Final Order 1

Order Details: Bail Order
Pdf Text: C. C. No. 262 BA 2025
CNR MHMM18-001104-2025
ORDER BELOW EXHIBIT – 1
(BELOW EXH-5 IN C.C. NO. 138 PW 2025)
1. Perused record. Heard both the sides. Heard Ld. Advocate for the
informant. Perused objections raised by informant.
2. The present application is filed under Section 480 of Bhartiya Nagarik
Suraksha Sanhita, 2023, for short B.N.S.S., by accused/applicant Mr.
Shamsundar Manjunath Nair, for bail.
3. This long application running into several pages, describes background
facts and pleadings reflects that each and every ground is also raised with basic
particulars, challenging the very nature of the offence and negating the possibility
of commission of any of the alleged offence. Those grounds pleaded can be
summarized, as follows -
i. No offence of criminal breach of trust made out.
ii. No other offence transpired as allegations are of civil nature.
iii. Nothing transpired against applicant and no evidence found against him,
about the other facts alleged, particularly cheating, forgery, etc.
iv. The charge-sheet is vague, the allegations are not substantiated by the
evidence produced.
v. The crime registered is off shoot of partnership dispute and the business
rivalry between the parties.
vi. The accused is in custody for substantial time. The investigation relating
to him is over, charge-sheet is also filed.
vii. Accused is ready to abide by the conditions. He is of advance stage of
age and is suffering from several ailments.
viii. Applicant is having roots in the society and ready to remain abide by the
conditions.
4. The Ld. APP and first informant, vide their say, Exhibits 6 and 7, objected
to the prayer of bail mainly on the grounds that the offence is serious as huge
amount involved. The active role of the accused transpired. There is sufficient
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evidence against the accused found and came on record during investigation,
which is filed with the charge-sheet. Accused had not cooperated during
investigation, substantial part of investigation is still incomplete and the material
evidence is yet missing. There is every possibility of tampering as the remaining
evidence is yet to be collected, though charge-sheet is filed. The previous bail
applications are already rejected and merely because charge-sheet has been filed,
it cannot be said to be valid ground to enlarge the accused on bail.
5. Both the parties argued at length. Learned advocate for the
accused/applicant mainly relied on the fact that, no offence of criminal breach of
trust made out. He traversed the court through charge-sheet that is evidence
collected during investigation and tried to show that there is no evidence
collected, which will connect the applicant with the allegations in the First
Information Report. About the basic allegations he submitted that, there is no
evidence collected on the basis of which it can be inferred that any offence has
been transpired. Informant is aware of all the transactions entered into by firm
during it’s business. Accused is ready to remain abide by the conditions and will
not abscond or tamper with the evidence. In support of his submissions learned
advocate for the applicant relied on several judgments of Supreme Court and our
parent High Court, those are discussed in later part of this order with their
respective relevance.
6. The learned APP and learned advocate for the informant relying on the
contents of the charge-sheet submitted that evidence collected during and
produced after investigation, shows that prima-facie accused has committed
several acts resulting in lost to crores of rupees to informant. All the offences
clearly made out. The allegations are serious. The previous bail pleas are
rejected. The informant suffered tremendous loss. The grounds assigned are not
enough to grant bail. Therefore, application shall be rejected. They also relied on
several judgment of Supreme Court and our parent High Court, discussed in later
part of this order.
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7. So far as, the main ground raised is concerned, applicant heavily relied on
the ground that no offence of criminal breach of trust made out. It is submitted
that the dispute being partners interse, all the partners are co-owners of the
property of the firm and the element of dominion of accused over property of the
firm is missing. So also, the element of any special agreement is also missing.
Therefore, it cannot be said that the offence of criminal breach of trust has been
made out. Learned advocate mainly relied on judgment of Supreme Court in case
of Velji Raghavaji Patel Vs. State of Maharashtra, 1964 SCC Online SC 185,
wherein it is observed that entrustment of a property between partners of a firm
interse, does not constitute offence of criminal breach of trust, in absence of any
special agreement. The learned advocate of the applicant also relied on several
other judgments of our parent High Court, wherein relying on this judgment of
Supreme Court same observations are made.
8. For considering this very objection about the invocation of an offence of
criminal breach of trust provided in Section 405 of Indian Penal Code, on wards
at very beginning of the discussion one needs to go to the allegations made in the
First Information Report. All these allegations are mainly divided into five
categories. First, that applicant used the account of IDBI Bank for transferring
and siphoning of the money, though it is agreed amongst the partners that, as
Canara Bank provided financial aid to the firm, the firm will do all its
transactions through Canara Bank only. Second, the accused had deliberately
inflated the profits of the firm by manipulating the financial statements with the
help of Chartered Accountant of firm. Third, accused had not properly
maintained the record of stock, human resource and various other expenses
incurred by the firm. Fourth, accused shown fake purchases of the yield at higher
cost, defrauded firm by obtaining those amounts for his own benefit. Lastly,
accused without consent of informant exhausted his fixed deposit against
repayment of loan of the firm.
9. From the law laid down by Supreme Court in above case of Velji
Raghavaji Patel, it is clear that entrustment of a property between partners of a
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firm interse, does not constitute offence of criminal breach of trust. This court in
its previous bail order, it is specifically observed that in the present matter the
allegations are not only in respect of siphoning of the property of the firm, but
those are in respect of other properties as well. One of the allegation is that the
accused without consent of informant exhausted his fixed deposit against
repayment of loan of the firm. This fact is supported by the documentary
evidence collected during investigation and produced with the charge-sheet.
10. Thus, in respect of the firm capital/property of firm, the law, laid down in
the case of Velji Raghavaji Patel, may apply but in respect of personal property
of informant the said principle of law is not applicable. Further, the nature of
transactions are several in numbers. At this juncture, it is very difficult to
distinguish or separate those transactions and identify the specific transaction
constituting the particular offence. On this count also there is doubt whether this
principle of law can be applied or not?, at least to the limited extent of
consideration of bail prayer.
11. This court is aware of the fact that this being basic objection, while
considering bail prayer it is bound to be decided whether any particular punishing
provision can be invoked or not?, for purpose of bail. But this mandate is
applicable only in cases where there are no other non-bailable offences alleged
and transpired.
12. In this matter, as discussed above, in Paragraph No.8, there are five sets of
facts mainly alleged. Out of those facts, though some of the allegations
constituting criminal breach of trust, the other allegations also constitutes an
offence of cheating punishable under Section 420 of Indian Penal Code. The said
offence is non-bailable offence and is also serious offence. Therefore, it is not
mandatory on the part of this court to consider the submissions contending that
no offence of criminal breach of trust made out and that too in this bail
application, which is summary proceeding having least bearing on the fate of the
main matter.
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13. It can also be said that, the offence of cheating and criminal brach of trust,
cannot co-exists. But as noticed now and observed in previous bail order as well,
passed before filing of charge sheet, transactions are in several numbers done for
several years. It is also noticed that these are not limited to the property of firm
only and this situation is not much changed even after filing of the charge-sheet,
the said principle of law can also be said to be not applicable to the case in hand.
14. The summary of the above discussion is that, submissions made by
learned advocate for the accused/applicant to the effect that offence of criminal
breach of trust not made out, are not sustainable. So also, as another separate
non-bailable offence i.e. offence of cheating transpired the submissions to that
effect carries least importance, without going into other merits of the matter.
15. If we go to the other merits of the matter, the learned advocate of the
applicant meticulously brought on record certain facts transpired from the
evidence collected during investigation. He drew attention towards several e-mail
exchanges between informant’s sister and Chartered Accountant of the firm,
which reflects that with the consent of the informant or his sister, disputed
balance sheets/account statements were prepared. Certain other documents also
reflect that informant and his sister were aware of the transactions going on with
the IDBI Bank, despite decision of the firm not to transact with it.
16. But about remaining main allegations, particularly relating to purchase of
yield at inflated rate with a view to siphoning of the money and transfer of Fixed
Deposit amount etc. there is ample evidence on record collected during
investigation. These documents show that during long course of time, the
accused/applicant committed fraud on the firm and cheated the informant to the
tune of several crores of rupees.
17. Much has been elaborated in the grounds pleaded for bail. But, elaborating
the evidence for the purpose of bail like scrutiny of evidence after conclusion of
trial, is not expected at this stage. From the documentary evidence collected
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during investigation, filed with the charge-sheet, it cannot be said that accused is
innocent and deserves bail.
18. Further it is also noticed that though the charge-sheet is filed, the
investigation still going on. There is no material produced in support of
dependency factor and illness. Even if those factors considered to be true, the
nature of offence and amount involved, if compared with the grounds pleaded,
the balance tilts in favour of the prosecution which leads to inference that those
are not enough to grant the bail to accused.
19. In view of above discussed factual and legal aspects of the matter
transpired from the charge-sheet, following order -
ORDER
The application is rejected.
MUMBAI (KOMALSING RAJPUT)
DATE – 15.02.2025 J.M.F.C., 12TH COURT, BANDRA, MUMBAI
ssl.
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