Gujarat High Court
Kalpesh vs State on 18 October, 2011
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
Gujarat High Court Case Information System
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CR.MA/12487/2011 11/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 12487 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
=========================================
KALPESH
N DAFTARY - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance :
MR
PM THAKKAR WITH MR HARSHIT S TOLIA
for Applicant(s) : 1,
MR
KL PANDYA, LD. ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1,
MR
BB NAIK for Original
Complainant
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 18/10/2011
CAV
ORDER
By way of present application, filed under Section 439 of the Code of Criminal Procedure, 1973, the applicant has prayed to release him on regular bail in connection with CR No.I-77 of 2010 registered with Dahej Police Station, District Bharuch, for the offence punishable under Sections 406, 420, 465, 466, 467, 468, 471, 472, 474, 499, 500 and 120(B) of the Indian Penal Code.
As per the say of the complainant, he is Manager (Commerce) in one M/s.Hindalco Industries Limited. On 18th December, 2010 the complainant had filed complaint against Padmavati Agencies Private Limited and its six Directors and accountant of Padmavati Agencies Private Limited at Dahej Police Station. As per the case of the complainant, the Hindalco Industries was importing various materials for manufacturing activities of the industry. For paying Custom Duty, M/s.Hindalco Industries used to purchase duty free licenses from market, which are freely saleble / transferable, granted by Director General of Foreign Trade to various exporters as incentives. In the market, such duty free licenses namely Duty Entitlement Pass Book (DEPB) and Vises Krisi Upaj Yojna (VKUY) are available on sale. The complainant has stated that they had purchased various duty free licenses from one Padmavati Agency Pvt. Ltd. On various dates and for various amounts. There was bond executed by Padmavati Pvt. Ltd. to compensate, in case licenses are not permitted to be utilised. On 19th November, 2010, officers of DRI called the complainant and his colleague Mr.Mathur. During inquiry, the officers of DRI had shown certain duty free licenses to the complainant and it was shown that eight licenses are forged documents, pursuant to which the complainant had approached Padmavati Agencies Pvt. Ltd. and its Directors by writing letters seeking explanation about forged licenses. However, neither response was given by accused No.1, nor from its Directors / office bearers. Pursuant to which the present complaint was registered by the complainant being officers of M/s.Hindalco Industries against Padmavati Agencies and its Directors and accountant.
Heard Mr.Prakash Thakkar, learned senior counsel with Mr.Parth Tolia, learned counsel for the applicant, Mr.K.L. Pandya, learned Additional Public Prosecutor appearing for respondent-State and Mr.B.B. Naik, learned senior counsel for original complainant.
Mr.Thakkar has read the contention of Section 405 and 415 of the Indian Penal Code and vehemently contended that from the ingredient of Section 405 of the Indian Penal Code, entrustment and dominion over the property is required to be established beyond reasonable doubt. Mr.Thakkar has further contended that from the contents of complaint, main ingredient of Section 405 and 415 of the Indian Penal Code is not established and it is also not established from the charge-sheet papers to show that present complainant is a person through whom entrustment and dominion over the property is made to the present applicant. He has also contended that as per the complaint, the name of Padmavati Agencies Pvt. Ltd. is shown, but, prima-facie, no evidence is produced on the record to connect the present applicant with Padmavati Agencies Pvt. Ltd. He has also contended that the applicant is not the Director or office bearers of the said Padmavati Agencies Pvt. Ltd. He has also further contended that the present proceedings is, in fact, successive prosecution of the prosecution of DRI. He has also further contended that through DRI, certain statements were recorded and even from the charge-sheet papers, that statements are not part of the investigation or case of the prosecution. Mr.Thakkar has also read the charge-sheet papers and contended that prosecution has no evidence to say that whether that licenses are forged or bogus and in support thereof, prosecution has not produced any expert opinion to say as to whether that licenses are prepared or made by present applicant or not. He has further contended that when, prima-facie, it is established that applicant has no connection whatsoever with Padmavati Agencies Pvt. Ltd. He has further contended that co-accused Mr.Piyush Surendrabhai Viramgama is released on bail by this Court vide order dated 23rd September, 2011. He has further contended that investigation is over and charge-sheet is already filed. He has read the contents of the FIR and vehemently contended that applicant is not named in the FIR. He has further read the contents of FIR and contended that name of Padmavati Agencies Pvt. Ltd. and its office bearers is shown, but none of them are arrested till date. He has further contended that prima-facie it is established that the applicant has no connection with Padmavati Agencies Pvt. Ltd. He has further contended that the entire prosecution case is based on the investigation of DRI only and the fact is undisputed and admitted and DRI is not in a position to file charge-sheet till date. He has further contended that there is no iota of evidence in the entire charge-sheet, except statements of the complainant, such other persons including DRI officers, which itself is not sufficient to detain the present applicant as it fails to make out any prima-facie case. Mr.Thakkar has also contended that when there is no evidence to connect the present applicant with Padmavati Agencies Pvt. Ltd. and when the prosecution has failed to produced on record any expert opinion of FSL to show that the present applicant has prepared or made the said licenses, present applicant may kindly be released on bail. He has further contended that role of the present applicant is not established, beyond reasonable doubt, to say that main ingredient of Section 415 of the Indian Penal Code is established against the present applicant. He has also read Sections 463 and 464 of the Indian Penal Code and also further contended that prosecution failed to establish from the charge-sheet papers to say that main ingredient of both the provisions of law is established against the present applicant. He has also contended that Section 471 of the Indian Penal Code "used forged documents as genuine" is a bailable offence. He has further contended that in Criminal Miscellaneous Application No.7483 of 2011 the co-ordinate Bench of this Court has considered the case of the co-accused and even this Court has also considered the case of co-accused in Criminal Miscellaneous Application No.12793 of 2011. Mr.Thakkar has further contended that M/s.Hindalco Industries has filed Civil Suits before the City Civil Court, and from that Civil Suits also, it appears that the transaction was not with the present applicant and even there is no previty of contract between the applicant and the complainant. Mr.Thakkar has also contended that from the statement dated 18th December, 2010 of Mr.B.K. Pilaniwala, it appears that there are allegations only against the officers of Padmavati Agencies Pvt. Ltd. and not against the present applicant. The statement of Mr.Piliniwala do not implicate, in any manner, the present applicant with the alleged offence in question. He has further contended that in the said factual background of this application, the present proceedings is in fact successive prosecution of the prosecution of DRI. In fact it had been revealed from the DRI proceedings and the Civil Suit No.2525 of 2010 filed by M/s.Hindalco Industries that one Shivangi Enterprise, which is a proprietorship company of Mr.Vijay Gadia (who is working with Mr.Piyush Viramgama), sold various licenses to one Vani Exports, proprietorship of Mr.Girish Ghelani, who in turn sold the said licenses to M/s.Padmavati Agencies Private Limited, which has further sold to M/s.Hindalco Industries. The applicant and his company viz. Sankalp Creation P. Ltd. has no role in selling / transferring of such free licenses. The applicant has no transaction at all with the complainant company in whatsoever manner. He has further contended that even during the interrogation of DRI and during search, nothing incriminating is found from the applicant. The fake seals and other materials found from the place of Mr.Piyush Viramgama and Mr.Vijay Gadia of Shivangi Enterprise. With a view to wriggle out severe criminal and civil responsibility of the office bearers of M/s.Padmavati Agencies Pvt. Ltd., implicated the present applicant by filing the complaint against him. In fact, there was no transaction of complainant or M/s.Padmavati Agencies Pvt. Ltd. with the applicant. Mr.Thakkar has further contended that the co-accused has already been released on bail by this Court and therefore, on the ground of parity, present applicant may also be released on bail. He has further contended that it is the duty of the Investigating Officer to collect documents from DRI. He has further contended that even from the filing of charge-sheet, it shows that the present Investigating Officer is negligent and even from the charge-sheet papers, prima-facie, no case is made out against the present applicant. He has further contended that certain other companies are also involved, but they are not cited as accused in the charge-sheet. He has also contended that the investigation is biased. Just to protect skin of real culprits, present applicant is wrongly booked by the Investigating Agency. He, therefore, contended that looking to the facts of the case and overall circumstances, applicant may kindly be released on bail.
As against this, Mr.K.L. Pandya, learned Additional Public Prosecutor, has vehemently opposed the present application and contended that the applicant is involved in a serious offence of fraud and forgery. Because of the act of the applicant, Government has suffered a huge loss. Prima-facie case and role of the applicant is proved beyond reasonable doubt and therefore, no leniency can be awarded to the applicant. He, therefore, contended that the present application may kindly be rejected.
Mr.B.B. Naik, learned senior counsel for the original complainant, has supported the case of the prosecution. He has contended that co-ordinate Bench of this Court has rejected the application of the present applicant in different Crime Register Number vide order dated 23rd September, 2011. The co-ordinate Bench has in its order observed that 85 licenses were forged. He has contended that present applicant is a creator of bogus, fraud and forged licenses and from Khanpur, the said licenses were distributed. He has further contended that the present applicant is one of the conspirators. He has also contended that looking to the charge-sheet papers, when prima-facie case is made out against the applicant, present application cannot be entertained. Mr.Naik has also read the letter dated 22nd January, 2011 of DRI addressed to the Investigating Officer and contended that present applicant is a key planner. He has further contended that due to negligency on the part of the Investigating Officer, applicant-accused cannot be released easily. He has further contended that DRI has arrested the accused and they are released due to default bail. He has further contended that, prima-facie, it is established that forged licenses are circulated. He, therefore, contended that the present application is required to be rejected.
Heard learned counsel for the respective parties and also perused papers produced before me. In this case, charge-sheet is already filed. It is the duty of the prosecution to establish main ingredient of Sections 405 and 415 of the Indian Penal Code. So far as question regarding entrustment and dominion over the property is concerned, I have not found any substance from the charge-sheet papers to say that, prima-facie, case is established against the present applicant. It also appears from the papers that till date DRI has not filed the charge-sheet or not issued any show cause notice to connect the applicant in the offence alleged against him. It appears that the Investigating Officer has never bothered to obtain any evidence from DRI. The Investigating Officer has failed to produce any documentary evidence to connect the present applicant with M/s.Padmavati Agencies Pvt. Ltd. Court is not entering into the merits of the case, but it is the duty of the Court to see that as to whether prima-facie case is made out or not. It is the duty of the prosecution to prove that from whom the forged licenses in question is recovered and who has prepared or made the said forged and bogus licenses. In the present case, the prosecution has failed to prove beyond reasonable doubt that the said forged and bogus licenses are prepared or made by the applicant. Even the Investigating Officer has not produced any evidence from FSL to show that the present applicant has prepared or made the said bogus licenses. The offences alleged against the applicant are triable by the Court of Magistrate. In the present case, charge-sheet is filed and it is not the case of the prosecution that there are chances that applicant may absconding or the applicant may tamper with the evidence. The case is rest upon the documentary evidence.
I have also perused the order passed by the Court below as also the order passed by this Court. Looking to the papers, I have not found direct involvement of the present applicant in the offence in question. The order passed by the co-ordinate Bench of this Court releasing the co-accused on bail has made observations that, (I) the financial loss caused to the Department appears to have been made good by M/s.Hindalco Industries Ltd., Dahej; (ii) all the offences are magistrate triable offences; (iii) investigation is over and charge-sheet is filed; (iv) applicant is a permanent resident of Rajkot and is residing with his family at Rajkot; (v) the entire case of the prosecution is based on documentary evidence.
In the facts and circumstances of the case and considering the nature of allegations and role attributed to the applicant and now the charge-sheet is filed, without entering into the merits of the case, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion to enlarge the applicant on bail.
Hence, the applicant is ordered to be released on bail in connection with CR No.I-77 of 2010 registered with Dahej Police Station, District Bharuch, for the offence alleged against him in this application on his executing a personal bond of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall -
a) not take undue advantage of his liberty or abuse his liberty;
b) not to try to tamper or pressurise the prosecution witnesses or complainant in any manner;
c) maintain law and order and should cooperate the Investigating Officer;
d) not act in a manner injurious to the interest of the prosecution;
e) mark his presence before the Investigating Officer on every 15th day of each English calendar month between 09.00 hours and 14.00 hours;
f) not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
g) furnish the address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
h) surrender his passport, if any, to the lower Court within a week.
If the breach of any of the above conditions is committed, the concerned Court will be free to issue warrant or take appropriate action in the matter.
Bail before the lower Court having jurisdiction to try the case. It would be open to the trial Court concerned to give time to furnish the solvency certificate if prayed for. Rule is made absolute.
Direct service is permitted.
(Z. K. Saiyed, J) Anup Top