IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 5994 OF 2025

1. Jigar Parmar

An Adult Indian Inhabitant, Age 47 years,

Occu: Business, residing at Apartment

4A & B Aravali Co-operative Housing

Society, 29, B.G. Kher Marg, Malbar

Hill, Mumbai – 400 006.

2. Jayantilal Parmar

An Adult Indian Inhabitant, Age 75 years,

Occu: Business, residing at Apartment

4A & B Aravali Co-operative Housing

Society, 29, B.G. Kher Marg, Malbar Hill,

Mumbai – 400 006. ...Petitioners

Versus

1. State of Maharashtra

through the Senior Inspector of Police

N.M. Joshi Marg Police Station, Mumbai.

2. Norris Crasto

Age 35 years, Occ : employed,

Residing at Zone – 40, Street – 804,

Building – 9, Villa – 5, Doha, Qatar,

also having address at Pithrody post,

Udyavara, Udupi, Karnataka – 574 118.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

…Respondents

_ _ _ _ _ _ _ _ _

WITH

WRIT PETITION NO. 6668 OF 2025

1. Jigar Parmar

An Adult Indian Inhabitant, Age 47 years,

Occu: Business, residing at Apartment

4A & B Aravali Co-operative Housing

Society, 29, B.G. Kher Marg, Malbar

Hill, Mumbai – 400 006.

SAINATH, PA 1/31

2. Jayantilal Parmar

An Adult Indian Inhabitant, Age 75 years,

Occu: Business, residing at Apartment

4A & B Aravali Co-operative Housing

Society, 29, B.G. Kher Marg, Malbar Hill,

Mumbai – 400 006. ...Petitioners

Versus

1. State of Maharashtra

through the Senior Inspector of Police

N.M. Joshi Marg Police Station, Mumbai.

2. Norris Crasto

Age 35 years, Occ : employed,

Residing at Zone – 40, Street – 804,

Building – 9, Villa – 5, Doha, Qatar,

also having address at Pithrody post,

Udyavara, Udupi, Karnataka – 574 118.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

…Respondents

_ _ _ _ _ _ _ _ _

Mr. Girish Kulkarni, Sr. Advocate, a/w Mr. Aditya Mithe,

Mr. Sachin Agawane, Ms. Esha Joshi, for the Petitioners.

Ms. Neeta Karnik, Sr. Advocate, i/b Sangharsh V Waghmare,

for Respondent No. 2.

Mr. D J Haldankar, APP for Respondent – State.

PSI Anit Sul – N.M. Joshi Marg P.S.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

CORAM : N. J. JAMADAR, J.

RESERVED ON :25

th

MARCH 2026

PRONOUNCED ON :08

th

JUNE 2026

JUDGMENT:

1.Rule. Rule made returnable forthwith, and, with the

consent of learned Counsel for the parties, heard �nally.

SAINATH, PA 2/31

2.As both the Writ Petitions arise out of the same set of

facts leading to registration of CR No. 0213/2025 with N.

M. Joshi Marg Police Station for the offences punishable

under Sections 318(4) and 61 of the Bhartiya Nyaya

Sanhita, 2023 (“the BNS, 2023”) and Sections 3, 4 and 13

of the Maharashtra Ownership Flats (Regulation of the

Promotion of Construction, Sale, Management and

Transfer) Act, 1963 (“the MOFA, 1963”). Both the petitions

were heard together and are being decided by this common

judgment.

3.The background facts can be summarized as under :-

3.1The Respondent No. 2/�rst informant was a non-

resident Indian. The �rst informant alleged that, the

Petitioner No.1 – Jeegar Parmar (Accused No.1) made a

representation to the �rst informant at Kuwait that

Accused No. 1 was engaged in the business of Real Estate

development. The Petitioners were the partners of JITEJ

Life Spaces. The Accused No. 1 induced the �rst informant

to part with a huge amount by making a false

representation that, the Accused No. 1 would sale 13 shops

SAINATH, PA 3/31

and 13 car parking spaces in the redevelopment project of

Patel building.

3.2Eventually, the �rst informant was induced to part

with an amount equivalent to Rs.1,30,00,000/- (Rupees

One Crore Thirty Lakhs), in Kuwaiti Dinar, during the

period 03

rd

October, 2019 to 18

th

February, 2020. The �rst

informant was also induced to pay a sum of Rs.19.474

Lakhs to the Accused No. 1 on 18

th

February, 2020, and

various amounts to Raju Zaveri, Jitendra Prakash Gupta

and Charu Sharma towards stamp duty and registration

charges, etc.

3.3Agreements to sale were executed by the Accused No.

1 in the capacity of the partner of JITEJ Life Spaces in

favour of the �rst informant. The receipt of the amounts

were duly acknowledged by executing the agreements and

receipts as well as in the telephonic conversation.

3.4The Accused No. 1 avoided to execute the registered

instrument to convey those shops and the parking spaces.

Later on the �rst informant realized that, the properties

which the Accused No. 1 professed to sell, did not stand in

the name of the accused.

SAINATH, PA 4/31

3.5When the fraud was unearthed, the Accused No. 1

and his father (Accused No. 2) again made false

representations to the �rst informant that, there was a

buyer for the properties which were agreed to be sold to the

�rst informant and assured to refund the amount parted

with by the �rst informant by 30

th

January, 2024.

3.6The Accused No. 1, however, continued to buy time

on one or other pretext. Further inquiries revealed that,

the Society of which the property was to be redeveloped

had terminated the development agreement executed with

JITEJ Life Spaces.

3.7The �rst informant thus initially �led a private

complaint and pursuant to the directions issued by the

Magistrate for registration of F.I.R. and investigation, crime

came to be registered at N. M. Joshi Marg Police Station,

for the offences punishable under Sections 318(4) and 61 of

BNS, 2023 vide CR No. 0213/2025.

WRIT PETITION NO. 6668 OF 2025

3.8The learned Magistrate initially granted interim bail.

By a further order dated 01

st

December, 2025, the learned

SAINATH, PA 5/31

Magistrate was persuaded to make the order of interim bail

absolute and release the accused on bail till the �nal

disposal of the case. However, in addition to the conditions

imposed by the order releasing the accused on interim bail,

the learned Magistrate directed the Accused Nos. 1 and 2

to furnish a bank guarantee in the sum of Rs.75,00,000/-

(Rupees Seventy Five Lakhs), each and Accused Nos. 3 and

4 to furnish the bank guarantee of Rs.5,00,000/- (Rupees

Five Lakhs) and Rs.9,52,600/- (Rupees Nine Lakhs Fifty

Two Thousand), respectively, within a month from the date

of the said order.

3.9The learned Magistrate was of the view that, in order

to prevent commission of identical offences in future, it

was appropriate to impose stringent conditions for

enlarging the accused on bail.

3.10Being aggrieved, the Accused Nos. 1 and 2 have

preferred Writ Petition No. 6668/2025 assailing the legality

and validity of the condition to furnish the bank guarantee

of Rs. 75,00,000/-, each, for release on bail.

WRIT PETITION NO. 5994 OF 2025

SAINATH, PA 6/31

3.11During the pendency of the investigation, the

Investigating Of�cer, professed to debit freeze the bank

accounts of the Accused No. 1. On 24

th

May, 2025, the

Accused No. 1 informed the Senior Inspector of Police, N.

M. Joshi Marg Police Station that, there was a balance of

about Rs.1,89,48,000.00/- (Rupees One Crore Eighty Nine

Lakhs Forty Eight Thousand) in Account No.

0748104000030825 maintained by the Accused No. 1 with

IBDI Bank, JVPD Scheme. The Police Inspector was

requested to create a lean in respect of the amount of

Rs.1,89,48,000/- which was allegedly defruaded, and

permit the accused to operate the said account as that was

the main business account.

3.12The Investigating Of�cer, in turn, informed the �rst

informant that, on 23

rd

May, 2025, the Accused No. 1 had

deposited the amount in the said bank account

maintained with IDBI Bank, so as to have an aggregate

balance to the tune of Rs. 1,89,48,000/-. The said account

was debit freezed. The Respondent No. 2/�rst informant

was thus advised to �le an application before the learned

Magistrate for release of the said amount.

SAINATH, PA 7/31

3.13Pursuant thereto, the Respondent No. 2/�rst

informant �led a Criminal Application No.1514/2025

seeking release of the amount of Rs. 1,89,48,000/-. That

application was resisted by the accused.

3.14After appraisal of the material on record, the learned

Magistrate was persuaded to allow the application and to

direct the release of the said amount of Rs.1,89,48,000/- in

favour of the Respondent No. 2/�rst informant upon

furnishing an indemnity bond in the sum of

Rs.1,89,48,000/-. The �rst informant was also put to the

terms that whileinvesting the said amount, the �rst

informant shall ensure that, the amount would become

available within a period of one month of the requisition.

3.15Being aggrieved, the petitioners preferred a revision

application before the Court of Session for Greater

Mumbai. The learned Additional Sessions Judge was

persuaded to dismiss the revision application opining

inter

alia

that, the order of release of the seized amount was an

interlocutory order and, thus, not amenable to revisional

jurisdiction.

SAINATH, PA 8/31

3.18Being further aggrieved, the Petitioners have

preferred Writ Petition No. 5994/2025, to quash and set

aside the order passed by the learned Magistrate on 03

rd

October, 2025 and the impugned order passed by the

learned Additional Sessions Judge.

4.I have heard Mr. Girish Kulkarni, the learned Senior

Advocate for the petitioners, Ms. Neeta Karnik, the learned

Senior Advocate for Respondent No. 2/�rst informant in

both the Writ Petitions and Mr. D J Haldankar, the learned

APP for the Respondent - State. With the assistance of the

learned Counsel for the parties, I have perused the

material on record and the impugned orders.

WRIT PETITION NO. 6668 OF 2025

5.Mr. Kulkarni, the learned Senior Advocate for the

petitioners would submit that, a direction for furnishing a

bank guarantee of Rs. 75,00,000/-, to avail the bail

granted by the learned Magistrate, is too onerous. Th e

learned Magistrate has completely ignored the settled

position in law that a bail order cannot be made

conditional on the payment or deposit of the amount of

which the alleged victim is defrauded. A direction for

SAINATH, PA 9/31

furnishing bank guarantee of Rs. 75,00,000/- virtually

amounts to directing the accused to satisfy the claim of the

alleged victim at a pre-trial stage. Such an order of bail is

wholly unsustainable.

6.Ms. Karnik, the learned Senior Advocate for

Respondent No. 2/�rst informant, made an attempt to

sustain the directions in the impugned order. It was

submitted that, the facts of the case at hand are so gross

and the material on record so clear that an inference that

the petitioner/Accused No. 1 had defrauded the �rst

informant becomes explicitly evident.

7.Ms. Karnik made an endeavor to take the Court

through the documents which, according to her, clearly

establish that, the Accused had induced the �rst informant

to part with huge amount by making a false and

fraudulent representation. In such circumstances, the

learned Magistrate was justi�ed in directing the accused to

furnish the bank guarantee so as to secure the interest of

the �rst informant and also prevent the accused from

deceiving innocent and unsuspecting persons. Thus, the

directions to furnish the bank guarantee of the amoun t

SAINATH, PA 10/31

which has already been received by the accused cannot be

interfered with, in exercise of the writ jurisdiction,

submitted Ms. Karnik.

8.I am afraid to accede to the submissions of Ms.

Karnik. By a line of judicial precedents, the legal position

is �rmly crystallized to the effect that, an order of bail

cannot be made conditional upon the payment of any

amount to the victim or the deposit of the amount in

Court. While exercising the power to impose conditions for

enlarging an accused on bail; either regular or a pre-arrest,

the Court cannot impose unreasonable and onerous

conditions. A condition that, the accused shall furnish a

bank guarantee of Rs. 75,00,000/- is

ex facie onerous and

unreasonable. The Court cannot be oblivious to the

principle of presumption of innocence. A direction for

deposit of the amount, therefore, cannot be issued. Nor

can the Criminal Court act as a recovery agent for th e

victim. The aforesaid position in law is settled by a catena

of decisions.

9.It would suf�ce to make a reference to two decisions

of the Supreme Court. In the case of Ramesh Kumar Vs.

SAINATH, PA 11/31

State of NCT of Delhi

1

, after a survey of authorities, the

Supreme Court enunciated that, the conditions to be

imposed while enlarging the accused on bail, must not be

onerous or unreasonable or excessive. In the context of

grant of bail, all such conditions that would facilitate the

appearance of the accused before the Investigating

Of�cer/court, unhindered completion of investigation/trial

and safety of the community assume relevance. However,

inclusion of a condition for payment of money by the

applicant for bail tends to create an impression that bail

could be secured by depositing money alleged to have been

cheated. That is really not the purpose and intent of the

provisions for grant of bail.

10.In the case of Gajanan Dattatray Gore Vs. State of

Maharashtra & anr.

2

, the Supreme Court cautioned the

courts against imposing the condition of deposit of the

amount while enlarging the accused on bail. The

observations in Paragraph Nos. 19 to 22 read as under :-

“19. By this order, we make it clear and that too in

the form of directions that henceforth no Trial Court

or any of the High Courts shall pass any order of

1 (2023) 7 SCC 461

2 2025 SCC OnLine SC 1571

SAINATH, PA 12/31

grant of regular bail or anticipatory bail on any

undertaking that the accused might be ready to

furnish for the purpose of obtaining appropriate

reliefs.

20. The High Courts as well as the Trial Courts

shall decide the plea for regular bail or anticipatory

bail strictly on the merits of the case. The High

Courts and the Trial Courts shall not exercise their

discretion in this regard on any undertaking or any

statement that the accused may be ready and willing

to make.

21. This practice has to be stopped. Litigants are

taking the courts for a ride and thereby

undermining the dignity and honor of the court.

22. We hope and trust that the High Courts as

well as the Trial Courts across the country do not

commit the same mistake again.”

(emphasis supplied)

11.In view of the aforesaid enunciation of law, the

learned Magistrate clearly erred in directing the accused to

furnish bank guarantee in the sum of Rs. 75,00,000/-,

each, as a condition for grant of bail. The said condition is

thus liable to be quashed and set aside. The Writ Petition

No. 6668/2025 therefore deserves to be allowed.

SAINATH, PA 13/31

WRIT PETITION NO. 5994 OF 2025

12.The thrust of the submission of Mr. Girish Kulkarni,

the learned Senior Advocate for the petitioners, was that,

the amount which was lying in the account of the Accused

No. 1 with IDBI Bank, which was debit freezed, had no

nexus with the commission of alleged offences. The money

so standing on the credit of the said account was

generated out of the legitimate business activities of the

Accused No. 1. In the absence of the direct connection

between the commission of the alleged offences and the

said amount, which was lying in the account of the

Accused No. 1, the learned Magistrate could not have

directed the release of the said amount in favour of the

Respondent No. 2 – �rst informant. Such a course is legally

impermissible. The criminal proceedings, Mr. Kulkarni

would urge, cannot be permitted to be converted into

proceedings for recovery of debatable claims. The

Respondent No. 2 – �rst informant was free to initiate the

appropriate proceedings before the Competent Court t o

recover the amount which he was induced to allegedly part

with and/or damages. However, before the conclusion of

the trial and without pronouncing upon the complicity of

SAINATH, PA 14/31

the accused, the �rst informant cannot be permitted to

utilize the said amount.

13.Per contra, Ms. Karnik, the learned Senior Advocate

for Respondent No. 2 – �rst informant, would urge that,

there is overwhelming evidence to show that the accused

especially the Accused No. 1 had deceived the �rst

informant and induced him to part with the huge amount

of Rs.1,89,48,000/-. There are statements of witnesse s

including the co-accused which show that, the co-accused

had paid the amount, which were credited to their account,

to Accused No. 1. The receipt of the amount has also been

acknowledged by the Accused No. 1 by passing receipts.

The opinion of the handwriting and �ngerprint expert

reveals that, the said receipts have been executed by the

Accused No. 1.

14.In the aforesaid backdrop, in the face of

overwhelming material in support of the prosecution

version, the �rst informant who has been defrauded of an

amount to the tune of Rs. 1,89,48,000/-, cannot be made

to wait till the �nal disposal of the criminal proceedings. To

ask the �rst informant to inde�nitely wait for the release of

SAINATH, PA 15/31

the amount, would be a travesty of justice. Therefore, the

learned Magistrate was fully justi�ed in directing the

release of the amount in favour of the �rst informant upon

furnishing an indemnity bond. The said condition,

according to Ms. Karnik, adequately protects the interest of

the petitioners. Thus, in exercise of supervisory

jurisdiction, no interference is warranted with the

impugned order and the order passed by the learned

Magistrate directing the release of the amount of Rs.

1,89,48,000/- upon furnishing an undertaking.

15.The gravamen of indictment against the petitioners

especially Accused No. 1, narrated above is that, the

Accused No. 1 had induced the �rst informant to part with

the amount by making a false representation that the

Accused No. 1 would sale 13 shops along with 13 parking

spaces, in a building which was to be re-developed. The

Accused No. 1 resiled from the promise and sought time on

one or the other pretext. Eventually, it transpired that, the

Society had terminated the re-development agreement

executed in favour of the JITEJ Life Spaces of which the

Accused No. 1 was a partner. The petitioners had no t

taken steps to register the project and execute a registered

SAINATH, PA 16/31

instrument in favour of the �rst informant, despite having

obtained money under the pretext of payment of stamp

duty, registration charges and other expenses. Thus, the

petitioner committed the offence of cheating in pursuance

of the criminal conspiracy punishable under Sections

318(4) and 61 of BNS, 2023.

16.It is trite, there is clear distinction between a civil

wrong in the form of breach of contract, non-payment of

money, failure to perform the contract and the criminal

offence of cheating. To constitute an offence of cheating, it

has to be shown that there was dishonest intention since

the inception of the transaction. There ought to be deceit

coupled with injury. In a prosecution for the offence of

cheating, the questions as to whether the prosecution has

succeeded in establishing that, the intention of the

accused was dishonest since the inception of the

transaction and injury was caused to the victim by

practicing deception are the matters for adjudication at the

trial.

17.In the facts of the case at hand, in the backdrop of

the nature of indictment narrated above, the controversy

SAINATH, PA 17/31

revolves around the question as to whether, the learned

Magistrate was justi�ed at this stage to direct the release of

the amount of which the �rst informant was allegedly

defrauded, in favour of the �rst informant ?

18.To begin with, it is necessary to appreciate the

manner in which the amount standing to the credit of the

subject account of the Accused No.1, came to be freezed.

From the narration of facts and indictment in the charge-

sheet, it becomes evident that, the Investigating Of�cer had

debit freezed as many as 12 bank accounts of the Accused

vide communication dated 19

th

May, 2025, purportedly

under Section 106 of the Bhartiya Nagarik Suraksha

Sanhita, 2023 (“the BNSS, 2023”) which corresponds to

Section 102 of the Code of Criminal Procedure, 1973 (“the

Code, 1973”). The freezing of the accounts was informed to

the jurisdictional Magistrate on 20

th

May, 2025. It is

pertinent to note that, on 24

th

May, 2025, Jeegar Parmar

(Accused No.1) addressed a communication to Investigating

Of�cer apprising him that, he had deposited a sum of Rs.

1,89,48,000/- in the subject IDBI Bank account which was

also defreezed. Thereupon, apart from the subject account

maintained with IDBI Bank, wherein the said amount of

SAINATH, PA 18/31

Rs. 1,89,48,000/- was credited and debit freezed, the

Investigating Of�cer moved to de-freeze the rest of the bank

accounts.

19.Resultantly, the situation which thus obtains is that,

the amount which stands to the credit of the subject IDBI

account of Accused No. 1, was not seized by the Police in

the strict sense of the term. On the contrary, it represents

the amount which was deposited by the Accused No.1, so

as to facilitate the defreezing of other 11 accounts which

were also freezed by the Investigating Of�cer. That brings

to the fore the nature of the power of the Police to seize the

property under Section 102 of the Code, 1973.

20.Section 102 of the Code, 1973 which is subsumed in

Part D of Chapter VII of the Code, 1973, deals with the

power of Police Of�cer to seize certain property. The

phraseology of sub-Section (1) of Section 102 makes it

abundantly clear that, the Police of�cer is empowered to

seize the property if it meets the speci�ed character. First,

such property is either alleged or suspected to have been

stolen. Second, such property is found under

circumstances which creates suspicion of the commission

SAINATH, PA 19/31

of any offence. It implies that, the legislature has not

conferred the general power to seize the property of

whatever description and found under whichever

circumstances in relation to the persons who are privy to

the crime. Nor, the Investigating Of�cer is empowered to

seize any property of the person who is alleged to be

involved or suspected to have committed any offence.

Emphasis is, thus, on the character of the property rather

than its association with the Accused or for that matter the

�rst informant/victim.

21.In the case of State of Maharashtra V/s. Tapas D.

Neogy

3

, the Supreme Court considered the question

whether the police of�cer investigating an offence can issue

prohibitory order in respect of the bank account of the

accused in exercise of the power u/s 102 of the Code ?

22.While answering the question in the af�rmative to

the effect that the bank account of the accused or any of

his relations is “property” within the meaning of Section

102 of the Code and a police of�cer in the course of

investigation can seize or prohibit the operation of the said

3 (1999) 7 SCC 685

SAINATH, PA 20/31

account if such assets have direct links with the

commission of the offence for which the police of�cer is

investigating into, the Supreme Court expounded the

nature of the power under Section 102. It was in term s

observed that, two pre-conditions for applicability of

Section 102(1) are that, �rstly, it must be ‘property’ and

secondly, in respect of the said property, there must be

suspicion or commission of any offence. The Supreme

Court emphasized that the police of�cer can seize or

prohibit operation of the bank account if such assets have

direct link with the commission of the offence.

23.In the case of M. T. Enrica Lexie & Anr. Vs. Doramma

& ors.

4

, the Supreme Court enunciated in clear and

explicit terms that the property not suspected of

commission of the offence which is being investigated into

by the police of�cer cannot be seized. Under Section 102 of

the Code, the police of�cer can seize such property which

is covered by Section 102(1) and no other.

24.In the case of Nevada Properties Pvt. Ltd. Vs. State of

Maharashtra & anr.

5

, a three-judge Bench of the Supreme

4 (2012) 6 SCC 760

5 (2019) 20 SCC 119

SAINATH, PA 21/31

Court considered the question whether the expression “any

property” used in sub-section (1) of section 102, includes

an immovable property. The Supreme Court after an

elaborate analysis of the provisions and the previous

judicial precedents, answered the reference by holding

that, the power of a police of�cer under Section 102 of the

Code, to seize any property which may be found under

circumstances that create suspicion of the commission of

any offence, would not include the power to attach, seize

and seal an immovable property. In the process, the

Supreme Court expounded the scope and object of Section

102.

25.The observations in paras 30 and 31 are instructive,

and, hence, extracted below :-

“30. Equally important, for the purpose of

interpretation is the scope and object of Section

102 of the Code, which is to help and assist

investigation and to enable the police of�cer to

collect and collate evidence to be produced to

prove the charge complained of and set up in the

charge sheet. The Section is a part of the

provisions concerning investigation undertaken by

the police of�cer. After the charge sheet is �led,

the prosecution leads and produces evidence to

secure conviction. Section 102 is not, per se, an

SAINATH, PA 22/31

enabling provision by which the police of�cer acts

to seize the property to do justice and to hand

over the property to a person whom the police

of�cer feels is the rightful and true owner. This is

clear from the objective behind Section 102, use of

the words in the Section and the scope and ambit

of the power conferred on the Criminal Court vide

Sections 451 to 459 of the Code.

31. The expression ‘circumstances which create

suspicion of the commission of any offence’ in

Section 102 does not refer to a �rm opinion or an

adjudication/�nding by a police of�cer to

ascertain whether or not ‘any property’ is required

to be seized. The word ‘suspicion’ is a weaker and

a broader expression than ‘reasonable belief’ or

‘satisfaction’. The police of�cer is an investigator

and not an adjudicator or a decision maker. This

is the reason why the Ordinance was enacted to

deal with attachment of money and immovable

properties in cases of scheduled offences.”

(emphasis supplied)

26.In the case of Shento Varghese Vs. Jul�kar Husen &

ors.

6

, the Supreme Court again reiterated that, the pre-

requisite for exercising power under Section 102(1) of the

Code, 1973 is the existence of a direct link between the

tainted property and the alleged offence. It is essential

that, the property sought to be seized under Section 102(1)

6 (2024) 7 SCC 23

SAINATH, PA 23/31

of the Code, 1973 must have a direct or close link with the

commission of offence in question.

27.The legal position which thus emerges is that, though

the text of Section 102(1) uses the expression “any

property” which the Police Of�cer may seize, yet, the power

to seize the property stems from the expressions which

follow, namely, “the allegation or suspicion that such

property is stolen” or “it is found in a circumstances which

creates suspicion of commission of any offence”. There

ought to be a direct link between the property which is

seized and the offence which is alleged to have been

committed. In other words, the nexus between the seized

property and the commission of the alleged offence ought

to be objectively evident during the course of investigation

and the investigating of�cer ought to have grounds to

entertain a suspicion that an offence is committed in

relation to such property.

28.Keeping in view the aforesaid principles, re-adverting

to the facts of the case at hand, as noted above, when the

12 accounts of the Accused were initially debit freezed, the

amount of Rs. 1,89,48,000/- was not standing to the credit

SAINATH, PA 24/31

of the account of Accused No. 1. Instead, to seek t he

defreezing of the rest of the 11 accounts, the Accused No. 1

purportedly deposited the amount in the subject account

maintained with IDBI Bank, to make up the total amount

of Rs.1,89,48,000/-.

29.If viewed through this prism, the assertion of the

Investigating Of�cer that, the said amount represented the

recovery of the proceeds of the crime for which the

investigation was underway, appears to be rather

debatable. Even otherwise, as noted above, Section 102 of

the Code, 1973, is neither intended to confer, nor a

repository of, the power to seize the property for th e

purpose of its delivery to the person/victim whom the

Investigating Of�cer considers to be the rightful owner.

30.Such being the nature of the order of freezing of the

account and the nature of the property which came to be

seized in the instant case, could the learned Magistrate

have directed the release of the amount of Rs.

1,89,48,000/- in favour of the �rst informant, during the

pendency of the trial ?

SAINATH, PA 25/31

31.Ms. Karnik, the learned Senior Advocate for the

Respondent No. 2 – �rst informant, would urge that, the

�rst informant had succeeded in demonstrating a very

strong

prima facie case and substantiated the same by

placing on record the documents. Therefore, though th e

trial is yet not concluded the release of the amount in

favour of the �rst informant on the condition of furnishing

an indemnity to bring back the said amount, was wholly in

order.

32.The aforesaid submissions are required to be

appreciated in the light of the well recognized principles

that, the criminal proceedings are not for realization of the

disputed dues and the Criminal Court is not expected to

act as a recovery agent to release the dues of the

complainant, particularly without trial. A direction for

release of the freezed amount in favour of the �rst

informant, partakes the character of compensatory justice

at a pre-trial stage. The Court cannot lose sight of the fact

that,

prima facie there is no element of a public offence in

the sense that, a large body of purchasers has been

deceived in an identical fashion. Nor, any public money

appears to be involved. The transaction was essentially

SAINATH, PA 26/31

that of sale of the commercial units in the building

proposed to be redeveloped by the accused. The genesis of

the offences therefore appears to be in a private dispute

between the parties. This distinction assumes signi�cance.

33.A pro�table reference in this context can be made to

a judgment of the Supreme Court in the case of Ramesh

Kumar (supra), wherein the Supreme Court underscored

the distinction in the approach to be adopted by the Court

where the allegations were of mis-appropriation of public

money. The observations in Paragraph Nos. 25 and 26 are

material and hence extracted below :-

“25. Law regarding exercise of discretion while

granting a prayer for bail under section 438 of the Cr.

PC having been authoritatively laid down by this

Court, we cannot but disapprove the imposition of a

condition of the nature under challenge. Assuming

that there is substance in the allegation of the

complainants that the appellant (either in

connivance with the builder or even in the absence of

any such connivance) has cheated the complainants,

the investigation is yet to result in a charge-sheet

being �led under Section 173(2) of the Cr.PC, not to

speak of the alleged offence being proved before the

competent trial court in accordance with the settled

procedures and the applicable laws. Sub-section (2)

of Section 438 of the Cr. PC does empower the high

SAINATH, PA 27/31

court or the court of sessions to impose such

conditions while making a direction under sub-

section (1) as it may think �t in the light of the facts

of the particular case and such direction may include

the conditions as in clauses (i) to (iv) thereof.

However, a reading of the precedents laid down by

this Court referred to above makes the position of law

clear that the conditions to be imposed must not be

onerous or unreasonable or excessive. In the context

of grant of bail, all such conditions that would

facilitate the appearance of the accused before the

investigating of�cer/court, unhindered completion of

investigation/trial and safety of the community

assume relevance. However, inclusion of a condition

for payment of money by the applicant for bail tends

to create an impression that bail could be secured by

depositing money alleged to have been cheated. That

is really not the purpose and intent of the provisions

for grant of bail.

26.We may, however, not be understood to have

laid down the law that in no case should willingness

to make payment/deposit by the accused be

considered before grant of an order for bail. In

exceptional cases such as where an allegation of

misappropriation of public money by the accused is

levelled and the accused while seeking indulgence of

the court to have his liberty secured/restored

volunteers to account for the whole or any part of the

public money allegedly misappropriated by him, it

would be open to the concerned court to consider

whether in the larger public interest the money

SAINATH, PA 28/31

misappropriated should be allowed to be deposited

before the application for anticipatory bail/bail is

taken up for �nal consideration. After all, no court

should be averse to putting public money back in the

system if the situation is conducive therefor. We are

minded to think that this approach would be in the

larger interest of the community. However, such an

approach would not be warranted in cases of private

disputes where private parties complain of their

money being involved in the offence of cheating.”

(emphasis supplied)

34.At a pre-trial stage, the release of the aforesaid

amount in favour of the �rst informant is fraught with the

risk of pre-judging the guilt of the Accused. It is true, in

such a situation of the present nature and especially when

the Accused No. 1 had volunteered to credit the amoun t

into the subject IDBI account which has been debit

freezed, with a view to get the rest of the 11 accounts

defreezed, the interest of the �rst informant/victim, cannot

be completely ignored. However, releasing the amount in

favour of the �rst informant would be taking a view which

is at the other end of the spectrum. A balance would thus

be required to be struck.

35.In the considered view of this Court that balance can

be struck by directing that the amount of Rs.1,89,48,000/-

SAINATH, PA 29/31

be invested in an interest bearing account so that at the

conclusion of the trial, the Court is equipped to pass an

appropriate order in relation to the said amount, as well.

36.For the foregoing reasons, I am inclined to hold that,

the learned Magistrate was not justi�ed in directing the

release of amount of Rs.1,89,48,000/- in favour of the �rst

informant/victim. Thus, the order passed by the learned

Magistrate deserves to be interfered with, on that score

and suitably modi�ed. The petition thus deserves to be

partly allowed.

37.Hence, the following order.

: : O R D E R : :

i] The Writ Petition No. 6668/2025 stands allowed.

ii]The condition to furnish bank guarantee in the sum

of Rs. 75,00,000/- each stands quashed and set

aside.

iii] The Writ Petition No. 5994/2025 stands partly

allowed.

SAINATH, PA 30/31

iv] The impugned order passed by the learned

Additional Sessions Judge stands quashed and set

aside.

v] The order dated 03

rd

October, 2025, passed by

the learned Magistrate stands modi�ed as under:-

a) The order of releasing the amount of Rs.

1,89,48,000/- (One Crore Eighty Nine Lakhs Forty

Eight Thousand) stands quashed and set aside.

b) The said amount of Rs.1,89,48,000/- (One

Crore Eighty Nine Lakhs Forty Eight Thousand) be

invested in an interest bearing �x deposit account.

c) The said amount alongwith accumulated

interest shall abide the �nal order that may be

passed by the learned Magistrate at the conclusion

of the trial.

vi] Rule made absolute to the aforesaid extent in

the respective petitions.

vii] No costs.

[N. J. JAMADAR, J.]

SAINATH, PA 31/31