Gujarat High Court
Prakashbhai Dalsukhbhai Vala (Mochi) & vs State Of Gujarat on 22 May, 2017
Author: B.N. Karia
Bench: B.N. Karia
R/CR.MA/11358/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) No. 11358 of 2017
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PRAKASHBHAI DALSUKHBHAI VALA (MOCHI) &
2....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR SV RAJU, Senior Advocate with NIMIT Y SHUKLA & SAIRICA S RAJU,
Advocates for the Applicants
Mr KP RAVAL, APP for the Respondent(s) No. 1
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CORAM: HONOURABLE Mr. JUSTICE B.N. KARIA
22nd May 2017
ORAL ORDER
1. The present application has been preferred by the applicants - original accused in the FIR, being I-35/2017 registered with DCB Police Station, Ahmedabad for the offence punishable under Sections 406, 419, 420 114 of the Indian Penal Code read with Sections 65, 66C & 66D of the Information Technology Act, 2000, for grant of regular bail under Section 439 of the Code of Criminal Procedure.
2. The gist of the prosecution case, as it culls out Page 1 of 7 HC-NIC Page 1 of 7 Created On Thu Aug 17 09:39:01 IST 2017 R/CR.MA/11358/2017 ORDER from the complaint is that the applicant no.1 is engaged in the business of selling assembled Television sets, which are brought from Delhi, and whereas, the applicant nos. 2 & 3, in connivance with the applicant no. 1 herein through their pen-drive install software of different companies into the assembled Televisions and thereby apply logo/stickers of different renowned companies on the assembled TV sets. These Television sets are thereafter alleged to have been sold to the customers in the open market. It is alleged that so far in all 586 units of LED TV sets are sold in the market by the applicants by committing cheating and criminal breach of trust and hence, the offence.
3. Heard learned advocates appearing for the respective sides.
4. Learned senior advocate Shri SV Raju appearing with Shri Nimit Y Shukla and Ms. Sairica S. Raju for the applicants, at the outset, does not press this application qua the applicant no.1 herein. He urged that the applicants nos. 2 & 3 have not commited any offence Page 2 of 7 HC-NIC Page 2 of 7 Created On Thu Aug 17 09:39:01 IST 2017 R/CR.MA/11358/2017 ORDER as narrated in the FIR. That, they are innocent and therefore, no purpose would be served to keep them behind the bars. Learned counsel further urged that the complainant being a Police Officer of Cyber Crime Cell, Crime Branch cannot even be called as a proper complainant to lodge the FIR. According to the learned counsel for the applicants, the present FIR is nothing but a mala fide and ulterior motive of the Investigating Officers to extort money from the applicants, since none of the Companies whose logos and software is alleged to have been used have made any complaint of piracy. Learned counsel submitted that there is no iota of evidence for the offence punishable under Section 406 as well as Section 420 IPC and furthermore the ingredients of other offences are not surfacing on the record. That, there are no allegations and averments with respect to invocation of charges under Section 65, 66C of the Information Technology Act and even the allegation with respect to Section 65 of the IT Act of tampering with the computer documents is absolutely Page 3 of 7 HC-NIC Page 3 of 7 Created On Thu Aug 17 09:39:01 IST 2017 R/CR.MA/11358/2017 ORDER misplaced. That, so far as Section 66C and 66D of the I.T Act is concerned, the entire FIR does not even have any mention about the identity of theft and/or cheating by impersonation. Learned counsel placed reliance upon a decision of Apex Court in the case of Arnesh Kumar v. State of Bihar, reported in (2014) 8 SCC 273 to contend that the offence being Magistrate triable, the court below ought to have granted bail to the applicants herein. Lastly, Shri SV Raju, learned counsel appearing on behalf of the applicants urged that this is a fit case to enlarge the applicants no. 2 & 3 on regular bail, on suitable terms and conditions.
5. Per contra, learned APP Ms. Monali Bhatt appearing for the respondent-State opposed grant of regular bail to the applicants. She urged that the investigation into the offence is at penultimate stage and if the papers of investigation made so far are looked at, there is a strong prima facie case against the applicants herein. She, however, does not dispute the fact of serious involvement of applicants no. 2 & 3 Page 4 of 7 HC-NIC Page 4 of 7 Created On Thu Aug 17 09:39:01 IST 2017 R/CR.MA/11358/2017 ORDER herein in the offence alleged, and therefore, urged the Court to pass appropriate orders.
6. Having heard learned advocates appearing on behalf of the respective sides and considering the fact that for the alleged offence having been committed, the applicants are being the bar since 14th April 2017. Investigation into the matter is at penultimate stage and there is no direct recovery from the applicants nos. 2 & 3, and therefore, by exercising discretion, the present application deserves consideration.
7. Hence, the present Criminal Misc. Application is partly allowed. The applicants no. 2 & 3 are hereby ordered to be released on regular bail in connection with FIR being C.R. No. I-35/2017 registered with DCB Police Station, on their executing a bond of Rs.10,000/-[Rupees Ten Thousand only] each with one surety of the like amount to the satisfaction of the trial Court, and subject to the conditions that the applicants shall;
[a] not take undue advantage of liberty or Page 5 of 7 HC-NIC Page 5 of 7 Created On Thu Aug 17 09:39:01 IST 2017 R/CR.MA/11358/2017 ORDER misuse liberty;
[b] not act in a manner injurious to the interest of the prosecution;
[c] not leave the territory of India without prior permission of the Sessions Judge concerned;
[d] appear before the Investigation Officer concerned, as and when required for investigation purpose and attend the Court concerned regularly.
[e] furnish the present address of residence along with the proof to the I.O. concerned and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of Sessions Court concerned;
8. The competent authority will release the applicants only if the applicants are 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 take appropriate action in the matter. Bail bond to be executed before the 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 Page 6 of 7 HC-NIC Page 6 of 7 Created On Thu Aug 17 09:39:01 IST 2017 R/CR.MA/11358/2017 ORDER in accordance with law. At the trial, the 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.
9. Rule nisi made absolute to the aforesaid extent qua applicant nos. 2 & 3. Rule discharged qua applicant no. 1 herein.
Direct service is permitted.
[B.N Karia, J.] Prakash Page 7 of 7 HC-NIC Page 7 of 7 Created On Thu Aug 17 09:39:01 IST 2017