setalvad v. State of Gujarat,
Criminal Appeal No.1099 of 2017; Ezulix Software Pvt. Ltd. v. State of
Maharashtra, 2021 and Gulam Sarvar v. State of Maharashtra, 2018
SCC OnLine Bom 164, to contend that where the investigating agency
has material establishing a nexus between the bank account and the
alleged offence, the power under Section 102 Cr.P.C. is validly exercised.
8. The applicant, on the other hand, submit that the
transactions arose out of long-standing family and business dealings
between closely related parties. It is contended that the accounts belong
to running business concerns; the investigation is complete; the charge-
sheet has already been filed; and continued freezing of the entire
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accounts is causing serious hardship and preventing the applicants from
carrying on their business and day-to-day affairs. It is also submitted
that the Investigating Officer has not considered the amounts
transferred from the accounts of applicant and his family to the
accounts of informant and his family. But except a chart there is
nothing on record to ascertain this fact.
9. There is no dispute that the parties are closely related and
that disputes relating to family business and partition exist. Equally, the
charge-sheet discloses specific allegations that monies standing in the
names of the informant and his family members were transferred to the
accounts of the accused. Whether those transfers were authorised
family transactions, as contended by the applicants, or constitute the
offences alleged by the prosecution, is a matter which can be
determined only after appreciation of evidence during trial.
10. The legal position regarding freezing of bank accounts
under Section 102 Cr.P.C. is well settled. In State of Maharashtra v.
Tapas D. Neogy, the Hon'ble Supreme Court held that a bank account is
"property" within the meaning of Section 102 Cr.P.C. and can be seized
or frozen where it has nexus with the commission of an offence. In
Ezulix Software Pvt. Ltd., the Bombay High Court observed that the
investigating agency must possess sufficient material showing a
connection between the bank account and the alleged offence. Similarly,
in Gulam Sarvar, it was held that a mere allegation is not enough and
there must exist material creating a reasonable suspicion regarding such
nexus. The Hon'ble Supreme Court in Teesta Atul Setalvad reiterated
that the power to freeze bank accounts is to be exercised for
preservation of property connected with the alleged offence and that
the Court is required to balance the interests of investigation and the
proprietary rights of the account holder.
11. In the present case, unlike a case resting on bare
allegations, the charge-sheet contains bank statements and other
documentary material showing transfers from the accounts of the
informant and his family members to the accounts of the accused. Thus,
at this stage, it cannot be said that the freezing action lacked any
material nexus with the alleged offences.
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12. However, it is equally relevant that the investigation has
been completed and the charge-sheet has already been filed. The object
of freezing the accounts is to preserve the property alleged to be
connected with the crime and not to indefinitely inactivate the lawful
business or financial activities of an accused. Continued freezing of the
entire bank accounts, irrespective of the amount allegedly involved,
would result in disproportionate hardship, particularly when the
disputed amount can be adequately secured by appropriate conditions.
13. Therefore, the interest of justice would be served by
permitting operation of the accounts while securing the amount alleged
in the charge-sheet/report of I.O dated 11.08.2026 to have been
transferred from the accounts of the informant and his family members.
Such a course adequately safeguards the prosecution and the informant
without unnecessarily restraining the applicants from operating their
accounts.
O R D E R
1 The application is partly allowed.
2. The Investigating Officer shall forthwith communicate this order
to the concerned banks.
3. The following bank account of the applicants shall stand de-
frozen, subject to the conditions mentioned here in below:
current account in the name of Kewal Stores bearing Account No.
05800200000327, Bank of Baroda, Bhaudaji Road Branch,
Mumbai subject to lien of Rs.1,25,000/-
4. Accordingly, the concerned banks shall maintain a lien/freeze
over the amount mentioned above.
5. The applicants shall be entitled to operate the account in respect
of the remaining balance and all future deposits and transactions,
subject to the aforesaid lien.
6. The applicants shall not close any of the aforesaid account or
create any third-party interest in the amount kept under lien
without prior permission of this Court.
7. The amount kept under lien shall not be withdrawn, transferred
or otherwise dealt with except with prior leave of this Court.
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8. The banks shall continue to preserve all account statements and
transaction records and shall furnish the same to the Court or the
Investigating Officer whenever directed.
9. It is clarified that the observations made herein are confined to
the adjudication of the present application and shall not be
construed as an expression on the merits of the prosecution case
or the defence of the applicants.
10.Criminal Miscellaneous Application stands disposed of
accordingly.
Pronounced in open Court.
Dated : 12.08.2026
(V.S.Khandbahale )
Judicial Magistrate (First Class)
30th Court, Kurla, Mumbai.
sss.
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