Gujarat High Court
Kirit Gopalbhai Rana vs State Of Gujarat on 9 June, 2022
Author: Ilesh J. Vora
Bench: Ilesh J. Vora
R/CR.MA/9546/2022 ORDER DATED: 09/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 9546 of 2022
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KIRIT GOPALBHAI RANA
Versus
STATE OF GUJARAT
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Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR KUNAL S SHAH(5282) for the Respondent(s) No. 1
MS.KRINA CALLA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 09/06/2022
ORAL ORDER
1. Heard Mr.Virat Popat, learned advocate for the applicant, Mr.Kunal Shah, learned advocate for the original complainant and Ms.Krina Calla, learned APP for the respondent - State.
2. Rule. Learned APP waives service of notice of rule for and on behalf of respondent - State.
3. The applicant, by way of this application filed under Section 439 of the Code of Criminal Procedure, seeks regular bail in connection with the FIR being C.R.No. 84 of 2019 registered with Bardoli Police Station, Dist. Surat Rural for the offence punishable under Sections 406, 420, 465, 467, 468, 471, 120B & 114 of the Indian Penal Code.
4. It is the submissions of learned counsel for the applicant that, loan of Rs.12.5 crore was obtained from HUDCO, Page 1 of 8 Downloaded on : Fri Jun 10 21:10:25 IST 2022 R/CR.MA/9546/2022 ORDER DATED: 09/06/2022 against which, a payment of Rs.18 crore has already been made by the company in question. It is submitted that, proceedings are pending before the DRT filed by HUDCO, wherein Rs.6 crore was raised against the company and its Directors. In this background facts, it is submitted that, the co-accused, brother of the applicant, who was incharge in day to day affairs of the company and being a signatory of the loan contract, has agreed to pay Rs.4 crore, as a result of which, a coordinate Bench of this Court, vide order dated 05.05.2022 enlarged him on bail. Rs.1 crore is also deposited before the Court concerned by the co-accused. Thus, therefore, the active partner - co-accused has agreed to pay Rs.4 crore as per the schedule, observed by the coordinate Bench of this Court, now again it is not fair to direct the applicant herein to deposit more amount towards the total liability. The applicant is permanent resident of town Navsari and there is no any likelihood of absconding or fleeing from justice and therefore, keeping in behind the bar would not serve any fruitful purpose.
5. On the other hand, learned APP Ms. Krina Calla and Mr. Kunal Shah, learned counsel for the complainant vehemently opposed the bail application, contending that, the applicant herein being a partner of the firm shall be directed to deposit the certain amount towards his total liability, so that the persons referred in the FIR may get clear and marketable title of their property.
6. Having considered the rival contentions of the respective parties and role attributed to the present applicant, it Page 2 of 8 Downloaded on : Fri Jun 10 21:10:25 IST 2022 R/CR.MA/9546/2022 ORDER DATED: 09/06/2022 appears that, co-accused Nitin Rana, has agreed to pay Rs.4 crore towards the loan amount and in addition to that, Rs.1 crore has been deposited by him before the Court. Considering the undertaking to this effect, the coordinate Bench of this Court vide order dated 05.05.2022, enlarged him on bail. Para 3 to 13 of the bail order reads as under:-
3. Today, learned advocate Mr. Virat Popat for the applicant submitted undertaking of Himalaya Nitinbhai Rana S/o. he present applicant wherein he has shown his willingness to deposit an amount of Rs. 4 Crores, out of outstanding amount of Rs.6.30 crores as claimed by HUDKO before the DRT.
4. However, learned advocate Mr. Kunal Shah appearing for the complainant disputes the said amount and states that outstanding amount is much more than the amount suggested by learned advocate Mr. Popat i.e. Rs.6 crores.
5. As per the undertaking, son of the applicant has stated that first installment of Rs. 1,00,00,000/- shall be deposited at the time of releasing the present applicant. However, upon instructions, learned advocate Mr. Popat states that first an amount of Rs.1,00,00,000/- shall be deposited before the Trial Court and only after production of the receipt of the deposited amount, present applicant may be released.
6. Learned advocate Mr. Kunal Shah for the complainant who is served with the undertaking-cum-
affidavit states that at this stage considering the fact that the present applicant has shown his willingness to deposit some amount, if he is released on bail, he does not have any objection at this stage, subject to fulfillment of conditions of the undertaking.
7. Learned advocate appearing for the applicant submitted that considering the nature of offence, the applicant may be enlarged on regular bail by imposing suitable terms and conditions.
8. On the other hand, learned APP appearing for the respondent - State opposed grant of regular bail Page 3 of 8 Downloaded on : Fri Jun 10 21:10:25 IST 2022 R/CR.MA/9546/2022 ORDER DATED: 09/06/2022 looking to the nature and gravity of the offence.
9. Learned advocates appearing for the respective parties do not press for further reasoned order.
10. Having heard the learned advocates for the respective parties and perusing the material placed on record and taking into consideration the facts of the case and nature of allegations, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.
11. This Court has considered the following aspects:-
i. Investigation is over and charge-sheet is filed.
ii. The applicant has remained in custody for about two months though in the application his date of arrest is shown as 10.09.2021. According to learned advocate Mr. Popat thereafter, for some time he was released on temporary bail and for some time, he had undergone medical treatment as well.
iii. Affidavit cum undertaking filed on 05.05.2022 is taken on record and considering the fact that an amount of Rs.1,00,00,000/- would be deposited on behalf of the applicant before the Trial Court and thereafter only, the jail authority, on production of receipt of the deposit amount, will release the applicant as well as considering the fact that the applicant has shown willingness to deposit an amount of Rs.1,00,00,000/- within a period of 20 days from the date of his release and the remaining amount of Rs. 2,00,00,000/- would be deposited by the applicant by way of eight equal monthly installments of Rs.25,00,000/-, this Court is inclined to grant the bail of the present applicant.
iv. ThisCourt has also considered that the original complainant has no objection if on fulfillment of the conditions of undertaking, the present applicant is released.
12. In view of the aforesaid facts, without discussing the evidence in detail, this Court, prima facie, is of the opinion that, this is a fit case to exercise the discretion and enlarge the applicant on regular bail. Hence, present application is allowed and the applicant is Page 4 of 8 Downloaded on : Fri Jun 10 21:10:25 IST 2022 R/CR.MA/9546/2022 ORDER DATED: 09/06/2022 ordered to be released on regular bail in connection with FIR registered at I- C.R.No. 84 of 2019 with Bardoli Police Station, District:- Surat Rural on executing personal bond of Rs.10,000/- (Rupees Ten thousand only) with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that the applicant shall;
[a] The applicant shall be released on bail only after an amount of Rs.1,00,00,000/- is deposited before the Trial Court on behalf of the applicant and on production of receipt of the aforesaid amount. [b] Once the accused is released, within a period of one week the accused himself also is directed to file undertaking on the same line as filed by his son.
[c] Once the present applicant is released within a period of 20 days, as per the undertaking of his son, he shall deposit a sum of Rs.1,00,00,000/- before the Trial Court and thereafter, he shall deposit Rs. 25,00,000/- every month for a period of eight months.
[d] not take undue advantage of liberty or misuse liberty [e] not act in a manner injurious to the interest of the prosecution;
[f] not leave the India without prior permission of the concerned Trial Court;
[g] surrender passport, if any, to the lower court within a week;
[h] furnish the present address of residence along with the proof to the Investigating Officer concerned and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the Sessions Court concerned;
[i] mark his presence before the concerned police station in the first week of every month till the trial is over;
[j] appear before the Investigating Officer concerned, as and when required for investigation purpose and attend the Court concerned regularly.
13. It is is clarified that willingness shown by the present applicant own his volition to deposit the aforesaid amount before the Trial Court shall not be construed as if the applicant is admitting his guilt. Rights of the applicant before all Courts and Page 5 of 8 Downloaded on : Fri Jun 10 21:10:25 IST 2022 R/CR.MA/9546/2022 ORDER DATED: 09/06/2022 Tribunal are kept open.
7. In view of the aforesaid order and considering the role attributed to the present applicant herein, once the liability has been accepted by the co-accused towards the debt, in that circumstances, it is not fair to direct the applicant herein to deposit the loan amount. It is pertinent to note that, the objection raised by the learned counsel Mr.Kunal Shah with regard to total amount of debt which is higher than the agreed amount, was considered by the coordinate Bench of this Court. The applicant is in custody since 03.04.2022. There is no likelihood of his absconding or fleeing from justice. Prosecution has not pointed that further custody of the applicant is necessary. Keeping in view of the nature of offence, complicity of the applicant, and without expressing any opinion on merits, this Court is of view that, being a partner of the firm, the applicant shall file an undertaking to the effect that he along with his brother is liable to comply with the order of a coordinate Bench of this Court within a stipulated time and assure that he will also liable to pay the agreed amount as directed by a coordinate Bench of this Court.
8. Hence, present application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR being C.R.No. 84 of 2019 registered with Bardoli Police Station, Dist. Surat Rural, on executing a personal bond of Rs.10,000/- (Rupees Ten thousands only), with one surety of the like amount to the satisfaction of the learned Trial Court and Page 6 of 8 Downloaded on : Fri Jun 10 21:10:25 IST 2022 R/CR.MA/9546/2022 ORDER DATED: 09/06/2022 subject to the conditions that he shall;
No. Conditions
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injuries to the interest of the prosecution;
(c) surrender passport, if any, to the lower court within a week;
(d) not leave India without prior permission of the Sessions Judge concerned;
(e) furnish latest 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 the trial Court;
(g) Shall file undertaking as indicated above in paragraph No.7 of the Order within a week from the date of the release before this Court as well as trial Court.
9. The authorities shall release the applicant if he is not required in connection with the any other offences. If breach of any above condition is committed, the learned Sessions Judge concerned shall take appropriate action or issue warrant against the applicant. The bail bond to be executed before the learned trial Court having jurisdiction to try the case. It will be open for the sessions judge concerned to delete, modify and/or relax any of the above conditions, in accordance with law. Rule is made absolute to the aforesaid extent.
10. Nothing stated hereinabove, shall tantamount to the expression of any opinion on the merits of this case.
Page 7 of 8 Downloaded on : Fri Jun 10 21:10:25 IST 2022R/CR.MA/9546/2022 ORDER DATED: 09/06/2022 Registry to send a copy of this order to the concerned Jail Authority as well as learned Sessions Court forthwith through fax and e-mail.
Direct service is permitted.
(ILESH J. VORA,J) Manoj Page 8 of 8 Downloaded on : Fri Jun 10 21:10:25 IST 2022