Gujarat High Court
Kiritbhai Jagubhai Vala vs State Of Gujarat on 20 August, 2018
Author: A.Y. Kogje
Bench: A.Y. Kogje
R/CR.MA/14587/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 14587 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 14613 of 2018
With
R/CRIMINAL MISC.APPLICATION NO. 14615 of 2018
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KIRITBHAI JAGUBHAI VALA
Versus
STATE OF GUJARAT
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Appearance:
MR PM LAKHANI(1326) for the PETITIONER(s) No. 1
DHWANI P LAKHANI(8222) for the PETITIONER(s) No. 1
MILAN R MARUTI(7338) for the PETITIONER(s) No. 1
MRS R P LAKHANI(3811) for the PETITIONER(s) No. 1
MR MITESH AMIN, PUBLIC PROSECUTOR assisted by MR LB DABHI and
MR HK PATEL, APPs (2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 20/08/2018
ORAL ORDER
1. All these applications for anticipatory bail under Section 438 of the Criminal Procedure Code are filed by the accused of I-CR No.3 of 2018 registered on 19.05.2018 with CID (Crimes), Surat Zone Police Station, Surat for offences under Sections 364(A), 365, 384, 387, 343, 323, 504, 506(2), 170, 193 and 201 of the Indian Penal Code and Section 25(1)(A) of the Arms Act. 1.1 Considering the fact that all the applicants of these applications are accused of the same CR and represented by the same Advocate, with consent of the Page 1 of 18 R/CR.MA/14587/2018 ORDER parties, all these applications are taken up for hearing jointly.
2. It is narrated in the FIR that the applicants and co-accused have entered into conspiracy to abduct one Piyush Savaliya and illegally detained him in a farmhouse and through him, procured whereabouts of another victim Dhaval Mavani and abducted Dhaval Mavani also and forcibly transferred large amount of Bitcoins (virtual currency) in the account of accused No.1 (Shailesh Bhatt) and also received an amount of Rs.14 lakhs in cash with help of courier service ("Aangadiya"). It is in this connection that the FIR came to be registered by Detective Inspector of CIT (Crimes).
3. In the FIR, it is alleged inter alia as under:-
3.1 On 30-1-2018, Dilip Kanani, who had made huge investment in Bitcoin, made phone call to Piyus Savaliya under the pretext of synchronizing as there was error in his laptop and called him at the road in front of Diridin Ice-cream near Sun Shine Complex, Mota Varaccha at about 18.00 hours as per the conspiracy hatched with is other accomplices and made him to sit in his blue Audi car and it was kept in running condition as the error of the laptop had to be repaired. As per the conspiracy hatched with accomplices, Piyus Savaliya was made to get down Page 2 of 18 R/CR.MA/14587/2018 ORDER from the vehicle after some time and before Piyus Savaliya could reach near his motorcycle, one unknown person already standing on the road as per the conspiracy, stopped this victim Piyus and told him that you have extorted money from many persons in Bitcoin. At the same time, one silver colour Innova vehicle arrived from behind and the person sitting inside opened the door of the vehicle and the person standing outside pushed victim Piyus Savaliya forcibly into the vehicle. Other three persons already sitting in this vehicle in which he was abducted, snatched away mobile phone from Piyus and introduced themselves as staff of Income Tax Department and started assaulting him. The vehicle was stopped at Laskana Patiya at Surat. In the meantime, an unknown person got down from the vehicle and in place of him a person named J. K. Rajput, as stated by Piyus, got into the vehicle. Thereafter, the vehicle was taken towards Kamrej and this victim Piyus was blindfolded and they continued to threaten and interrogate him that whether Satish Kumbhaniya was the owner of this Bitconnect and you have looted many person in Bitconnect and as to who is in possession of Bitcoin and the money. They continued to threaten Piyus to give money and Bitcoin. Therefore, Piyus gave the name of Dhaval Mavani, resident of Surat and partner of Bitconnect to the abductors. However, the other details of Dhaval Mavani and information of office Page 3 of 18 R/CR.MA/14587/2018 ORDER and residence address was not given by Piyus. As it became dark after some time, blindfold was removed from the eyes of Piyus.
3.2 It is further alleged in the FIR that we are not from IT department. After stating this, they started slapping him and during this time, the victim informed the residence address of Dhaval Mavani. After sometime, he was blindfolded again and the victim stated in Innova vehicle that Shailesh Bhatt and others have lost 60 crore rupees in Bitconnect. He was abused in vulgar language and asked to give back this money and he was threatened with life by placing firearm on his head. After the vehicle was driven for some time, it was taken to one farm house. His blindfold was removed and he was assaulted and he was confined to one room forcibly for three days. It was stated that he will be allowed to go if Dhaval is found and he was asked to state about the properties purchased by the owners and partners of Bitconnect Company. After saying this, video shooting was done. In the meantime, these unknown persons were taking to one another and as they used to call one another by names, this victim Piyus identified Kirit Vala, Jignesh Kheni, Umesh @ Umo, Jignesh Moradiya and Bavaji J. K. Rajput and in this way, victim Piyus came to know about names of the persons who abducted him forcibly. Page 4 of 18
R/CR.MA/14587/2018 ORDER 3.3 It is alleged that thereafter, Dhaval Mavani was abducted on 01/02/2018 and Shaileshbhai and his accomplices extorted Bitcoins and money from him. They
also threatened him that, do not inform anyone about this incident. Leave Gujarat and in return I will get you money from Shailesh Bhatt. These are influential people and if you do no leave Gujarat, they will kill you.
Therefore, Piyush Savaliya got afraid of the threats of Jignesh Kheni and due to pressure of Jignesh Kheni, he, for the first time, called for Rs.15 lakhs from Amreli by Angadiya courier through Shailesh Bhatt and out of which Rs.7.50 lakhs were given to Piyush Savaliya. Parsottambhai, the maternal uncle of Piyush sent the remaining Rs.7.50 lakhs to Jignesh Kheni at Surat from Amreli by Angadiya courier. Thereafter, Jignesh Kheni frequently threatened to the maternal uncle of Piyush and Punit, the brother in law of Piyush at Surat on phone that, Piyush, leave Gujarat, Dhaval has left the country. If Piyush leaves Gujarat, I shall get him more money from Shailesh Bhatt. Because, Piyush has a threat from Shailesh Bhatt, Kirit Vala, Jignesh Moradiya, J.K.Rajput, Umesh @ Umalo, Bavaji and other persons. If Piyush appears before the police, they are afraid that, they will be implicated in two offences of abduction and criminal force. Therefore, Shailesh Bhatt and other Page 5 of 18 R/CR.MA/14587/2018 ORDER persons will give him money. You take this money. By saying so, he convinced Punit, the bother in law of Piyush and gave Rs.69 lakhs to Piyush in piecemeal after getting the money from Shailesh Bhatt.
3.4 It is further alleged that thereafter, Dhaval Mavani was beaten up and pressurized to give Bitcoins and cash, and 2256 Bitcoins worth Rs. 1,31,07,36,000/- (price of one Bitcoin about Rs. 5.81 lakh as on 01/01/18) were forcefully transferred to the block chain wallet having ID 003CDPD9-E9804622-84-CD-8ED90267DC96 of the Apple Mobile of Shailesh Bhatt through Nikunj Bhatt at gun point. As Shailesh Bhatt was not holding Binoy Excement Wallet, Shailesh Bhatt called Kirit Paldiya in Sachin area in order to get lite-coin transferred from Dhaval Mavani, and total 11,000 lite coins were forcefully transferred to the Binance Exchange Account having user ID Anjani Enterprise2012 and email dcom belonging to Kirit Paldiya from Dhaval Mavani by confining him in the vehicle at the instance of Shailesh Bhatt. The said 11000 lite coins were converted into 166 Bitcoins by Kirit Paldiya. The price of the same can be considered to be Rs. 9, 64, 46,000/-. Thereafter, Shailesh Bhatt, Kirit Vala, Jignesh Mordiya and Nikunj Bhatt and others threatened Dhaval Mavani and demanded more money to release him from abduction. Therefore, Dhaval Mavani Page 6 of 18 R/CR.MA/14587/2018 ORDER contacted caviar of Bitcoin Suresh Gorsiya, residing at Surat over mobile and got deposited Rs.14.50 crores in the name of Raju through Vijay Angadiya, Surat by giving mobile number of Suresh Gorsiya and informed to send the said Rs. 14.50 crores to the Income Tax Inspector P.D. Jadeja, Mumbai, whose name was given by Shailesh Bhatt, through Vijay Angadiya. Thereafter, Dhaval Mavani was threatened not to inform anyone about this incident and to leave India and released from abduction and dropped from the vehicle, and aforesaid amount was extorted towards ransom. Rs. 14.50 crores were transferred to Umesh Angadiya, Mumbai from Vijay Angadiya, Mumbai at the instance of Shailesh Bhatt. The said money was called for from P. Umesh Angadiya, Mumbai to Surat. Shailesh Bhatt received Rs. 10 crores through his accomplice Hitesh Jotasana. Shailesh Bhatt personally received Rs. 4 crores at Infocity, Gandhinagar and Rs. 60 lakh was called for through Kirit Paldiya at Gandhinagar, and Shailesh Bhatt received the same through P. Umesh Angadiya, Ahmedabad. Out of 2256 Bitcoins extorted from Dhaval Mavani, 500 Bitcoins were given to Jignesh Mordiya and 350 Bitcoins were given to Kirit Vala. During investigation of the application made by Shailesh Bhatt, at the time of taking Shailesh Bhatt's mobile Apple X as evidence, Shailesh Bhatt, himself and with the help of others, destroyed evidence so that evidence pertaining to Bitcoins Page 7 of 18 R/CR.MA/14587/2018 ORDER transactions is not found and tampered with email addresses associated with block chain wallet and got them changed and misled the investigating officer.
4. Heard Mr.P.M.Lakhani, learned Advocate for the applicants and learned Public Prosecutor Mr.Mitesh Amin for the respondent-State.
5. It is submitted on behalf of the applicants that the case of the investigation at best against the applicants is that they are co-conspirators. Otherwise, there is no specific role attributed to the applicants which can amount to an offence.
5.1 It is vehemently submitted that the present FIR is nothing but a counter-blast to the FIR filed by the complainant being I-CR No.2 of 2018 registered with CIR (Crimes), Gandhinagar. The said FIR is filed by the informant-Shailendrasinh Raghuvanshi for offences of abduction and extortion along with other offences against several police officers. In the investigation of the said FIR, it is also revealed that even an MLA is involved and therefore, as a part of cover-up exercise, present FIR is concocted and filed against main accused- Shailesh Bhatt and in that process, dragged names of the present applicants as they are associated with said Shailesh Bhatt.
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R/CR.MA/14587/2018 ORDER 5.2 It is submitted that in the present FIR,
abduction of one Piyush Savaliya and Dhaval Mavani is mentioned. Still, none of them has come forward to register this FIR and strangely, Police Officer has become informant. This is for obvious reasons. 5.3 It is submitted that in the FIR filed by Shailendrasinh Raghuvanshi, which is prior in point of time, the investigation reveals involvement of senior police officers as well as MLA and his relative. The investigation is unable to even apprehend said MLA, who is still absconding.
5.4 It is submitted that allegations in the present FIR are completely baseless and imaginary story of the informant. It is submitted that till date, the investigation is unable to even record statement of Dhaval Mavani, who is alleged to have been abducted. The statement recorded of Piyush Savaliya is also completely imaginary and only to sensationalize the entire issue. 5.5 It is submitted that insofar as the applicant of Criminal Misc.Application No.14587 of 2018 - Kirit Vala is concerned, the only allegation is of receiving Bitcoins. It is submitted that Bitcoins being virtual money, it cannot be said that the offence of receiving money under Sections 384 and 387 is made out against him. Page 9 of 18
R/CR.MA/14587/2018 ORDER Moreover, merely being an associate of main accused would not make the applicant party to crime.
5.6 It is further submitted that insofar as applicant of Criminal Misc.Application No.14615 of 2018 - Hitesh Jotasana is concerned, in the entire FIR, the only allegation is that he had received cash amount from courier service ("Aangadiya") on behalf of accused No.1 - Shailesh Bhatt. It is submitted that the applicant is only an employee of the main accused. He was only following instructions to receive money from courier service.
5.7 It is submitted that insofar as applicant of Criminal Misc.Application No.14613 of 2018 - J.K.Rajput is concerned, the investigation is unable to point out any role in the entire incident and the only allegation in the FIR is that this applicant was one of many persons present whom the abductor seen during incident of abduction.
5.8 It is submitted that this offence is a concocted offence as can be made out on the basis of elaborate narration made in the FIR. Moreover, allegations, insofar as applicants are concerned, are not supported by any evidence. There is no identification parade to ascertain the identity of the applicants to Page 10 of 18 R/CR.MA/14587/2018 ORDER have participated in the offence of abduction. It is submitted that deliberately, reference is made to transaction of cash amount only to satisfy legal requirement of real money as the entire offence is pertaining to transfer of Bitcoins, which is virtual money and would not attract definition of transfer of money pursuant to offence of abduction and extortion.
6. As against this, learned Public Prosecutor submitted that in all, 11 accused persons are involved in the offence, of whom only 5 are arrested and rest are absconding. Even the main accused - Shailesh Bhatt, whose anticipatory bail application is rejected by the Sessions Court, is also not available for investigation. 6.1 It is submitted that the entire incident of abduction was with a specific object of getting money which was stored in the form of Bitcoins by accused No.1. The incident of abduction had continued from 30.01.2018 to 01.02.2018 and during this period, the investigation was able to collect Call Detail Records to establish conspiracy.
6.2 It is further submitted that during the course of investigation, statement of victim - Piyush Savaliya was recorded on 19.05.2018, wherein roles of the applicants are coming out on record.
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R/CR.MA/14587/2018 ORDER 6.3 It is submitted that statement of one witness
(name of not revealed as investigation is on going) is also recorded on 19.05.2018, which is supporting the case of prosecution that after incident of abduction, attempts were made to win-over the victim so that he can be prevented from going to police.
6.4 It is submitted that statement of another witness (name of not revealed as investigation is on going), who is an ethical hacker, is also recorded, who narrated the role of main accused with regard to recovery /transfer of Bitcoins. The investigation has also recorded statement of another witness (name of not revealed as investigation is on going) in support of its case regarding abduction and illegal confinement of victim at a farmhouse.
6.5 Learned Public Prosecutor has drawn attention of this Court to the co-accused persons as well and submitted that as the investigation is in progress, as per the judgment of this Court in case of Kailash Govindram Rathi Vs. State of Gujarat, reported in 2008 (1) GLR, 750, statement of co-accused can be referred to and relied upon at this stage.
6.6 Learned Public Prosecutor has thereafter referred to and relied upon the judgment of the Apex Page 12 of 18 R/CR.MA/14587/2018 ORDER Court in the case of Pokar Ram Vs. State of Rajasthan & Ors., reported in (1985) 2 SCC, 597, to submit that the Court must be cautious and circumspect to exercise powers under Section 438 of the Criminal Procedure Code, which are discretionary in nature.
6.7 It is submitted that the investigation is at a crucial stage and the accused persons are involved in transfer of money which runs into several crores and from their conduct, which is coming out on record during the course of investigation, it is evident that these accused persons could go to any extent to influence the witnesses or damager investigation. In support of this, he referred to a specific paragraph in the statement of abducted victim from whom the accused persons were able to extract notarized affidavit in anticipation of action against these persons.
7. Heard learned Advocates for the parties and taken into consideration the case papers.
8. The main submission on behalf of the applicants is that the FIR is a counter-blast to previous FIR being I-CR No.2 of 2018 registered on 08.04.2018 by the informant in connection with the incident which took place on and between 11.02.2018 to 16.02.2018. The said FIR refers to abduction of accused No.1 of the present Page 13 of 18 R/CR.MA/14587/2018 ORDER FIR - Shailesh Bhatt and involvement of police officers in the offence. Moreover, the FIR also narrates method adopted by accused persons therein in transferring Bitcoins and cash money. It is pertinent to observe that the present FIR is registered on 19.05.2018 pursuant to incident of abduction for period between 30.01.2018 to 01.02.2018, which is prior in point of time to the incident of previous FIR. It may happen that there is some interlink between the two abductions mentioned in two separate FIRs. However, it is apparent that both the FIRs refer to two independent incidents, at independent time and regarding abduction of different persons. Merely because there is some connection, more particularly the complainant of the previous FIR is accused in the present FIR, cannot be said to falsify the present FIR when sufficient evidence in the form of statements of witnesses are available to substantiate abduction, threats and transfer of money in form of Bitcoins and cash.
8.1 The Court has also perused statements of witnesses which would reveal roles of the applicants in this offence. The entire incident began with conspiracy to trace one person named Kumbhani, from whom money in form of Bitcoins was to be received /transferred. As a part of conspiracy, six times meetings were held, in Page 14 of 18 R/CR.MA/14587/2018 ORDER which all the present applicants had participated. Pursuant to this, victim was abducted on 30.01.2018. His abduction was in two parts and in the second part of abduction, roles of Kirit Vala and J.K.Rajput are coming out. Over and above this, in the trip to Goa in search of said Kumbhani, both these applicants were part of the team which proceeded to Goa and returned midway. 8.2 Thereafter, role of Kirit Vala is coming out in carrying out reccy of house of another victim - Dhaval Mavani and his abduction. The CDR available with the investigation is able to establish inter-connect between the accused persons and the applicants. The circumstances therefore against Kirit Vala are participating in the meetings for conspiracy, abductions of both the victims and receiving 350 Bitcoins, visit to farmhouse were victims were confined and participating in forcibly making of an affidavit of victim Piyush Savaliya.
8.3 Similarly, role of J.K.Rajput is his presence in the meetings for conspiracy and role in abductions of both the victims.
8.4 Insofar as accused Hitesh Jotasana is concerned, according to prosecution, he is part of the meeting for conspiracy, received 100 Bitcoins, received Page 15 of 18 R/CR.MA/14587/2018 ORDER 10 crores cash from courier company, mobile sim card running in his name is used by main accused, CDR to show that he is in constant touch with other accused persons and that he has visited farmhouse where both the victims were confined.
8.5 The Court has perused statement of abducted victim. In his statement, categoric role is attributed to accused persons. This includes role of the applicants in forcing him to prepare an affidavit in anticipation of any criminal action against the applicants and also influencing the victim and his relative by paying huge amount so that the victim does not go to police to complaint about the offence.
8.6 The Court has also perused statement of relative of the victim and this statement also supports the version given by the victim insofar as receiving huge amount of money to prevent the victim from going to police and also to the threats issued so that the victim flees out of country.
8.7 The Court has thereafter perused statement of a witness who is ethical hacker. It appears that through this person, transaction of huge amount has taken place in the form of Bitcoins. The Court has also perused statement of a witness who is security of the farmhouse Page 16 of 18 R/CR.MA/14587/2018 ORDER where the victims were confined and this witness supports presence of all the three applicants at the time and place where abducted victims were confined. 8.8 In the case of Pokar Ram (supra), the Supreme Court was examining grant of anticipatory bail in a serious offence by the Sessions Court and rejection of cancellation of the anticipatory bail by the High Court. While doing so, the Supreme Court held as under:-
"11. ..... The only question which we were called upon to decide is whether: the learned Sessions Judge was justified in granting anticipatory bail in the facts and circumstances of this case ? Unquestionably, no case was made out for granting anticipatory bail in this case. Let it be made distinctly clear that status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail. Anticipatory bail to some extent intrudes in the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature. This case amply illustrates that the power was exercised sub silentio as to reasons or on irrelevant or considerations not germane to the determination. This Court, to avoid miscarriage of justice, must interfere."
8.9 In the instant case, the Court, having recored Page 17 of 18 R/CR.MA/14587/2018 ORDER as above, finds that the investigation is at a crucial juncture, many accused are still absconding and the investigation is able to point out sufficient evidence to show prima facie involvement of the applicants in the offence. The Court also finds that though the previous offence, i.e. FIR being I-CR No.2 of 2018 of CID (Crimes), Gandhinagar and the present offence may be connected to each other, however, the two incidents are independent, involving different victims and would therefore be treated as independent investigation and to be viewed on the facts and circumstances of the respective cases.
9. The Court is also of the opinion that as the investigation is at a crucial stage, further elaborate discussion is not necessary.
10. The Court finds that no error is committed by the Sessions Court in rejecting the anticipatory bail applications.
11. In view of the aforesaid, no case is made out to grant anticipatory bail. The applications are rejected. Rule is discharged.
(A.Y. KOGJE, J) SHITOLE Page 18 of 18