Gujarat High Court
Anil Amrutlal Gandhi vs State Of Gujarat on 7 October, 2023
NEUTRAL CITATION
R/CR.MA/15363/2021 ORDER DATED: 07/10/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 15363
of 2021
==========================================================
ANIL AMRUTLAL GANDHI
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR DARSHAN B GANDHI(9771) for the Applicant(s) No. 1
MR AJAY L PANDAV(3660) for the Respondent(s) No. 1
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 07/10/2023
ORAL ORDER
1. Heard Mr. J.M.Panchal, learned Senior Counsel assisted by Mr.Darshan B. Gandhi, learned counsel for the applicant, Mr.Hardik Mehta, learned APP for the respondent State and Mr.Ajay L. Pandav, learned counsel for the complainant.
2. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed for anticipatory bail in connection with the FIR No.I- 17 of 2018 registered with Kandla Marine Police Station, District: Kachchha (East), Gandhidham, for the offenses punishable under Sections 406, 420, 120(b) and 114 of the Indian Penal Code.
3. Learned advocate for the applicant submits that the applicant has been falsely implicated in the alleged offence and he has nothing to do with the alleged offence. The allegation levelled against the applicant is sheer abuse of process of law. Merely to recover the amount, civil proceedings are converted into criminal offence. It is alleged in the complaint that, the Page 1 of 10 Downloaded on : Wed Oct 11 20:36:43 IST 2023 NEUTRAL CITATION R/CR.MA/15363/2021 ORDER DATED: 07/10/2023 undefined complainant along with other 9 witnesses were providing civil services to one Jaisu Shipping Company from 1996 and consolidated amount of Rs.11 (approx.) crore is due and payable by the said company to the complainant. The said company was failed to clear the said dues and therefore, impugned FIR came to be filed. The present applicant has nothing do to with the alleged offence. After investigation, chargesheet has been filed, from which it can be seen that the alleged services and goods provided in the year 2013 and prior to 2013, present applicant was neither a party to the entire transaction nor the witness to the said transaction. There is no any evidence or promise given to deceive the complainant to deliver the goods with any dishonest and fraudulent intention and/or cheated the complainant in any manner. He further submitted that, though the alleged transaction is of 2013, FIR came to be filed in the year 2018 and chargesheet has been filed on 30.01.2020 and for the first time, name of the accused is surfaced on the basis of the statement of the co-accused. Co-accused are considered by this Court or by the Sessions Court concerned and therefore, benefit of parity may also be extended to the present applicant. He further submitted that, upon issuance of summons under Section 160 of the Code, the applicant has cooperated and protected by this Court and even he has joined the investigation and till date, he is enjoying the said interim relief.
3.1 He further submitted that the nature of allegations are such for which custodial interrogation at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. In view of the above, the applicant may be granted anticipatory bail.
Page 2 of 10 Downloaded on : Wed Oct 11 20:36:43 IST 2023NEUTRAL CITATION R/CR.MA/15363/2021 ORDER DATED: 07/10/2023 undefined 3.2 Learned advocate for the applicant, on instructions, states that the applicant is ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for his remand. He would further submit that upon filing of such application by the Investigating Agency, the right of applicant accused to oppose such application on merits may be kept open.
4. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail contending that the applicant is involved in an offence, wherein, large scale conspiracy being hatched. During investigation, it appears that the applicant is a kingpin/ mastermind and having different role than the co-accused and at his instance, entire offence has been committed. He further submitted that, the applicant was a Director of Jaisu Shipping Company Ltd. and all the Directors are shifting their liability to one and another and thereby, avoided liability. The applicant has transferred the management to another company only with a view to dupe the amount and keeping him behind the whole picture, he managed the entire affairs of the Company. Further, at his instance, he changed the names of the Directors in ROC and transferred equity shares of Jaisu Company Pvt. Ltd. Thus, prima facie, it appears that the present applicant is the main accused and on his behalf, entire transaction and business of the company was being done in the guise of some dummy persons. Role of the applicant is surfaced from the statement of co-accused. Only with a view to escape from the liability, he has executed Memorandum of Understanding in connection with Jaisu Shipping Pvt. Ltd. and Page 3 of 10 Downloaded on : Wed Oct 11 20:36:43 IST 2023 NEUTRAL CITATION R/CR.MA/15363/2021 ORDER DATED: 07/10/2023 undefined other 8 sister concern companies. Hence, custodial interrogation of the applicant is required and therefore, present application may not be considered.
5. Learned counsel for the complainant Mr. Ajay L. Pandav has adopted the arguments canvassed by learned APP and has filed objections for delay. He has argued at length on 02.09.2023, however, he was unable to answer a particular query raised by the Court about the role of the present applicant and similarly situated accused, who had been considered by a coordinate Bench of this Court. Thereafter, once again, he failed to answer the precise query of the Court and requested for time stating that the record is bulky. His requested was acceded on that day also after giving sufficient hearing to him. Even today, after arguing the matter for more one hour, once again he stated that he intends to file more submissions.
However, considering the submissions made by learned APP and considering the role attributed to the applicant, his request was not acceded as it clearly appears that it was the intention on the part of the learned advocate for the complainant to prolong the matter.
6. Learned counsel Mr. Pandav has submitted that the complainant is running a business in the name and style of Rawlo Tours and Travels Company at Mumbai and earning his livelihood. Earlier, he was running Renat Travels Services Domestic and International Air Ticket and Hotel Booking company in Mumbai and thereby involves in the of Hotels, Air Ticket, car and licensing work. He was associated with such business since 1996. Even in 2009-10, the complainant was Page 4 of 10 Downloaded on : Wed Oct 11 20:36:43 IST 2023 NEUTRAL CITATION R/CR.MA/15363/2021 ORDER DATED: 07/10/2023 undefined contacted by the Director of 'Jaisu Company Ltd.' at Mumbai to avail services and then, various services provided to Jaisu Shipping Co. Ltd. by the complainant and for that, an amount of Rs.11,38,442/- is due. Earlier for 1-2 years, regular payments were being made, then from 2011-12, they were irregular in making payment and on one or other pretext, they delayed or avoid the payment. The complainant has not received any amount till 2013 towards services, then it was come into the knowledge that the company being transferred and at that time, Jaisu Company Ltd. issued a confirmation latter to pending bills, which have been signed and acknowledged by the accused persons and they assured that they will clear all bills in very short period of time.
6.1 Further, even it is the case of the complainant that on 21.10.2023, they have sold Jaisu Shipping Group of Company to Mr.Arunbhai Vaghasiya, Mr. Pratik Ramchandra Shah, Mr. Anil Gandhi/present applicant and Mr. Pawan Gandhi with full assets and liabilities. The complainant thought all these people have been lying to them and other vendors with malafide intention to defraud and avoid the payment of outstanding dues, due to said, the complainant asked them to provide the copy of their sale contract and they gave us the copy of unregistered MOU drafted on Rs.100 stamp paper and through that agreement, they have sold companies and defrauded the complainant. Even large scale conspiracy is hatched at the instance of the applicant and in such circumstances, custodial interrogation of the applicant is necessary. Even in quashing petition, investigation is ordered to be transferred to CID crime.
Page 5 of 10 Downloaded on : Wed Oct 11 20:36:43 IST 2023NEUTRAL CITATION R/CR.MA/15363/2021 ORDER DATED: 07/10/2023 undefined
7. Going through the complaint, it appears that the complainant company is in the business of travel booking and licensing since 1996. The complainant has provided services to Jaisu Company and towards its services, it has raised various bills. It is the case of the complainant that to dupe the said amount, payment is not being made till date by the new management of the company. It is further case of the prosecution that the management of Jaisu Company is changed only with a view to defraud the caretakers and actually the applicant is a king-pin and has actively participated in the new management. Though the MOU is executed, they have not made the payment to the complainant. However, going through the chargesheet papers filed on 12.12.2019, it appears that the applicant is not named and even not mentioned him as a suspect.
8. Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon'ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate Page 6 of 10 Downloaded on : Wed Oct 11 20:36:43 IST 2023 NEUTRAL CITATION R/CR.MA/15363/2021 ORDER DATED: 07/10/2023 undefined examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects.
(i) Coordinate Bench of this Court while enlarging the accused on bail has observed as under (in para 6 of Criminal Misc. Application No.15084/2020):-
"Having heard the learned advocates for the parties, perusing the material placed on record, taking into consideration the facts of the case, nature of allegations, gravity of offences and without discussing the evidence in detail, it prima facie appears that, the applicant is the witness of the alleged MOU dated 21.10.2013, which shows that, the dispute between the parties is purely monetary dispute and the complainant has converted the dispute of civil nature into criminal proceeding. Record further indicates that, the accused Gautam Gopaldas, Arunbhai Vaghasiya, Pritam Gopaldas Keval Ramani have been enlarged on bail either by the concerned Court or by this Court. Therefore, on factual aspects, it is a fit case to exercise discretionary power in favour of the applicant and accordingly, this Court inclined to grant anticipatory bail to the applicant."
(ii) Supplementary chargesheet is filed, wherein, name of the applicant is shown as suspect;
(iii) Further, services provided prior to 2013 and for those dues, MOU came to be executed, wherein, present applicant is not the signatory;
(iv) the applicant is bonafide purchaser of some of the assets of Jaisu Shipping Co. Ltd. and Jaisu Shipping and Dredging Co. Pvt. Ltd.
(v) no any direct evidence is found on the record, which suggests that the applicant is connected with the management of Jaisu Shipping Co., however, it appears that the transaction is civil in nature and given a cloak of criminality as the complaint is filed with a view to recover the unpaid dues;
(vi) applicant has joined the investigation and is protected since 2021;
Page 7 of 10 Downloaded on : Wed Oct 11 20:36:43 IST 2023NEUTRAL CITATION R/CR.MA/15363/2021 ORDER DATED: 07/10/2023 undefined
(vii) he has no past antecedent;
(viii) the persons, who have executed MOU dated 21.10.2013 are considered by the coordinate Bench of this Court considering the principle of parity as held by this Court in decision of Dhabi Rameshbhai Batubhai Vs. State of Gujarat, reported in 2011 (3) GLR 1999;
(x) Even allegation against the present applicant is accepted as it is case of removal of dishonest or fraudulent companies assets to defraud the creditor, which falls u/s. 421, 422, 424 etc. of Indian Penal Code, 1860, which are bailable and punishable upto 2 years imprisonment.
9. Considering the aforesaid aspects and the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. reported in (2011) 1 SCC 6941, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. reported in (1980) 2 SCC 665 and also the decision in the case of Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1, I am inclined to allow the present application.
10. In the result, the present application is allowed by directing that in the event of applicant herein being arrested in connection with the FIR No.I- 17 of 2018 registered with Kandla Marine Police Station, District: Kachchha (East), Gandhidham, the applicant shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that he:
Page 8 of 10 Downloaded on : Wed Oct 11 20:36:43 IST 2023NEUTRAL CITATION R/CR.MA/15363/2021 ORDER DATED: 07/10/2023 undefined
(a) shall cooperate with the investigation and make himself available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 16.10.2023 between 11.00 a.m. and 2.00 p.m. and the IO shall ensure that no unnecessary harassment or inconvenience is caused to the applicant;
(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;
(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;
(f) shall not leave India without the permission of the Court and if having passport shall deposit the same before the Trial Court within a week; and
(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits;
11. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other Page 9 of 10 Downloaded on : Wed Oct 11 20:36:43 IST 2023 NEUTRAL CITATION R/CR.MA/15363/2021 ORDER DATED: 07/10/2023 undefined conditions of this anticipatory bail order.
12. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail.
13. Rule is made absolute to the aforesaid extent. Application is disposed of accordingly. Direct service is permitted.
(HASMUKH D. SUTHAR,J) SUCHIT Page 10 of 10 Downloaded on : Wed Oct 11 20:36:43 IST 2023