Gujarat High Court
Pritesh Arvindbhai Shah vs State Of Gujarat on 23 August, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
R/CR.MA/20235/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO.
20235 of 2016
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PRITESH ARVINDBHAI SHAH....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR JAL UNWALA, ADVOCATE ASSISTED BY MR.NISARG P RAVAL,
ADVOCATE for the Applicant(s) No. 1
MR RUTVIJ OZA, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 23/08/2017
ORAL ORDER
1. By this application under section 438 of the Code of Criminal Procedure (hereinafter referred to as the "Code" for the sake of brevity), the applicant herein has prayed for being enlarged on anticipatory bail on event of his arrest in connection with the offence registered as IC.R. No.1/16 before C.I.D. Crime, Meghaninagar, Ahmedabad Zone Police Station, Ahmedabad.
2. At the outset, it deserves to be noted that the applicant herein earlier preferred Criminal Misc. Application No. 2648/16, which was not pressed vide order 21.04.2016, wherein this Court observed as under "Heard Mr. Yogesh S. Lakhani, learned Senior Advocate with Mr. Dipen Dave, learned advocate for the applicant and Mr. Mitesh Amin, learned Public Prosecutor with Mr. K.P. Rawal, learned Additional Public Page 1 of 16 HC-NIC Page 1 of 16 Created On Thu Aug 24 02:03:33 IST 2017 R/CR.MA/20235/2016 ORDER Prosecutor for the respondent State.
On instructions, learned advocate for the applicant does not press this application. It is clarified that this Court has not expressed any opinion on merits of the matter. Accordingly, the application is disposed of as not pressed. Rule discharged."
3. In light of the aforesaid therefore, the present application is a successive application for anticipatory bail.
4. Heard Mr. Jal Unwala, learned advocate assisted by Mr. Nisarg Raval, learned advocate for the applicant and Mr. Rutvij Oza, learned APP for State.
5. Mr. Unwala, learned counsel appearing for the applicant has raised the following contentions 5.1 That the main accused one Rajubhai Bhulabhai Mevada (Bharwad) residing at Jawaharnagar, Nava Vadaj has been enlarged on regular bail under section 439 by this Court and therefore, no custodial interrogation is now necessary as far as the present applicant is concerned who is a Chartered Accountant by profession.
5.2 Mr. Unwala further submitted that while enlarging the main accused Rajubhai Bhulabhai Bharwad on regular bail, this Court has taken into consideration the Page 2 of 16 HC-NIC Page 2 of 16 Created On Thu Aug 24 02:03:33 IST 2017 R/CR.MA/20235/2016 ORDER undertaking filed by the main accused whereby he has agreed to pay the amount to all the persons who have complained against the accused and on the basis of which, the present FIR is lodged and therefore, the application be allowed.
5.3 It was contended by Mr. Unwala that on basis of the aforesaid two grounds, though the earlier application was not pressed, the present application being successive bail application, is maintainable and the same may be granted.
6. Per contra, Mr. Oza, learned APP appearing for the State has vehemently opposed the same.
7. Mr. Oza at the outset contended that both the grounds are not available and the present application in form of successive application, is not maintainable inasmuch as filing of charge sheet is not change of circumstances.
8. Mr. Oza further contended that even after filing of chargesheet and bail granted to the main accused is considered by this Court, it is a matter of fact that having filed undertaking before this Court, the main accused is free at large and has breached the condition of making payment. Mr. Oza further relying upon the report of the investigating officer which was also perused by this Court, contended that one of the condition which was provided by this Court was Page 3 of 16 HC-NIC Page 3 of 16 Created On Thu Aug 24 02:03:33 IST 2017 R/CR.MA/20235/2016 ORDER condition No.5(h) of the order dated 29.04.2016 passed in Criminal Misc. Application (For Regular Bail) No.6954/16 while enlarging main accused Rajubhai Bhulabhai Bharwad on bail. Mr. Oza contended that after the said order, as many as 614 persons have approached the Investigating Officer and the main accused has not made any payment to such persons. Mr. Oza, on instructions, states that only after the date of the order, which is almost 15 months ago, the main accused has deposited a meager amount of Rs.9 lakh and odd. Whereas, after the order, 38 persons have approached the Investigating Officer and a total amount of almost Rs. 2 crores is due and payable. Mr. Oza further contended that all the accused together have committed a large fraud and scam whereby people from lower strata of the society who have invested their earning of life have been duped which requires custodial interrogation. Mr. Oza further contended that it is no doubt true that as per the earlier order dated 06.10.2016, the applicant remained present with the Investigating Officer, however, still custodial interrogation is necessary as the allegations which are made in the FIR are based on collective effort of all the accused which is made on documents which are not produced by the applicant even though asked for.
9. Mr. Oza further contended that only because the applicant is a Chartered Accountant, from the Page 4 of 16 HC-NIC Page 4 of 16 Created On Thu Aug 24 02:03:33 IST 2017 R/CR.MA/20235/2016 ORDER evidence, it clearly appears that he has not only worked as a professional Chartered Accountant but has been instrumental in every manner and has remained present in every meeting before the scheme was floated and earlier company was taken over by the main accused and the other coaccused and therefore, the gravity of offence, whereby the financial scam has been committed and people from small strata of society have been duped, no leniency should be shown by this Court.
10. Mr. Oza further contended that the applicant being a Chartered Accountant is expected to be an expert in accountancy and therefore, without his efforts and connivance, the offence could not have been committed by the other coaccused for which custodial interrogation is necessary.
11. Mr. Oza, relying upon the judgment of the Apex Court in the case of State rep. by the CBI vs. Anil Sharma reported in (1997) 7 SCC 187 contended that even though the attempts were made on the basis of the earlier order passed by this Court, the Investigating Officer has not been able to get proper assistance from the applicant though he has remained present and therefore, custodial interrogation is necessary in the present case.
12. Mr. Oza further submitted that in none of the circumstances, which are put forward by the applicant warrants exercise of power under Page 5 of 16 HC-NIC Page 5 of 16 Created On Thu Aug 24 02:03:33 IST 2017 R/CR.MA/20235/2016 ORDER section 438 of the Code that too in a successive bail application having argued the earlier matter at length on merits. None of the circumstances which are put forward therefore would enable this Court to take a different view and the application being meritless, deserves to be dismissed.
13. No other or further submissions have been made by learned counsel appearing for the parties.
14. Upon considering the submissions made and on perusal of the original record of the FIR being IC.R. No.1/16 for the alleged offences under sections 406, 420, 467, 120(b) of Indian Penal Code and sections 4,5, and 6 of Prime Cheaters and Money Circulations Scheme (Banning) Act and sections 3 and 7 of Gujarat Protection of Interest of Depositors Act, it appears that on a complaint lodged before the Reserve Bank of India by Email, on 01.06.2016, the investigation of the present offences was conducted by CID Crime, Gujarat State. Suffice it to note that schemes came to be floated which were named as two wheeler scheme, four wheeler scheme, own your house scheme, 2446 scheme and as the record indicates, about 402 such schemes were floated by the company in the name and style of Jay Khodiyar Mitra Mandal.
15. As this application is filed at the threshold of investigation and chargesheet could be filed Page 6 of 16 HC-NIC Page 6 of 16 Created On Thu Aug 24 02:03:33 IST 2017 R/CR.MA/20235/2016 ORDER only against the main accused, in opinion of this Court, it would not be appropriate to discuss the evidence, which is found from the police papers at this stage. Suffice it to note that the applicant as a professional Chartered Accountant has played a pivotal role not only in declaration of such scheme, but it has come on record that in such 402 schemes, 1,85,000 and more members have been registered and a huge amount of about Rs.83.44 lakhs have been collected. The record also indicates that the conditions of certificate of RBI have been breached and record clearly shows the involvement of the present applicant as a professional for which custodial interrogation is necessary in opinion of this Court.
16. At this stage, it would be appropriate to note that as observed hereinabove, the applicant had approached this Court by way of Criminal Misc. Application No. 2648/16, which came to be withdrawn as not pressed and as per the grounds raised by the learned counsel for the applicant, the applicant has filed this application as successive bail application mainly on two grounds that chargesheet is filed against the main accused Rajubhai Bhulabhai Bharwad and that he has been enlarged on regular bail by this Court under section 439 of the Code. At this stage, it would be appropriate to refer to the order dated 29.04.2016 passed by this Court (Coram : P.P. Bhatt, J.) in Criminal Misc. Application Page 7 of 16 HC-NIC Page 7 of 16 Created On Thu Aug 24 02:03:33 IST 2017 R/CR.MA/20235/2016 ORDER No.6954/16 "1. The present application is filed by the applicant under Section 439 of the Code of Criminal Procedure for regular bail in connection with a First Information Report being C.R.No.I1 of 2016 registered with Meghaninagar Police Station, CID (Crime) District: Ahmedabad for the offences punishable under Sections 406, 420, 467, 468 and 120B of the Indian Penal Code, and Sections 4, 5 and 6 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1978 as also Sections 3, 4 and 7 of the Depositors Act, 2003.
2. Heard learned Senior Counsel Mr. P.M. Thakkar with learned advocate Mr. Nandish Thacker for the applicant and learned Additional Public Prosecutor Mr. H.K. Patel.
3. Learned Senior Counsel Mr. Thakkar submitted that there is no prima facie case against the applicant, and therefore, this is a fit case for releasing the applicant on regular bail. It is submitted that the applicant may not be required by the investigating officer, since the investigation is on the verge of completion and charge sheet is going to be filed within a day or two, and therefore, by enforcing stringent conditions upon the applicant, he may be released on regular bail. It is submitted that the maximum punishment under the provisions under which the applicant is arrested is seven years and three years, and therefore on the ground of quantum of punishment also, the applicant deserves to be released on regular bail by imposing stringent conditions. It is submitted that considering the nature of allegations and the role attributed to the applicant, he may be enlarged on regular bail by imposing suitable conditions. Learned Senior Counsel further submitted that the applicant is Page 8 of 16 HC-NIC Page 8 of 16 Created On Thu Aug 24 02:03:33 IST 2017 R/CR.MA/20235/2016 ORDER ready and willing to file an undertaking before this Court that he will deposit Rs.40,30,000/ within three weeks from the date of the order for making payment to the depositors/investors. He further submitted that the investigation is almost over and only charge sheet is required to be submitted now, hence, there is no possibility of tampering with the evidence, and therefore, the applicant deserves to be set at large.
4. Learned Additional Public Prosecutor appearing on behalf of the respondentState has opposed grant of regular bail looking to the nature and gravity of the offence.
5. I have heard learned advocates appearing on behalf of the respective parties. Learned advocates appearing on behalf of the respective parties do not invite reasoned order.
6. As submitted by the learned Senior Counsel Mr. Thakkar, the applicant is ready and willing to file an undertaking for making payment to the depositors/investors before this Court that he will deposit Rs.40,30,000/ within three weeks from the date of the release before the concerned trial court. In the facts and circumstances of the case, and considering the nature of allegations made against the applicant in the First Information Report, the quantum of punishment, and also considering the fact that the investigation is on the verge of completion and only charge sheet is required to be submitted now, there is no possibility of tampering with the evidence, this Court is of the view that discretion is required to be exercised in favour of the applicant to enlarge the applicant on regular bail. Hence, the present application is allowed, and the applicant is ordered to be released on regular bail in connection with an offence being First Information Report Page 9 of 16 HC-NIC Page 9 of 16 Created On Thu Aug 24 02:03:33 IST 2017 R/CR.MA/20235/2016 ORDER C.R.No.I1 of 2016 registered with Meghaninagar Police Station, CID (Crime), Ahmedabad, District: Ahmedabad 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 learned Trial Court and subject to the conditions that the applicant shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injurious to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave the State of Gujarat and State of Madhya Pradesh without prior permission of the Sessions Judge concerned;
[e] mark presence before the concerned Police Station initially once in a week of every 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;
(g) shall not indulge in any activities which are not permissible in law.
(h) shall make payment to the depositors/investors whose names are included/shown in the list provided by the investigation officer to his satisfaction within a period of one week from the date of his release. He shall also pay to the depositors who may come forward before the investigating officer or before the concerned court on or before filing of supplementary charge sheet.
(i) shall file an undertaking, as per the Page 10 of 16 HC-NIC Page 10 of 16 Created On Thu Aug 24 02:03:33 IST 2017 R/CR.MA/20235/2016 ORDER draft undertaking produced on record, within three days from the date of his release.
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 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. 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. "
17. On inquiry made by the Court, on instructions, learned APP has also shown the original record, which has been gathered after the order was passed by this Court. This Court has found that as many as 614 persons have approached the Investigating Officer as per condition No.5(h) and as indicated by the learned APP, the main accused has made payment only of Rs.9,65,800. On further inquiry, this Court has been informed that the State has already preferred an application for cancellation of bail granted to the main accused Rajubhai Bhulabhai Bharwad before the learned Sessions Judge, City Sessions Page 11 of 16 HC-NIC Page 11 of 16 Created On Thu Aug 24 02:03:33 IST 2017 R/CR.MA/20235/2016 ORDER Court, Ahmedabad, which is registered as Cr.Misc. Application No.5001/17. Be that it may be so, as far as the present application is concerned, this Court finds that large number of persons have been affected that too from lower strata of the society who were attracted by the schemes floated by the Company in which the present applicant was actively participating as a Chartered Accountant and such persons of such strata have invested their lifetime earning with a fervent hope of earning either by way of two wheeler, four wheeler, house or further interest. In opinion of this Court, the schemes which have been floated as an accounting gimmick, which would not be possible without continuous and active assistance from a person who has proficiency in accountancy and therefore, the material on record clearly establishes the gravity of offence, which requires to be thoroughly investigated. Even the earlier order dated 06.10.2016, whereby the applicant was asked to remain present before the Investigating officer has not materialised into any cogent material and for which custodial interrogation is necessary.
18. It further deserves to be noted that the applicant is also accused for similar nature of offence registered with CID Crime, (Vadodara Zone), Police Station for the offences punishable under sections 406, 420, 467, 468 and 120B of IPC and under Sections 4, 5 and 6 of the Prize Chits Page 12 of 16 HC-NIC Page 12 of 16 Created On Thu Aug 24 02:03:33 IST 2017 R/CR.MA/20235/2016 ORDER and Money Circulation Scheme (Banning) Act, 1978 as also Sections 3, 4 and 7 of the Depositors Act, 2003, wherein he has been enlarged on bail.
This on the contrary shows that the present offence is also grave and in the facts and circumstances of the case, this is not a fit case for grant of anticipatory bail and as noted by the learned sessions court while enlarging the applicant on bail for the offences registered against him, the sessions court has considered the aspect of parity. However, as observed hereinabove, the main accused has not made payment as per the condition and large number of persons who are affected by the scam have approached the investigating officer.
19. Considering the gravity of offence, wherein large number of people have been duped, no lenient view can be taken and the circumstances for which a successive bail application has been pressed into service, in reality do not exist. The hope and trust which was imposed upon the main accused, as the facts reveal, has remained only on paper and such large chunk of persons who have been duped are still awaiting, if not anything more, at least return of the principal amount which they have invested which is their lifetime savings. Thus, in opinion of this Court, both the circumstances, which are put forward does not reveal truth and in fact, it is far from truth and therefore, following the ratio laid down by Page 13 of 16 HC-NIC Page 13 of 16 Created On Thu Aug 24 02:03:33 IST 2017 R/CR.MA/20235/2016 ORDER the Apex Court in the case of Union of India vs. Padam Narain Agarwal & Ors. reported (2008) 13 SCC 305 and in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra & Ors. reported in (2011) 1 SCC 694, this Court has to very sparingly use the jurisdictional power under section 438 of the Code and the present case does not warrant any such exercise.
20. It is also a matter of record that after the order dated 21.04.2016 was passed whereby the earlier application came to be disposed of as not pressed/withdrawn, the applicant was not available and therefore, the prosecution resorted to actions as contemplated under section 72 as well as under section 82. In spite of that, as the applicant showed readiness to cooperate with the investigation, the earlier order dated 06.10.2016 was passed by this Court. However, in the aforesaid circumstances, the same has not yield any result and the leniency shown by this Court has failed.
21. Considering the ratio laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre (supra), considering the gravity of offence and role attributed to the applicant, this is not a fit case to grant anticipatory bail. Even following the ratio laid down by the Supreme Court in the case of Anil Sharma (supra), the petition deserves to be dismissed and is hereby Page 14 of 16 HC-NIC Page 14 of 16 Created On Thu Aug 24 02:03:33 IST 2017 R/CR.MA/20235/2016 ORDER dismissed. The interim protection granted also stands vacated.
22. Even while rejecting, in view of the earlier order, the applicant is permitted to surrender before the learned Sessions Judge and apply for regular bail. Considering the ratio laid down by the Apex Court in the case of Niranjan Singh vs Prabhakar Rajaram Kharote reported in 1980 (2) SCC 559, if the applicant files application for regular bail on advance copy served upon the Public Prosecutor, the learned Sessions Court shall endeavor to hear the parties and pass the order on the same day on its own merits. D.S. permitted.
(R.M.CHHAYA, J.) bjoy FURTHER ORDER After the order was pronounced, Mr. Jal Unwala, learned advocate for the applicant prayed for extension of order dated 06.10.2016 to enable the applicant to approach the Apex Court.
Heard Mr. Oza, learned APP for the same. Mr. Oza, learned APP objected for any extension.
Having heard the learned counsel for the parties, the order dated 06.10.2016 is extended till 15.09.2017. D.S. permitted.
(R.M.CHHAYA, J.)
bjoy
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