Gujarat High Court
Pravinaben Narendrabhai Chavda vs State Of Gujarat on 1 July, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/CR.MA/11770/2022 ORDER DATED: 01/07/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 11770 of 2022
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PRAVINABEN NARENDRABHAI CHAVDA
Versus
STATE OF GUJARAT
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Appearance:
MR SHALIN MEHTA SENIOR ADVOCATE WITH MR. PP MAJMUDAR FOR
MR. VIPUL B SUNDESHA(6689) for the Applicant(s) No. 1
MR RONAK RAVAL ADDITIONAL PUBLIC PROSECUTOR for the Respondent(s)
No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 01/07/2022
ORAL ORDER
1. Heard learned Senior Advocate Mr. Shalin Mehta with learned Advocate Mr. P.P. Majmudar for learned Advocate Mr. Vipul Sundesha on behalf of the applicant and learned Additional Public Prosecutor Mr. Ronak Raval on behalf of the respondent -State.
2. Rule. Learned APP waives service of rule on behalf of the respondent- State.
3. By way of this application under Section 438 of the Code of Criminal Procedure, 1973, the applicant - original accused prays for being released on anticipatory bail in connection with FIR bearing C.R. No. 112016220003 of 2022 registered with CID Crime Surat Zone Police Station, Surat City on 18.04.2022 for offences punishable under Sections 406, 420, 465, 467, 468, 471, 504, 506(2) and 120-B of the Indian Penal Code.
4. Learned Senior Advocate Mr. Shalin Mehta on behalf of the applicant would draw the attention of this Court to an order dated 24.06.2022 passed Page 1 of 6 Downloaded on : Sat Jul 02 20:28:40 IST 2022 R/CR.MA/11770/2022 ORDER DATED: 01/07/2022 by this Court in Criminal Misc. Application No. 8793 of 2022 in case of accused no.1 of the FIR concerned and whereas learned Senior Advocate would submit that the amount in dispute, i.e. Rs. 2,85,00,000/- as referred to in the FIR, is a common amount, relatable to all the accused in the FIR amd whereas there are no independent allegations against the present applicant with regard to any other amount, apart from the amount of Rs.2,85,00,000/- as referred. In this connection, learned Senior Advocate Mr. Mehta would replying upon the observations of this Court, submit that as such, this Court has gone to the extent of holding that even registering of the First Information Report was an abuse and misuse of process of law and having regard to the same learned Senior Advocate would request that the present applicant may be released on anticipatory bail.
5. Learned Senior Advocate submits that the nature of allegations are such for which custodial interrogation at this stage may not be 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.
Learned Senior Advocate 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.
6. Submissions of learned Senior Advocate have been vehemently objected to by learned Additional Public Prosecutor M. Ronak Raval. Learned APP would submit that while it is true that the amount in question, is relatable to all the accused but then perusal of the FIR would reveal that Page 2 of 6 Downloaded on : Sat Jul 02 20:28:40 IST 2022 R/CR.MA/11770/2022 ORDER DATED: 01/07/2022 the role attributable to the present applicant, is different than the role attributable to the first accused. Learned APP having regard to such submission would request this Court not to consider this application at this stage.
7. Heard learned Advocates for the parties who have not submitted anything further.
8. At this stage, this Court seeks to rely upon the observations made in the order dated 24.06.2022 passed by this Court in Criminal Misc. Application No. 8793 of 2022 more particularly paragraphs no. 10, 11 and 12 and whereas in the considered opinion of this Court, this Court having gone through the aspect in detail and having come to the conclusion that the FIR was an abuse and misuse of process of law, such a finding would also annure in favour of the present applicant also. Paragraph no. 10,11 and 12 of the said order are quoted hereinbelow:
"10. At the outset it is required to be noted that while allegations levelled in the FIR, relate to some alleged assurances given by the accused , whereby accused are stated to have lured the first informant into investing/lending money to the accused more particularly since the accused have portrayed themselves as influential people, who could have got the land under the Government reservation , cleared. Be that as it may from the facts which are appearing on record, it appears that the first informant, has clearly misused and abused the process of law. While it is attempted to be stated by the first informant that he had submitted an application to the CID Crime in the year 2020, the FIR registered on 18.04.2022, does not reflect one of the most crucial aspect which was required to be stated i.e. for the very selfsame amount, the first informant had initiated proceedings against the applicant under Section 138 of the N.I. Act and whereas in the said complaint, while the first informant says that as against Rs. 2,85,00,000/-( Rupees Two Crores and Eighty Five Lacs) , the first informant having already repaid around of Rs. 35,00,000/- (Rupees Thirty Five Lacs), the amount outstanding was Rs. 2, 50,00,000/- ( Rupees Two Crores and Fifty Lacs) and whereas such complaint having been filed on 21.06.2019, in the considered opinion of this Court, it was incumbent upon the first informant to have mentioned the said aspect in his complaint to the CID Crime. It also Page 3 of 6 Downloaded on : Sat Jul 02 20:28:40 IST 2022 R/CR.MA/11770/2022 ORDER DATED: 01/07/2022 appears that between the period when the application/complaint was pending with the CID Crime, the first informant and the present applicant had entered into an understanding whereby insofar as the amount of Rs.2,50,00,000/ ( Rupees Two Crores and Fifty Lacs), which was to be recovered by the first informant from the applicant, for which the present FIR is filed, was settled between the parties. The settlement but which was submitted before the learned Magistrate considering the complaint under Section 138 of the N.I. Act, clearly reflects that out of Rs 2,50,00,000/-( Rupees Two Crores and Fifty Lacs), the first informant had received an amount of Rs. 1, 10,00,000/ (Rupees One Crore and Ten Lacs ) -on 31.01.2022 as regards the remaining amount of Rs. 1, 40,00,000/-( Rupees One Crore and Forty Lacs) the first informant was to receive that by 28.02.2022. In the considered opinion of this Court, once agreement had been entered into between the parties, for the amount in question, there was no occasion for the first informant to have got the FIR registered. As it is in the considered opinion of this Court it was incumbent upon the first informant, to have informed the CID Crime where he had given application no. 152 of 2020 about the issue being settled between the parties by way of understanding submitted to the learned Magistrate dated 31.01.2022. It also appears that having received the amount of Rs.1,10,00,000/-( Rupees One Crore and Ten Lacs) , the only amount which the applicant was entitled to , out of the Rs. 2, 85,00,000/-( Rupees Two Crores and Eighty Five Lacs) was an amount of Rs. 1,40,00,000/( Rupees One Crore and Forty Lacs) and whereas in the considered opinion of this Court if the applicant herein had not paid the amount as per the understanding between the parties then the first informant ought to have taken appropriate steps for having the agreement between the parties executed and whereas the route which was chosen by the first informant of having the FIR registered, clearly reflects an abuse and misuse of the process of law.
11. It also appears that in the affidavit-in-reply filed by the first informant, there is no explanation whatsoever given with regard to the facts which have been narrated by the court hereinabove. The first informant, while he accepts having received the amount of Rs. 1,10,00,000/- ( Rupees One Crore and Ten Lacs) as per the agreement, and while he says that the amount of Rs.
1,40,00,000/-( Rupees One Crore and Forty Lacs) which was to be recovered, has not been paid by the applicant, yet there is no answer in the affidavit-in-reply as to why such crucial aspect, had not been mentioned in the FIR and why the first informant, had not informed the CID Crime with regard to the same.
12. In the considered opinion of this Court, FIR and the complaint registered under Section 138 of the N.I. Act, reflects a monetary transaction between the parties and whereas the first informant apparently had some money which was to be recovered from the applicant and whereas having initiated proceedings under Section 138 of the N.I.Act. Parallely, the first informant for the very selfsame purpose, had preferred an application before the CID Crime and Page 4 of 6 Downloaded on : Sat Jul 02 20:28:40 IST 2022 R/CR.MA/11770/2022 ORDER DATED: 01/07/2022 whereas since it appears that the first informant was very economical with the facts and whereas crucial aspects having been deliberately omitted from the First Information Report and since it appears that out of the amount of Rs.2,85,00,000/- ( Rupees Two Crores and Eighty Five Lacs) which was to be recovered by the first informant from the applicant, an amount of Rs.1,10,00,000/-( Rupees One Crore and Ten Lacs ) already recovered by the first informant at learst three months prior to the registration of the FIR in the considered opinion of this Court, benefit deserves to be accorded to the present applicant."
9. Having regard to the discussion hereinabove and for the reasons stated therein as also considering the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. reported in (2011)1 SCC 694, this Court is inclined to consider this application.
10. In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to FIR bearing C.R. No. 112016220003 of 2022 registered with CID Crime Surat Zone Police Station, Surat City, 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:
(a) shall cooperate with the investigation and make herself available for interrogation whenever required;
(b) shall remain present at the concerned Police Station on 08.07.2022 between 11:00 a.m. and 2:00 p.m.;
(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 her 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;
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(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 or till further orders;
(f) shall not leave India without the permission of the Court and, if having passports shall surrender the same before the Trial Court within a week.
11. Despite this order, it would be open for the Investigating Agency to file an application for police remand of the applicant to the competent Magistrate, if he thinks it just and proper and learned Magistrate would decide it on merits. 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. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if ultimately granted, and the power of the learned Magistrate to consider such a request in accordance with law. 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 conditions of this anticipatory bail order.
12. Needless to observe that all the findings recorded hereinabove are for the purpose of deciding the present application and whereas the same shall not be considered by the learned Trial Court at the stage of trial, if any. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(NIKHIL S. KARIEL,J) NIRU Page 6 of 6 Downloaded on : Sat Jul 02 20:28:40 IST 2022