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Order in BA no. 731/23
MHCC020126392023
BEFORE THE DESIGNATED COURT UNDER M.P.I.D. ACT
CITY CIVIL & SESSIONS COURT, MUMBAI
BAIL APPLICATION NO.731 OF 2023
Akshay Pradeep Ahuja
Aged : 21 years,
Residing at A/2101, Acme Avenue CHSL,
Ambedkar Nagar, Kandivali (West),
Mumbai – 400067.
(Presently in Arthur Road Jail)
]
]
]
]
] Applicant/
]… Accused
Versus
The State of Maharashtra
(Through Charkop Kandivali Police Station)
]
]… Respondent
Appearances:Ld. Advocate S. V. Sonawane for the Applicant.
Ld. SPP Seema Deshpande for the State/ Respondent.
Ld. Advocate Vijaya Obhan for Intervenor.
CORAM : HIS HONOUR JUDGE
SHRI S. B. JOSHI
(Court Room no. 7)
DATE : 15th September, 2023.
ORAL ORDER
1.

The present application is moved by the Applicant Akshay
Pradeep Ahuja resident of Kandivali, Mumbai under Section 439
of The Code of Criminal Procedure, 1973 for grant of regular bail
in connection with C.R. No.284 of 2023 registered with Kandivali
Police Station for the offences punishable under Sections 406,
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Order in BA no. 731/23
409 and 420 of the Indian Penal Code, 1860 (hereinafter referred
as “IPC”) as well as Section 3 of The Maharashtra Protection of
Interest of Depositors Act, 1999 (hereinafter referred to as
“M.P.I.D. Act”)
2.

The Prosecution case as per F.I.R. dated 05.07.2023 copy on
record is that the Applicant is engaged in equity trading to
support his ailing mother and has skill in said trading. The
mother of the Applicant now deceased and died on 06.07.2023
informed the informant Kavita Hemant Kumar that shares give
good profit and thus advised her that she can do said share
trading and her son (Applicant) is looking after her trading
business due to her cancer ailment. Then the Applicant and his
mother both informed her about making investment in share
trading to the extent of 60% of the same along with additional
60% will be returned to her in two months. Also alternately 75%
of the amount under investment will be given every day, over and
above in 3 months time along with profit and principle amount.
Accordingly, the informant and her husband on consultation with
each other decided to hand over cash amount of Rs.7 Lakhs to the
Applicant. Accordingly an agreement in writing took place
mentioning that an amount of Rs.11,20,000/- (Rupees Eleven
Lakhs Twenty Thousand only) will be returned on 10.02.2023.
According to informant on that day she and her husband were
called at the house of the Applicant. At there, the Applicant
informed her husband that 60% more amount will be given to
him on investing Rs.11,20,000/- (Rupees Eleven Lakhs Twenty
Thousand only). This resulted in entering into another agreement
(second) between them on 13.04.2023 stating therein that an
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Order in BA no. 731/23
amount of Rs.17,62,000/- (Rupees Seventeen Lakhs Sixty Two
Thousand only) will be returned on 13.06.2023 and thus, the
informant reinvested as sum of Rs.11,20,000/- (Rupees Eleven
Lakhs Twenty Thousand only). Prior to that according to
informant, her husband made transfer of Rs.13,00,000/- (Rupees
Thirteen Lakhs only) in her account on 13.04.2023. It is further
submitted by the informant that there was transfer of
Rs.14,00,000/- (Rupees Fourteen Lakhs only) in her account on
dated 28.04.2023 and then her husband entered into agreement
with
the
Applicant
stating
that
informant
will
earn
Rs.88,00,000/-. Thus, according to informant, on making certain
investment with the Applicant she received certain amount. Then
on dated 02.05.2023, she made transfer of Rs.27,50,000/(Rupees Twenty Seven Lakhs Fifty Thousand only) from her
account in the account of the Applicant and accordingly an
agreement again came to be entered showing that the return will
be given @ Rs.1,50,000/- (Rupees One Lakh Fifty Thousand
only) per day till payment of principal amount. She has also paid
Rs.6,30,000/- (Rupees Six Lakhs Thirty Thousand only) in cash.
Then Applicant again made agreement dated 30.05.2020
showing that he received a sum of Rs.79,00,000/- (Rupees
Seventy Nine Lakhs only) and he will be pay Rs.3,96,480/
(Rupees Three Lakhs Ninety Six Thousand Four Hundred Eighty
only) per day. Then on making demand as to pay back
Rs.79,00,000/- (Rupees Seventy Nine Lakhs only) the Applicant
handed over the cheques in shape of securing for the payment in
total. Finally, on 05.07.2023, the informant apprehended that the
Applicant will flee away she approached Police Station concerned
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Order in BA no. 731/23
with relevant documents and then police caused the arrest of the
Applicant. Thus, according to informant the Applicant caused
cheating and misappropriated the sum of Rs.79,00,000/- (Rupees
Seventy Nine Lakhs only).
3.

Upon receiving this complaint, the crime in question came to
be registered on 05.07.2023 for the alleged offences under IPC
and later on the offences under MPID Act came to be added.

4.

The Applicant/accused denied this story in toto on grounds
that the whole statement of the first informant Kavita is silent to
show that there was any allegations as to inducement. She has
suppressed that she had obtained money from him as a friendly
loan and executed certain agreements to that effect. The alleged
amount was for share trading business. The alleged transaction
with the first informant was of civil nature which is given colour
of criminal liability. The Applicant has been falsely implicated in
this crime. The Police have wrongly made accusation under
Sections 406, 409 and 420 of IPC. None of these offences attracts.
The statement is without support and none of the offences under
IPC attracts as alleged. The Police have caused his arrest illegally.
Nothing is to be recovered from him. All documents are handed
over to Investigating Authority. The first informant has given false
statement. The dispute is of civil nature. Since 05.07.2023, he is
in judicial custody and the investigation is almost over. He being
resident of Mumbai, no possibility of his fleeing away and
tampering with the witnesses. He is ready to abide with any
condition if imposed and to co-operate with the Investigating
Authority. Thus, he prayed for releasing him on bail.

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5.

Order in BA no. 731/23
The Investigating Authority through Ld. SPP resisted this
application by filing say at Exhibit No.2 and submitted that
during investigation it is transpired that the Applicant has also
cheated so many investors like the Applicant and as such the
offence under MPID Act came to be added later on. During search
at the house of the Applicant, the Investigating Authority has
recovered and seized the documents related with the offence/
transactions. The relevant documents entered between the other
investors and the Applicant, have been seized. The bank
statements have also been seized. It is further submitted that on
making communication with the Sub-Registrar at Charkop,
Kandivali, it was informed that the Applicant/accused has no
landed property in Mumbai. The amount under cheat is yet to be
recovered. If the Applicant released then he will flee away from
justice and it will tamper investigation which is in progress. He
will also tamper the witnesses. Therefore, the application be
rejected.

6.

Ld. Advocate appearing for the Applicant submits that the
entire F.I.R. is silent to show alleged intention to cause cheating
and dishonest intention. It is silent to show by whom phone call
was made to Police before causing the arrest of the Applicant.
Only to book the Applicant the Police have inserted the offence
under Section 409 of IPC. By referring the provisions of Section 5
of IPC and Section 26 of the General Clauses Act, the Ld. Counsel
submitted that the Applicant is neither banker nor broker. It is
purely civil dispute. Investigating Authority can not make
recovery. All the documents pertaining to the alleged transactions
including bank accounts have been recovered. So she submitted
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Order in BA no. 731/23
for releasing the Applicant on bail.
7.

The Ld. SPP submitted that the investigation is still going on
the Applicant has cheated so many investors like the first
informant as it appears form their statements. The assets are not
yet secured. The end use of the amount under cheating is to be
traced out. The details of the bank account of the Applicant and
his mother are yet to be received. Thus, there being
misappropriation of Rs.4 Crores and odd, and the investigation is
not yet completed, the accused may not be released for there is
possibility of his fleeing away and tampering with the
investigation.

8.

The Intervenor – first informant made submission that
considering the gravity of alleged misappropriation and criminal
breach of trust investigation is yet to be completed. She prayed
for rejection of the application.

9.

In support of her submission, the intervenor relied on the
decision in the case of Y. S. Jagan Mohan Reddy Vs. Central
Bureau of Investigation in Criminal Appeal No.730 of 2013 and
relied on the observation, “Economic offences constitute a class
apart and need to be visited with a different approach in the
matter of bail. The economic offence having deep rooted
conspiracies and involving huge loss of public funds needs to be
viewed seriously and considered as grave offences affecting the
economy of the country as a whole and thereby posing serious
threat to the financial health of the country.

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Order in BA no. 731/23
While granting bail, the court has to keep in mind the
nature of accusations, the nature of evidence in support thereof,
the severity of the punishment which conviction will entail, the
character of the accused, circumstances which are peculiar to the
accused, reasonable possibility of securing the presence of the
accused at the trial, reasonable apprehension of the witnesses
being tampered with, the larger interests of the public/State and
other similar considerations.”
Also relied on the decision in the case of Nimmagadda
Prasad Vs. Central Bureau of Investigation in Criminal Appeal
No.728 of 2023 and relied on Paragraph No.27 therein which is
reproduced as under :-
27. While granting bail, the court has to keep in mind
the nature of accusations, the nature of evidence
in support thereof, the severity of the punishment
which conviction will entail, the character of the
accused, circumstances which are peculiar to the
accused, reasonable possibility of securing the
presence of the accused at the trial, reasonable
apprehension of the witnesses being tampered
with, the larger interests of the public/State and
other similar considerations. It has also to be kept
in mind that for the purpose of granting bail, the
Legislature has used the words “reasonable
grounds for believing” instead of “the evidence”
which means the Court dealing with the grant of
bail can only satisfy it as to whether there is a
genuine case against the accused and that the
prosecution will be able to produce prima facie
evidence in support of the charge. It is not
expected, at this stage, to have the evidence
establishing the guilt of the accused beyond
reasonable doubt.

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10.

Order in BA no. 731/23
In rebuttal, the Ld. Counsel for the Applicant reiterated that
the offences under IPC and under MPID Act can not run together.
The story by the Prosecution is false and to show this the
Applicant has tendered the bank account statement, the entries
therein which are highlighted shows that the Applicant has
returned the sum to the first informant. Also the Applicant has
placed copy of his complaint application dated 03.07.2023
against this first informant and so may peoples apprehending
criminal activities at their hands. Likewise, the copies of friendly
loan agreements with the first informant. So according to Ld.
Counsel as per the bank statements of the Applicant; the amount
has been returned to the first informant from time to time. The
Applicant is not beneficiary. The transaction is of civil nature.
Ld. Counsel for the Applicant relied on Paragraph No.31 in
11.

the case of K. K. Baskaran Vs. State rep. by its Secretary, Tamil
Nadu & Ors. and Paragraph No.59 in the case of New Horizon
Sugar Mills Limited Vs. Government of Pondicherry through
Additional Secretary and Anr. As quoted in the decision in Writ
Petition No.3228 of 2019 dated 13.09.2019, which are
reproduced as under :
31
We fail to see how there is any violation of Article
14, 19(1)(g) or 21 of the Constitution. The Act is a
salutary measure to remedy a great social evil. A
systematic conspiracy was effected by certain
fraudulent financial establishments which not only
committed fraud on the depositor, but also
siphoned off or diverted the depositor’s funds mala
fide. We are of the opinion that the act of the
financers in exploiting the depositors is a notorious
abuse of faith of the depositors who innocently
deposited their money with the former for higher
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Order in BA no. 731/23
rate of interest. These depositors were often given
a small pass book as a token of acknowledgment of
their deposit, which they considered as a passport
of their children for higher education or wedding
of their daughters or as a policy of medical
insurance in the case of most of the aged
depositors, but in reality in all cases it was an
unsecured promise executed on a waste paper. The
senior citizens above 80 years, senior citizens
between 60 and 80 years, widows, handicapped,
driven out by wards, retired government servants
and pensioners, and persons living below the
poverty line constituted the bulk of the depositors.
Without the aid of the impugned Act, it would
have been impossible to recover their deposits and
interest thereon.
59.

The decision in K.K. Baskaran’s case (supra) so far
as it relates to protection of interests of depositors,
cannot be ignored. In our view the decision
rendered by the Madras High Court in K.K.
Baskaran’s case (supra) would be equally
applicable to the facts of this case. We have to bear
in mind that the validity of the Tamil Nadu Act and
the Maharashtra Act have been upheld by the
Madras High Court and this Court. The objects of
the Tamil Nadu Act, the Maharashtra Act and the
Pondicherry Act being the same and/or similar in
nature, and since the validity of the Tamil Nadu
Act and the Maharashtra Act have been upheld,
the decision of the Madras High Court in
upholding the validity of the Pondicherry Act must
also be affirmed. We have to keep in mind the
beneficial nature of the three legislations which is
to protect the interests of small depositors, who
invest their life’s earnings and savings in schemes
for making profit floated by unscrupulous
individuals and companies, both incorporated and
unincorporated. More often than not, the investors
end up losing their entire deposits.

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Order in BA no. 731/23
The Ld. Counsel also relied on the observation in the case of
12.

Suresh G. Motwani (Dr.) and Another Vs. State of Maharashtra
and Another, 2004 (Supp.) Bom.C.R. 521 which is reproduced as
under :-
“contention proceeds on the wrong assumption that the
police custody is by way of a punishment. Pre-trial
detention, whether it be in the police custody or in
judicial custody, is never by way of a punishment to
condemn the accused even before the trial Bail
granted.”
Heard both sides. In the light of facts and circumstances
13.

coupled with submissions following points arise for my
determination and findings are given for the reasons mentioned
thereunder are as follows:Sr.
No
1.

2.

POINTS
FINDINGS
Whether the Applicant Akshay Pradeep
Ahuja is entitled for his release under
Section 439 of Cr.P.C. as prayed?

In the negative.

What Order ?

As per final order.
REASONS
As to point nos. 1 and 2 :
14.

At first Applicant is claiming that it is a civil dispute and
also based on friendly loan agreement. Secondly, he submits that
the first informant has been paid the amount in dispute. He has
produced copies of so many agreements entered into with the
first informant and also copy of the entries in his bank account
more particularly highlighted entries in it. However, this can not
be given any importance at this stage for the simple reason that it
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Order in BA no. 731/23
is subject to scrutiny by the Investigating Agency and that the
recital in the say of EOW that so many statements of the investors
shows that this Applicant has caused cheating with them without
paying their money back. The Applicant has not filed any
document showing that he paid the depositors / investors whose
statements have been recorded by the Investigating Authority
disclosing that they all have been left without keeping the
promise given by the Applicant. In absence of any material in
support of his claim, it can not be prima faice trusted that the
Applicant is not at any fault.
15.

The Applicant has also raised issue of non applicability of
IPC and MPID Act to the facts of the present case, but it will have
to be kept in mind that the Applicant is dealing in equity trading,
he prima facie induced the investors as stated in the say of EOW /
Ld. SPP which clearly speaks that Investigating Authority has
recorded statements of the investors named therein who have
made allegations against the Applicant for not receiving their
investment along with returns. So prima facie it appears that the
Applicant induced the investors with rozy picture and made
unviable promises to them. Therefore, the mala fide intention of
the Applicant is writ large on the face of record. After going
through the reply of the EOW / Ld. SPP, investigation of the
offences is not yet over, the assets are not yet traced out and are
yet to be secured by the Investigating Authority sufficient to repay
the investors with huge amount in Crores. The investigation in
respect of end use of money under the misappropriation /
cheating is going on and charge-sheet is not yet filed by the
Investigating Officer.

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16.

Order in BA no. 731/23
In this regard, the observation of Hon’ble Apex Court in
the case of Y. S. Jagan Mohan Reddy Vs. Central Bureau of
Investigation and Nimmagadda Prasad Vs. Central Bureau of
Investigation (Supra) relied on by the Intervenor is squarely
applicable as the role of the Applicant is under investigation and
the position would be cleared only on filing the charge-sheet. At
this stage of investigation, it can not be concluded that the both
the accusation under IPC and under MPID Act can not run
together for the reason that it is subject to evidence which
requires proof and also full pledge trial. Hence, with due respect,
the case laws (supra) relied on by the Applicant can not be
applied to the facts in the case at hand.

17.

In view the aforesaid backdrop, this is not a fit case to grant
bail to the Applicant. Hence, the Point no.1 is answered in the
negative.

18.

In view of reasoning and findings to Point No.1 as above,
the application deserves to be rejected. As such Point No.2 is
answered as per following order :ORDER
1. The present Bail Application No. 731 of 2023 filed by the
Applicant Akshay Pradeep Ahuja in connection with C.R. No.284
of 2023 registered with Kandivali Police Station for the offences
punishable under Sections 406, 409 and 420 of the Indian Penal
Code, 1860 (hereinafter referred as “IPC”) as well as Section 3 of
The Maharashtra Protection of Interest of Depositors Act, 1999, is
hereby rejected.

2. Accordingly, Respondent/I.O. to take the note of this order.

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Order in BA no. 731/23
3. The present Bail Application No. 731 of 2023 stands disposed of
accordingly.

(Dictated and pronounced in the open Court.)
Digitally signed
by SANJAY
BHALCHANDRA
JOSHI
Date: 2023.09.16
14:07:02 +0530
Date : 15.09.2023.

Dictated on
Draft given on
Signed on
: 15.09.2023.
: 15.09.2023.
: 15.09.2023.

( S. B. Joshi)
Designated Judge and Addl.
Sessions Judge, City Civil &
Sessions Court, Mumbai.

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Order in BA no. 731/23
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT /ORDER”
16.09.2023 at 2.00 p.m.
UPLOADED DATE AND TIME
Mrs. G. P. Acharekar
NAME OF STENOGRAPHER
Name of the Judge (with Court Room no.)

H.H.J. S. B. Joshi
C.R. No.07
Date of Pronouncement of Judgment/Order
15.09.2023
Judgment /Order signed by P.O. on
15.09.2023
Judgment/Order uploaded on
16.09.2023