Japan Nitinkumar Shah vs State Of Gujarat on 17 January, 2023

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Gujarat High Court

Japan Nitinkumar Shah vs State Of Gujarat on 17 January, 2023

Bench: Ilesh J. Vora

     R/CR.MA/22268/2022                             ORDER DATED: 17/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 22268 of 2022

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                          JAPAN NITINKUMAR SHAH
                                   Versus
                            STATE OF GUJARAT
==========================================================
Appearance:
MS TEJAL A VASHI(2704) for the Applicant(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 : 17/01/2023

                              ORAL ORDER

1. This successive bail application is filed under Section 439 of the Code, by the applicant, in connection with FIR being CR. No. 11216008220235 of 2022 registered with Sector 7 Police Station, Gandhinagar, for the offences punishable under Sections 34, 204, 406, 409, 420, 465, 467, 468, 471, 477A and 120 B of the IPC and sections 447 and 452 of the Companies Act, 2013 and under Section 13(1)(d2) 13(1)(e), 13(1)(a), 13(2) and 12 of the Prevention of Corruption Act, 1988.

2. This Court has heard learned Senior Counsel Mr. Jal Soli Unwala assisted by Ms. Tejal Vashi, learned advocate for the applicant and Mrs. Krina Calla, learned APP for the respondent State.

3. The brief facts giving rise to file present application are that, the Gujarat Informatics Ltd., a State Government venture, is instrumental in purchasing hardware and software from different vendors for the State Government and its public undertakings. A complaint for cheating and forgery for a value of Rs.7 crore was registered with Sector 7 Police Station, Gandhinagar. Five people Page 1 of 5 Downloaded on : Wed Jan 18 20:50:12 IST 2023 R/CR.MA/22268/2022 ORDER DATED: 17/01/2023 namely, (i) Company Secretary - Japan Shah, (ii) Executive Accountant - Ruchi Bhavsar, (iii) Finance Executive - Vikrant Kansara, (iv) Director Accounts - Rakesh Amin, and (v) Auditor of Brekar and Majmudar, Chartered Accountant - Sonu Singh, all GIL officials are accused of diverting money from the company's bank account to shell companies using fake payment receipts in the year 2019-20. The alleged mastermind of this scam is GIL executing accountant - Ruchi Bhavsar. During the internal audit by auditor J.K. Brahin and Company, it was revealed that irregularities in bank transactions found on a higher scale. The accused official conspire with others to make fake shell companies to which money was transferred using fake receipts drawn for purchasing gadgets. The misappropriation took place in the year 2019-20 but it could be traced only in the year 2022. The officials have misused their powers and deposited funds in 16 transactions into account other than those of GIL. The total scam uncovered till date is Rs.40 crore and more. So far role of the applicant is concerned, it is alleged that at the relevant time in connivance with the co-accused, the applicant being a Company Secretary, had signed the alleged false vouchers and obtained cash benefit of Rs.25,00,000/- from the accused Ruchi Bhavsar.

4. In the aforesaid facts, the applicant herein arrested on 28.07.2022. The bail application after filing of the chargesheet came to be rejected by the Sessions Court came vide its order dated 29.09.2022. Being aggrieved with the said order, the applicant has preferred the instant application.

5. Mr. Jal Unwala, learned Senior Counsel would submit that, except the statement of co-accused Ruchi Bhavsar, nothing incriminating material found to establish that the applicant was involved in the alleged scam. It is in this context, it is submitted that Page 2 of 5 Downloaded on : Wed Jan 18 20:50:12 IST 2023 R/CR.MA/22268/2022 ORDER DATED: 17/01/2023 the applicant herein has no role to play in the offence and has no knowledge about the accounts and audit department of the company. He would further submit that, now chargesheet is filed and entire prosecution case is based on documentary evidence and the same is part of the chargesheet and further custody of the applicant is not necessary.

In such circumstances, he urged that discretion may kindly be exercised as trial of the case will not conclude in near future. He further submits that, without prejudice to the rights and contentions, the applicant is willing to deposit Rs.10 lacs before the Complainant company within five months from the date of the order and shall file an undertaking to this effect before this Court as well as the trial Court.

6. On the other hand, learned APP Ms. Krina Calla reiterating the report of the investigating officer, contended that there is reasonable ground to believe that the accused has committed the offence and therefore, where the prima facie case is made out and offence is grave affecting the society at large, the court would not enlarge the accused on bail. She would further submits that, the offence committed by the applicant can be termed as economic offence and same constitutes a class apart and need to be visited with a different approach in the matter of bail. Considering the amount of misappropriation, which has caused huge loss to the public funds, no case is made out to exercise judicial discretion.

7. Having considered the contentions raised by learned counsel for the respective parties and upon perusal of the material placed on record in form of chargesheet, this Court is of considered view that at the relevant time, the applicant was working as Company Secretary and it was not his job to prepare vouchers etc. It is the co-

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R/CR.MA/22268/2022 ORDER DATED: 17/01/2023 accused Ruchi Bhavsar who has stated in her statement recorded before the police under Section 161 of Cr.P.C that she has paid the applicant Rs.25 lacs. In such circumstances, except the statement of co-accused, nothing incriminating material or recovered from the applicant. In such circumstances, when further custody of the applicant is not necessary and he does not have past record and trial would take considerable time, without expressing on merits of the case, this court is inclined to release the applicant on bail subject to deposition of amount of Rs.10 lacs within 5 months from the date of his release. The applicant shall file an undertaking to this effect before this Court as well as the trial Court within week from his release.

8. Hence, the applicant is ordered to be released on regular bail in connection with the FIR being CR. No. 11216008220235 of 2022 registered with Sector 7 Police Station, Gandhinagar, on executing a personal bond of Rs.25,000/- (Rupees Twenty Five thousands only), with one surety of the like amount to the satisfaction of the learned 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;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave India without prior permission of the Sessions Judge concerned till conclusion of the trial;

[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 this Court;

       [f]       deposit an amount of Rs.10 lacs with the complainant


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      R/CR.MA/22268/2022                            ORDER DATED: 17/01/2023

company within 5 months from the date of his release and shall file an undertaking to that effect before this Court as well as the trial Court within week from his release.

9. 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 to be executed before the learned 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. Nothing stated hereinabove, shall tantamount to the expression of any opinion on the merits of this case. Rule is made absolute to the aforesaid extent.

Direct Service is permitted.

(ILESH J. VORA,J) SUCHIT Page 5 of 5 Downloaded on : Wed Jan 18 20:50:12 IST 2023

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