CNR No.

MHCC02­004047­2022
IN THE COURT OF SESSION FOR GR. BOMBAY AT MUMBAI
BAIL APPLICATION NO.700 OF 2022
Jagdish Shrivastav,
Age – 51 year, Occ – Business,
R/o – 39/301, Siddhkala Apartment,
Near Swimming Pool, Manish Nagar,
Kalwa West, thane­400605.

…
Applicant
…
Respondent
…
Intervener.

Versus
The State of Maharashtra
(At the instance of Police Station,
Dadar,
C.R.No.896/2021)
And
Pushpalta Nana Khandare
Appearance:
Mr. Prem Kumar R. Pandey, Ld. Adv. for applicant.
Mrs. Rashmi Tendulkar, Ld. Addl. P.P.
Mr. Tushhar Khandare, Ld. Adv. for Intervener.
CORAM :
DATE :
HIS HONOUR ADDL.SESSIONS
JUDGE M. G. DESHPANDE
(C.R.No.16)
April 28, 2022
ORDER
1.

Applicant
Jagdish
Shrivastav
is
accused
in
C.R.No.896/2021 registered with Dadar Police Station under Ss. 465,
467, 468, 471 r.w Sec.34 of I.P.C. He is praying for bail. Prosecution
vide say (Exh.4) of Investigating Officer, strongly opposed the
application and contended to reject on following grounds,
a.

Cheated amount is yet to be recovered.

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BA No.700/2022
b.

If, bail is granted accused will cheat people by repeating crime.

c.

He is likely to threaten the informant and prosecution witnesses.

d.

His wife is also habitual in committing such offences. Applicant
pretends himself that, he is an employee of Municipal
Corporation and commits offences as alleged.

e.

Investigation is yet to finish.
With this, prosecution contended to reject the application.

2.

This
application
was
pending
in
C.R.No.22
and
subsequently transferred at the request of the Ld. Presiding Officer
(C.R.No.22), who partly granted Intervener’s application Exh.3.

He
allowed the Intervener to assist Ld. A.P.P and file written notes of
argument. Accordingly, Intervener filed the same at Exh.5 in the said
Court (C.R.No.22) itself and did not appear in this Court. In the written
notes Intervener reiterated facts involved in the case pointing out how
applicant and his wife cheated the informant and further their failure
upto the Hon’ble Supreme Court.
3.

In this background, heard Ld. Adv. Mr. Prem Kumar
Pandey for the applicant and Ld. A.P.P Mrs. Rashmi Tendulkar.
Following points arise for my determination. I am recording following
findings thereon for the reasons discussed below :­
POINTS
FINDINGS
1.

Whether the applicant­accused has made
out a strong prima­facie case to release him
on bail ?

No.

2.

What Order ?

Application stands
rejected.

BA No.700/2022
.. 3..

REASONS
POINT NO.1.
FACTS INVOLVED IN C.R.NO. 896 OF 2021
4.

The FIR is lodged by one Pushpalata Khandare on
28.11.2022. She has stated that she was knowing applicant No.1 since
past many years. She had taken financial help from the informant to the
tune of Rs.7 Lakhs in the year 2018 on the ground that her mother was
not well and the money was needed for her treatment. At that time,
applicant No.2 was present with applicant No.1. The informant asked
for return of that money but it was never returned. However, out of
Rs.7 Lakhs, they promised to give cheque for Rs.4 Lakhs and Rs.3 Lakhs
in cash. The cheque was given, but, the cheque was dishonoured. Thus,
no money was given. The amount of Rs.7 Lakhs was misappropriated.

5.

The informant pursued that matter with the applicants. At
that time, applicant No.1 told her that applicant No.2 was in a position
to get a room from Thane Municipal Corporation and that they would
get two rooms for lesser price and from that transaction she could
return Rs.7 Lakhs. The informant initially refused, but, just to get back
her money she decided to go ahead with the transaction. At that time,
the applicants showed documents in respect of room No.504, building
No.13/01 at Dharmaveer Nagar, Thane. They showed the original
documents and told the informant that the room stood in the name of
their relatives and those relatives would complete the transaction and
that the informant will have to pay the registration fees. The price was
quoted at Rs.30 Lakhs but by way of concession, they were willing to
sell that room to the informant for Rs.25 Lakhs. They also took certain
amounts in cash for giving to certain officers. Thus, both the applicants
extracted Rs.10 Lakhs from the informant. Even thereafter applicant
BA No.700/2022
.. 4..

No.1 told her that she was in dire need of money and she was willing to
sell her flat at Badlapur for Rs.30 Lakhs though the market price of the
flat was Rs.40 Lakhs. On this inducement also the informant paid Rs.13
Lakhs to both the applicants. She was given keys of that flat. Thus, the
applicants had taken Rs.30 Lakhs from the informant out of which an
amount of Rs.1,66,500/­ was returned and the balance amount of
Rs.28,33,500/­ was not returned. Subsequently, neither of the rooms or
the flat was given to the informant. Based on these allegations, the FIR
is lodged.
6.

It is necessary to note history of this application.
HISTORY
a.

Present applicant and his wife Jayshree Jagdish Shrivastav
initially filed Anticipatory Bail Application No.2674/2021
before this Court, which was rejected vide order
dt.13.01.2022.

b.

Against the rejection of ABA No.2674/2021, the said
applicants approached the Hon’ble Bombay High Court vide
A.B.A. No. 158/2022, which was also rejected vide order
dt.20.01.2022.

c.

Against both rejections, applicant approached the Hon’ble
Supreme Court vide Petition(s) for Special Leave Petition to
Appeal (Crl.) No(s).1758/2022. However, the Hon’ble
Supreme Court disposed off the same with certain
observations, which are reproduced below :­
“Counsel for the petitioners submits that no
notice under Section 41(A) Cr.P.C. was ever
served and after this fact came to the notice of
the Investigating Officer that SLPs have been
preferred by the petitioners for seeking pre­
arrest bail, he approached them and took the
petitioners into custody on 8th March, 2022.
Since the petitioners have now been in
custody, it may not be appropriate for this Court
to pass further orders but at the same time, we
grant them liberty to file regular bail
application.

BA No.700/2022
.. 5..

If such application is filed, it is expected
from the Trial Court to take note of non­
compliance of Section 41(A) Cr.P.C. and dispose
of the application for post­arrest bail, if any,
filed by the petitioners within a reasonable time
as expeditiously as possible”
In the aforesaid background present application is filed.
7.

GROUNDS FOR BAIL
a.

Applicant was arrested on 08.03.2022, but the Ld. Court of
First Instance without application of mind granted police
custody for 8 days and further extended till 19.03.2022.

b.

Bail Application No.397/BA/2022 preferred
applicant was rejected vide order dt.25.03.2022.

c.

Allegations in the FIR are against the main accused i.e. the
wife of the applicant wherein he has no role in the alleged
offence.

d.

Applicant had issued cheque for repayment which was
dishonoured, but no case under Sec.138 of NI Act has been
filed against him.

e.

There is delay in lodging FIR and the reasoning given by the
Ld. Court of First Instance for the same is vague and casual.

f.

Impugned order passed by the Ld. Court of First Instance is
an outcome of non­application of mind and did not consider
the direction of the Hon’ble Supreme Court in respect of
non­compliance of provision under Sec.41A Cr.P.C.

g.

Submissions made by Ld.Adv. for applicant while arguing
the bail application, are not recorded by the Ld. Court of
First Instance.

h.

There is no writing i.e. agreement, MOU, Email, Whatsapp
chat, SMS, relating to the controversy, but FIR is only
restricted to cash component.

i.

Applicant had already returned an amount of Rs.4,66,500/­
against an amount of Rs.3 Lakh taken from the first
Informant.

by
the
BA No.700/2022
.. 6..

j.

Ld. Magistrate has non considered bank statement, when
there is no evidence regarding the claim of lending money
to the tune of Rs.30 Lakh.

k.

Ingredients of offence of forgery do not attract even if the
prosecution version is accepted in totality as gospel truth.

l.

Modus­operandi of the first informant is to advance sums to
the needy person and coerce them to repay exorbitant
amount in return. Regarding illegal demands made by first
Informant, applicant’s wife had filed a complaint on
18.06.2020 to Sr.P.I, Kalwa Police Station.

m. Applicant’s wife vide her letters dt.18.06.2020, 18.07.2020
disclosed true and correct facts before Kalwa Police Station
and Dadar Police Station.
n.

FIR has misleading allegations that applicant’s wife has
duped Mrs. Rajshree Chalke, resident in the same locality
when she (Rajshree) had not lodged any FIR, complaint for
the same.

o.

Alleged forged documents were already seized and nothing
has remained to be recovered from the applicant. Hence, no
purpose will be served by keeping the applicant behind bars
as pre­trial detention.
These are the grounds claimed by the applicant for seeking
bail.

Ld. Adv. Mr. Pandey for the applicant argued on the above
grounds. I carefully examined these grounds, facts alleged in the FIR,
argument advanced by ld. Adv. Mr. Pandey, all investigation papers
produced by the Investigating Officer.
8.

Admittedly, investigation is still going on and chargesheet
has not been filed. Investigation papers produced by I.O. prima­facie
support the contention of prosecution. Those papers further indicate
that investigation is in progress. It is the case of the prosecution that,
the present applicant used to impersonate himself as an ’employee’ of
Municipal Corporation. Due to his pretendence as such, needy people
BA No.700/2022
.. 7..

believed the same and the informant is one of the victims, who got
cheated due to the pretendence of the applicant as such. Though, Ld.
Adv. Mr. Pandey for the applicant vehemently argued that alleged
offence is made by applicant’s wife and applicant had absolutely no role
for the same, these arguments are not acceptable at this stage when
investigation is in progress. If this argument is accepted, question still
remains why the applicant, having no role in the alleged crime, issued
cheque to the informant ?
9.

Facts alleged in the FIR and revealed in the investigation
prima­facie indicate that, the informant in this case has produced a copy
of the letter dt.20.09.2019 purportedly issued by Thane Municipal
Corporation in the name of Swapnali Tambitkar.

Contention of
Investigating Officer is that, the present applicant and his wife used this
letter to purportedly sell the room No.504, in Building No.13/1, 5 th
floor, Tulsidham, Dharmveer Nagar, Rehabilitation. The investigation
has revealed that, this particular document is forged. The stamp and
signature on this particular document are forged. The said room does
not stand even in the name of Swapnali Tambitkar, whom the said
letter of allotment was issued as pretended by applicant and his wife.
10.

Investigation papers contain letter No.745 dt.7.12.2020
issued by Thane Municipal Corporation to Sr.P.I, Dadar Police Station.
It relates to above mentioned room No.504 in Building No.13/A. By the
said letter Thane Municipal Corporation very clearly informed the
Investigating Officer which is reproduced below,
“rjh vki.kkal dGfo.;kr ;sr s dh] bekjr dz- 13 ph cka/ kdkes
lfoLrj izd Yi vgoky&1 ¼Mh-ih-vkj-&1½ var xZ r iq. kZ
dj.;kr vkysy h vlw u lnj bekjrhe/khy lnfudkap s lax .kdh;
lksM rh}kjs fn-19@04@2012 jkst h nq- 01-15 ok forj.k
BA No.700/2022
.. 8..

dj.;kr vkys vkgs- lnj bekjrhe/khy lnfudk /keZ o hjuxj]
rqG ‘kh/kke ch-,l-;q- ih&4 ;k izd Yike/ks ckf/krkau k forfjr
dj.;kr vkysy s vkgsr – R;kiSd h bekjr dz- 13 e/khy etyk
dz- 05 lnfudk 504 gh lnfudk Jh- olar ukuk m?kMs] >ksi Mh
dz- 764 o ck;kse W V ª h d dz- 4873 lax .kdh; lksM rh}kjs forfjr
dj.;kr vkyh vkgs- rlsp vki.k i=klksc r tksM ysy h rkck
dz- Bkeik@LFkkekfo@dk;kZ v /kh&fn-20-09-2019 o uksV hl dzBkeik@’kfofo@7424@2139 fn-20-09-2019 ;k nksU gh ;k
dk;kZ y ;kdMw u fnysY ;k ukghlnj rkck ikorh o uksV hl
;kaP ;kojhy Lok{kjh ;k [kksV ;k vkgsr R;kpize k.ks uksO gs ac j 2019 e/;s Bk.ks egkikfydk {ks= kr
/keZ o hjuxj] rqG ‘kh/kke ;k fBdk.kh v’kkizd kjs [kksV ;k rkck
ikorh cuoqu Qlo.kw d dsY ;kP;k ukxfjdkaP ;k rdzk jh izk Ir
>kY;kuar j dk;kZ y ;hu v/kh{kd] LFkkoj ekyeRrk foHkkx
;kaP ;kekQZ r egkikfydsP ;korhus fprGlj ekuikMk iksy hl
LVs’ ku] Bk.ks ‘kgj ;sF ks fQ;kZ n dz- 0260 fn-24@12@2019
vUo;s xqU gk nk[ky dsy k vkgs- lnj xqU g;ke/;s Jherh t;Jh
JhokLro ;kap k izF ken’kZ u h lgHkkx vlY;kps fnlrs;k
izd j.kh iksf ylkau h xqU gk uka sn foyk vkgs;kckcr vf/kdph
ekfgrh fprGlj ekuikMk iksf yl Lvs’ ku] Bk.ks ‘kgj ;kal dMw u
miyC/k gksm ‘kdrs- lcc F.I.R. ph izr ekfgrhlkBh lksc r
tksM .;kr ;sr vkgs ”Not only this, but Executive Engineer, Thane Municipal
Corporation vide his letter dt.02.12.2020 informed The Office
Superintendent, T.M.C., specifically informed as follows,
“/keZ o hjuxj] rqG ‘kh/kke ;sF khy Hkw [ kaM lOgsZ dz- 41@1 ¼i½ o
41@3 ¼i½ oj dsan z ‘kklukP;k ch-,l-;q- ih- ;kst usv ar xZ r
Mh-ih-vkj&1]2]3 o 4 feGw u ,dw . k 36 bekjrh 3092
lnfudkap h cka/ kdkes iw . kZ dj.;kr vkysy h vkgsr – R;kiSd h
bekjr dz- 13 ph cka/ kdkes lfoLrj izd Yi vgoky &1 ¼Mhih-vkj&1½ var xZ r iw . kZ dj.;kr vkysy h vlw u lnj
bekjrhe/khy lnfudkap s lax .kdh; lksM rh}kjs fn-19-04-2012
jkst h nq- 01-15 ok- forj.k dj.;krs vkysy s vkgslnj
bekjrhe/khy
lnfudk
/keZ o hjuxj]
rqG ‘kh/kke
;sF khy
Hkw [ kaM kojhy ch-,e-;q- ih- izd Yi ckf/krkau k forjhr dj.;kr
vkysY ;k vkgsr – ikpO;k etY;kojhy lnfudk dz- 504 fg
Hkw [ kaM kojhy ch-,l-;q- ih- izd Yi ckf/kr ykHkkFkhZ Jh-olar ukuk
m?kMs] >ksi Mh dz- 764 o ck;kz dz- 4873 ;kau k lax .kdh;
lksM rh}kjs forjhr dj.;kr vkysy h vkgs- ”
Prima­facie these two letters clearly indicate that, whatever
letter of allotment shown by the applicant and his wife is nothing but
BA No.700/2022
.. 9..

forged and bogus document created and used by them for committing
offence. At this stage the investigating agency has definite material
against the applicant.

Present applicant cannot rescue himself by
putting gun on the shoulder of his wife.

These documents clearly
indicate that, the applicant and his wife had given these documents to
the informant and the same are seized during investigation. Refund of
money by way of issuing cheque by the applicant itself speaks volumes
and prima­facie demolishes his contention that he had no role and
whatever offence alleged is made by his wife. Therefore, at this initial
stage there is a strong prima­facie case of forgery of stamp and
signature, which is very serious offence.
11.

Contention of the applicant that he had absolutely no role
in the offence alleged against him, that his wife is the main accused but
he was unnecessarily and falsely got implicated alongwith her wife, that
various bank statements show that it was only transaction of Rs.3 Lakh
and applicant had repaid more than Rs.4 lakh for the same, etc. can be
a matter to be dealt with in the trial at the stage of evidence. As noted
above, investigation is in progress.

There are serious similar
antecedents against applicant and his wife. Applicant cannot separate
himself from the same in view of his role demonstrated in the FIR.
Allegations in the FIR, statements of the witnesses, prima­facie indicate
that, the applicant was present on all the occasions when the money
was given to him and his wife. Considering the antecedents, I am of the
opinion that, granting bail when the investigation is in progress and yet
to finish, would ultimately cause interference in the investigation.
12.

It is an admitted fact that, anticipatory bail application
preferred by the applicant and his wife was rejected. Even the Hon’ble
BA No.700/2022
.. 10..

High Court rejected the anticipatory bail application of the applicant
and his wife.
Court.

He then preferred SLPs before the Hon’ble Supreme
During its pendency, he was arrested by the Investigating
Officer. The order of the Hon’ble Supreme Court clearly indicates that
the Ld. Counsel for the applicant made submission that, no notice under
Sec.41A Cr.P.C. was ever served and after this fact came to the notice of
the Investigating Officer that, SLPs have been preferred by the applicant
for seeking pre­arrest bail, he (I.O.) approached them and took the
petitioner in their custody on 08.03.2022.

In this background the
Hon’ble Supreme Court granted liberty to the applicant to file regular
bail application. It is also directed if such an application is filed, it is
expected from the Trial Court to take note of non­compliance of
Sec.41A Cr.P.C. and dispose of the application for post­arrest bail, if
any, filed by the petitioner (applicant) within a reasonable time.
13.

Ld. Adv. Mr. Pandey placed his reliance on Sheila
Sebastian Vs. R. Jawaharaj & Anr. Etc. (Criminal Appeal NO.359­
360 of 2010, decided on May 11, 2018), wherein the facts indicate
that, the Hon’ble Madras High Court has allowed the Criminal Revisions
and held as, the conviction of accused is not sustainable under Sec.465
of IPC.

Wherein the Hon’ble Supreme Court held as, “A charge of
forgery cannot be imposed on a person who is not a maker of the same.
Making of a document is different than causing it to be made.

As
Explanation 2 to Section 464 further clarifies that for constituting an
offence under Section 464 it is imperative that a false document is made
and the accused person is the maker of the same, otherwise the accused
persons is not liable for the offence of forgery.” In the present case
though accused contends that, he had no role and his wife is the main
accused, therefore he cannot be considered as maker of a document and
.. 11..

BA No.700/2022
caused it to be made. Allegations in the FIR clearly indicate the manner
in which the informant was cheated by both i.e applicant and his wife.
Therefore, the same is sufficient at this stage to hold the involvement of
the applicant. Whatever contended by the applicant can be a part of his
defence in the trial.

Therefore, the ratio of this authority is not
applicable to the facts of the present case.
14.

Ld. Adv. for the applicant further placed his reliance on
S.V.L. Murthy Vs. State, Represented by CBI, Hyderabad, (2009)6
SCC 77, wherein the Hon’ble Supreme Court held that, complainant is
required to show that accused had fraudulent and dishonest intention at
the time of making promise or representation.

In the absence of
culpable intention at the time of making initial promise, no offence is
made out under Sec.420 IPC.

Facts in this authority indicate that
accused therein had faced trial.

Applicant herein is yet to be
chargesheeted as the investigation is in progress.

Apart from this,
documents produced by Investigating officer clearly indicate that, fake
and bogus letter showing allotment of letter in the name of Swapnali
Tambitkar has been used for gaining confidence of the informant. TMC
has made it clear that, no such allotment in the name of Swapnali
Tambitkar had ever made by TMC and such letter, signature and stamp
therein are bogus and fabricated.

At this preliminary stage this
evidence is sufficient to point out fraudulent and dishonest intention of
the applicant and his wife of making promise to the informant. The role
attributed to the present applicant is that, he had impersonated himself
as staff of Municipal Corporation and gained confidence of the
informant. Therefore, the ratio of this authority is not applicable to the
present case.

BA No.700/2022
15.

.. 12..

Ld. Adv. Mr. Pandey further placed his reliance on Uma
Shankar Gopalika Vs. Stat of Bihar and Anr. (2005)10 SCC 336,
wherein the Hon’ble Supreme Court held as, “Requisites to constitute an
offence of breach of contract, held, would amount to cheating only if
intention to cheat was existing at the very inception. If such intention
developed later on , the same would not amount to cheating.” I have
already noted above, how the applicant and his wife gained confidence
of the informant, wherein the applicant imbibed that, he is staff of
Municipal Corporation.

While implementing their strategy applicant
and his wife used fake, bogus, forged allotment letter with forged
signature and stamp of Municipal Authorities. All this prima­facie
reflects material ingredients of Sec.420, 465, 467, 468, 471 IPC.
Therefore, the ratio of this authority is not applicable to the facts of
present case.
16.

It is argument of Ld. Adv. for the accused that, ld. Court of
First Instance has not considered this aspect properly.

I carefully
examined this argument. It has to be noted that one of the offences
levelled against the applicant is under Sec.467 IPC. There is abundant
evidence available with the papers of investigation to indicate that,
applicant and his wife had produced a copy of letter dt.20.09.2019
purportedly issued by TMC in the name of Swapnali Tambitkar and the
same letter is used by the applicant and his wife to purportedly sell the
room No.504 in Building No.13/A.

I have already referred letters
issued by TMC making clear that, the stamp and signature on these
particular documents are forged. The said room does not stand in the
name of Swapnali Tambitkar. I have already discussed this aspect in
detail above. However, prima­facie there is an offence under Sec.467
IPC, which provides punishment with imprisonment for life or with
.. 13..

BA No.700/2022
imprisonment of either description for a term which may extend to 10
years with fine. Therefore, custodial interrogation of the applicant is
necessary. Even the Hon’ble High Court in order dt.20.01.2022 vide
ABA No.158/2022 has clearly held that, forgery of stamp and signature
is a serious offence.
17.

Even the antecedents of the applicant were observed by the
Hon’ble High Court and thereafter anticipatory bail application of the
applicant and his wife was rejected. I have already noted above how
contention of the applicant that, sole involvement in the offence is that
of his wife and he had not played any role. But allegations in the FIR
prima­facie supported by the documents referred above, statements of
witnesses and the investigation papers clearly point out involvement of
the present applicant.

Considering the punishment provided under
Sec.467 IPC, the applicant can be arrested for custodial interrogation
and Sec.41A Cr.P.C. will not come in its way.

With this, I hold that
applicant is failed to establish strong prima­facie case. Hence, Point
No.1 is answered in the negative and following order is passed :­
ORDER
Bail Application No.700 of 2022 stands rejected.
MADHAV
GOPAL
DESHPANDE
Dt.: 28.04.2022
Signed on
Digitally signed
by MADHAV
GOPAL
DESHPANDE
Date: 2022.04.28
13:57:46 +0530
( M.G. Deshpande )
Addl. Sessions Judge.
C.R.No.16, Gr.Bombay at Mumbai
: 28.04.2022
BA No.700/2022
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
28.04.2022
at
hours
UPLOAD DATE AND TIME
Name of the Judge
Date
of
pronouncement
judgment/order
(KISHOR PRAKASH SHERWADE)
NAME OF STENOGRAPHER
HHJ M. G. DESHPANDE
(COURT ROOM NO.16)
of 28.04.2022
Judgment/order signed by P.O. on
28.04.2022
Judgment/order uploaded on
28.04.2022