Gujarat High Court
Bhargavbhai Gayaprasad Verma vs State Of Gujarat & on 1 May, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/6647/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (RECALL) NO. 6647 of 2017
In CRIMINAL MISC.APPLICATION NO. 4831 of 2017
In CRIMINAL MISC.APPLICATION NO. 19592 of 2016
In CRIMINAL REVISION APPLICATION NO. 450 of 2016
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BHARGAVBHAI GAYAPRASAD VERMA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR RR MARSHALL, SENIOR COUNSEL WITH MR.TULSHI R SAVANI,
ADVOCATE for the Applicant(s) No. 1
MR ND NANAVATY, SENIOR COUNSEL WITH MR.PRATIK Y JASANI,
ADVOCATE for the Respondent(s) No. 2
MR MITESH AMIN, PUBLIC PROSECUTOR WITH MR NJ SHAH, ADDL.GP
for the Respondent(s) No.1
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CORAM HONOURABLE MS JUSTICE SONIA GOKANI
:
Date : 01/05/2017
ORAL ORDER
1. The applicant is the original complainant of the first information report being IC.R. No.3 of 2016 registered on January 07, 2016 with Navrangpura Police Station, Ahmedabad, for the offences punishable under sections 406 and 420 of the Indian Penal Code. The applicant was in the Page 1 of 20 HC-NIC Page 1 of 20 Created On Mon Aug 14 08:44:24 IST 2017 R/CR.MA/6647/2017 ORDER business of tours and travels, who was interested in purchasing the resort of the respondent No.2 situated at Pataya, Thailand. A memorandum of understanding arrived at by and between the parties eventually led to the civil disputes and the matter was litigated by both the sides before the Court at Thailand.
2. It is the case of the applicant that the said first information report came to be lodged on January 07, 2016 by the applicant against the respondent No.2 on the ground that he had cheated the applicantoriginal complainant at the time of entering into the memorandum of understanding.
3. The respondent No.2 had approached this Court on the earlier occasion by way of preferring Criminal Miscellaneous Application No.13093 of 2016 for quashing the first information report, as also by way of Criminal Revision Application No.450 of 2016 and this Court had protected the respondent No.2 by way of interim relief while issuing the notice in the Revision Application, which has been continued till date. This Court on Page 2 of 20 HC-NIC Page 2 of 20 Created On Mon Aug 14 08:44:24 IST 2017 R/CR.MA/6647/2017 ORDER September 02, 2016, noted that the Investigating Officer had filed the chargesheet on July 20, 2016, even after the order dated June 05, 2016 of this Court of staying further investigation had reached to him well within time on June 18, 2016, without permission of this Court. While staying further proceedings of Criminal Case No.642 of 2016, pending before Court No.13, Metropolitan Court, Ahmedabad City, further hearing had been fixed in this matter.
4. This Court was approached by the respondent No.2 seeking to challenge the order passed by the learned Additional Sessions Judge in Criminal Miscellaneous Application No.1810 of 2016, wherein he made a request to release the passport of the respondent No.2 herein, which was surrendered by him at the time of availing the benefit of the regular bail by an order dated April 26, 2016, passed by the Court No.8, City Sessions Court, Ahmedabad.
5. This Court after hearing both the sides partly allowed such application being Criminal Page 3 of 20 HC-NIC Page 3 of 20 Created On Mon Aug 14 08:44:24 IST 2017 R/CR.MA/6647/2017 ORDER Miscellaneous Application No.19592 of 2016 and directed the respondent No.2 to abide by certain conditions. Further, while allowing partly, this Court modified Condition Nos.2,5 and 7 of the said order dated April 26, 2016, passed by the learned Additional Sessions Judge by inter alia passing the following order :
"9. For the foregoing reasons, the present application is allowed and Condition Nos.2, 5 and 7 of the order dated April 26, 2016, passed by the learned Additional Sessions Judge, City Civil and Sessions Court, Court No.8, Ahmedabad, in Criminal Miscellaneous Application No.1613 of 2016, are hereby modified to the extent indicated as under:
9.1 The condition No.2 is modified to the extent that the applicant is permitted to leave India and visit Thailand for a period of six months on his furnishing a solvent surety of Rs.2,50,000/ (Rupees Two Lakh Fifty Thousand only) and a personal bond of the like amount, as also on his depositing a cash surety of Rs.2,50,000/ (Rupees Two Lakh Fifty Thousand only) with the Registry of the City Sessions Court, Ahmedabad City, on the following conditions that the applicant shall :Page 4 of 20
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(a) furnish an undertaking in respect of his property in the State of Kerala, stating therein that he shall not, in any manner and/or mode, transfer, assign or alienate the said property in favour of anyone till his return to India;
(b) deposit the original title deeds of the said property at Kerala with the Registry of the City Sessions Court at Ahmedabad, within a period of one week from the date of receipt of a copy of this order;
(c) furnish his itinerary of his visit to Thailand to the Registry of the City Sessions Court, Ahmedabad as well as the concerned Investigating Officer and shall also provide the details of his permanent address at Thailand;
(d) file a separate undertaking before the Indian Embassy at Thailand as well as before this Court in respect of his return to India and shall ensure its due compliance.
9.2 Subject to the applicant fulfilling the aforesaid conditions, his passport be released and the condition No.7 is modified accordingly.
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9.3 Insofar as Condition No.5 is concerned, the same is hereby suspended till the applicant returns to India.
10. It is clarified that the Nazir of the City Sessions Court at Ahmedabad, shall invest the said amount of Rs.2.5 lakh to be deposited by the applicant in a fixed deposit with any Nationalised Bank initially for a term of six months and thereafter, the same be renewed from time to time.
11. Over and above the aforesaid conditions, the applicant shall abide by rest of the conditions imposed by the Sessions Court while releasing him on bail, except those which have been relaxed by this Court by way of present order.
12. The rest of the conditions of the order dated April 26, 2016, remains unaltered. Direct service is permitted."
The respondent No.2 was, thus, allowed to leave India for a period of six months.
6. The present applicant had preferred Special Leave to Appeal (Cri.) Nos. and 7013 of 2016 before the Apex Court and the said appeals ultimately came to be dismissed.
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7. The respondent No.2 once again sought for leave of this Court to leave India for a further period of six months by way of preferring Criminal Miscellaneous Application No.4831 of 2017. This Court vide order dated February 17, 2017 granted further period of six months to the respondent No.2.
8. Being aggrieved by such extension, the applicant has urged for recalling of the order of extension granted by this Court on February 17, 2017, essentially on the ground that the respondent No.2 has committed offences punishable under sections 406 and 420 of the Indian Penal Code. It is also his say that the respondent No.2 has produced forged and fabricated solvency certificate/papers in pursuance of the order dated April 26, 2016 rendered in Criminal Miscellaneous Application No.1613 of 2016. Hence, the applicant has prayed for the following substantial reliefs :
"8(B) Be pleased to recall the order dated 17.02.2017 passed by this Hon'ble Page 7 of 20 HC-NIC Page 7 of 20 Created On Mon Aug 14 08:44:24 IST 2017 R/CR.MA/6647/2017 ORDER Court in Criminal Misc. Application No.4831 of 2017 in Criminal Misc. Application No.19592 of 2016 in Criminal Revision Application No.450 of 2016. And further be pleased to decide the Criminal Misc. Application No.4831 of 2017 on merits considering the facts and circumstances stated in present application.
(C) Be pleased to pass appropriate order and/or direction to respondent no.2 to come back India forth or if respondent no.2 is come at Ahmedabad for compliance of order dated 17.2.2017 at AnnexureA he may not be allowed to leave India without prior permission of this Honourable Court."
9. This Court on March 17, 2017, at the time of issuance of notice, perused the report of City Mamlatdar, Ahmedabad, and directed the respondent No.2 to file an affidavit noting that this is a matter of very serious concern. Pursuant to the said direction, an affidavitinreply has been filed by the respondent No.2 giving entire history of the litigation. Further, on the issue in question, the respondent No.2 has submitted that he has no knowledge that the person who remained as his surety was not solvent to offer Page 8 of 20 HC-NIC Page 8 of 20 Created On Mon Aug 14 08:44:24 IST 2017 R/CR.MA/6647/2017 ORDER himself as surety since the respondent No.2 was not acquainted with Gujarati language. It would be appropriate to reproduce relevant paragraphs
(xiii), (xiv) and (xv) of the affidavitinreply filed by the respondent No.2, which read as under
:
"4(xiii) I say and submit that the deponent thereafter, pursuant to the directions of this Hon'ble Court, complied with each and every condition imposed by this Hon'ble Court vide order dated 02.09.2016 in Criminal Misc. Application No.19592/2016 viz. (1) the deponent furnished an undertaking in respect of the property owned by the deponent in the State of Kerala stating that the deponent will not, in any manner transfer, assign or alienate the said property till he returns back to India (2) the deponent also deposited the original title deeds of his property situated in Kerala with the Registry of City Sessions Court at Ahmedabad, (3) the deponent also furnished the itinerary of his visit to Thailand before the Registry of City Sessions Court, Ahmedabad as well as the concerned Investigating Officer and also provided the details of his permanent address at Page 9 of 20 HC-NIC Page 9 of 20 Created On Mon Aug 14 08:44:24 IST 2017 R/CR.MA/6647/2017 ORDER Thailand, and (4) the deponent also filed a separate undertaking before the Indian Embassy at Thailand as well as before this Hon'ble Court ensuring due compliance of the order passed by this Hon'ble Court. I say and submit that the deponent was also directed by this Hon'ble Court to furnish a solvent surety of Rs.2,50,000/ and a personal bond for the like amount. I say and submit that in compliance of the said conditions, the deponent had submitted his personal bond on 03.10.2016. A copy of the personal bond of the deponent is annexed hereto and marked as ANNEXURE 'VIII' to this affidavit in reply.
(xiv) I say and submit that the deponent never had knowledge that the person who had remained as his surety was not solvent to offer himself as surety as deponent is acquainted with Gujarati language. I say and submit that the person, viz. Shri Amratbhai Amthabhai Parmar, who had furnished his solvent surety for the deponent before the Ld. Mamlatdar, Ahmedabad City on 19.09.2016 and the surety certificate was made available to him on 30.09.2016 and the same was filed before the Ld.Trial Court on 03.10.2016. I say and submit that the deponent was not neither available on the date on which the said Amratbhai Amthabhai Page 10 of 20 HC-NIC Page 10 of 20 Created On Mon Aug 14 08:44:24 IST 2017 R/CR.MA/6647/2017 ORDER Parmar made application to the Mamlatdar nor was the deponent available in Ahmedabad on the date on which said Amratbhai received the certificate. I say and submit that in fact on 30.09.2016, the Applicant was before the Hon'ble Apex Court pursuant to the hearing of Special Leave Petition filed by the Applicant challenging the order passed by the Hon'ble Court in Criminal Miscellaneous Application No.19592 of 2016. A copy of the Boarding passes and the ticket demonstrating the fact that the deponent was not available in Ahmedabad on the above referred dates is annexed hereto and marked as ANNEXURE 'IX' Colly. to this affidavit in reply.
(xv) I say and submit that the deponent is having utmost respect and regards towards the orders passed by this Hon'ble Court. I say and submit that the deponent never had any intention to take undue advantage of the liberty granted by this Hon'ble Court. I say and submit that as deponent was having certain difficulties in his business at Thailand as well as his son was also not keeping well, the deponent therefore had moved an application before Trial Court being Criminal Misc. Application No.4831 of 2017 wherein the deponent had prayed further extension of six months which was granted by Page 11 of 20 HC-NIC Page 11 of 20 Created On Mon Aug 14 08:44:24 IST 2017 R/CR.MA/6647/2017 ORDER Hon'ble High Court vide order dated 02.09.2016 in Criminal Misc. Application No.19592/2016. I say and submit that the said Application was allowed by this Hon'ble Court vide order dated 17.02.2017 by permitting the deponent to stay in Thailand for further period of six months on furnishing a solvent surety of Rs.2.50 lakhs and a personal bond of the like amount as also depositing a cash surety of Rs.2.50 lakhs before the Registry of City Sessions Court Ahmedabad while keeping all the other conditions which were imposed on the deponent vide order dated 02.09.2016 in Criminal Misc. Application No.19592/2016, intact."
10. The main defence of the respondent No.2 is that the applicant has resorted to armtwisting method for extorting money from the respondent No.2. He has further emphasised that none of the papers, which was supplied to the competent Court below, pertaining to solvency, was signed or applied by the respondent No.2. The surety of the respondent No.2 i.e. Amratbhai Amthabhai Parmar, had agreed to produce a solvency certificate and he himself had made an application before the Page 12 of 20 HC-NIC Page 12 of 20 Created On Mon Aug 14 08:44:24 IST 2017 R/CR.MA/6647/2017 ORDER competent authority and had produced the same before the Court below under his own signature, for which the respondent No.2 has no knowledge as to when and how he made application for obtaining solvency certificate nor was he aware about the contents thereof. According to him, it is evident that it is the surety who is liable for such an act and not the respondent No.2. It is also pointed out that a petition being Special Civil Application No.1426 of 2017 had been preferred seeking directions against the Investigating Officer of Navrangpura Police Station, Ahmedabad, to lodge an FIR against the respondent No.2, however, this Court had directed the petitioner therein to approach the concerned Court and, therefore, the applicant herein had preferred an application under section 340 of the Code of Criminal Procedure, 1973, which was not pursued as later on the first information report being I C.R. No.40 of 2017 for the offences punishable under sections 465, 467, 468, 471 and 120B of the Indian Penal Code, came to be registered with Navrangpura Police Station, Ahmedabad.
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11. In the complaint given by the applicant, one of the allegations is that the surety is bogus and a professional surety.
12. This Court has at length heard the learned Senior Counsel Shri R.R. Marshall appearing with the learned counsel Shri Tulsi Savani for the original applicant and learned Senior Counsel Shri N.D. Nanavaty appearing with the learned counsel Shri Pratik Jasani for the respondent No.2.
13. Shri Mitesh Amin, learned Public Prosecutor appearing with the learned Additional Public Prosecutor Shri N.J. Shah for the respondent State, has also urged the Court along the line of submissions made by the learned Senior Counsel Shri R.R. Marshall for recalling the order.
14. This Court notices from the chronology of events that the dispute of Memorandum of Understanding in relation to purchase of a property culminated into the applicant having lost before the Supreme Court of Thailand and Page 14 of 20 HC-NIC Page 14 of 20 Created On Mon Aug 14 08:44:24 IST 2017 R/CR.MA/6647/2017 ORDER later on, he approached the Navrangpura Police Station, Ahmedabad, with his complaint, the quashing of which is urged by way of a separate petition and the same is pending. The protection has also been granted to the respondent No.2 by this Court while dealing with Criminal Revision Application. In the Criminal Revision Application which the respondent No.2 herein had preferred against some of the conditions imposed by the learned Additional Sessions Judge, this Court had shown indulgence and permitted the respondent No.2 to travel abroad, where his business was suffering, which had affected the lives of many workmen.
15. It is not in dispute that the respondent No.2 was permitted to travel for a period of six months with change of conditions. He had also deposited the amount of Rs.2.50 lakh as directed by the trial Court with the Registry of the City Sessions Court, Ahmedabad. He had also furnished an undertaking in respect of the property owned by him in the State of Kerala stating therein that he will not, in any manner, transfer, assign Page 15 of 20 HC-NIC Page 15 of 20 Created On Mon Aug 14 08:44:24 IST 2017 R/CR.MA/6647/2017 ORDER or alienate the said property till he returns to India, which continues to hold the field.
16. It is, of course, disputed by the applicant original complainant that the title deeds of the property at the State of Kerala which have been deposited with the Sessions Court, do not belong to the respondent No.2. The learned Senior Counsel appearing of the respondent No.2 Shri N.D. Nanavaty has reminded this Court of the chronology to urge that some of the documents which were in Malayalam language were directed to be translated before this Court and the other side was also privy to such translated copies. This Court will not go into such controversy at this stage in view of subsequent first information report being IC.R. No.40 of 2017, which is under investigation presently.
17. The main issue is in relation to the bogus and forged surety furnished before the concerned court. Under the Right to Information Act, 2005, when the details had been sought for by the applicant, the Public Information Officer on Page 16 of 20 HC-NIC Page 16 of 20 Created On Mon Aug 14 08:44:24 IST 2017 R/CR.MA/6647/2017 ORDER January 23, 2017, had intimated through the learned counsel Shri Kiran Dave who is representing the applicant before the trial Court, that no solvency certificate bearing S.R. No.326/16 dated September 30, 2016, was issued by the office of the City Mamlatdar, Maninagar, Ahmedabad. This has been certified after scrutinizing the record and register of the solvency certificate. It appears from the allegations levelled by the complainant and the submissions advanced by the learned Senior Counsel Shri R.R. Marshall that such version is further fortified by the falsehood which is apparent from the solvency certificate produced before the trial Court. The Deputy Mamlatdar and Circle Officer's signature are also bogus and a fabricated certificate of City Mamlatdar is forged as well.
18. Though much fervently an attempt is made on the part of the respondent No.2 to disassociate himself from the affidavit of the professional surety, the fact remains that he had taken advantage of such surety in claiming that the Page 17 of 20 HC-NIC Page 17 of 20 Created On Mon Aug 14 08:44:24 IST 2017 R/CR.MA/6647/2017 ORDER order of this Court had been complied with. The respondent No.2 was quite aware of the fact that unless such certificate is adduced to the trial Court, he could not have been permitted to travel abroad. To say now at this stage that this was an act of the surety himself and the applicant had nothing to do with it, is not acceptable nor palatable to this Court.
19. The matter is under investigation and prima facie from the report of the Investigating Officer, it eloquently appears that the document in question is bogus and forged one. Without concluding anything qua the same and without affecting the right of the either side of pursuing this matter, especially in view of pendency of investigation of the first information report being IC.R. No.40 of 2017, this Court is of the firm opinion that the material which has been brought on record by the respondent No.2 is not acceptable to accede to the request of the respondent No.2 praying for not to recall the order. The Apex Court in a number of decisions in the case of professional Page 18 of 20 HC-NIC Page 18 of 20 Created On Mon Aug 14 08:44:24 IST 2017 R/CR.MA/6647/2017 ORDER surety, whose services have been frequently resorted to by the litigants, has also heavily come upon such sureties and the litigatns taking recourse of such persons. The stream of justice cannot be allowed to be polluted by any unscrupulous elements or with the help of any unscrupulous being.
It is noted that no litigant can be permitted to take disadvantage of any order of the Court. The respondent No.2 could establish his point which he has pressed into service before this Court, however, when the entire benefit of the false surety has gone to the advantage of the respondent No.2 herein, it is must to recall the said order.
20. For the foregoing reasons, the present application succeeds and the same is, accordingly, allowed. The order dated February 17, 2017, passed by this Court in Criminal Miscellaneous Application No.4831 of 2017 in Criminal Miscellaneous Application No.1959 of 2016 in Criminal Revision Application No.450 of 2016, is recalled.
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20.1 In view of aforesaid, the respondent No.2 shall return to India on or before June 19, 2017 and surrender his passport before the Sessions Court concerned.
20.2 Shri N.D. Nanavaty, learned Senior Counsel appearing for the respondent No.2, has made a request to stay this order to enable the respondent No.2 to assail this order before the Apex Court.
21. In view of the facts and circumstances of the case as well as the material on record and the discussion made in this order, the request of the learned counsel appearing for the respondent No.2 is rejected.
Disposed of accordingly.
Direct Service is permitted.
(MS SONIA GOKANI, J.) Aakar Page 20 of 20 HC-NIC Page 20 of 20 Created On Mon Aug 14 08:44:24 IST 2017