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Santosh Bhimaji Gandhade vs The State Of Maharashtra And Anr on 26 September, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

7 ANTICIPATORY BAIL APPLICATION NO. 970 OF 2018
WITH
CRIMINAL APPLICATION NO. 2715 OF 2018

SANTOSH BHIMAJI GANDHADE
VERSUS
THE STATE OF MAHARASHTRA AND ANR

Adv for Applicants : Mr. N.B. Suryawanshi h/f Mr. Sanket N. Suryawanshi
APP for Respondent No.1: Mr. V.M. Kagne
Advocate to assist A.P.P. : Mr. Joydeep Chatterji
…..

CORAM : V. K. JADHAV, J.
DATED : 26 th SEPTEMBER, 2018

PER COURT:-

1. Heard learned counsel for the applicant in criminal application

No. 2715 of 2018. For the reasons stated in the said criminal

application, the same is allowed in terms of prayer clause “B” and

disposed of.

2. By way of anticipatory bail application No. 970 of 2018, t he

applicant therein is seeking pre-arrest bail in connection with crime No.

I-259 of 2018 registered with Parner police station, District Ahmednagar

for the offences punishable under Sections 376, 452, 323, 504, 506 of

I.P.C. His application bearing Criminal M.A. No. 1635 of 2018 with

similar prayer came to be rejected by the learned Additional Sessions

Judge, Ahmednagar vide order dated 07.09.2018.
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3. Learned counsel for the applicant submits that the applicant is

well acquainted with the family of the prosecutrix, as the husband of

prosecutrix was working as a driver in the transport company of the

applicant. Moreover, the applicant was good friend of proprietor and

developer of Shivsahara complex. Thus, with effective mediation of the

applicant, the prosecutrix has purchased a flat in the complex of said

builder and an agreement of sale to that effect was executed between

prosecutrix and proprietor of said complex. The flat was purchased for

total consideration of Rs.12,30,000/- and out of that consideration

amount, an amount of Rs.61,500/- was paid as an advance on the date

of execution of agreement of sale itself. The agreement further

stipulates the installments of 25%, 30% and 10% at different stages of

the construction. Even the applicant has given assurance to the builder

that the prosecutrix will pay the remaining consideration amount and

requested to permit her to stay in the flat. Learned counsel submits that

thereafter, the prosecutrix has not complied with those conditions of

agreement and in consequence thereof, said builder issued legal notice

on 3.7.2018 to the prosecutrix, stating therein that since she has

committed breach of conditions of agreement, she is entitled for refund

of advance amount paid by her, by deducting the amount of 10%

towards expenses etc. Even the said builder had also questioned the

act of prosecutrix when she had entered the name in revenue record in

respect of the said property by deleting the name of said construction

company of the builder.
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4. Learned counsel for the applicant submits that even the said

builder has instituted Special Civil Suit No. 107 of 2018 on 20.7.2018 for

cancellation of said agreement of sale and also for decree of perpetual

injunction. Learned counsel submits that even the prosecutrix has

replied the said legal notice, wherein she has also admitted that the

present applicant has mediated in the said transaction. Learned

counsel further submits that on 01.08.2018, the present applicant has

filed complaint with concerned police station, alleging therein that some

persons abused and assaulted him on the ground that present applicant

was insisting the prosecutrix to pay the amount of the builder and on the

basis of his complaint, N.C. No. 890 of 2018 came to be registered with

the concerned police station. Even the prosecutrix was present during

the said incident and she has threatened the applicant that in case he

insists for paying amount to the builder, a complaint of rape will be filed

against the applicant. Learned counsel submits that even though the

incident alleged to have been taken place on 20.8.2018 at about 9.00

a.m. the complaint came to be lodged on 24.8.2018. It has been

specifically alleged in the complaint that the prosecutrix was subjected

to beating on that day by the applicant and then the applicant has

committed forcible intercourse with her. Learned counsel submits that

there is no medical evidence to that effect. Learned counsel submits

that in order to counter everything, including non payment of remaining

amount of the builder etc., the prosecutrix has falsely implicated the
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applicant in the crime. Learned counsel submits that the applicant is

responsible businessman and his antecedents are clear. The applicant

is ready to co-operate with the investigating agency and also ready to

abide any of the conditions, if imposed by this Court. In the given set of

allegations, the custodial interrogation of the applicant is not required.

5. Learned A.P.P., assisted by learned counsel Mr. Chatterji, has

strongly resisted the application on the ground that the name of

applicant has been specifically mentioned in complaint with specific role

ascribed to him. The applicant has committed forcible intercourse with

the prosecutrix against her will. The informant has specifically

mentioned the reasons for lodging the complaint belatedly. There is

strong prima facie case against the applicant and thus the applicant is

not entitled for anticipatory bail.

6. On careful perusal of investigation papers, the allegations made

in the complaint and also the annexures of application, it appears that

there was a transaction between the informant and one builder and in

the said transaction, this applicant has played role of mediator. It further

appears from the annexures of anticipatory bail application that the said

builder has given legal notice to the prosecutrix and also instituted

Special Civil Suit in respect of sale transaction, on the ground that the

prosecutrix has failed to comply with the terms and conditions as

enumerated in the agreement of sale. Furthermore, the applicant in
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reply to the said legal notice, issued by the builder, has also admitted

that the present applicant was mediator in the said transaction. Thus,

considering the earlier transaction, it would have been natural on the

part of the applicant to insist the prosecutrix to pay remaining amount. It

further appears on the basis of N.C. filed by the applicant against the

prosecutrix that the relations between them are not cordial thereafter. In

view of the same, the possibility of false implication cannot be ruled out.

Furthermore, the complaint is also belatedly filed and in consequence

thereof, there is no medical evidence to support the allegations made in

the complaint. The antecedents of the applicant are clear. He is

businessman. Except this, there is no other crime registered against

the applicant. Thus, considering entire aspects of the case, I am

inclined to grant pre-arrest bail to the applicant on certain conditions.

Hence, the following order:-

ORDER

I. Application is hereby allowed.

II. In the event of arrest of applicant Santosh Bhimaji Gandhade, in
connection with crime No. I-259 of 2018 registered with Parner
police station, District Ahmednagar for the offences punishable
under Sections 376, 452, 323, 504, 506 of I.P.C. he be released
on bail on furnishing personal bond of Rs.15,000/- with one surety
of the like amount on following conditions:-

a) The applicant shall not tamper with the prosecution
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evidence, in any manner.

b) The applicant shall not enter in Shivsahara complex,
Parner, where at present the prosecutrix resides.

c) The applicant shall attend the concerned police station
once in a week i.e. on every Sunday between 8.00 a.m. to
11.00 a.m. till filing of charge sheet.

III. Application is accordingly disposed of.

( V. K. JADHAV, J.)

rlj/
Digitally signed
Rangnath by Rangnath
Laxmanrao
Laxmanrao Jadhav
Jadhav Date: 2018.09.27
16:15:04 +0530

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