Gujarat High Court
Rutesh Ramniklal Shah vs State Of Gujarat on 1 November, 2023
NEUTRAL CITATION
R/CR.MA/21622/2022 ORDER DATED: 01/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL -
BEFORE CHARGESHEET) NO. 21622 of 2022
With
CRIMINAL MISC.APPLICATION (FOR JOINING PARTY) NO. 1 of 2023
In R/CRIMINAL MISC.APPLICATION NO. 21622 of 2022
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RUTESH RAMNIKLAL SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR ND NANAVATY, SR. ADVOCATE with MR RJ GOSWAMI(1102) for the Applicant
MS SHRUTI PATHAK, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 01/11/2023
ORAL ORDER
[1.0] By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.1119103222070 of 2022 dated 28.08.2022 registered with Maninagar Police Station, Ahmedabad City for the offences punishable under Sections 406, 420, 409, 465, 467, 468, 471 and 120(B) of the Indian Penal Code, 1860.
[2.0] Learned Senior Advocate Mr. N.D. Nanavaty assisted by learned advocate Mr. R.J. Goswami for the applicant submitted that present applicant is falsely enroped in the offence and the alleged offence took place during the period 04.02.2012 to 28.08.2022 while the present complaint is filed in the year 2022 and the present applicant has been made scapegoat of the Page 1 of 10 Downloaded on : Thu Nov 02 20:44:54 IST 2023 NEUTRAL CITATION R/CR.MA/21622/2022 ORDER DATED: 01/11/2023 undefined differences between the Trustees and they have subsequently with ulterior motive filed the present complaint. Further, the applicant has nothing to do with the offence. Present applicant is the Principal and he has used the grant and utilization certificate of audit report is submitted to the government. Further, no forgery or offence is committed by the present applicant. Further, at the instance of the Trustees the applicant has performed his duties and merely because he is authorized signatory and amount is accepted on behalf of the Trust in the private account also as a donation or by any other mode from various sources, it cannot be said that the present applicant has committed any offence. Even, the learned advocate for the applicant has relied on the statement and reply given to the Charity Commissioner wherein also it is clearly stated that the amount of fees and other donations are not included on record and is not subjected to audit. Further, the applicant has not committed any offence of misappropriation, criminal breach of trust though the Trustees have taken undue advantage just with a view to save their skin though they have actually participated in the offence and at their instance alleged offence is committed still however, the Trustees are not arraigned as accused. Further, the applicant has been protected by the coordinate Bench of this Court and as per the statement made by the Investigating Officer, the FSL report is yet to be received and as the applicant was protected, even today after passage of four months, no FSL report has been received. In absence of any material, present FIR came to be lodged wherein the present applicant is falsely Page 2 of 10 Downloaded on : Thu Nov 02 20:44:54 IST 2023 NEUTRAL CITATION R/CR.MA/21622/2022 ORDER DATED: 01/11/2023 undefined enroped and submitted that applicant is ready and willing to cooperate with the investigation. Hence, he has requested to allow the present application as there is no requirement of custodial interrogation.
[3.0] Per contra, learned APP has vehemently opposed the present application and stated that present applicant is involved in the offence. Prima facie, role attributed to the present applicant is that he has opened the private account and transferred the amount and was never subjected to audit though huge amount of Rs.1,03,43,980/- was credited in the said account. The said amount was supposed to be disbursed to the students as the said amount was received from the government for soil testing expenses and was to be paid as honorarium to the students. Though the said amounts were withdrawn but were not paid to the students which fact is established from the statements of students. Thus, prima facie, offence of misappropriation and forgery is committed. Further, the accounts are dummy accounts and the amounts credited in the said accounts are never subjected to audit. Thus, prima facie, involvement of the present applicant is there and huge amount is siphoned away and as investigation is at a nascent stage, custodial interrogation is required. Hence, she has requested not to exercise the discretion in favor of the applicant and has requested to dismiss the present application.
[4.0] Heard learned advocates appearing for the respective parties and given thoughtful consideration to the arguments Page 3 of 10 Downloaded on : Thu Nov 02 20:44:54 IST 2023 NEUTRAL CITATION R/CR.MA/21622/2022 ORDER DATED: 01/11/2023 undefined canvassed by both sides. 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 examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided.
[5.0] I have given thoughtful consideration to the arguments canvassed by both the parties. Going through the FIR, it appears that the applicant is facing charges for the offences punishable under Sections 406, 420, 409, 465, 467, 468, 471 and 120(B) of the Indian Penal Code, 1860. The alleged incident took place during the period 04.08.2012 to 28.08.2022. On resuming as a Trustee, the complainant asked for the bank account and records of the Trus t from the Principal i.e. the present applicant, the applicant herein initially provided details of only three accounts to the complainant though the applicant was knowing about the Page 4 of 10 Downloaded on : Thu Nov 02 20:44:54 IST 2023 NEUTRAL CITATION R/CR.MA/21622/2022 ORDER DATED: 01/11/2023 undefined other accounts and thereafter, the applicant informed about two accounts viz. (1) Indian Overseas Bank, Maninagar Branch and (2) Dena Bank, Maninagar Branch, Ahmedabad and said two accounts were maintained by the present applicant as authorized signatory - Principal and the aforesaid both the accounts were not subjected to audit though government grant-in-aid was received in the said accounts and were supposed to be subjected to audit.
[5.1] Going through the investigation it also reveals that Accountant General, Rajkot has given the reply wherein it is clearly stated that K.K. Shah Jarodwala Science College, Maninagar, Ahmedabad was given the approval for soil testing by the Department of Higher Education Commissioner, Gujarat State, Gandhinagar and the amout of grant towards soil testing was being credited since 2012 in the aforesaid two accounts i.e. Indian Overseas Bank and Dena Bank still however, said amount was not deposited / credited in the official account of the Trust and the details of said accounts were never produced for audit and never subjected to audit. The investigation also reveals that the said amount of government grant was required to be paid to the students as honorarium towards soil testing work but the said amount is not paid to students or received by the students and during the investigation, statements of students are recorded. Prima facie, it appears that the amount of Rs.1,03,43,980/- is received from the Higher Education Commissioner, Gandhinagar and against the said amount, withdrawal of Rs.1,02,84,431/- is made and said amount is Page 5 of 10 Downloaded on : Thu Nov 02 20:44:54 IST 2023 NEUTRAL CITATION R/CR.MA/21622/2022 ORDER DATED: 01/11/2023 undefined siphoned away. Further, present applicant is the authorized signatory in the said accounts and even, other accounts are also there. Further, going through the statements of students it appears that the amounts came to be deposited in dummy accounts which were never subjected to audit before the AG, Rajkot thought huge amount of government grant was received but is not proved to actual beneficiaries - students and their signatures and vouchers are forged. Thus, prima facie involvement of the present applicant as an authorized signatory of the Trust is made out and therefore also, custodial interrogation is required.
[5.2] Insofar as argument canvassed on behalf of the applicant that other Trustees are not arraigned as accused is concerned, it is worth to mention that said argument is subject matter of investigation and still the investigation is at a nascent stage. So far as submission with regard to meanwhile protect the accused as FSL report is awaited is concerned, all these are issues which are subject matter of trial. Prima facie, when the students have stated in their respective statements that they have not received any amount or put any signatures though the amount / grant is received from the government, which was credited in dummy accounts and is withdrawn, said accounts were never subjected to audit. In such circumstances, this Court is of the view that custodial interrogation of the present applicant is required and amount is yet to be recovered. The present is not a case where the FIR is filed with a view to tarnish the image of the applicant and there is no frivolity in the allegations made in the complaint.
Page 6 of 10 Downloaded on : Thu Nov 02 20:44:54 IST 2023NEUTRAL CITATION R/CR.MA/21622/2022 ORDER DATED: 01/11/2023 undefined [5.3] I have also considered the additional affidavit filed by the applicant but in the said affidavit there is not a whisper as regards Account No.032910025648 with Dena Bank, Maninagar, Ahmedabad and whether the said account was ever subject to audit or not.
[6.0] Considering the aforesaid all facts as also keeping in mind the law laid down by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre V/s State of Maharashtra and Others reported in (2011) 1 SCC 694, and going through the material very carefully available against the accused it appears that herein, no complaint has been made with view to humiliate or tarnish the image of the present applicant and no frivolity is noticed in the allegations made in the FIR. Even in the case of Jai Prakash Singh V/s State of Bihar and another, reported in (2012) 4 SCC 379, Hon'ble Supreme Court was pleased to hold:
"Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefore. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty."
Since the present offence is a white collar offence, it would also be apposite to refer to the decision of the Hon'ble Apex Court in the case of State of Gujarat vs. Mohanlal Jitamalji Porwal reported in (1987) 2 GLR 1316 SC, wherein para 5 reads thus:
"5. The entire Cominunity is aggrieved if the economic offenders Page 7 of 10 Downloaded on : Thu Nov 02 20:44:54 IST 2023 NEUTRAL CITATION R/CR.MA/21622/2022 ORDER DATED: 01/11/2023 undefined who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community."
In such circumstances also, grant of anticipatory bail at this stage would frustrate the investigation.
[6.1] Further, considering the allegation made in the FIR, for the qualitative investigation, presence of applicant is required and custodial interrogation is necessary. Thus, prima facie it appears that accused has played active role and qualitative investigation is necessary in the matter.
[6.2] When serious offences are disclosed and involvement of an accused is prima facie established then, the Court would be loath to lean in favour of grant of pre-arrest bail in absence of any other overriding considerations. The alleged offence is in nature of white collar and socio economic offence, this Court is conscious with the safeguards provided under Section 438 and concept of the personal liberty. But herein, this court is of considered view that, the present offence is committed very smartly and in very planned and methodical manner which is not just an offence against any individual rather the largest societal interest and in such circumstances, the delicate balance is required to be maintained between two rights one against the personal liberty and second is societal interest. Arrest is part of the process of investigation and intended to secure several purposes in which the accused may provide information, during Page 8 of 10 Downloaded on : Thu Nov 02 20:44:54 IST 2023 NEUTRAL CITATION R/CR.MA/21622/2022 ORDER DATED: 01/11/2023 undefined the discovery of material facts and relevant information. In such circumstances, when investigation is at preliminary stage if, anticipatory bail is granted, it may hamper the investigation and to collect the material in the more information, and to find out the involvement of another person, custodial interrogation is also necessary.
[6.3] This court has also kept in mind the law laid down by the Hon'ble Supreme Court in the case of Pratibha Manchanda vs The State Of Haryana reported in AIR 2023 SC 3307, wherein para 19 read as under :
"19. The relief of Anticipatory Bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."
[7.0] The object of anticipatory bail is that person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. In present case, no any such sort of allegation or bias is found out. It is needless to say that order under Section 438 is not a passport to the commission of trial nor a seal against any serious accusation, which adversely affects the society.
Page 9 of 10 Downloaded on : Thu Nov 02 20:44:54 IST 2023NEUTRAL CITATION R/CR.MA/21622/2022 ORDER DATED: 01/11/2023 undefined [8.0] In the above facts and circumstances and considering the observations on the legal aspect of the matter, as applicant is actively involved in the offence, I have absolutely no doubt that if applicant is equipped with such an order of anticipatory bail before he is interrogated by the Police, it would greatly harm the investigation and would impede the prospects of unearthing the truth.
[9.0] Having considered nature and seriousness of the charge, prima facie involvement of accused and possibility of tempering with evidences, it does not appear to be just and proper to exercise the discretion in favour of the applicant and accordingly, the application for anticipatory bail is dismissed. Rule is hereby discharged.
[10.0] In view of dismissal of main application, application for joining party does not survive and is disposed of accordingly.
(HASMUKH D. SUTHAR, J.) Ajay Page 10 of 10 Downloaded on : Thu Nov 02 20:44:54 IST 2023