Allowed

Badrinath S/O. Udaysing Rathod v. the State of Maharashtra and Others

Bombay HC17 Jan 2018WP/1278/2017

Case brief

AI extract

What is this about?

In this criminal writ petition, the petitioner sought interim custody of the refundable amount deposited with the Investigating Officer after an alleged cheating case. The High Court granted the custody subject to security conditions, quashing the earlier order rejecting the application.

What did the court decide?

Interim custody of Rs. 23,30,000 granted subject to bank guarantee of Rs. 11,65,000 and solvent security; amount to be produced when ordered by trial court.

Badrinath S/O. Udaysing Rathod Vs the State of… — Civil Procedure and Limitation | Bombay HC (2018)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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CRIMINAL WRIT PETITION NO. 1278 OF 2017

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Badrinath s/o Udaysing Rathod... Petitioner
Age 52 years, Occu: Agri.
R/o N-9, M-2, 133/4, Sant
Dnyaneshwar Nagar, CIDCO,
Aurangabad.

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VERSUS

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1. The State of Maharashtra, Through the Police Station Officer, CIDCO Police Station, Aurangabad

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2. Vijay S/o Shivram Nalawade Age 43 years, Occu: Nil R/o Nimbalkar Plaza, Keshavnagar, Chinchwad Pune, Tq. & Dist. Pune

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3. Mahadeo s/o Ramchandra Deshmukh ... Respondents Age 58 years, Occu: Service, R/o Mayani Tq. Khatav Dist. Satara.

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4. Megha w/o Vijay Nalawade, ... Intervenor Age 38 years, Occu: Service, R/o Nimbalkar Plaza, Keshavnagar, Chinchwad, Pune.

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Mr. N. V. Gaware h/for Mr. Gokul M. Shingare, Advocatge
for the petitioner.

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Mr. B. A. Shinde, APP for the respondent No.1 State
Mr. J. V. Deshpande, Advocate for respondent No.2
Mr. A. K. Bhosale, Advocate for respondent No.3.

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Mr. R. P. Deshpande, Advocate for the Intervenor

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CORAM: K. L. WADANE, J.
 DATE: 17th January, 2018

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JUDGMENT:

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1. The present petitioner lodged complaint with the
Police Station, CIDCO, Aurangabad on 7th March, 2017
alleging that his son Hemant was intending to take
admission for MBBS course. Respondent No.2 Vijay
Nalawade contacted him on his mobile and asked him to

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meet at his residence at Pune. Accordingly, the
complainant, his brother and other persons visited the

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house of respondent No.2. The amount for taking
admission to MBBS course was settled at Rs.30 lakhs.
Accordingly, on 20th July, 2016, the complainant/
petitioner went to Chhatisgad, where, one medical
college is located and met respondent No.2 Vijay

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Nalawade. Respondent No.2 accepted Rs.10 lakhs in
cash from the complainant and Rs.1.25 lakhs by D.D.
On the second day, respondent No.2 again demanded Rs.15

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lakhs. On 20th August, 2016, the complainant/
petitioner transferred an amount of Rs.10 lakhs by

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RTGS to the bank account of Respondent No.2. After

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three days, the complainant went to Chhatisgad and
enquired about the admission of his son. At that time,
it was informed that admission at Chhatisgad college

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was closed and respondent No.2 instructed the

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complainant to approach the Chairman of Medical College

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at Mayni, Dist. Satara. Accordingly, the complainant
approached to one of the employee of that college
namely Mr. Ranade and paid Rs.6,35,000/- by D.D. on
10th October, 2016 and transferred Rs.12 lakhs on
15.10.2016 and Rs.4 lakhs on 17.10.2016 through RTGS
to the Bank account of Mr. Ranade. Hence, in all, the
complainant has paid an amount of Rs.21,20,000/- to
respondent No.2 and Rs.22,35,000/- to respondent No.3.
Out of which, respondent No.2, repaid an amount of
Rs.4,25,000/- and respondent No.3 also repaid some
amount. Thus an amount of Rs.16,95,000/- is due from
respondent No.2 and an amount of Rs.6,35,000/- is due
from respondent No.3, who is stated to be Chairman of
Mayni college.

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2. After filing of the complaint, offence came to
be registered and the accused persons were arrested.
During investigation, wife of respondent No.2 produced
an amount of Rs.16,95,000/- in the form of D.D. and on
behalf of respondent No.3 cash amount of Rs.6,35,000/-
was produced before the Investigating Officer. The
aforesaid amount was seized in the crime as per
Panchanama.

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3. The present petitioner field application for

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interim custody of the amount deposited with the
Investigating Officer. The learned Chief Judicial
Magistrate, vide order dated 12.07.2017 in Cri. M.A.
No. 720/2017, rejected the application. The

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petitioner has challenged the said order and prayed for
interim custody of the amount.

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4. Heard Mr. Gaware, the learned counsel appearing

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for the petitioner, Mr. B. A. Shinde, APP for the
respondent No.1 State, Mr. J. V. Deshpande, Advocate
for respondent No.2, Mr. A. K. Bhosale, Advocate for
respondent No.3 and Mr. R. P. Deshpande, Advocate for
the Intervenor.

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5. Learned APP has produced on record the report
submitted by the Investigating Officer dated 5th
October, 2017 which is taken on record and marked 'X'
for identification.

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6. Meanwhile, wife of respondent presented the

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revision application before the Sessions Court,
Aurangabad bearing Criminal Revision No. 199/2017. As
per the directions issued by this Court, the hearing of
the criminal revision was expedited and after hearing
the both the parties, the revision application filed by
the wife of respondent No.2 against the order passed

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below Exh. 22 dated 12.07.2017 has been rejected.

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7. Mr. Gaware, the learned counsel appearing for
the petitioner, during the course of argument, pointed
out that some of the amount was paid by the present
petitioner by transferring the same from the account of
the petitioner to the account of respondent No.2
through RTGS. Similarly, the amount paid to the
college of respondent No.3 was also in the form of D.D.
and in the form of RTGS, therefore, there is clearcut
evidence on record to show that the complaint paid the
aforesaid amount to respondent Nos. 2 and 3. Mr.
Gaware, the learned counsel further points out the
entries from the pass book which shows that some of the
amount was transferred to the account of Respondent
No.2 by RTGS.

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8. From the report of the Investigating Officer,
dated 5th October, 2017, it appears that during the
investigation, wife of respondent No.2 presented three
Demand Drafts, amounting to Rs.16,95,000/- and an

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amount of Rs.6,35,000/- was produced on behalf of
respondent No.3. The investigating officer has no
objection to grant interim custody of the cash amount
in favour of the present petitioner. Thus, from the

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record, prima facie, it appears that respondent Nos. 2
and 3 have unauthorizedly accepted huge amount from
the complainant. Mr. Gaware, the learned counsel
further submits that the interim custody of the amount
be handed over to the petitioner and the petitioner is
ready to produce the same before the trial court as and
when directed by the Court. Mr. Gaware, the learned
counsel further submits that condition to that effect
may be imposed.

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9. Learned counsel appearing for the intervenor
submits that the amount was recovered from the wife of
respondent No. 2 which she has collected from the
relatives. When specific query was made to the learned
counsel for the intervenor, as to why she had not
complained to the Superior Police Officer stating
that the I.O. had exerted pressure and unauthorizedly
compelled her to deliver certain property. It was

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tried to be suggested on behalf of the intervenor that
husband of the intervenor i.e. respondent No.2 was in
police custody and therefore no complaint was made.
Even assuming for the sake of argument that her
contention is correct, still, it was not answered as
to why such complaint was not made to the superior

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officer of Police after release of respondent No.2 on

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bail and after submitting the charge sheet. The learned
counsel appearing for the intervenor submits that no
such complaint was ever made by the intervenor with the
superior police official. She has represented herself
in the proceeding by way of filing Criminal Revision
before the Sessions Court.

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10. Looking to the nature of relief claimed by the
petitioner and the objections raised on behalf of
respondent Nos. 2 & 3 and the intervenor, it is not
necessary to discuss each and every aspects of the
matter in detail at this stage.

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11. In view of the above circumstance, I am of the

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opinion that during the pendency of the trial before
the trial court, the petitioner is entitled for the

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custody of the amount deposited with the Investigating
Officer. Hence following order:

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O R D E R

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(1) The order dated 12.07.2017 passed by the Judicial
Magistrate, First Class, Aurangabad in Criminal M. A.
No. 720/2017 is hereby quashed and set aside.

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(2)The amount of Rs.23,30,000/- be given to the

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petitioner on the following conditions.

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i. The petitioner shall give bank guarantee of
Rs.11,65,000/- and further he shall furnish
solvent security for the remaining amount of
Rs.11,65,000/- to the satisfaction of the trial
court.

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ii. The petitioner shall produce the amount as and when ordered by the trial court.

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(3) Criminal Writ Petition is accordingly disposed of.

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(K. L. WADANE, J.)

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JPC

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Badrinath S/O. Udaysing Rathod v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

Badrinath S/O. Udaysing Rathod v. the State of Maharashtra and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

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