Gujarat High Court
Bharat Vandravandas Shah vs State Of Gujarat on 20 June, 2018
Author: P.P.Bhatt
Bench: P.P.Bhatt
R/CR.MA/10743/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10743 of 2018
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BHARAT VANDRAVANDAS SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA, SR ADVOCATE with MS NISHA OJHA for M/S
WADIAGHANDY AND CO(5679) for the PETITIONER(s) No. 1
MR. KALRAV R PATEL(7041) for the RESPONDENT(s) No. 1
MR HK PATEL, APP(2) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE P.P.BHATT
Date : 20/06/2018
ORAL ORDER
1. This application is filed by the applicant under Section 439 of the Code of Criminal Procedure (for short, 'the Code') for regular bail in connection with FIR registered at C.R. No. I-44 of 2018 with Ankleshwar GIDC Police Station, District: Bharuch for the offences punishable under Sections 406, 420 and 409 of the Indian Penal Code, 1860 (for short, 'the IPC').
2. Mr. Y. N. Oza has instructions to appear on behalf of the original complainant.
3. Heard, Mr. Shalin Mehta, the learned senior advocate, assisted by Ms. Nisha Ojha, the learned advocate appearing for M/s.
Page 1 of 9R/CR.MA/10743/2018 ORDER Wadiaghandy & Co. for the applicant and Mr. H. K. Patel, the learned Additional Public Prosecutor for the respondent - State and Mr. Y. N. Oza, the learned senior advocate, for the original complainant.
3.1 The learned senior advocate for the applicant submits that the applicant is an innocent person, however, he has been falsely implicated in the offence. He submitted that the allegations levelled in the FIR are absolutely baseless and the dispute involved in the case on hand is civil in nature, however, the original complainant has tried to give it a colour of criminal one with a view to cause undue harassment to the present applicant. Besides, the FIR in question is filed on 24.03.2018 and the alleged period of offence indicated in the FIR is from 2011 to 2015 and thus, there is inordinate delay in filing the FIR for which no explanation much less the satisfactory explanation is there on record. The learned senior advocate for the applicant further submits that the company is having separate legal entity and hence, the officers and employees cannot be held personally liable for the liability of the company. It is further submitted that the Memorandum of Understanding was executed between the parties and as per the said Memorandum of Understanding, arbitration clause was invoked and arbitration proceedings are also going on and are pending since 2016 in respect of the subject matter of the FIR.
3.2 The learned senior advocate for the applicant further submitted that in fact the applicant had tendered resignation through email on 16.08.2012, a copy of which is produced at Annexure 'C' Colly., which was accepted on the very same day by the SBS. He further Page 2 of 9 R/CR.MA/10743/2018 ORDER submitted that thereafter, the present applicant was appointed as President (Business Development) on 01.06.2013 in the company run by the complainant. Likewise, the son of the applicant (Atith B. Shah) was also appointed as Vice President (Marketing & Exports). Thereafter, by referring the sale deed, produced at Annexure 'R3', he submitted that the immovable property of SBS Colours and Chemiques Pvt. Ltd. was purchased by Narayan Organics Pvt. Ltd. by way of the said registered sale deed in the month of August 2014.
3.3 The learned senior advocate for the applicant further submitted that Clause (3) of Section 41-A of the Criminal Procedure Code, 1973 (for brevity, 'the Code') has not been complied in the instant case. In this context, while referring the notice issued under Section 41-A (Annexure 'J' Colly.), it is pointed out that the applicant appeared on four different dates in compliance of the notices and cooperated in investigation. It is submitted that the concerned Investigating Officer (IO) has not recorded reasons to justify the arrest. He further submitted that the applicant was arrested on 28.05.2018 but after his arrest, no remand was sought by the IO. It is further submitted that substantial part of investigation is over. Besides, the case rests on documentary evidence and the IO has already collected all relevant documentary evidence. He further submitted that as and when the applicant was called upon by the IO, the applicant had submitted his explanation. Not only that, on 21.01.2018, he had submitted reply before the concerned police authority. While referring the relevant portion of such reply, it is submitted that the police authorities were also apprised about the fact that allegations are baseless and no such offence is committed by the applicant. So far as dispute raised by the Page 3 of 9 R/CR.MA/10743/2018 ORDER complainant is concerned, the same is of civil nature and arbitration proceedings are pending.
3.4 While concluding his arguments, the learned senior advocate for the applicant submitted that the applicant is diabetic and medication is required. Further, as said earlier, the dispute involved is of civil in nature. It is further submitted that the applicant has roots in society and and is also having responsibility towards his family and he is not likely to run away and his presence can be secured during trial by imposing the the suitable conditions.
3.5 The learned senior advocate for the applicant, on instructions, submits that without prejudice to their rights and contention, to show his bona fide, the applicant is ready and willing to deposit Rs.35 lakh before the trial Court concerned. However, he submits that the same may not be construed as admission of guilt on the part of the applicant. He also requested that the aforesaid amount may be invested in FDR.
3.6 In support of his case, the learned senior advocate for the applicant has relied upon a decision of the Hon'ble Apex Court in the case of Khatri and Others (II) Vs. State of Bihar and Others, reported in (1981) 1 SCC 627, more particularly, para 7 of the same, relevant portion of which, reads as under:
"....but we would strongly urge upon the State and its police authorities to see that this constitutional and legal requirement to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest must be scrupulously observed. It is also clear from the particulars furnished to us from the records of the Judicial Magistrates that in some cases particularly, those relating to Patel Page 4 of 9 R/CR.MA/10743/2018 ORDER Sahu, Raman Bind, Shaligram Singh and a few others, the accused person were not produced before the Judicial Magistrate subsequent to their first production and they continued to remain in jail without any remand orders being passed by the Judicial Magistrates. This was plainly contrary to law. It is difficult to understand how the State continued to detain these accused persons in jail without any remand orders. We hope and trust that the State Government will inquire as to how this irregularity was allowed to be perpetrated and will see to it that in future no such violations of law are permitted to be committed by the administrators of the law. The provision inhibiting detention without remand is a very healthy provision which enables the Magistrates to keep check over the police investigation and it is necessary that the Magistrates should try to enforce this requirement and where it is found to be disobeyed, come down heavily upon the police."
4. Per contra, the learned Additional Public Prosecutor opposes the grant of bail looking to the nature and gravity of offences. He submitted that present is the offence punishable under Sections 406, 420 and 409 of the IPC and from the material collected so far, prima facie case is made out against the present applicant. It is further submitted that the documents were signed in 2014 as Director of SBS by the accused person and thereafter, on 08.12.2015 as well. It is further submitted that merely the applicant was appointed by the complainant as President (Business Development) and his son as Vice President (Marketing and Export), the allegations made in the complaint are not wiped out. It is submitted that the allegations are of serious in nature and therefore, considering the gravity of offence, the present applicant may not be enlarged on bail. It is further submitted that investigation is going on and the charge-sheet is yet to be filed and therefore, there is possibility of tampering with the evidence. Accordingly, it is requested that the applicant may not be enlarged on bail.
Page 5 of 9R/CR.MA/10743/2018 ORDER 4.1 Mr. Oza, the learned senior advocate for the original complainant, has reiterated the aforesaid submissions made by the learned Additional Public Prosecutor. In addition thereto, he has submitted that the FIR is divided into two part and the first part clearly demonstrates the offence punishable under Section 406, 420 and 409 of the IPC against the present applicant and second part may be the subject matter of arbitration. It is submitted that merely because the arbitration clause is invoked and the arbitration proceedings are pending, it cannot absolve the present applicant from his criminal liability as the complainant has made serious allegations whereby, the ingredients of the offence in question are made out. Accordingly, he also requested to reject the present application. In support of his case, learned senior advocate Mr. Oza has referred and relied upon following decisions:
i) Trisuns Chemical Industry Vs. Rajesh Agarwal and Others, reported in (1999) 8 SCC 686;
ii) Order dated 10.02.2017 passed in Criminal Misc. Application No. 1108 of 2017;
iii) Order dated 20.06.2017 passed in Criminal Misc. Application No. 13225 of 2017;
iv) Judgment and Order dated 08.08.2017 passed in Special Criminal Application No. 4749 of 2017 with Criminal Misc.
Application No. 17640 of 2017.
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5. Learned advocates appearing on behalf of the respective parties do not press for further reasoned order.
6. I have heard learned advocates appearing for the parties and perused the material placed on record and the police papers referred by the learned Additional Public Prosecutor. Regard being had to the above submissions, in the facts and circumstances of the case and considering the nature and gravity of accusation made against the applicant in the First Information Report and other papers placed on record, the above-referred case law cited before the Court and the fact that the applicant is ready and willing to deposit Rs.35 lakh as also considering the fact that the applicant is having health issues on account of diabetes, this Court is of the opinion that discretion is required to be exercised in favour of the applicant for grant of bail. Moreover, the applicant assures that he will abide by the terms and conditions that may be imposed by the Court and shall not commit any breach. Hence, the application is allowed and the applicant is ordered to be released on regular bail in connection with the above- referred FIR on executing a personal bond of Rs.10,000/- (Rupees Ten thousand only) with one surety 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 injuries to the interest of the prosecution and shall cooperate in trial;
[c] surrender passport, if any, to the lower Court within a week;
[d] not leave India without prior permission of the Sessions Judge
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R/CR.MA/10743/2018 ORDER
concerned;
[e] mark presence before the concerned police station on every
Monday of each English calendar month for a period of three months and thereafter, alternate Monday for a period of six months, between 11:00 a.m. and 2:00 p.m.;
[f] furnish latest and permanent 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 this Court and shall also remain present as and when required by the Court;
[g] without prejudice to his rights and contentions, deposit Rs.35 lakh (Rupees Thirty five lakh only) before the trial Court concerned within 04 (four) weeks after release of the present applicant. The trial Court concerned shall invest the said amount in Fixed Deposit with any Nationalized Bank, initially for a period of one year in the name of Nazir of the Court, which shall be renewed periodically as the trial Court deems just and proper.
7. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. 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. Bail bond is to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. 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.
Page 8 of 9R/CR.MA/10743/2018 ORDER
8. Rule is made absolute to the aforesaid extent. Direct service today is permitted.
[ P. P. Bhatt, J. ] hiren Page 9 of 9