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BEFORE DESIGNATED COURT UNDER M.P.I.D. ACT AT
BOMBAY CITY CIVIL & SESSIONS COURT, AT MUMBAI.
BAIL APPLICATION NO.64 OF 2015
IN
R.A. NO.30 OF 2015
IN
C.R. NO.251 OF 2015
Uday Suresh Surve,
Age: Major, Occ: Business,
Residing at 502, 5th Floor,
Mitasu Apartment, Odhav
Nagar, Borivali (East),
Mumbai 400 066.
…Applicant.
V/s.
The State of Maharashtra
(At the instance of Khar Police
Station, Mumbai )
…Respondent.
Advocate Kulkarni for the Applicant.
Advocate Nagi for the Informant.
SPP Advocate Malankar for the Respondent/State.
CORAM :
SPECIAL JUDGE, MPID ACT.
D. P. SURANA (C. R. No.36)
DATED :
09th December, 2015.
ORDER:
1.
Accused who was came to be arrested on 30.10.2015 in C.R.
No.251 of 2015 of Khar Police Station for the offences punishable under
sections 406, 420 and 34 of IPC and section 3 of the MPID Act, by this
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applicant under section 439 of Cr.P.C. is seeking his release on bail.
2.
It is the case of the prosecution that applicant accused is a
builder. He received investments from in all 9 persons including informant
Dhanraj Rajpal and his wife and has duped the said amount and
committed the fraudulent default of Rs.3 crores of informant and his wife
and of Rs.73 lakh of rest of the seven investors.
3.
Heard Advocate Kulkarni for the applicant. Also heard
Advocate SPP Malankar for the State and IO Sr. PI Ganore of Khar police
station. Advocate Nagi for informant whose intervention was allowed was
also heard.
4.
Advocate Kulkarni submitted that the provisions of MPID Act
is not applicable in the said matter as the amount received is by way of
loan. That the entire transaction is civil in nature. That the accused is not
disputing his liability but, due to some business problems he cannot repay
the amount. That the applicant has paid part of the amount to most of his
creditors. He further submitted that half of the principal amount is
received by the informant. His two construction projects i.e. Jai
Maharashtra Nagar Housing Federation Ltd of MHADA and Shiv Shakti
Enclave were stuck due to the policy of Government. He further submitted
that informant and his wife were given 14 flats towards collateral security
as against the loan availed by them to the applicant. He further submitted
that the entire transaction is of money lending. He further submitted that
his documents are already seized by Khar police station. He has cooperated
in the investigation and no purpose will be served in keeping him behind
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the bars. He submitted that the entire case is based on the documents
which are already seized. As such, he prayed for release of applicant on
bail.
5.
As against this SPP and IO submitted that there is prima facie
case made out against the applicant. Accused has also duped and cheated
other flat owners. That several cases are pending against the accused of
cheating. Though accused has received the amount from the investors on
the pretext that he will construct the building and from the profits will pay
the interest, he has neither constructed any building nor even started the
project. They submitted that accused from inception has the intention to
cheat the investors. As such, they prayed for rejection of the application
filed by applicant.
6.
Advocate Nagi for informant contended that conduct of
accused in duping the other flat owners and the present informant and the
investors shows that accused was having intention to dupe from inception.
He submitted that accused has not paid the amount of Rs.45 lakhs to his
wife as alleged by him. He further submitted that accused has given false
representation and thereby received the amount of depositors from the
informant and his wife and other depositors. That he has not cooperated in
the investigation. That the project of construction which accused has
undertaken was commercially not violable as he could not have
accommodated the dwellers in the construction. He submitted that the
accused has not disclosed his other properties. According to him, accused
is having two pubs at Dubai and other properties which are not disclosed
by him. He also submitted that there is possibility of tampering of
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witnesses and evidence by the accused. He may abscond, hence, as
Advocate Nagi applicant is not entitle to be released on bail.
7.
After hearing rival contentions, I have perused the application,
documents placed by applicant on record, several reply filed by IO and
reply Exh.2 filed by informant / intervention.
8.
Irrespective of the fact that other cases of cheating are
instituted against the accused but, those cases are of not providing flats by
the applicant to the dwellers. The case in hand is regarding fraudulent
default of 9 investors only. The fact is not disputed by the IO that the
applicant has paid part of the amount to most of the investors. From the
contract entered into between the applicant and the informant, it is highly
undoubtedly that it is a transaction of deposit rather than a loan. The
agreement executed between the applicant and the wife of informant falls
under the definition of deposit but, as per applicant he has given flats
towards security in lieu of the amount received.
9.
From the documents placed by applicant on record, it seems
that due to some Government MHADA and M.C.G.M., he has not started
his project. Being a builder he may be expecting increase in FSI. Applicant
has paid substantive amount in crores to the persons to whom he has given
alternate accommodation. He has also pointed out other huge expenditure
incurred by him. Applicant has also filed on record the documents showing
the approvals obtained by him for starting the project. On the basis of
these documents, it is prima facie seen that applicant was hopeful of
increase in FSI and hence, he might not have started the project. The
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foreseen by applicant may be his business or experiencing lacuna / fault.
At this stage, the contract entered into by the applicant with the depositors
cannot be said to be commercially not violable contract.
10.
Even otherwise, applicant has paid part of the amount to most
of the investors. None of the offences levelled against him prescribed
punishment for more than seven years. He is sufficiently interrogated by
the IO. Hence, I am of the view that no purpose will be served in keeping
the applicant behind the bars.
11.
So also, IO has admitted that prior to the arrest of the
applicant accused in this crime all the documents were already taken into
the custody by EOW in other cases. IO has also admitted that he has taken
search of residence, office of accused and other two offices of accused at
his Jai Maharashtra Nagar Housing Federation Ltd. and Shiv Shakti
Enclave sites. IO has not alleged that he requires some more documents
from the accused for the purpose of investigation. The entire case pertains
to documentary evidence, which is already in the possession of IO or EOW.
As such, I am of the view that applicant is entitle to be released on bail
with conditions so as to avoid the possibility of tampering with the
evidence or his absconding. Hence, I proceed to pass following order:
ORDER
Application is allowed.
Accused Uday Suresh Surve is ordered to be released on bail in C.R.
No.251 of 2015, for the offence u/sec.406, 420 and 34 of the I.P. Code and
sec.3 of the MPID Act, on his executing PR bond of Rs. Five Lakhs with
one or more sureties to make up the like amount with following
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conditions:
a)
That accused shall surrender his passport with the
investigating agency.
b)
That applicant shall not leave India without prior permission
of this Designated Court.
c)
That applicant shall mark his presence with the investigation
officer on every Monday between 10.00 am to 1.00 pm., till filing of
chargesheet.
d)
That applicant shall not tamper with the prosecution witnesses
or evidence in any manner.
e)
That applicant shall not dispose of, in any manner, any of his
immovable property/ies without the prior permission of this
designated court.
Date 09/12/2015.
(D.P. Surana)
Spl. Judge, MPID Act &
Addl. Sessions Judge,
City Civil & Sessions Court, Gr. Mumbai.
Order Dictated on : 09/12/2015
Transcribed on
: 10/12/2015
Signed on
: 11/12/2015
“I affirm that the contents of the PDF file order are the same, word to word, as
per the original order.”
Name of Steno with post
: Arun A Mudaliyar
(H.G. Stenographer)
Name of the Judge (with Court Room no.) : HHJ Shri. D. P. SURANA (CR 36)
Date of pronouncement of order
: 09/12/2015
Order signed by the P.O. on
: 11/12/2015
Order uploaded on
: 12/12/2015
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