Gujarat High Court
Labhuben Kiranbhai Miyani vs State Of Gujarat on 22 April, 2021
Author: Gita Gopi
Bench: Gita Gopi
R/CR.MA/6715/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 6715 of 2021
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LABHUBEN KIRANBHAI MIYANI
Versus
STATE OF GUJARAT
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Appearance:
MR HIREN VERMA FOR MR GAJENDRA P BAGHEL(2968) for the
Applicant(s) No. 1
MS MONALI BHATT, ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE GITA GOPI
Date : 22/04/2021
ORAL ORDER
1. Rule. Ms.Monali Bhatt, learned Additional Public Prosecutor, waives service of notice of rule on behalf of respondent-State.
2. This application has been preferred under section 438 of the Code of Criminal Procedure seeking anticipatory bail in connection with the first information report being I-C.R. No.11201016200005 dated 29.09.2020 registered with C.I.D. Crime Surat Zone Police Station, Surat for the offences punishable under sections 120B, 406, 409, 465, 467, 468, 471 of the Indian Penal Code.
3. Mr.Verma the learned advocate appearing on behalf of Mr.Baghel, the learned advocate for the applicant submitted that the present applicant has been shown as accused No.5 in the FIR and the applicant has obtained term loan of Page 1 of 6 Downloaded on : Fri Jan 14 03:23:42 IST 2022 R/CR.MA/6715/2021 ORDER Rs.23,45,000/- and she had to pay monthly installment of Rs.33,985.50/ per month for 72 months and the sanction letter has been issued by the senior branch manager of the bank. Thus, the term loan came to be sanctioned on 26.03.2018. Mr.Verma submitted that the applicant has already repaid the part of the loan amount to the extent of Rs.16,33,655.60/- with interest and the remaining amount of Rs.9,59,721.28 remained to be paid which would be in accordance to the terms and conditions of the re-payment.
4. Mr.Verma submitted that no specific allegations are made against the applicant, there is no verification of material evidence and the applicant has been falsely implicated. He submitted that the applicant is not the banker or merchant or agent, therefore, Section 409 of the IPC would not be applicable to the present applicant. He further submitted that the applicant has not forged any valuable security nor she has forged any document to attract the provisions of Section 467, 468 and 471 of the IPC. The applicant has been implicated in the offence prior to the completion of the term for the re- payment of the loan. He further submitted that for payment of 18% of GST, the amount is to be deposited by the concerned supplier of machine as the applicant has to pay the amount of GST to the supplier of machinery and the supplier of machinery has to deposit the amount of GST to the account of GST Department. He submitted that the applicant is a lady aged 40 years, residing in joint family, there is no criminal antecedents. He further submitted that the branch manager - Rajesh Dahyabhai Parmar has been granted anticipatory bail on 04.01.2021 by this Court. He further submitted that it would be the obligation of the Page 2 of 6 Downloaded on : Fri Jan 14 03:23:42 IST 2022 R/CR.MA/6715/2021 ORDER bank authorities to certify the documents and make the spot inspection report to verify the facts of the application and when the branch manager - Rajesh Dahyabhai Parmar is granted anticipatory bail on the ground of parity, he has prayed that therefore, discretion may be granted in favour of the applicant.
5. Ms.Monali Bhatt, the learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. Ms.Bhatt has vehemently contended that the present applicant along with the main accused - Bharat Vaghjibhai Akbari, who is the proprietor of V.M. Enterprise, Zero Max Industries, Suplex Engineering, High- bound Engineering Works Proprietor, had made circular transactions in the bank account referred and from the bank account of Vinayak Enterprise along with the main accused
- Nilesh Vaghela, who is the bank agent. The post and pre inspection has been done by only one bank authority which suggests connivance and by producing the forged documents has procured the bank loan. Ms.Bhatt submitted that the allegation is of making on-line application under the PMEGP for loan and had procured loan amount of Rs.23,45,000/- along with subsidy on 23.01.2018 by producing bogus quotation of M/s. Zero Max Enterprise. It was, therefore, prayed that no discretion may be exercised in favour of the applicant.
Countering the said fact, Mr.Verma the learned advocate for the applicant stated that the part amount of the term loan is already been paid and the applicant, as per the terms and Page 3 of 6 Downloaded on : Fri Jan 14 03:23:42 IST 2022 R/CR.MA/6715/2021 ORDER conditions, is making monthly payments of the installments. Mr.Verma further submitted that as per the terms and conditions the subsidy amount gets transferred in the bank account and the bank under PMEGP Scheme would deposit the same amount in the fixed deposit for 3 years as locking period. He further states that the applicant would not be liable for the said amount.
6. The facts of the matters suggest that the loan amount was prayed for as per the terms and conditions of the bank. Post-inspection and pre-inspection has to be done by the bank authorities. The bank has to verify the factum of installation of machineries and even the fact has to be verified by the spot inquiry. Since the applicant has been paying the installments of the term loan and is willing to pay the remaining installments as per the terms and conditions of the bank, the application requires consideration.
7. Heard the learned advocates for the parties and perused the material on record. Taking into consideration the facts of the case, nature of allegations and the gravity of offence, this Court is inclined to grant anticipatory bail to the applicant.
8. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported in [2011] 1 SCC 694, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported in (1980) 2 SCC 565. This Court has also taken into consideration the recent decision of the Page 4 of 6 Downloaded on : Fri Jan 14 03:23:42 IST 2022 R/CR.MA/6715/2021 ORDER Apex Court in the case of Sushila Aggarwal and others Vs. State (NCT of Delhi) and another reported in (2020) 5 SCC 01.
9. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of her arrest in connection with the first information report being I- C.R. No.11201016200005 dated 29.09.2020 registered with C.I.D. Crime Surat Zone Police Station, Surat on executing 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 concerned Police Station on 05.05.2021 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;
(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change her residence till the final disposal of the case till further orders;
(f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court Page 5 of 6 Downloaded on : Fri Jan 14 03:23:42 IST 2022 R/CR.MA/6715/2021 ORDER within a week; and
10. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate for police remand of the applicant. 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.
11. At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order. 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) dolly Page 6 of 6 Downloaded on : Fri Jan 14 03:23:42 IST 2022