Gujarat High Court
Chandrakant Gunvantrai Pandya vs State Of Gujarat on 9 February, 2021
Author: A. C. Joshi
Bench: Ashokkumar C. Joshi
R/CR.MA/17336/2020 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 17336 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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CHANDRAKANT GUNVANTRAI PANDYA
Versus
STATE OF GUJARAT
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Appearance:
MR DIPEN K DAVE(3296) for the Applicant(s) No. 1
MS. MAITHILI MEHTA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 09/02/2021
ORAL JUDGMENT
1. This successive bail application is filed by the Applicant - Accused viz. Chandrakant Gunvantrai Pandya under Section 439 of the Code of Criminal Procedure for enlarging the applicant on Regular Bail in connection with I-C.R. No. 15 of 2019 registered with ACB Police Station, Ahmedabad, District : Ahmedabad (City) for the offences punishable under Sections 13(1)(B) and 13(2) of the Prevention of Corruption Act and under Section 109 of the IPC.
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2. Heard learned Advocate Mr. Dipen K. Dave for the Applicant and learned APP Ms. Maithili Mehta for the Respondent State through Video Conference.
3. The facts in nutshell, as per the main allegations against the applicant in the F.I.R is that on 05.04.2019, Assistant Director, Field -2, ACB, Gujarat State, Ahmedabad has filed a complaint stating that the order came to be passed by Assistant Director, ACB, Gujarat State against the applicant-accused viz. Chandrakant Gunvantrai Pandya, the then Additional Resident Collector, Surendranagar for making disproportionate assets and the complainant herein has made preliminary investigation and filed a complaint. As alleged in the FIR, Mr. Chandrakant Pandya has misused his post and committed irregularity and illegality and corrupton for being wealthy and invested those wealth in movable and immovable properties in the name of his daughters viz. Radhik Pandya, Bhumika Pandya w/o. Jinalbhai Dave and Kamini Dhirajlal Acharya (Niece) and for making this disproportionate assets, Mr. Dharmeshbhai Manibhai Patel, Chandrakant Manibhai Patel and Suketuchandra Ranchhodbhai Patel have helped the accused-Chandrakant Pandya by taking cash from the accused and transferred the entry from their bank accounts. Thefore, the complaint was filed. In the year 2005 at Rajkot, the case of disproportionate assets was filed against the applicant, but, the complainant has not disclosed the fact that in the said case, after investigation, no offence was made out and therefore, final report was filed by ACB and it was accepted by the Ld. Special Court, Rajkot. Therefore, the complainant tried to hide the said fact from the Honorable Court.
3.1 That the applicant has taken divorce due to some personal reasons and they have two daughters viz. Radhika and Bhumika Page 2 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT and both are married and living at Ahmedabad doing business by their own and are filing the income-tax returns also. It is also contended that the applicant has no concern with the properties of assets of his daughters as they are earning. As per allegations in the complaint, Dharmesh Patel and his wife Sonalben have given loan to applicant and his daughters as well as niece Kaminiben Acharya, but not clarified that they have given loan to whom and how much and they have not given loan to applicant but, have given loan to his daughters and niece. The applicant has no connection with the said loan as his daughters who are married and niece who is also married, are doing their own business and earning. Therefore, the applicant cannot be made responsible for the said loan in any manner.
3.2. That their property was also calculated for the purpose of considering and calculating the disproportionate assets. That section 13(1) (e) defines the said aspect. Section 13(1)(e) of the Prevention of Corruption Act, 1988 is reproduced as under for the sake of ready reference :
"[(1) A public servant is said to commit the offence of criminal misconduct,--
(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resourcesor property disproportionate to his known source of income.
Explanation. For the purpose of this section, "Known source of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant."' Page 3 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT 3.3. That Rule 2(c) of the Gujarat Civil Services (Conduct) Rules, 1971, states that so far as definition of "Members of the Family"
is concerned, the wife or husband as the case may be, of the Government Servant whether residing with the Government Servant or not but does not include a wife or husband as the case may be, separated from the Government Servant by a decree or order of a competent Court, or in accordance with the personal law applicable to the Government Servant. Rule 2 (c)(ii) states that son or daughter or step son or step daughter of the Government Servant and wholly dependent on him or her but does not include a child or step child who is no longer in any way dependent on the Government servant or of whose custody, the Government Servant has been deprived of by or under any law. Rule 2 (c)(iii) states that any other person related, whether by blood or marriage, to the Government Servant's wife or husband, and wholly dependent on the Government Servant.
3.4. That Article 21 of the Constitution of India provides right to life and personal liberty and without any due procedure of law and in complete disregard of the provisions of the Prevention of Corruption, Act and Gujarat Civil Service (Conduct) Rules, 1971, the present case was fabricated and thus, which took away the basic and fundamental right of the applicant. Therefore, applicant seeks liberty and placed reliance on the judgement of the Hon'ble Apex Court rendered in the case of Thakur Bhim singh vs. Thakur Kansingh reported in (1980) 3 SCC 72.
3.5. That the applicant had already sold Bunglow on 21.03.2014 vide sale deed, therefore the same cannot be considered as the property of the applicant as well as at Serial No.26, the Investigating Officer has shown the HDFC mutual fund amount of Page 4 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT Rs.25,00,000/- which was also withdrawn by the applicant on 17.06.2011, therefore the said investment cannot be counted as the existing ownership of the applicant. The applicant submits that in Column No.8 also, the amount of Rs.66,94,325/- for the construction on the plot is mentioned as per valuation report. The amount in Column No.8 is mentioned together for the plot and construction both, and therefore, the amount of Rs.40,14,060/- cannot be counted in Column No.7 separately again of the plot. The Investigating Officer without applying his mind has made investigation just to prove the offence instead of carrying out neutral investigation and has filed a charge-sheet without following process of law.
3.6. That the Investigating Officer has counted the amount of 30% as also which is unbelievable and irresponsible. The applicant's total income during the check period is Rs.82,02,321/- and 30% of the said amount is Rs.24,6,697/-, which is his household expense and therefore, applicant may be granted regular bail in the interest of justice.
4. Learned advocate for the applicant has placed reliance on judgment of the Hon'ble Apex Court in the case of DSP Chainnal vs. Inbasagaran reported in AIR 2006 SC 552, wherein it is held that without any appropriate evidence, no any expenses can be counted in the name of the joint account holder and therefore, the applicant may be granted regular bail in the interest of justice.
4.1 Learned advocate for the applicant has submitted that the present applicant is senior citizen who is suffering from memory loss of temporary period and he is diabetic and generalizes was also diagnosed by the Medical Doctor in the month of August, Page 5 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT 2020. The Medical Test reports of MRI of Brain, blood test, profiling for diabetic along with other medical test results are also attached which are also being aided by the Certificate issued by the medical doctor with regard to the condition of the applicant as the rest is needed. He has submitted that charge-sheet is already filed and the Investigation is almost over.
4.2 Further learned advocate for the applicant vehemently and fervently argued that as per the Gujarat Civil Services (Conduct) Rules, 1971, wherein wife and husband are dependent and dependents are included, whereas in the present case, applicant has taken divorce from his wife and as such, no children are depending on him but the divorce has taken place and the Investigating Officer has calculated the income of married daughter, who is totally independent. Therefore, false and frivolous case is made out against the applicant, therefore, applicant may be enlarged on bail. It is further contended that property which is shown is already sold for which the detailed report is annexed in the petition. Further, no case is made out for fraudulent transfer of the properties.
4.3 Learned advocate Mr. Dave has also placed on record the short notes which is taken on record. He has taken this Court to the definition of members of family, which is earlier mentioned and submitted that so far as the benami transaction is concerned, it is necessary to reproduce para 18 of the Supreme Court's judgment rendered in the case of Thakur Bhimsingh (supra):
"18. The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: (1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction;Page 6 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022
R/CR.MA/17336/2020 JUDGMENT (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct etc."
4.4. It is further contended that the applicant as well as the co- accused have already sold the assets of Rs. 3.70 crores and the applicant as well as other co-accused have not invested the amount after maturity period, then also the investigating officer has mentioned the said investment even after check period.
Sr. No. Particulars Amount Sold/date Amt consider by IO in income (annexur e-C) 1 Ruchi Bunglow 27,61,899 21.3.14(6) 54,00,000 2 Menka Society 1,18,825 7 31,00,000 3 Construction 18,87,125 --- -----
Menka 7 C K House land 40,14,060, ---- valuation 26 HDFC Pandya 25,00,000 24 44,56,755 27 HDFC PANDYA 32,00,000 24 (19 SOLD 28 HDFC/KAMINI 51,00,000 25 57,17,462 30 Parsuram society/R 35,00,000 18 35,00,000 31 HDFC RADHIKA 86,50,000 21 75,78,934 34 PNB/BHUMIKA 25,00,000 19 25,00,000 38 SCR 86,50,000 20 85,00,000 REALITY/KAMINI Page 7 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT TOTAL 4,10,00,000 Income Differences :- Annexure C Sr No Particulars As per IO As per IT Return 1 Chandrakant pandya 65,60,109 82,02,321 salary 2 Other income 16,18,109 27,05,217 5 Bhumikaben 24,02,489 26,40,213 4 Radikaben 51,96,140 82,02,231 3 Kaminiben -- ---
23 GPF page 96 3,00,000 10,95,000
Total 1,60,76,847 2,28,44,982
Difference 67,68,135
4.5. It is further contended that in Statement-D, during check period, in Column No.1 the expenses occurred by the applicant being 30% towards household has been shown as Rs. 58,73,296/-. but the applicant's total income during check period is Rs. 82,02,321/- and 30% of the said amount is Rs.24,6,697/-. The applicant is living alone and therefore, the household expenses of one person and four persons are totally different than what the Investigating officer has mentioned. Difference is Rs. 34,12,599/-.
4.6. It is further contended that the check period for the applicant is counted from 01.04.2008 to 19.02.2019. Investigating Officer has counted assets as on 01.04.2008 Rs.33,96,289/-. The applicant submits that previously also an offence of disproportionate assets was registered against the applicant in ACB Police Station, Rajkot. At that time, after investigation by the then Asst. Director, ACB, the income of the petitioner for the period from 13.06.1996 to 25.08.2004, was Rs.
Page 8 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022R/CR.MA/17336/2020 JUDGMENT 68,22,571/- against the disproportionate assets of Rs.70,33,485/-. Therefore, after investigation, as on 25.8.2004, the assets of the petitioner is Rs.70,33,485/- as per investigating officer, then after 4 years, as per the salary of the petitioner and other income source, the income of the petitioner as on 1.4.2008, should be Rs.70,33,485/- or more than that, but the investigating officer has counted the assets before the check period as Rs.33,96,289/-.
Difference 36,37,196.
Table Difference Amt. After A/C Correction ACB Counted
A 36,37,196 70,33,485 33,96,289
B 4,10,00,000 8,14,80925 11,84,80,925
C 66.67.135 8,30,63217 7,63,96,082
D 34,12,599 2,53,07,060 2,87,19,659
TOTAL 5,10,00,000 1,26,91,283 6,74,08,213
% 15 % 88%
4.7 It is further contended that in Column No.6 also the house
tax amount is shown as Rs.57,422/-, which in fact, is Rs.15,258/-. The applicant submits that, the investigating officer has mentioned at Sr. No. 10,11,13,14 & 21 about the financial help taken by the applicant from different persons and returned by him by the way of cash, which in fact, the applicant has not returned the said financial help taken by the applicant from different persons.
4.8. That in Sr. No.19, the amount is paid for furniture, by one Dharmesh Patel, which is shown as purchase of hardware by bill, but not any amount paid by the applicant after going to reside in the house in 2018. The applicant submits that in Column No.28 Page 9 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT the locker rent is shown Rs.15298/-, but the said locker is in the name of Kaminiben (niece) of the applicant and she is operating the same and the applicant has never used the same. Further, in Column No.29, it has been mentioned that the amount of Rs.95,000/- has been withdrawn using ATM and the account is mentioned in the name of applicant and Kaminiben (niece), but the said account is of Kaminiben and applicant has no concern. Further, in Column No.30 it is mentioned that Rs.3,24,451/- has been withdrawn using ATM and the said account is shown of applicant and Radhikaben (daughter of the applicant), but the said account is operated by Radhikaben and the applicant's name is only as joint holder and he has never operated the same. Hence the investigating officer has without proper investigation, mentioned the said expenses in the name of applicant. The applicant submits that the Honorable Supreme Court in the case of DSP Chainnai versus Inbasagaran reported in AIR 2006 SC 552, wherein it is held that without any appropriate evidence, no any expenses can be counted in the name of joint account holder.
4.9 That during the period of demonetization, the applicant has only deposited Rs.44,000/-mentioned the said amount in income- tax return also. But, the investigating officer, has mentioned the amount which was deposited by third person, which is totally illegal. However, the investigating officer has mentioned all the amount in the name of applicant, which was deposited duing 2016 to 2019, without any proof.
4.10 That the assets mentioned in Annexure-B at Column Nos.5, 19, 20, 30, 31, 32, 33 & 36 are of his daughter Radhika and not of the applicant and he has no connection with it whatsoever. Further, the assets shown at Annexure-C in Column No.4, 13,17, Page 10 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT 18, 21, 22, 27, 28, 29 are made from his daughter's earning and also from her personal income and which has been shown in her income tax return also. Further, the expenses occurred, which are shown in Annexure-D in Column No.17, 18, 26, 30, 35, 36, 39, 40 are also from her personal income and which has also been shown in the income tax return. Therefore, the daughter of the applicant viz. Radhika has made the assets from her personal income and she is filing income-tax returns also regularly.
4.11 That the assets mentioned in Annexure-B at Column No.2,3,4,9,11,21, 23, 24 & 34 6 are of his daughter Bhumika and not of the applicant and he has no connection with it whatsoever. Further, the assets shown at Annexure-C in Column No.5,7 & 19 are made from his daughter's earning and also from her personal income and which has been shown in her income tax return also. Further, expenses occurred, which is shown in Annexure-D in Column No.24 & 25 are also from her personal income and which has also been shown in the income tax return. Therefore, the daughter of the applicant viz. Bhumika has made the assets from her personal income and she is filing income-tax returns also regularly.
4.12 That the investigating officer has counted the daughter's assets in the name of applicant and shown as disproportionate assets and done grave injustice to the applicant. The Honorable Supreme Court has held in the case of Krishnan K. Agnihotri v. State of Madhya Pradesh reported in AIR 1977 SC 796, that burden of proof is on the shoulder of complainant and for that the complainant should produce strong evidence regarding that but the investigating officer has not produced any evidence in the charge-sheet.
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5. Per contra, learned APP Ms. Maithili Mehta has filed an affidavit, but subsequently, she has stated before this Court that earlier, affidavit may not be taken into consideration, but the new affidavit has been filed on 01.01.2021.
5.1 Learned APP has vehemently opposed the bail application and placed reliance upon the newly filed affidavit and submitted that the disproportionate income to his known source of income is approximately 88.25%.
5.2 Learned APP has argued that the applicant-accused Shri Chandrakant Gunvantrai Pandya, the then Resident Additional Collector, Surendranagar, has, during the check period of date 01.04.2008 to 19.02.2019, misused the power of public servant as Additional Collector intentionally in order to become rich illegally, committed corruption and earned more income to the tune of Rs. 6,74,08,213/- (Rupees Six Crores Seventy Four Lacs Eight Thousand Two Hundred Thirteen only) i.e. 88.24% (as per A.B.C.D. Registers) than his known sources of income and utilized that money for making disproportionate investments in movable and non-movable properties in the names of his daughters (2) Radhika Pandya (private person) (3) Bhoomika Pandya W/o Zinal Dave (private person) (4) Kamini Dhirajlal Acharya (Religious niece - private person). In order to acquire these properties.
5.3 Learned APP has further submitted that the crime of disproportionate income is serious in nature of crime and attracts maximum sentence up to 10 years. To acquire improper economic resources or properties during duties intentionally in own name or somebody else's name in order to become rich illegally and utilize them, are not proportionate to the known sources of income. It is further contended that the investment of Page 12 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT Rs.6,74,08,213/- (Rupees Six Crores Seventy Four Lacs Eight Thousand Two Hundred Thirteen only) in disproportionate income.
Movable/Non-Movable Properties (1) Ruchi Bunglow, Rajkot : Plot No.8 and 19 in R.S. No.465 and 466, Rajkot (2) House at Plot No.A/1/6, Menka Coop. H. Society, Part - 1, Adalaj, Gandhinagar (3) Flat No.C/101, Divyapunj Shalom, Chandkheda, Ahmedabad (4) Flat No.B/103, Aditya Heaven, Chandkheda, Ahmedabad (5) Flat No.301, Pari Repose, Gotri, Vadodara (6) House No.11/A, JantaJanardanCoop.H.S.L, Rajkot (7) Flat No.501, Samruddhi Residence, Chandhkheda, Ahmedabad (8) Flat No.B/2002, Aryan Opulance, Chandkheda, Ahmedabad (9) Brayo motor car No.GJ-01-HY-0084 in the name of his daughter Bhoomika Z. Dave as also investments in FD and Mutual Furnds and as per Register B of A.B.C.D. Registers, total investments-Rs.11,84,80,925/-
5.4 It is also contended that the time period and other aspect which had been considered by investigation agency is given in table herein.
Sr. Check period Date 01.04.08 to date
No. 19.02.2019
1 Assets before the check period Rs. 33,96,289
(A) (Rupees Thirty Three Lacks
Ninety Six Thousand Two
Hundred Eighty Nine - As per
Register-A)
2 Assets at the end of the check Rs.11,84,80,925/-
period (B) (Eleven Crores Eighty Four Lacs
Eighty Thousand Nine Hundred
Twenty Five only - As per
Page 13 of 29
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R/CR.MA/17336/2020 JUDGMENT
Register-B)
3 Income/receipt during the Rs.7,63,96,082/-
check period (C) (Rupees Seven Crores Sixty
Three Lacs Ninety Six Thousand
Eighty Two only - As per
Register -C)
4 Expenditure during the check Rs.2,87,19,659/-
period (D) (Rupees Two Crores Eighty
Seven Lacs Nineteen Thousand
Six Hundred Fifty Nine only - As
per Register -D)
5 Unexplained assets may be Calculation
calculated as follows
(B+D)-(A+C)
• Total assets ie. (B+D)
Minus total income i.e. (11,84,80,925+2,87,19,659) -
(A+C)=D.A. (33,96,289 +
7,63,96,082)=Rs.6,74,08213/
6 Percentage Rs.6,74,08,213/- (Rupees Six
Crores Seventy Four Lacs Eight
Disproportionate Assets Thousand Two Hundred
100/Income= If more then Thirteen only)
10% it is disproportionate
7 Vii Net D.A. • Rs.6,74,08,213/-
(Rupees Six Crores
• In terms of Amount Seventy Four Lacs Eight
Thousand Two Hundred
Thirteen only)
8 • In terms of Percentage • (88.24%)
5.5. It is further contended that as it has been evident that the accused Chandrakant Gunvantrai Pandya, as a State Servant, has acquired movable and non movable disproportionate properties during the check period to the tune of Rs.6,74,08,213/- (Six Crores Seventy Four Lacs Eight Thousand Two Hundred Thirteen Only) more than his known sources of income, which comes to 88.24% investments in movable and non movable properties as compared to his known source of income, has thereby committed a crime of criminal misconduct as a State Servant. Further, by not Page 14 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT informing the Government intentionally about such a considerable amount of investments made by him in movable and non movable properties, it has also been primarily found having violated the Gujarat State Services (Conduct) Rules 1971. Further, the Accused Shri Chandrakant Gunvantrai Pandya, had, during the check period from dt. 01/04/2008 to dt. 19/02/2019, misused his legal duties intentionally in order to become rich illegally and has adopted corrupt practices as public servant and earned money, which was utilized for investments in movable and non movable properties in the name of his daughters (2) Radhika Pandya, private person (3) Bhoomika Pandya W/o Zinal Dave, private person (4) Kamini Dhirajlal Acharya (Religious niece), private person. In order to acquire these properties, (5) Dharmesh Manibhai Patel, private person (6) Chandrakant Ranchhodbhai Patel (NR1), private person (7) Suketuchandra Ranchhodbha Patel (N.R.I.), private person in consideration of cash money earned by doing corrupt practices by the Accused Chandrakant Pandya, gave entries in their Banks accounts, and, having done so, the Accused No.2 to 7 have committed to criminal accomplishment in the corrupt practices of the Accused Chandrakant Pandya.
5.6. It is also contended that on 21/06/12, an amount of Rs.24,00,000/- was transferred from the Account No. 14790100015393 of Bank of Baroda of Accused Dharmesh Patel into the Account No. 376600010010327 of S.B.I. of Bhoomika, daughter of Accused Chandrakant Pandya. From this money, an F.D. of Rs. 25,00,000/- was made from the Account of Bhoomika. As there is Over-draft facility, Rs.25,00,000/- was spent in C.K. House. On 21/06/12, two different cheques of Rs.8/- lacs each, totaling to Rs.16,00,000/- were issued from the Bank of Baroda Account of Sonal Patel, wife of Accused Dharmesh Patel and Page 15 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT deposited into the S.B.I. Bank Account No. 20078478568 of Bhoomika Pandya, daughter of Accused Chandrakant Pandya, out of which, an investment in Flat No. C-101, Divyapunj Shalom, Chandkheda, Ahmedabad, was made in the name of Bhoomika Pandya in the year 2013.
Graph - 1 Showing Association of Transaction of Dependents of Applicant/Accused Chandrakant Pandya with Co-Accused of this Crime:
Amount received by Take overdraft
Dharmesh Patel Facility of Rs.
On 21.06.2012 from 25,00,000/-
Various Parties in his Make FDR in the Against FDR
Bank Account No. name of Bhoomika In the name of
4.4.
14790100015393 Dave. Bhoomika Dave
Total Rs 24,00,000/- Rs.25,00,000/-
Trf to Bhoomika Dave Add to Expenditure for House
A/C.376600010010327 Construction C. K. House
Rs.24,00,000/- (ChandrakantPandya)
Graph-2 showing Association of the Daughter of
Applicant-Accused with Accused Dharmesh Patel Amount Received by Investment in Flat Sonal Patel from Parties in DivyPunj-Shalom in the BOB Name of Bhoomika Bank Account on 21.06.2012 Pandya By Cheque No.33460/33462 For Rs.8,00,000/- each.
Trf to Bhoomika's SBI Bank Account No.20078478568 on 22.06.2012 Rs.
16,00,000/-
Page 16 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022R/CR.MA/17336/2020 JUDGMENT (b) Investigation into the Anonymous Properties:
5 7. It is further contended that during the primary investigation in this case, Shri Dharmesh Patel, Sonal Patel and Dipak Dhirajlal Pandya own two-wheeler and four-wheeler vehicles. In this, a Fortuner Toyota car No. .GJ 6MD 0012 was purchased by cheque in December 2012 in the name of Accused Dharmeshbhai Patel and a Honda company car WRV No.GJ 6LK 0012 was purchased by cheque in the year 2017 in the name of his wife Sonal Patel, for which, no loan has been taken. Thus, the Accused Dharmesh Patel, although he was not capable from income point of view, has purchased such luxury vehicles in his name and in the name of his wife. It has been found during the investigation that the use of these vehicles was made by the present Applicant/Accused Chandrakant Pandya and his daughters and Co-Accused in this crime (1) Radhika Pandya (2) Bhoomika Pandya w/o Zinal Dave (3) Kamini Dhirajla charya (Religious niece). Therefore, there is reason to believe that the purchases have been made from the illegal income of Applicant/Accused Chandrakant Pandya in association with each other. As this has been purchased during the check period, enquiries as also documentary information as to who has made the investment are yet to be obtained.
(c) Investigation into the Unsecured Loan:
5.8. It is further contended that from the money of Unsecured Loan taken by the Applicant/Accused Chandrakant Pandya and his daughters and Co-Accused (1)Radhika Pandya (2) Bhoomika Pandya w/o Zinal Dave (3) Kamini Dhirajlal Acharya (Religious niece), non-movable properties have been acquired at Page 17 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT Ahmedabad, Rajkot and Vadodara. For this Unsecured Loan, no written Agreement has been made. In case of Unsecured Loan, in order to determine the financial soundness of the person offering Loan, as per section 68 and 69 of the prevalent Income Tax Act.
(1) Identity of the person offering Loan
(2) Financial soundness of the person offering Loan
(3)Verification of genuineness of the person offering Loan becomes necessary.
The Chartered Accountant (Financial Adviser) has given opinion that this could not be proved by the person offering Unsecured Loan in the above mentioned case.
(d) Investigation Into Money Laundring and Financial Transactions with N.R.I., 5.9. It is further contended that it has been found that there have been R.T.G.S. and cash transactions in large scale in the Bank accounts of Applicant/Accused Chandrakant Pandya and his daughter and Co-Accused of the crime (1) Radhika Pandya (2) Bhoomika Pandya w/o Zinal Dave (3) Kamini Dhirajlal Acharya (Religious niece) and also R.T.G.S. and cash transactions in large scale -in the Bank accounts of Dharmesh Patel and Sonal Patel, as also, financial transactions of big amount with N.R.I. have been found out, for which they could not give any documentary evidence in their written statement and video graphic statements or even could not give satisfactory explanation verbally. Therefore, there is a possibility of money laundering, for which, the Chartered Accountant (Financial Adviser) has also expressed opinion for carrying out investigation regarding money laundering, as also, take necessary action through competent Agency with respect to prevalent laws applicable to N.R.I. The transactions of cash deposits and withdrawals made during the check period into the account of Applicant/Accused Chandrakant Page 18 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT Pandya and his family members and Kamini Acharya (Religious niece) are as under:
All Bank Account of Chandrakant Pandya & Family Member & Kamini Acharya Sr.No Year Cash Withdrawal Cash Deposit 1 2008-09 84,000/- 2,01,000/-
2 2009-10 1,52,000/- 41,500/-
3 2010-11 2,08,000/- 1,64,500/-
4 2011-12 13,70,100/- 66,000/-
5 2012-13 22,38,000/- 5,18,500/-
6 2013-14 42,59,600/- 52,57,000/-
7 2014-15 63,54,200/- 18,71,000/-
8 2015-16 5,06,100/- 12,60,000/-
9 2016-17 3,06,100/- 16,99,800/-
10 2017-18 3,01,600/- 14,35,000/-
11 2018-19 54,000/- 28,74,500/-
Total 1,58,33,700/- 1,53,88,800/- (e) Amount Deposited During the Period of De- monetization:
5.10. It is further contended that as per the Notification declared on 08.11.2016 by the Government of India, the currency notes of Rs.500/- and Rs.1000/- were abolished and after that period of demonetization, it has been found that the transactions of cash deposits amounting to Rs.60,09,300/- have been made into the Bank accounts of Applicant/Accused Chandrakant Pandya and his daughters and Co-Accused of the crime ( 1) Radhika Pandya (2) Bhoomika Pandya w/o Zinal Dave (3) Kamini Dhirajlal Acharya during the period from year 2016 to 2019. Further, during. that period, a negligible amount of cash of Rs.6,61,700/-
has been withdrawn by the above persons. Looking to their income as per Income Tax Return, they are not able to prove Page 19 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT their capability to deposit such a considerable amount of Rs.60,09,300/- as also they could not give satisfactory verbal explanation or presented documentary-evidence.
5.11. It is further contended that during the check period, from the Bank account of Sonal Dharmeshbhai Patel, wife of Co- Accused of this case Dharmesh Manilal Patel, cash transactions amounting to Rs.48,85,000/- into the Bank account of Kamini Acharya, Accused in this case & religious niece of Applicant/Accused, Chandrakant Pandya; Rs.14,50,000/- into the Bank account of Bhoomika, Daughter of Chandrakant Pandya and Accused in this case, and Rs.71,60,000/- into the Bank Account of Accused Radhika, totalling to a considerable amount of Rs.1,50,95,000/- have been made.
5.12. It is further contended that during the check period, cash transactions amounting to Rs.59.48.000/- the Bank account of Kamini Acharya, Religious nice of Applicant/Accused Chandrakant Pandya and Co-Accused in this case, Rs. 2,40,000/- into the Bank account of Bhoomika Pandya. daughter of Chandrakant Pandya and Co-Accused of the crime, Rs.19.50,000l/- into the account of Chandrakant Pandya; Rs.75,30,000/- into the Bank account of Radhika, daughter of Chandrakant Pandya and Co-Accused in the crime, totaling to a considerable amount of Rs. 1,56,68,000-/ have been made from the Bank accounts of Accused Dharmesh Manilal Patel.
(2) Role of Accused As per Complaint:
5.13. It is further contended that as per the complaint of the crime, as the contact of Chandrakant Pandya with Co-Accused of this crime Dharmesh Manibhai Patel (private person) was done Page 20 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT through Kamini Acharya, residing at Vadodara, religious niece of Applicant/Accused Chandrakant Pandya, it has been found during the primary investigation that they were having family relations.
5.14. It is further contended that the total income of Accused Dharmesh Patel and his wife Sonal Patel as per the Income Tax Return from the year 2008 to 2019 comes to Rs.34,66,587/-, whereas, the have given an unsecured loan ten times more than their income amounting to Rs.3,46,78,000/- from the year 2008 to 2019 to Applicant/Accused Chandrakant Gunvantrai Pandya and his daughters and Co-Accused of the crime (1) Radhika Pandya (2) Bhoomika Pandya w/o Zinal Dave (3) Kamini Dhirajlal Acharya (Religious niece). However, Accused Dharmesh Patel and his wife Smt. Sonal Patel have not been found capable from income point of view.
5.15 It is further contended that an amount of Rs.24,00,000/- has been deposited into the Bank account No.14790100015939 of Bank of Baroda of Accused Dharmesh Patel. This money has been transferred into the Bank account No.376600010010327 of Co-
Accused Bhoomika Pandya. This money has been utilized by Accused Bhoomika Pandya for investment in F.D.R. and construction of C.K.House of Applicant/Accused Chandrakant Pandya.
5.16. It is further contended that an amount of Rs.16,00,000/- has been deposited by cheque on 21/06/2012 into the Bank of Baroda account of Sonal Patel, wife of Accused Dharmesh Patel. This money has been transferred into account of Bhoomika Pandya, daughter of Applicant/Accused and Co-Accused of the crime.This money has been utilized for purchase of house at Divya Punj Shalom.
Page 21 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022R/CR.MA/17336/2020 JUDGMENT 5.17. It is further contended that the Co Accused of the crime Shri Chandrakant Ranchhodbhai Patel (N.R.I) was having a partnership in the firm namely S.C.R. Reality with Kamilaben Acharya, resi. at Vadodara & Co-Accused of the crime & Religious niece of present Applicant/Accused Chandrakant Pandya, and, as he has done financial transactions with Radhika. daughter of the Accused Chandrakant Pandya and Co-Accused of the crime, it has been found during the primary investigation that he was having family relations with Applicant/Accused Pandya.
5.18. It is further contended that the Co-Accused Chandrakant Ranchhodbhai Patel and Suketuchandra Ranchhodbhai Patel have given an Unsecured Loan of Rs.47,00,000/- and Rs.30,00,000/- totaling to Rs.77,00,000/- to Kamini Acharya, Co-Accused and Religious niece of present Applicant/Accused Chandrakant Pandya, to induct her as sleeping partner in the partnership firmS.C.R - Reality. Despite giving sufficient and just opportunities to Kamini Acharya, Chandrakant Patel and Suketuchandra Patel during the primary investigations, they could not give complete and satisfactory explanation as to whether these loans have been returned or not, nor it has been found having made any Partnership Agreement during the course of primary investigation. From the fact that not returning such a considerable amount of Rs.77,00,000/- for a long time and giving financial assistance for inducting a partner in their own business, there is reason to believe that this has been done in order to givebook entry with a view to hiding the income earned through corruption by Applicant/Accused.
5.19. It is further contended that in spite of asking point-wise information on financial transactions with Kamini Acharya Page 22 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT through E-Mail to Co-Accused Suketuchandra Ranchhodbhai Patel and Chandrakant Rachhodbhai Patel, they did not furnish the above metioned information as also did not submit any documentary evidences as to whether the amount has been returned or not. Only book entry of economic transactions have been shown in the Bank account.
5.20. It is further contended that a Fortuner Toyota car No.GJ6MD 0012 has been purchased by cheque in the name of Accused Dharmeshbhai Patel in December 2018. A WRV car of Honda company No.GJ 6LK 0012 has been purchased by cheque in the name of Sonal Patel, wife of Accused Dharmesh Patel in the year 2017. It has been found during the investigation that the use of these vehicles has been made by Accused Chandrakant Pandya, his daughters (1) Radhika Pandya (2) Boomika Pandya w/o Zinal Dave and (3) Kamini Dhirajlal Acharya (Religious niece).
6. Merits of the Case:
This court has considered the following aspects:
(a) That in the present case it is an admitted fact that the Applicant accused has come for this Application after the charged sheet is filed.
(b) Investigation is over. There is no antecedents against the present applicant-accused.
(c) That prima facie allegations upon the applicant is with regard to disproportionate proprty from known source of income.
(d) Further as per catena of decisions of Hon'ble Supreme Court, there are mainly 3 factors which are required to be considered by this court i.e. prima facie case, availability of Applicant accused at the time of trial and tampering and hampering with the witnesses by the accused.Page 23 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022
R/CR.MA/17336/2020 JUDGMENT
(e) That the Applicant Accused is in custody since 14.09.2020.
(f) That the learned Advocate for the Applicant has submitted that the Applicant Accused is not likely to flee away.
(g) As per the allegations in the FIR, the Investigating Officer Column No.1 has mentioned, during check period, the income from salary to be Rs. 65,60,109/- but as per the income-tax return of the applicant and Form No. 16, the amount is Rs.
82,02,321/- and in column No. 2 the other income shown is Rs. 16,18,026/-. But as per the Income-tax return of the applicant it is Rs. 27,05,217/- In Column No. 23 also, during check period, the Investigating Officer has mentioned the GPF withdrawal of Rs. 3,00,000/- but as per the Official record, it is Rs. 10,95,000/-.
(h) Pursuant to the relevant papers, it appears that the Investigating Agency has calculated the income including wife and other family members. Moreover, the applicant has taken divorce from his wife, not only that but the daughters are married and they have independent source of income. A chart to that effect is also produced on record, which are as under:
Sr. Particulars Amount Sold/date Amt
No. consider
by IO in
income
(annexure
-C)
1 Ruchi Bunglow 27,61,899 21.3.14(6) 54,00,000
2 Menka Society 1,18,825 7 31,00,000
3 Construction Menka 18,87,125 --- -----
7 C K House land 40,14,060, ---- valuation
26 HDFC Pandya 25,00,000 24 44,56,755
27 HDFC PANDYA 32,00,000 24 (19 SOLD
28 HDFC/KAMINI 51,00,000 25 57,17,462
30 Parsuram society/R 35,00,000 18 35,00,000
31 HDFC RADHIKA 86,50,000 21 75,78,934
34 PNB/BHUMIKA 25,00,000 19 25,00,000
38 SCR 86,50,000 20 85,00,000
REALITY/KAMINI
TOTAL 4,10,00,000
Page 24 of 29
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R/CR.MA/17336/2020 JUDGMENT
Income Differences :- Annexure C
Sr No Particulars As per IO As per IT
Return
1 Chandrakant pandya 65,60,109 82,02,321
salary
2 Other income 16,18,109 27,05,217
5 Bhumikaben 24,02,489 26,40,213
4 Radikaben 51,96,140 82,02,231
3 Kaminiben -- ---
23 GPF page 96 3,00,000 10,95,000
Total 1,60,76,847 2,28,44,982
Difference 67,68,135
(i) Therefore, as per the definition of family members as per the Gujarat Civil Service (Conduct) Rules, 1971, that only the dependants are included in the definition of family members whereas in the present case, two daughters and one niece are married, further they have independent source of income and therefore, prima-facie it appears that this is a question of trial whether the applicant has disproportionate income/property from the known source of income. Therefore, pre-trial punishment is not required. Further , so far as the second aspect of hampering or temparing with the witnesses is concerned, most of the properties are seized by the Investigating Agency, therfore, there is no hampering or temparing with the witnesses. So far as the third aspect i.e. availability of the applicant-accused at the time of trial is concerned, the applicant is retired as Additional Resident Collector.
(j) Learned advocate for the applicant has heavily placed reliance upon the judgment in case of D.S.P. Chennai vs. K Inbasagaran (Supra) reported in AIR 2006 SC 552, wherein it is held that without any appropriate evidence, no any expenses can be counted in the name of the joint account holder, therefore, in Page 25 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT the present case also the Investigating Agency has placed reliance on joint accounts of the family members including married daughters, therefore, this Court is in agreement with this citation and holds that it is the trial Court to decide the exact more than 10% of income from known source of income. Therefore, this citation is helpful to the applicant-accused as dicussed earlier.
(k) Learned advocate for the applicant has also placed reliance upon the judgment in case of Krishnan K. Agnihotri v. State of Madhya Pradesh (Supra) wherein it is held that the burden of proof is on the shoulder of complainant and for that the complainant should produce strong evidence regarding that but the investigating officer has not produced any evidence in the charge-sheet, therefore to some extent this citation is helpful to the applicant -accused as discussed earlier.
(l) Further, it is not the case of the prosecution that there is demand, acceptance and recorvery of the amount on any captioned date, so far as the illegal gratification is concerned and there is no earlier case on record for demand, acceptance and recorvery from the accused (the present applicant) for earlier offence. This case is solely based on the disproportionate income / properties from known source of income for which there might be pending departmental proceedings but this Court is not inclined to keep the present applicant behind the bar till the conclusion of trial.
(m) This Court has also considered the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. C.B.I. Reported in (2012) 1 SCC 40, wherein it is held that bail is a rule and jail is an exception and there should not be pre trial Page 26 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT punishment.
7. Having heard the arguments advanced by the learned Advocate for the applicant and perusing the record produced in this case as well as taking into consideration the facts and circumstances of the case, nature of allegations, gravity of accusation, availability of the Applicant Accused at the time of Trial etc. and the role attributed to the present Applicant accused, and that the Applicant is a retired Government Employee, the present Application deserves to be allowed and accordingly stands allowed. This Court has also gone through the FIR and police papers and also the earlier order passed by the learned Sessions Court where the learned Sessions Judge has disallowed the bail Application at initial stage. The Applicant Accused - CHANDRAKANT GUNVANTRAI PANDYA is ordered to be released on bail in connection with the aforesaid FIR on executing a personal bond of Rs.50,000/- (Rupees Fifty thousand only) with one surety of the like amount to the satisfaction of the trial Court, subject to the following conditions that she shall:
(a) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence.
(b) maintain law and order and not to indulge in any criminal activities.
(c) furnish the documentary proof of complete, correct and present address of his residence to the Investigating Officer and to the Trial Court at the time of executing the bond and shall not Page 27 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022 R/CR.MA/17336/2020 JUDGMENT change his residence without prior permission of the trial Court.
(d) provide his contact numbers as well as the contact numbers of the sureties before the Trial Court. In case of change in such numbers inform in writing immediately to the trial Court.
(e) file an affidavit stating immovable properties whether self acquired or ancestral with description, location and present value of such properties before the Trial Court, if any.
(f) not leave India without prior permission of the Trial Court
(g) surrender passport, if any, to the Trial Court within a week. If he does not possess passport, he shall file an Affidavit to that effect.
(h) shall maintain all the rules and regulations framed by the Corporation regarding contemporary status of corona virus/Covid-
19, State Government or by any competent authority, including social distancing.
8. Bail bond to be executed before the Trial Court having jurisdiction to try the case. It would be open for the Trial Court concerned to give time to furnish the solvency certificate if prayed for.
9. If breach of any of the above conditions is committed, the Trial Court concerned will be free to issue warrant or take appropriate action according to law. The Authorities will release the Applicant forthwith only if he is not required in connection with any other offence for the time being.
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10. It is made clear that the observations made in this order is confined to bail purpose only, therefore, neither the trial Court nor any competent authority /statutory authority shall influence from the discussions made in this order.
11. Rule is made absolute. The Registry is directed to communicate this order by Fax / by E-mail to the concerned Court / Authority.
(A. C. JOSHI,J) prk Page 29 of 29 Downloaded on : Wed Jan 12 07:36:35 IST 2022