Gujarat High Court
Nanabhai Madhubhai Royla & vs State Of Gujarat on 8 August, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/19286/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 19286 of
2017
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NANABHAI MADHUBHAI ROYLA & 1....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR HARSHIT S TOLIA, ADVOCATE for the Applicant(s) No. 1 - 2
MR PARTH S TOLIA, ADVOCATE for the Applicant(s) No. 1 - 2
SAMTA R GODIWALA, ADVOCATE for the Applicant(s) No. 1 - 2
MS HB PUNANI, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 08/08/2017
ORAL ORDER
1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicants - original accused have prayed to release them on anticipatory bail in case of their arrest in connection with the FIR being C.R.No.I-116 of 2011 registered with Navsari Rural Police Station, Navsari for the offences punishable under Sections 447, 114, 465, 467, 468, 471, 193 and 196 of the Indian Penal Code.
2. It is the case of the prosecution that one M/s.Meghdoot Dyeing and Printing Mills Ltd. (hereinafter referred to as the said Mill) and its Director availed the loan facility from the Page 1 of 10 HC-NIC Page 1 of 10 Created On Mon Aug 21 08:58:31 IST 2017 R/CR.MA/19286/2017 ORDER State Bank of India (hereinafter referred to as the SBI) in the year 1973. In pursuance of the same, the land, which comprised of different Survey Numbers, had been hypothecated with the SBI on July 26, 1973.
2.1 Since the said loan remained unpaid, the SBI filed a suit for recovery of dues of approximately Rs.85 lakh. During the pendency of the suit, one Shiv Land Developers was desirous of purchasing the plant and machinery; and an offer was submitted to the SBI by the co-accused Nandlal Kalabhai Pandav, which was presented before the Debts Recovery Tribunal. Even the consent terms came to be arrived at before the Debts Recovery Tribunal for sale consideration of Rs.85 lakh qua the same.
2.2 The possession of the factory premises along with the plant and machinery of the Mill had been handed over by the SBI to the said Shiv Land Developers. An order to that effect had been passed in suit bearing No.35 of 1985.
2.3 It is also the case of the prosecution that the land admeasuring approximately 23000 sq.mtrs. situated at Kabilpor was given on lease for the period from the year 1972 to the year 2005. It is further the case of the prosecution that this lease hold right is qua the land bearing Survey No.182 part.
2.4 It is the case of the prosecution that under the pretext of consent terms and the order passed by the Debts Recovery Tribunal for the entire parcel of land, which belonged to the Mill, one of the partners viz. Nandlal Kalabhai Pandav, made Page 2 of 10 HC-NIC Page 2 of 10 Created On Mon Aug 21 08:58:31 IST 2017 R/CR.MA/19286/2017 ORDER an application before the concerned authority and got the mutation entry posted in the year 2009 in his name as partner of Shiv Land Developers.
2.5 A civil suit bearing Regular Civil Suit No.38 of 2007 came to be preferred before the Court of the learned Principal Senior Civil Judge, Navsari, for declaration and permanent injunction in respect of the very parcel of the land, inter alia stating therein that the Mill had no right, title or interest in the suit property. It was also sought to register the document in favour of Shiv Land Developers. The application for interim injunction did not favour Shiv Land Developers and, therefore, an Appeal From Order bearing No.159 of 2008 came to be preferred, which ultimately came to be dismissed.
2.6 It is also the case of the prosecution that from the year 2009, both i.e. M/s.Meghdoot Dyeing and Printing Mills Ltd. and M/s.Meghdoot Knitting Mills Ltd., attempted to lodge a complaint against the act of Shiv Land Developers and eventually, it was the Director General of Police, Gujarat State, who directed in the year 2011 to lodge the first information report in question and, therefore, the present application.
3. A fortiori, Shri S.V. Raju, learned Senior Counsel appearing with learned counsel Shri Harshit Tolia and Ms.Samta Godiwala for the applicants, has urged that the applicants are two of the partners of total nine partners of Shiv Land Developers. He has urged that the criminal trespass which is alleged against them was of the year 1999. The first information report was lodged in the year 2011 and, Page 3 of 10 HC-NIC Page 3 of 10 Created On Mon Aug 21 08:58:31 IST 2017 R/CR.MA/19286/2017 ORDER therefore, this belated first information report itself would entitle them the discretionary relief of regular bail in their favour.
3.1 The Senior Counsel has urged that the present applicants have no role to play in the entire gamut of facts. Though they were initially the partners of Shiv Land Developers, they never took any active interest and it was one of the partners viz. Nandlal Kalabhai Pandav, who had given the applications and he has already been protected by this Court in the quashing petition preferred by him.
3.2 It is further urged that the matter is resting on documentary evidence and the parties are already before the Civil Court and the disputes are essentially civil in nature and, therefore also, this Court may exercise the discretion in their favour.
3.3 It is argued further that none of the Courts has believed the possession of Shiv Land Developers and, therefore, has not granted the protection. Moreover, on August 15, 2009, both the applicants have retired himself as partners from the said Shiv Land Developers. Those documents are brought on record today to emphasise that the applicants have nothing to do with the land in question.
4. A contrario sensu, Ms.Shruti Pathak, learned Additional Public Prosecutor, objected to grant of the present application and has taken this Court to the chronology of events to point out that the present applicants have attempted to take benefit of the partnership firm and the very partnership firm has Page 4 of 10 HC-NIC Page 4 of 10 Created On Mon Aug 21 08:58:31 IST 2017 R/CR.MA/19286/2017 ORDER fraudulently attempted to take benefit of the order of the Debts Recovery Tribunal and, therefore, this Court may not exercise discretion in favour of the applicants. She has urged that though two of the accused of the very crime have been enlarged on bail, they were enlarged on regular bail. She has further urged that taking one stand before the Civil Court and shifting the liability on Mr. Pandav on later stage in criminal proceedings may not be sustained.
5. Shri Hriday Buch, learned counsel appearing for Mr.Darshan M. Varandani, learned advocate for and on behalf of the original complainant, has vehemently resisted this application. According to him, the investigation is going on and no relief at this stage should be granted as there are possibilities of the applicants tampering with the evidence and/or hampering with the prosecution witnesses. He has pointed out as to how in the memorandum of the present application, there is no whisper about the applicants having retired from the said firm and thereby, has prayed for not entertaining the present application.
6. This Court on earlier occasion, granted regular bail to two of the accused of the said case, in Criminal Misc. Application No.18157 of 2017 vide order dated 27/07/2017. Reasons given by this Court in the said application will have full force so far as present applicants are concerned which are reproduced hereinafter. No separate reasons need to be given in this application.
7. Having thus heard both the sides and having perused the material on record, as also the affidavit-in-reply filed on Page 5 of 10 HC-NIC Page 5 of 10 Created On Mon Aug 21 08:58:31 IST 2017 R/CR.MA/19286/2017 ORDER behalf of the original complainant, this Court notices that there is a civil dispute going on between the parties. Serious allegations have been levelled against the partnership firm and particularly, against the co-accused Mr.Nandlal Kalabhai Pandav, of getting the entry mutated fraudulently under the pretext of the order of the Debts Recovery Tribunal. This Court while deciding the Appeal From Order also had observed at an interim stage that the possession given by the Debts Recovery Tribunal was in respect of the plant and machinery of the Mill and not the land as averred. This Court further notices that the lease hold right in respect of the land bearing Survey No.182 part were also over in the year 2006.
8. In that view of the matter, considering the fact that the entry which has been posted was essentially at the instance of one of the partners viz. Nandlal Kalabhai Pandav, who appears to be active from the beginning i.e. right from the time this partnership firm had moved the Debts Recovery Tribunal, as also thereafter while getting the entry mutated and the fact that the investigation is still substantially over for continuing qua these persons from the year 2011, the benefit of discretionary relief deserves to be granted in their favour even though prima facie case against the partnership firm is made out, the matter predominantly is based on documentary evidence.
9. The applicants have sought anticipatory bail. Considering the nature of allegations in the First Information Report and for the reasons reported to hereinabove coupled with the facts that there are no criminal antecedents, the applicants would be entitled to grant of anticipatory bail Page 6 of 10 HC-NIC Page 6 of 10 Created On Mon Aug 21 08:58:31 IST 2017 R/CR.MA/19286/2017 ORDER bearing in mind the principles laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011)1 SCC 694, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia & Ors., reported in (1980)2 SCC
565.
10. Resultantly, the present application is allowed by directing that in the event of the applicants herein being arrested pursuant to FIR being C.R.No.I-116 of 2011 registered with Navsari Rural Police Station, Navsari, the applicants shall be released on bail on furnishing a personal bond of Rs.25,000/- (Rupees Twenty Five Thousands only) each with two solvent surety of like amount, on the following conditions:
[a] shall not take undue advantage of liberty or misuse liberty and shall cooperate with the investigation and make themselves available for interrogation whenever required.
[b] shall remain present at the concerned Police Station on 1st Monday of every English Calander month for a period of six months.
[c] shall remain present at concerned Police Station on 11/08/2017 between 11:00 am to 2:00 pm:
[d] shall not hamper the investigation in any manner Page 7 of 10 HC-NIC Page 7 of 10 Created On Mon Aug 21 08:58:31 IST 2017 R/CR.MA/19286/2017 ORDER nor shall directly or indirectly make any inducement, threat or promise to any witness so as to dissuade them from disclosing such facts to the Court or to any Police Officer;
[e] shall at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall not change the residence till the final disposal of the case or till further orders;
[f] will not leave India without the permission of the Court and, if is holding a Passport, shall surrender the same before the trial Court immediately;
[g] If arrested, to furnish the present address of 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] not enter Navsari District, except for marking their presence and attending the Court proceedings;
[i] not transfer, assign or alienate in any manner nor deal with in any mode or manner with the land in question, till completion of the trial;
[j] publish in the newspaper qua retirement from the said partnership firm for the common public to be made aware of such intention, as intended and argued before this Court;
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R/CR.MA/19286/2017 ORDER
[k] despite this order, it would be open for the
Investigating Agency to apply to the competent Magistrate, for police remand of the applicants. The applicants shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicants, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
11. If breach of any of the above conditions is committed, the trial court concerned will be at liberty to issue warrant or take appropriate action in the matter and even the Investigating Officer will be at liberty to approach this Court in case of breach of any such condition.
12. Applicants shall not be permitted to take contrary stand then the one which he has taken before this Court so far as his interest in the partnership firm is concerned. Anything contrary, if in future is noticed by the prosecution, the prosecution shall be at liberty to approach the competent Page 9 of 10 HC-NIC Page 9 of 10 Created On Mon Aug 21 08:58:31 IST 2017 R/CR.MA/19286/2017 ORDER Court for cancellation of bail.
13. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicants on bail.
14. Rule is made absolute to the aforesaid extent. The present application is disposed of accordingly. Direct service is permitted.
(MS SONIA GOKANI, J.) ila Page 10 of 10 HC-NIC Page 10 of 10 Created On Mon Aug 21 08:58:31 IST 2017