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Order in BA no. 1002/23
MHCC020169122023
BEFORE THE DESIGNATED COURT UNDER M.P.I.D. ACT
CITY CIVIL & SESSIONS COURT, MUMBAI
BAIL APPLICATION NO.1002 OF 2023
Pradeep Suryabhan Upadhayay
Age-38 years, Occ: Business,
R/at-Room No.2, Mishra Niwas,
Kuldshet Pada, Link Road, Bhandup
(W), Mumbai 78
]
]
]
] Applicant/
]… Accused
Versus
The State of Maharashtra
(vide Mulund Police Station)
]
]
Respondent
Appearances:Ld. Advocate Ganesh Gupta a/w Adv. Sahil Ghorpade for the Applicant.
Ld. SPP Seema Deshpande for the State/ Respondent.
CORAM : HIS HONOUR JUDGE
SHRI S. B. JOSHI
(Court Room no. 7)
DATE : 23rd November, 2023.
ORAL ORDER
1. The
applicant-Pradeep Suryabhan Upadhayay filed this
application for grant of bail under Section 439 of the Code of
Criminal Procedure.
2. The case of the prosecution, in brief, as per the first
information report, is as under:Co-accused persons namely Avinash Popat Salve and Bapu
Mohan Zambre have launched one scheme “Vijeta Lucky
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Order in BA no. 1002/23
Draw” and collected Rs.1,000/- each per month from multiple
depositors upon the promise that they would get Rs.30,000/only after 30 months and the lucky winner would get
Rs.30,000/- in addition to the said amount by rotation. In
October-2018, said co-accused along with Harshad Parad and
present applicant started office in the name of company,
“MSOI Online Services Pvt. Ltd.” in shop No.10/21,
Dreamland Society, Jai Shastri Nagar, Mulund Colony,
Mulund(W), Mumbai.(Hereinafter referred to as “FE”). The
said company launched the scheme wherein the depositor had
to deposit Rs. 77,500/-and he would get Rs.7,00,000/- only
after six months. The first informant paid the said amount of
Rs.77,500/- in January-2019, & got Rs.20,000/- till March2019 and thereafter, co-accused and present applicant
committed fraudulent defraud in repayment to the first
informant,other depositors
and investors. During the
investigation, the crime in question, it was transpired to the
investigation that applicant and other co-accused persons as
mentioned
in
the
first
information
report,
committed
fraudulent defraud in repayment of huge amount of Rs.1,
59,04,025/- (Rs. One Crore Fifty Nine Lacs Four Thousand
Twenty Five only).
3. In view of this information given in writing by the first
informant, crime in question came to be registered for the
offence punishable under Section 420, 406 and 409 r/w 34 of
the Indian Penal Code r/w
Section 3 and 4 of The
Maharashtra Protection of Interest of Depositors Act, 1999 by
Mulund Police Station, Mumbai.

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Order in BA no. 1002/23
4. By filing this application, applicant denied all the allegations
made in the first information report in toto and submitted that
he is entitled for his release on the ground that no role is
attributed towards him in this crime. He was neither Director
nor holding any position in “ MSOI Online Services Pvt. Ltd.
(FE).” He is not at all beneficiary of a single rupee. He has
been falsely involved in the said crime.

No substantive
material is provided to connect him with the crime in
question.

He never mis-represented himself to the first
informant or anybody else. He further submitted that none of
the offence as alleged is applicable.
entrustment etc.

There is no cheating,
Thus, according to him in view of
observations by the Hon’ble Supreme Court that “ Bail is the
rule and jail is an exception”, he is entitled for his release.
Also as stated in this application, in the light of various case
laws as cited, he is entitled for his release. Thus, the applicant
prayed for granting him bail as prayed for.
5. The prosecution through EOW objected this application by
filing reply (Ex.2) on the ground that during the investigation,
the investigating authority has transpired involvement of the
applicant in the crime. He appears to be the Director of the
company “ MSOI Online Services Pvt. Ltd. (FE)” and also
accepted the money from the first informant and witnesses. If
the applicant is released on bail, then there is possibility of
tampering with the witnesses or threatening to them as well as
he will flee away and will tamper further investigation. Also
there is possibility of disposing off the landed or movable
property in his name.

Thus, the prosecution objected the
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Order in BA no. 1002/23
application.
6. Heard Ld. advocate for the applicant who submitted that in
the light of avernments in the application and further added
that there is no material to show that present applicant is the
beneficiary or has acquired any kind of property from the
amount under defraud. According to Ld. Counsel, co-accused
namely Harshad Parade has been released during investigation
of the crime as well as before filing the chargesheet. Likewise,
another co-accused Avinash Salve is also released by this
Court, but, after filing of the chargesheet.

Thus, on the
ground of parity, present application is filed. Thus, he prayed
for allowing this application in the light of decision in the case
of Dharmendra Singh V/s State of Madhya Pradesh in Special
Leave to Appeal (Cri) No.1808 of 2021 dated 11/06/2021 by
Hon’ble Supreme Court.
7. In rebuttal, Ld. Prosecutor submitted that the ground of parity
will not be applicable to the present applicant as there is
ample material against this applicant to show his involvement
in the crime and one of the co-accused has been released only
on filing of the charge sheet. The facts of another co-accused
who has been released on bail are different, than the facts
against the present applicant. Further investigation is going
on, so far as present applicant is concerned.

So,
supplementary charge sheet is yet to be filed against this
applicant.

The First Information Report in question shows
involvement of this applicant in the alleged crime and the
incident.

The witnesses namely Parshuram Kamble, Pravin
Kharat and Ankush Kamble whose statements have been
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Order in BA no. 1002/23
recorded by the investigating authority and are part and
parcel of the charge sheet filed against Avinash Salve they all
have stated about the role attributed to the applicant. So,
according to the Ld. Prosecutor present application deserves to
be rejected in the light of say/reply (Ex.2). She further added
that the decision relied by the Ld. Counsel for the applicant is
not applicable to the facts in hand as the accused therein was
in jail for four years and present applicant herein is in jail
since 02/11/2023 and therefore investigating authority
requires time to investigate the matter against this applicant.
Thus, she prayed for rejection of the application.
8. In view of facts and submissions on record, following points
arise for my determination and findings are given for the
reasons mentioned thereunder are as follows:Sr. No
POINTS
FINDINGS
1.

Whether
the
Applicant
Pradeep
Suryabhan Upadhayay is entitled for his
release under Section 439 of Cr.P.C. as In the affirmative.
prayed?

2.

What Order ?

As per final order.
REASONS
As to point nos. 1 and 2 :
9. On going through the avernments in the application, the copy
of the first information report and other material placed by
both the parties as well as documents, it reveals that prior to
December-2018, present applicant was not in picture so far as
starting any scheme as alleged in the first information report.
The other co-accused Avinash Salve(who is already released
on filing charge sheet) and Bapu Zombre, both have started
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Order in BA no. 1002/23
various schemes of investment, and with the assistance of
present applicant, they all started one office in the name of
“MSOI
Online
Services
Pvt.

Ltd.(FE)”
and
collected
Rs.77,500/- from first informant and other investors, each
witness under the scheme of getting huge income, on the
deposit made by them all for six months. Admittedly the first
information report shows the name of the present applicant.
On perusal of the first information report it shows the names
of main accused as Avinash Salve and Bapu Zambre.

The
allegations in the first information report against this applicant
are to the extent that he assisted other co-accused namely
Avinash Salve, Bapu Zombre and Harshad Parad on launching
earlier two schemes.

The say filed by EOW/prosecution is
silent as to show that during investigation or during remand
or upfill filing of their say, this applicant has utilized the
money for his own gains. Also it has failed to show material
that he has purchased property from the amount under
defraud. Admittedly no property if any is seized from this
applicant. It is undisputed that the chargesheet has been filed
against one of the co-accused who has already been released
on regular bail. Likewise another co-accused namely Harshad
Parad has been released during investigation on the ground
that no material has been collected by the investigating officer
to show that he has utilized the money for his own gains and
no property is seized from him. Likewise, he has no criminal
antecedents. Thus in the light of these aspects and filing of
the chargesheet against main accused, it appears that almost
investigation in the crime is over and only supplementary
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Order in BA no. 1002/23
charge sheet is remained to be filed in view of Section 173(8)
of the Code of criminal Procedure against this applicant. Even
if no property is seized yet, the prosecution has every right to
proceed against the property as contemplated under MPID
Act.

Furthermore, the allegations against the applicant
nowhere show that he had received money under investment
from the first informant or other investors. Nothing is placed
to show the specific role attributed towards the applicant.
Admittedly the offences levelled against the applicant are
under Sections 406 & 420 r/w 34 of the Indian Penal Code
and under Section 3 of MPID Act which do not provide
punishment of death or imprisonment of life. Also the offence
under Section 409 of the Indian Penal Code as alleged also
does not provide for punishment of death.
10. So considering all the above aspects and the fact that other
two co-accused have been released on bail more particularly
co-accused Harshad Parad for want of collecting material
against him, it can be stated that present applicant is also
entitled to be released on bail on the ground of parity. But,
considering pending further investigation under Section
173(8), certain conditions can be imposed in the light of
alleged apprehension of the prosecution. Therefore the very
submission on behalf of Ld. SPP that the applicant is not
entitled to get released on ground of parity and the case law
relied by the applicant not applicable finds not acceptable.
Thus on the ground of parity & merit, the applicant is entitled
for his release on bail. As such Point No.1 is answered in the
affirmative.

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Order in BA no. 1002/23
As to Point No.2
11. In view of aforesaid reasoning and finding to Point No.1 as
above, the application deserves to be allowed. Hence, Point
No.2 is answered as per following order:ORDER
The present Bail Application No.1002 of 2023 is hereby
allowed, subject to following conditions by applicant
/accused :1. The applicant-Pradeep Suryabhan Upadhayay
be
released on executing a PR Bond of Rs. 1,00,000/(Rupees One Lakh Only) with furnishing one or two
solvent sureties in the like amount in connection with
crime vide C.R. No. 81 of 2021 registered with Mulund
Police Station, Mumbai for the offences punishable
under Sections 420, 406 and 409 r/w 34 of the Indian
Penal Code r/w Section 3 and 4 of The Maharashtra
Protection of Interest of Depositors Act, 1999
2. The applicant is permitted to furnish provisional cash
bail of Rs.1,00,000/- (Rupees One Lakh only) for a
period of three months.

3. The applicant to make surety compliance before
concerned Court. The Registrar (S) to accept it at ATH.

4. The applicant shall attend Mulund Police Station on
each Sunday between 8.00 am and 12.00 noon till filing
of the charge sheet .

5. The Applicant shall not leave Mumbai City without
informing the Investigating Officer.

6. The applicant shall not leave India without prior
permission of Court.

7. The applicant shall attend each and every date of the
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Order in BA no. 1002/23
trial without fail.
8. The
applicant shall not tamper or hamper the
prosecution witnesses and evidence as well as
pressurize to any of the prosecution witness by any
manner.

9. The applicant shall co-operate in investigation, as and
whenever he required for interrogation, he shall make
available for the same.

10. The applicant shall submit his proper considerable
residential address proof as well as telephone and cell
numbers with Respondent/I.O. in view of his contact.

11. The applicant shall submit his passport if any with
respondent /I.O.

12. The applicant shall not indulge in any criminal activity.
13. The applicant shall give details of the properties owned
by him within period of ten days of his release and he
shall not alienate the same without due permission of
the Special Court.

14. The breach of any one of the above conditions by the
applicant shall enable the Prosecution/investigating
Officer to apply for the cancellation of his bail.

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

16. The present Bail Application No. 1002 of 2023 stands
disposed of accordingly.

17. Dictated and pronounced in the open Court.

Date : 23.11.2023.

Digitally signed by SANJAY
BHALCHANDRA JOSHI
Date: 2023.11.24 15:49:32
+0530
( S. B. Joshi)
Designated Judge and Addl.
Sessions Judge, City Civil &
Sessions Court, Mumbai.

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Dictated on
Draft given on
Signed on
Order in BA no. 1002/23
: 23.11.2023.
: 23.11.2023.
: 23.11.2023.

“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT /ORDER”
23.11.2023 at 5.30 p.m.
UPLOADED DATE AND TIME
Mrs. T.C.Kamble
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
23.11.2023
Judgment /Order signed by P.O. on
23.11.2023
Judgment/Order uploaded on
23.11.2023