Gujarat High Court
Jayeshbhai vs State
Author: Sonia Gokani
Bench: Sonia Gokani
CR.MA/13648/2012 12/ 12 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 13648 of 2012 ========================================================= JAYESHBHAI SHASHIKANT SHAH - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ========================================================= Appearance : MR NK MAJMUDAR for Applicant(s) : 1 MR. K.P. RAVAL APP for Respondent(s) : 1 ========================================================= CORAM : HONOURABLE MS JUSTICE SONIA GOKANI Date : 09/10/2012 ORAL ORDER
1. This application has been preferred by the present applicant under Section-439 of the Code of Criminal Procedure, 1973 for regular bail in connection with the complaint being I-C.R No.18/2012 registered with Vadodara D.C.B. Police Station, District-Vadodara for the offences punishable under Sections 406, 409, 419, 420, 465, 467, 468, 471, 474 r/w 120B and 114 of the Indian Penal Code, 1860 and Sections 66(B), 81(A) of the Information Technology Act.
2. The complaint came to be lodged by one Mr. Sirin Thomas, Manager of HDFC Bank. A huge scam relating to the credit cards, debit cards and EDC machines came to the notice of the complainant when the demand was raised by the Allahabad Bank and UCO Bank for an amount of Rs.50 Lacs from the HDFC Bank. On inquiry, it came to the knowledge of the Bank that many restaurant owners of Vadodara City had installed EDC machines of the said Banks for facilitating credit and debit facilities. At the time of swiping these cards for the payment of hotel bills, cards were also swiped second time for the purpose of paying tip amount. It also came to the notice of the banks that the tip amount was charged from the suspense account of bank & was not debited on the card holder. A huge amount of tip was pocketed by these restaurant owners by misusing the loophole of technology.
It appears that some of the employees of the bank installed the EDC machines & it is alleged that knowing shortcomings of programmes, they joined hands with some of the hoteliers & master minded this plan and accordingly, huge amount of bank got transferred from suspense account to the account of these accused. Complaint being I.C.R. No.18/2012 came be be lodged with Vadodara D.C.B. Police Station, District-Vadodara. Present application is preferred for regular bail on laying of charge sheet on due investigation.
3. Learned advocate Mr. N.K. Majmudar appearing for the applicant has urged that the applicant is not connected with the alleged offence and he has not withdrawn any amount with the aid of EDC machine. Though the Debit card is used by him, he has no role to play virtually. It is further urged that the present applicant has not been entrusted with any property and has not gained any monetary benefit out of the same. Nor has he caused any loss to the Bank. He further urged that the applicant has not committed any forgery and/or siphoned of the public money. It is also urged that the applicant has no past criminal antecedent and in absence of any valid proof, he may not be continued to languish in jail at pretrial stage.
It is also urged that the bank authorities have conducted physical testing & required inspection while installing these machines and the banks official gave discount up to maximum 20% and 2% transfer charges by way of commission is being derived. It is also submitted that, without prejudice to the rights and contentions of applicant & without admitting any involvement and whatever the money that is said to have been withdrawn from the suspense account, the applicant is ready to deposit. It is at the best a sheer mistake on the part of the applicant which he is ready to rectify. Furthermore on instructions from the applicant, learned advocate has submitted that applicant is ready to deposit entire outstanding amount of the bank as may be indicated without even disputing the sum. Reliance is placed on provisions of bail and ratio laid down in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in 2012(1) Supreme Court cases 40 where in bail proceedings of 2G Scam, Apex Court has reiterated principles of bail and not jail.
4. Learned APP Mr. K.P. Raval appearing for the State has pointed out to this Court that the total outstanding dues of UCO Bank and Allahabad Bank against the present applicant is Rs.5,00,970/-
Learned APP has also challenged this application on the ground that it is an attempt to systematically siphon the amount which belongs to the public. It is further pointed out that the huge amount of money withdrawn from the suspense accounts of different banks is outstanding, to reflect the bonafides of the present applicant, however, it is urged that entire amount needs to be paid back to the different banks without any dispute. Learned advocate submitted that it is the loophole of the software which has been exploited and the same resulted into the crime being committed with the active aid and connivance of those persons, who installed the machines. It is also further urged that the bank having realized vulnerability of the program has censored & now, has changed the machines and also have made improvement in the software. He urged that offences being under various provisions of Information Technology Act, Court may be slow in showing leniency to the applicant.
It is of course confirmed that there are no past criminal antecedents of the applicant and other co-accused are granted regular bail & he does not dispute principle of parity.
5. Upon considering extensive submissions of both the sides and also on close and careful perusal of the papers of investigation, this appeals to be the case of apparent monetary benefits & loophole of software program which permitted the tip amount to be charged directly from banks without debiting the card holders. Accordingly, such withdrawals of a tip amount were made by the applicant from suspense account of the bank being in the business of restaurant. Such withdrawal from the suspense account of the bank appears to be possible on account of limitation of the software programing. EDC machines installed for facilitating the payment through the credit cards enabled the operator to withdraw the amount under the head of tip amount directly from suspense account and this led and gave rise to opening accounts & getting credit cards of the relatives and their repetitive use and also charging tip on suspense account. As the credit card holders would not in such case be charged additionally and the only burden was to the banks, this had gone unnoticed for sometime.
It would be apt to reproduce some of the relevant findings of the Apex Court at this stage in the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in 2012(1) Supreme Court cases 40, wherein the Apex Court held that "gravity cannot be decisive ground to deny bail and competing factors to be balanced by court while exercising bail. 2G Spectrum Scam Case." After referring to various judgment of the Apex Court and reproducing the law in regard to the grant or cancellation of bail:
39. Coming back to the facts of the present case, both the courts have refused the request for grant of bail on two grounds: the primary ground is that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the State exchequer, the secondary ground is that of the possibility of the accused persons tampering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property and forgery for the purpose of cheating using as genuine a forged document. The punishment for the offence is imprisonment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration.
40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purpose of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.
41. This Court in Gurcharan Singh V. State (Delhi Admn.) observed that two paramount considerations, while considering a petition for grant of bail in a non bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witness. Both of them relate to ensure the fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing.
42. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is: whether the same is possible in the present case.
43. There are seventeen accused persons. Statements of witness run to several hundred pages and the documents on which reliance is placed by the prosecution, are voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have no remain in jail longer than the period of detention, had they been convicted.
It is not in the interest of justice that the accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State Exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trail or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge sheet.
44. This Court, in State of Kerala V. Raneef has stated: (SCC p.789, Para 15) "15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so may years of his life spent in custody ? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of Course this is no the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case, the respondent has already spent 66 days in custody (as stated in Para 2 of his counter affidavit) and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Mantette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille."
45. In Bihar Fodder Sam (Laloo Prasad case) this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period of more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pretrial prisoners would not serve any purpose.
46. We are conscious of ht fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offence alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot loss sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI."
6. Keeping in mind overall circumstances and the fact that the applicant is having his roots in society & he has shown his bona-fide of depositing entire amount withdrawn from the said suspense account within 3 months without raising any objection or resorting to any other means of dilatory tactics, his case is required to be considered.
7. This Court has earlier granted bail to some of the co-accused vide order dated 29th August, 2012 and therefore, on the ground of parity as well this application deserves to be allowed when the present applicant is similarly situated.
8. The Court is quite conscious of the fact that the serious allegations are levelled of misuse of the information technology by aid of EDC machine. However, as the charge sheet is already filed and case is based essentially & predominantly on documentary evidences and as mentioned herein, huge amount of public money is outstanding which the applicant has agreed to deposit without any murmur with public money being deposited within a short span & with no apprehension having been shown of applicant fleeing away from justice or tampering with the evidence, this Court is inclined to grant regular bail to the present applicant.
9. In the facts and circumstances of the case, this application is allowed and the applicant is ordered to be released on bail in connection with I-C.R No.18/2012 registered with Vadodara D.C.B. Police Station, District-Vadodara on executing a bond of Rs.50,000/- (Rupees Fifty Thousand only) with two sureties 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 liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution;
(c) surrender passport, if any, to the lower court within a week;
(d) not leave the State of Gujarat without prior permission of the Sessions Court concerned;
(e) mark presence before the court concerned as may be directed by it; and also mark presence at the concerned police station every month on first Monday of English Calender month between 11.00 a.m. and 3.00 p.m. till framing of charges;
(f) furnish the present address of residence to the I.O. 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;
(g) not tamper with the evidence nor act in breach of law nor intimidate any witness directly or indirectly.
(h) shall file an undertaking of such payment before this Court on or before 25th October, 2012.
(i) On 20th October, 2012, the applicant himself or any of his authorized persons shall remain present before the Investigating Officer who shall provide him in writing after ascertaining from all the Banks, the details of total outstanding dues of the applicant and on the basis of such details, the payment of the Banks as mentioned hereinafter shall be made by the applicant;
(j) Out of the total tip amount due from the applicant, 20% amount shall be paid on or before 30th October, 2012, 40% shall be paid by 30th November, 2012 and remaining 40% amount shall be paid to the Banks on or before 31st December, 2012.
In the event of any default in complying with any of the these conditions of making payment, bail order of the applicant shall be liable to be cancelled;
(k) Investigating Officer shall also get on official letter head of each Bank, the bifurcation of total tip amount due from this applicant and on the basis thereof, such details of outstanding amount shall be furnished;
10. The Authorities will release the applicant only if not required in connection with any other offence for the time being.
11. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.
12. Bail bond to be executed before the lower court having jurisdiction to try the case.
13. For modification of the conditions hereinabove, the applicant will be at liberty to approach the concerned Court and such Court shall decide such application for modification of condition of this order in accordance with law.
14. 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 applicant on bail.
15. This application is allowed. Direct service is permitted. Rule is made absolute.
(MS SONIA GOKANI, J.) chandrashekhar*