Gujarat High Court
Prafulbhai Lilachand Shah vs State Of Gujarat on 28 August, 2014
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/11377/2014 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 11377 of 2014
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PRAFULBHAI LILACHAND SHAH Versus STATE OF GUJARAT ================================================================ Appearance:
MR PM THAKKER,SR. COUNSEL WITH MS ARCHANA R ACHARYA, ADVOCATE for the Applicant MR SUNIT S SHAH, ADVOCATE with MR K J PANCHAL, ADVOCATE for the Respondent No. 1 MR RC KODEKAR, APP for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 28/08/2014 CAV ORDER 1 By way of filing the present application under Section 439 of the Code of Criminal Procedure, 1973, the applicant has prayed to release him on bail in connection with the FIR being CR No. I5 of 2011, registered with Gandhinagar Zone Police Station, District Gandhinagar, for the offenses punishable under Sections 406, 420, 409, 465, 467, 468, 471, 477A, 120(B) and 114 of the Indian Penal Code and Section46 of the Banking Regulations Act.
Pursuant to the notice issued by this Court to the other side, the original complainant has appeared through learned Advocate and Page 1 of 13 R/CR.MA/11377/2014 CAV ORDER filed an affidavitinreply opposing granting of bail to the applicant.
2 The brief facts arising from the record are as under:
2.1 That the Reserve Bank of India having come to know that the Gujarat Industrial Cooperative Bank Limited, which is a multistate urban cooperative bank, is not following the Regulations, Act and several Notifications/guidelines issued by the RBI and, therefore, all the Directors, the Officers of the Bank including the Chairman and the Directors the Board were removed from their respective posts. On 20.9.2008, a Liquidator came to be appointed for the said Gujarat Industrial Cooperative Bank. 2.2 That the General Manager, who was authorized by the Liquidator, filed an FIR with Gandhinagar Police Station on 13.7.2011 for the aforesaid offenses against 83 persons including the Chairman, Directors of the Cooperative Bank and those persons who had availed the loan etc from the bank alleging that they have committed fraud with the Bank between 1.4.1997 and 20.9.2008. 2.3 That the applicant was one of the accused since he was one of the partners of Anand Export and Anand Jewelers, which Page 2 of 13 R/CR.MA/11377/2014 CAV ORDER had availed loan on producing false documents. It was further alleged in the FIR that the partners of the aforesaid two firms had produced bogus valuation report with regard to the properties which were not belonged to the petitioner and had availed loan from the Bank and in those transactions, the Chairman and Directors in connivance with the present applicant had released the loan or granted overdue payment to the said two firms. 2.4 That having come to know about the fling of the FIR, the applicant was trying to get anticipatory bail under Section 438 of the Criminal Procedure Code before the Sessions Court as well as before this Court. Since the Sessions Court had refused anticipatory bail to the applicant, he preferred an application under Section438 of the Cr. P.C. before this Court, in which a notice was issued by this Court. Before the matter was heard, the applicant was arrested by the Investigating Agency and, therefore, he had preferred an application under Section 438 of the Cr. P.C. before the Sessions Court which is rejected by order dated. Hence the present application.
3 Mr. P.M. Thakker, learned Senior Counsel with Ms. Archana Acharya, learned Advocate, for the applicant, would Page 3 of 13 R/CR.MA/11377/2014 CAV ORDER submit that a common FIR has been lodged arraigning 83 persons as accused, by which it has been alleged that several persons in different transactions have committed the offenses, as stated here inabove. However, the investigating agency, without considering the case of the applicant, arrested the applicant. He would further submit that, it is true that, he was a partner of Anand Export and Anand Jewelers along with three other persons. However, by a valid deed of dissolution of partnership, way back on 1.4.2001, the said firm became a sole proprietary firm, which was run by one of the partners, namely, Rameshchandra Laherchand Shah. Mr. Thakker, learned Senior Counsel, would further submit that when an advertisement was published about the lodging of the FIR, the said Rameshchandra Laherchand Shah informed the concerned investigating agency by communication dated 21.7.2011 that he is the sole proprietor of the said company. He would further submit that subsequent to availing of the loan from the Bank way back In 1998, the payment, etc was being looked after by the said sole proprietor of the firm and, therefore, the investigating agency ought not to have arrested him. However, he would request that the applicant may be released on bail.
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R/CR.MA/11377/2014 CAV ORDER 3.1 Mr. Thakker, learned Senior Counsel would further submit that in a deal of two properties of Makarba village of
Ahmedabad city, the applicant who was the owner, on a safer side became the confirming party to a sale wherein the Gujarat Industrial Cooperative Bank Limited (the complainant bank) had sold the said property in the year 2006. He would, therefore, submit that by selling the property, dues of the Bank were paid and, therefore, there are no dues against the present applicant, as alleged by the applicant.
3.2 Mr. Thakker, learned Senior Counsel, would further submit that in the said conveyance deed, the Bank had received the amount towards the outstanding dues of the confirming party i.e. the present applicant and the same was deposited in the bank account itself. He would, therefore, submit that the payments have been made by the applicant to the bank, even though, the applicant was no more a partner in the firms which had availed certain facilities from the bank.
3.3 He would further submit that the applications submitted by the Investigating Agency to the learned Trial Court for police remand has been rejected by the court having found no Page 5 of 13 R/CR.MA/11377/2014 CAV ORDER substance in the application, which is not challenged by the State of Gujarat. He would submit that the applicant is behind bars since 3.7.2014 and the investigation is almost over and, therefore, there is no reason for keeping the applicant behind the bars till the trial is over. He would further submit that all offenses are triable by the learned Magistrate and placing reliance on the decision of the Apex Court in the case of Sanjay Chandra vs. Central Bureau Investigation, reported in [2012] 1 SCC 40, he requested that the applicant be released on regular bail on appropriate conditions. 3.4 Mr. Thakker, learned Senior Counsel, would further submit that all the accused in the case have either been enlarged on anticipatory bail or regular bail either by this Court or by the Trial Court. By taking me through the Order dated 16.3.2013 passed by the learned Additional Sessions Judge, City Civil & Sessions Court, Court No.14, Ahmedabad, in Criminal Misc. Application No.598 of 2013, he would submit that the partners of the said two firms have been enlarged on anticipatory bail and, therefore, also the present applicant may be released on regular bail on any suitable conditions.
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R/CR.MA/11377/2014 CAV ORDER 3.5 Mr. Thakker, learned Senior Counsel, would submit
that the Bank has already preferred arbitration proceedings before the statutory Arbitrator appointed by the Central Registrar under Section 84(4) of the Multi State Cooperative Societies Act, 2002, which is pending, by which an amount of Rs.2,09,70,285/ has been claimed and prayed a decree to the said amount with interest, which is pending before the concerned arbitrator. 4 On the other hand, learned APP Mr. R.C. Kodekar, has opposed this Application and would submit that there are serious allegations against the present applicant that he had produced false valuation report, documents with regard to the ownership of several apartments, allotment letters, possession letters, receipts etc and had obtained huge amount of loan which he has not paid up and has tried to establish that he had paid the amount by selling certain properties in connivance with the Chairman, Directors, etc of the Bank itself. Mr. Kodekar, by taking this court through a statement of one witness Shri Girishbhai Natvarlal Patel, recorded on 18.6.2014, would submit that he is handling the affairs of the New Hetal Owners Association, whose members had constructed a school and some shops. He would further submit that the said Page 7 of 13 R/CR.MA/11377/2014 CAV ORDER witness Girishbhai Natvarlal Patel has stated that the present applicant was never a member of the New Hetal Owners Association, though has produced documents while availing the loan from the complainant Bank. He would further submit that the investigation is going on and, therefore, the applicant may not be released on bail.
5 Mr. Sunit Shah, learned Advocate, appearing for the original complainant, has vehemently opposed this application by submitting that the applicant had committed fraud with the bank in connivance with the different Chairmen and Directors at the time of availing loans and other facilities from the bank. He would submit that the loans were paid by the officers of the bank in connivance with the present applicant contrary to the several guidelines issued by the Reserve Bank of India. He would further submit that the Reserve Bank of India having come to know about the conduct of the Chairmen and Directors in disbursement of the loan, contrary to the provisions of the Banking Regulations, Act and Guidelines issued by the RBI, all the Board of Directors were suspended w.e.f. 16.8.2008. By taking me through the affidavitin reply filed on behalf of the complainant and by relying upon a Page 8 of 13 R/CR.MA/11377/2014 CAV ORDER detailed affidavit submitted before the learned Sessions Court opposing the application filed by the present applicant, he would submit that the Deed of Conveyance, which has been executed in the year 2006, which has been relied upon by the applicant, is also executed in connivance with the Board of Directors and co accused of the present offence and, in fact, no payments have been made by the applicant. He would, therefore, submit that only some entries have been made in the accounts of the firm and deposits have been made as, if, the amount has been transferred from non banking assets. Mr. Shah, learned Advocate, would further submit that this is an eye wash only with a view to avoid the payment of loan amount to the Bank with criminality in mind behind the same.
5.1 Mr. Sunit Shah, learned Advocate, appearing for the original complainant, would submit that the complainant has already challenged several decisions of the Sessions Court releasing the coaccused either on regular bail or anticipatory bail before this court which are pending for final hearing. He would, therefore, submit that considering the overall aspects of the case, the present application be dismissed.
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R/CR.MA/11377/2014 CAV ORDER 6 I have heard learned Advocates appearing for the
respective parties and perused the papers of investigation. I have considered the following aspects which, prima facie, emerge from the record of the case.
(i) That the partnership firm which had availed the loan from the Bank, was dissolved in the year 2001 and the present applicant had resigned from the said firm as a partner in the year 2001 i.e. much prior to the appointment of the Liquidator and filing of the FIR.
ii) That by deed of conveyance, in the year 2006, the applicant had become a confirming party and tried to pay the amount towards full and final settlement. Whether the amount has been paid towards the loan or not, in my opinion, shall be decided at the time of trial The sole proprietor Rameshchandra Laherchand Shah had already informed the Bank that the applicant had resigned from the partnership firm and the said R.L. Shah was the sole proprietor of the firm.
iii) That the Liquidator came to be appointed in the year 2008 and he has lodged an FIR in the year 2011 and during pendency, an application was filed by the present applicant under Section438 of the Criminal Procedure Code. He has been arrested in the year 2014.
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R/CR.MA/11377/2014 CAV ORDER
iv) That all the coaccused have been enlarged either on
anticipatory bail or regular bail by the Trial Court.
Applications for cancellation of bail orders, are pending
before this Court since 2013.
v) That I have also considered the fact that Rameshchandra
Laherchand Shah has been released on anticipatory bail by the Sessions Court way back on 16.3.2013.
vi) That the Bank has already filed arbitration proceedings under the provisions of the MultiState Cooperative Societies Act, which is pending before the appropriate forum, and
vii) That the Trial Court has refused to grant police remand as prayed for by the Investigating Agency which has not been challenged before this court and, therefore, the present applicant is in judicial custody since the date of his arrest i.e. 3.7.2014.
7 I have also considered the law laid down by the Apex Court in the case of Sanjay Chandra vs. Central Bureau of Investigation, as reported in (2012) 1 SCC 40. In my opinion, the investigation is almost over and, therefore, the case of the applicant can be considered for releasing him on bail. Hence, the present application is allowed and the applicant is ordered to be Page 11 of 13 R/CR.MA/11377/2014 CAV ORDER released on regular bail in connection with an offence being CR No. I5 of 2011 registered with Gandhinagar Zone Police Station, District Gandhinagar, on executing a personal bond of Rs.1,00,000/ (Rupees one lac only) with two sureties of Rs.50,000/ (Rupees fifty thousand each) to the satisfaction of the learned Trial Court and subject to the conditions that he shall;
[a] not take undue advantage of his liberty or misuse his liberty; [b] not act in a manner injuries to the interest of the prosecution; [c] surrender his passport, if any, to the lower court within a week; [d] not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
[e] mark his presence before the concerned Police Station on every Monday for initial three months and thereafter on alternate Monday of every month for a period of six months between 10:00 a.m. and 4:00 p.m.;
[f] furnish latest address of his 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;
8. 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 Page 12 of 13 R/CR.MA/11377/2014 CAV ORDER delete, modify and/or relax any of the above conditions in accordance with law. At the trial, learned 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. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(A.J.DESAI, J.) pnnair Page 13 of 13