Gujarat High Court
Vijay Vinubhai Finaviya vs State Of Gujarat on 26 September, 2022
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/10297/2022 ORDER DATED: 26/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10297 of 2022
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VIJAY VINUBHAI FINAVIYA
Versus
STATE OF GUJARAT
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Appearance:
MR I.H. SYED SENIOR ADVOCATE WITH MR RAFIK LOKHANDWALA
WITH MR MO.ZAMEER J SHAIKH ADVOCATES for the Applicant(s) No. 1
Ms. HIMANI KINI(7489) for the Respondent(s) No. 1
MR PRANAV TRIVEDI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 26/09/2022
ORAL ORDER
1. This application has been filed under section 439 of the Code of Criminal Procedure for regular bail in connection with FIR being C.R. No.11210055211881 of 2021 registered with Salabatpura Police Station, Dist. Surat for offences punishable under sections 406, 409, 420, 465, 467, 468, 471 and 34 of IPC.
2. The complainant is Assistant Manager of the Tamilnad Mercantile Bank and as per the complaint the erstwhile Bank Manager - Sunder Rajendran Sumbiya Page 1 of 9 Downloaded on : Wed Sep 28 21:29:43 IST 2022 R/CR.MA/10297/2022 ORDER DATED: 26/09/2022 along with co-accused, Punit Nanjibhai Vyas and Nileshbhai Natubhai Narigara, who were working as Bank Loan Consultants, with the criminal conspiracy along with accused nos.1 to 17, had produced the documents for machinery term loan and for working capitals. Accused nos.1, 2 and 4 had produced false bills and quotations of machines supplies of Heer Enterprise, and on that basis on the Bank Accounts of the firms, by false bank statements and knowing the quotations and statements to be false, had undertaken bank loan procedures. The bank loan consultant along with the erstwhile Bank Manager had processed the loans for accused nos.1 to 17 and taken bank loan in the name of accused no.5 - Nareshbhai Dhirubhai Thumar and had used the same for their own personal use. 2.1 Total amount including the interest on the bank loan is Rs.16,51,45,000/-, their bank account were declared as NPA and by not repaying the loan, caused large financial loss to the Bank.
Page 2 of 9 Downloaded on : Wed Sep 28 21:29:43 IST 2022 R/CR.MA/10297/2022 ORDER DATED: 26/09/2022 2.2 Senior Advocate Mr. I.H. Syed along with Mr. Rafik Lokhandwala and Mo. Azmeer J.Shaikh, learned advocates for the applicant submits that, the present applicant is one of the account holder, who is proprietor of Hanumant Hemro, had taken loan of Rs.1.18 crores and had mortgaged immovable property bearing Plot No.42, Shukan Bungalows, and the value of the mortgaged property is Rs.3.50 crores, admittedly Rs.35 lakhs had already been paid by the applicant and the loan is secured by the immovable property.
2.3 Mr. Syed stated that the possession of the Bungalow is with the Bank and the complainant Bank has arbitrarily sold away the mortgaged property by taking action under SARFAESI Act, 2002. Relying on the affidavit-in-reply of the complainant, Mr. Syed submits that the Bank had sold away the secured assets at a price of Rs.1.73 crores and had appropriated the sale proceeds towards the outstanding amounts of M/s. Hanumant Hemro and the account had been closed, and thus Page 3 of 9 Downloaded on : Wed Sep 28 21:29:43 IST 2022 R/CR.MA/10297/2022 ORDER DATED: 26/09/2022 submits that nothing is outstanding in the account of the present applicant; however, whatever amount has been attributed is as being guarantor of M/s. Shree Hari Corporation, which is the proprietorship concern of wife of the applicant; and thus submits that nothing is required to be recovered. It was, therefore, prayed that the present application may be allowed and the applicant herein may be released on regular bail.
3. Mr. Pranav Trivedi, learned Additional Public Prosecutor assisted by Ms. Himani Kini, advocate for the complainant relying on the various statements of the witnesses, which includes Laxminarayan, who is the employee of Nileshbhai Narigra, Mayankkumar Naranbhai Mehta - the office of boy of Punitbhai Vyas, Ayush Dilipbhai Nakhera - a builder, Purshottam Finwiya
- the uncle of the applicant, Dipak Vekariya - friend of the applicant, Vinubhai Kanjibhai Hirjibhai Finaviya - father of the applicant and Sanjaybhai Prufulbhai Kothia, who is having a factory and was earlier a partner in Hanumant Page 4 of 9 Downloaded on : Wed Sep 28 21:29:43 IST 2022 R/CR.MA/10297/2022 ORDER DATED: 26/09/2022 Hemro, submitted that the present applicant along with both the loan consultants had procured loan in the name of all his family members and friends and even employees of the tax consultants and systematically planned to dupe the bank with huge amount of loans.
3.1 Mr. Trivedi, learned APP, submitted that the whole modus operandi of the present applicant has been described by all the witnesses and accordingly the applicant being friend of the bank loan consultants - Punit Vyas and Nilesh Narigara, had procured loan in the name of various persons with the assistance of both the tax consultants and his employees, procuring the documents and getting the loan sanctioned and thereafter got the loan amount transferred in the current account of the individual persons by taking the signatures of those persons on the cheques withdrew the total amount for his own personal use. Mr. Trivedi submitted that all the accused and the present applicant are involved in the whole fraud of Rs.16,61,45,000/-.
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R/CR.MA/10297/2022 ORDER DATED: 26/09/2022 3.2 Mr. Pranav Trivedi, learned APP, further submitted that the brother of the present applicant while being granted bail has given an undertaking to repay the Bank as per schedule provided by him; however, he failed to repay the amount as assured by him. It was, therefore, prayed that no discretion may be exercised in favour of the applicant.
4. Heard learned advocates on both the sides and perused the material on record. As per the prosecution case, by conspiring with 17 other persons along with tax consultants and the erstwhile bank manager, the loans were procured and it is alleged that the applicant had put the loan amount to his personal use, which was taken in the name of machinery and working capital. The affidavit of the complainant suggests that the applicant being the proprietor of M/s Hanumant Hemro had taken loan of Rs.1.18 crores on the basis of bogus and fabricated documents of machinery from Tamilnad Mercantile Bank Page 6 of 9 Downloaded on : Wed Sep 28 21:29:43 IST 2022 R/CR.MA/10297/2022 ORDER DATED: 26/09/2022 Limited. The applicant was also guarantor of M/s. Shree Hari Corporation, who had obtained loan of Rs.110.05 Lakhs and for the loans, the common collateral property is Shukan Bunglows, Plot No.42,. The Bank has sold the secured assets for amount of Rs.1.73 crores and appropriated the said sale proceeds towards the outstanding amount of M/s. Hanumant Hemro and the account has been closed and as per the applicant Rs.35 lakhs has already been deposited. Taking into consideration these facts and since the account has been closed and the money has been recovered, which was due on the present applicant, this Court finds this to be a fit case where discretion could be exercised in favour of the applicant.
5. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R. No.11210055211881 of 2021 registered with Salabatpura Police Station, Dist. Surat on executing a personal bond of Rs.15,000/- Page 7 of 9 Downloaded on : Wed Sep 28 21:29:43 IST 2022
R/CR.MA/10297/2022 ORDER DATED: 26/09/2022 (Rupees Fifteen Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he 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 India without prior permission of the concerned trial court;
[e] furnish the present 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 the concerned trial court;
6. The authorities shall adhere to its own Circular relating to COVID-19 and, thereafter, will release the applicant only if he is not required in connection with any Page 8 of 9 Downloaded on : Wed Sep 28 21:29:43 IST 2022 R/CR.MA/10297/2022 ORDER DATED: 26/09/2022 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 lower Court having jurisdiction to try the case.
7. Rule is made absolute to the aforesaid extent. Direct service is permitted. Registry to communicate this order to the concerned Court/authority by Fax or Email forthwith.
(GITA GOPI,J) Pankaj Page 9 of 9 Downloaded on : Wed Sep 28 21:29:43 IST 2022