Gujarat High Court
Kalpesh vs State on 3 February, 2012
Author: Anant S. Dave
Bench: Anant S. Dave
Gujarat High Court Case Information System
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CR.MA/1300/2012 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1300 of 2012
=========================================
KALPESH
N DAFTARI - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================
Appearance
:
MR TARAK DAMANI for
Applicant(s) : 1,
MR JK SHAH ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 03/02/2012
ORAL
ORDER
1. This is the third successive bail application preferred by the applicant challenging the order passed by the learned Sessions Judge for rejecting his application for bail.
2. Learned advocate for the applicant has submitted that the applicant who is accused for offences under Sections 406, 420, 466, 467, 468, 471, 472, 474, 120(B) and 34 of Indian Penal Code are the offence triable by the Magistrate and the applicant is in jail since 14.7.2010 and so far neither the DRI could establish any nexus with the crime nor any role of the applicant with M/s. Padmavati Agency and further even investigating officer has also not bothered to investigate the case by obtaining necessary information from DRI. It is further submitted that no show cause notice is issued by DRI. Further the amount of alleged loss of revenue is also recovered. In addition to above, the applicant himself is enlarged on bail vide another C.R. with almost similar offence on 18.10.2011 by the coordinate bench (Coram: Hon'ble Mr. Justice Z.K. Saiyed) as per order passed in Criminal Misc. Application No. 12487 of 2011 and other co-accused against whom similar allegations have been levelled are also enlarged and even the Apex Court has reserved liberty to the applicant to prefer regular bail application before the trial Court and having made an attempt before the trial Court though failed, now the applicant has approached this Court under Section 439 of the Cr.P.C. to enlarge him on bail by imposing suitable conditions.
3. In support of his submissions as above, learned senior advocate has placed heavy reliance in the case of Sanjay Chandra vs. CBI [2012(1) SCC 40] and submitted that the applicant cannot be subjected to pre-trial which is punishable inasmuch as prima facie, even after investigation no connection of the applicant with the crime alleged is established. However, at this stage prime consideration of the Court is to see that whether enlarging the accused would in any way result into prejudice to investigation which is now completed and further influencing witnesses during course of trial since by and large the evidence is documentary and the applicant deserves bail on merit as well as on ground of parity.
4. This Court has considered the arguments of learned senior advocate on similar contentions and found no merit in case and on 23.9.2011 successive bail application being Criminal Misc. Application No. 12151 of 2011 was rejected by observing as under:
"1. This successive bail application under Section 439 of the Code of Criminal Procedure, 1973 is preferred in connection with C.R.No.I-45 of 2010 registered with Dahej Police Station, Bharuch, for the offences punishable under Section 406, 420, 466, 467, 468, 471, 472, 474, 120(B) and 34 of Indian Penal Code.
2. It is alleged in the first information report being C.R. No.I-45 of 2010 registered with Dahej Police Station that the petitioner and other co-accused have in connivance with each other forged licences and such licences were transferred through different traders which were ultimately utilized by M/s. Hindalco Industries Limited, Dahej, while importing certain goods. The said forged licences were obtained by the complainant through the accused and were transferred to M/s. Hindalco Industries Limited, Dahej, and the petitioner and other accused had submitted forged licences from 1.4.2008 to 31.3.2010 and collected Rs.41,94,81,068/-. Before filing of the charge sheet, an application under Section 439 of the Code was preferred before the learned Sessions Judge, at Bharuch, which came to be rejected and the said order came to be challenged before this Court but, ultimately, the above application for bail came to be withdrawn on 26th November 2010.
3. In the above backdrop of the allegations, learned advocate for the applicant submits that there is no recovery or discovery any incriminating article/material from the applicant but it was from another co-accused i.e. Piyush Surendrabhai Viramgama and now charge-sheet is filed and investigation is over and particularly, when no financial loss is caused to the department, case of the applicant be considered for bail and it is further submitted that co-accused is considered for bail by coordinate Bench vide order dated 8.6.2011 passed in Criminal Misc. Application No.7483 of 2011.
4. Learned APP has opposed grant of bail to the applicant on the ground that it is not a simple case of any evasion of duty but basically a case against the applicant is of forging a licence which was transferred to M/s. Hindalco Industries Limited, Dahej. That a systematic modus was adopted, by which, prima facie licences worth about Rs.40 crores were forged. Even complaint was also filed by DRI (Director of Revenue Intelligence) and an independent investigation is carried out therein.
5. In the above circumstances, it cannot be said that the trial Court has not considered the case of the applicant for bail. In paragraph 13, trial Court has observed as under:
"13. So far as the prima facie case against the applicant is concerned, having gone through the entire papers submitted with the charge sheet prima facie, it seems that there is ample material against the present applicant. Having gone through the contents of the complaint and also the statement of the complainant, prima facie, it appears that the petitioner is key planner and connected with forging of licenses and selling the same to the complainant. Furthermore, from the statement of the witnesses, it also infers that the conduct of the applicant was mala fide and therefore, though he was supplying the licenses by himself i.e. Sankalp Creation, the licenses were being supplied through and in the name of other agency and not only that, he was directing to issue the invoice directly. Having gone through the statements of different witnesses and documentary evidence pirma facie it seems that the present applicant and other accused having in connivance with each other created forged licenses and main accused Niyaz Ahmed was creating the forged licenses at Kanpur and was sending to the applicant and other accused. The applicant had supplied all these forged 85 licenses to the Padmavati Agency and the amount were received from the Padmavati Agency and the cheques were encashed by the the applicant and the other co-accused and were distributing amongst them. The statement of the witnesses and more particularly from the statement of Vikashkumar Ram Gopal, the Sr. Manager - Commercial of Birla Copper, Dharmesh Rameshbhai, the owner of the Padmavati Agency Pvt. Ltd. and Kalpesh Pravinbhai Darji, the Auditor of the Padmavati Agency and Shailesh Prabhakar, the delivery boy serving in Padmavati Agency prima facie it infers that all the 85 forged licenses were supplied to Padmavati Agency by Sankalp Creation Pvt. Ltd., i.e. the present applicant and not only that, from the statement, it also infers that the applicant had sent all these 85 licenses through Vani Exports Pvt. Ltd., and the invoice was also drawn by the applicant in the name of Vani Exports Pvt. Ltd., and from the statement of all these witnesses it clearly transpires that almost 800 to 1000 licenses were supplied by the applicant to the Padmavati Agency out of which, 85 forged licenses were forged which means that 85 forged licenses were supplied by the applicant and in that way, he is the main accused and therefore, his role is different than the other accused. I am conscious about the principle of parity where it can be applied. It is true that in similar type or identical set of facts and circumstances, the principle of parity is applicable but if the facts is somewhat different if the role of both the accused is different and deviate from each other then in that case, the principle of parity may not be applicable. The grant of bail is not a mechanical act. It is also settled by the Hon'ble Apex Court that the parity cannot be the sole ground for granting bail if the role of the accused is different then in that case, the bail of the other co-accused may be rejected even though the other co-accused has been released on bail. Herein this case, as discussed herein above, the statement of the witnesses which is supported by the statement of the accounts that all these 85 licenses were supplied by the present applicant to Padmavati Agency and in turn the amount was released by the Padmavati Agency in the name of agencies by which invoices, the licenses were sent. Thus, in my view, the role of the applicant is totally different and he is the main accused and therefore, in my view, he cannot be given the advantage of the parity. Furthermore, it is also required to be noted that his earlier bail application was rejected by this Court and not only that, subsequent bail application preferred before the Hon'ble High Court was also withdrawn by him which amounts to dismissal and thereafter except principle of parity, no other change in circumstances and therefore, in my view, the application of the applicant deserves to be dismissed and hence, I pass the following final order.
The present Criminal Misc. Application is hereby dismissed."
6. The observations as above of prima facie nature even perused along with charge-sheet, I am of the considered opinion that the applicant had sent all 85 licenses through Vani Exports Pvt. Ltd., and the invoice was also drawn by the applicant in the name of Vani Exports Pvt. Ltd., and from the statement of all witnesses it clearly transpires that about 800 to 1000 licenses were supplied by the applicant to Padmavati Agency and out of which 85 licenses were forged and used for the purpose of deceiving the department and considering serious charges and punishment prescribed for such charges, I am not inclined to exercise discretionary powers in favour of the applicant and , therefore, the application is hereby rejected.
7. Rule is discharged."
5. Since the arguments which are now based on the decision of Sanjay Chandra (supra) and ground of parity, I am of the view that the punishment for imprisonment for life prescribed for the offences under Section 467 of IPC, at this juncture the applicant who is found to have committed crime prima facie can influence even the witnesses during course of trial and further nature of offences, and that earlier bail application was rejected by reason order, I am not inclined to consider the case of the applicant.
6. Accordingly, this application is rejected. No costs.
[ANANT S. DAVE, J.] //smita// Top