Gujarat High Court
Sundarlal Ramjibhai Sartanpara & vs State Of Gujarat on 8 August, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/18157/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 18157 of 2017
[On note for speaking to minutes of order dated 28/07/2017 in
R/CR.MA/18157/2017 ]
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SUNDARLAL RAMJIBHAI SARTANPARA & 1....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR HARSHIT S TOLIA, ADVOCATE for the Applicant(s) No. 1 - 2
MR PARTH S TOLIA, ADVOCATE for the Applicant(s) No. 1 - 2
DARSHAN M VARANDANI, ADVOCATE for the Respondent(s) No. 1
PUBLIC PROSECUTOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 08/08/2017
ORAL ORDER
1. A note for speaking to minutes is circulated by the original complainant to delete Condition No.9 of the bail order passed by this Court on 28.07.2017, apprehending that the accused persons may take disadvantage of the said condition, and thereby, they may dispute the title of the complainant.
2. This Court has heard the learned Advocates on both the sides. Bearing in mind the apprehension on the part of the original complainant, condition No.9 originally placed shall get REPLACED by the following condition;
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"The I.O. is directed to intimate the concerned revenue authority not to effect any transfer or create any charge in respect of the land in question at the behest of the applicant-accused."
3. Office to carry out necessary correction and to place a fresh copy of the order on the record, forthwith.
(MS SONIA GOKANI, J.)
UMESH
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 18157 of 2017 ========================================================== SUNDARLAL RAMJIBHAI SARTANPARA & 1....Applicant(s) Versus STATE OF GUJARAT....Respondent(s) ========================================================== Appearance :
MR SV RAJU, LD.SENIOR COUNSEL WITH MR HARSHIT S TOLIA, LD.ADVOCATE WITH MS SAMTA GODIWALA, LD.ADVOCATE for the Applicant(s) No. 1 - 2 MR HRIDAY BUCH, LD.ADVOCATE for the Original Complainant. MS SHRUTI PATHAK, LD.ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 1 ========================================================== CORAM HONOURABLE MS JUSTICE SONIA GOKANI :
Date : 28/07/2017 ORAL ORDER
1. This is an application for regular bail preferred by the applicants under section 439 of the Code of Criminal Procedure, 1973, in connection with the first information report being IC.R. No.116 of 2011 registered with Navsari Rural Police Station, qua the offences punishable under sections 447, 114, 465, 467, 468, 471, 193 and 196 of the Indian Penal Code.
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2. It is the case of the prosecution that one M/s.Meghdoot Dyeing and Printing Mills Ltd. (hereinafter referred to as 'the said Mill') and its Director availed the loan facility from the State Bank of India (hereinafter referred to as 'the SBI') in the year 1973. In pursuance of the same, the land, which comprised of different Survey Numbers, had been hypothecated with the SBI on July 26, 1973.
2.1 Since the said loan remained unpaid, the SBI filed a suit for recovery of dues of approximately Rs.85 lakh. During the pendency of the suit, one Shiv Land Developers was desirous of purchasing the plant and machinery; and an offer was submitted to the SBI by the coaccused Nandlal Kalabhai Pandav, which was presented before the Debts Recovery Tribunal. Even the consent terms came to be arrived at before the Debts Recovery Tribunal for sale consideration of Rs.85 lakh qua the same. 2.2 The possession of the factory premises along with the plant and machinery of the Mill had Page 2 of 12 HC-NIC Page 4 of 14 Created On Mon Aug 21 02:03:46 IST 2017 4 of 14 R/CR.MA/18157/2017 ORDER been handed over by the SBI to the said Shiv Land Developers. An order to that effect had been passed in suit bearing No.35 of 1985. 2.3 It is also the case of the prosecution that the land admeasuring approximately 23000 sq.mtrs. situated at Kabilpor was given on lease for the period from the year 1972 to the year 2005. It is further the case of the prosecution that this lease hold right is qua the land bearing Survey No.182 part. 2.4 It is the case of the prosecution that under the pretext of consent terms and the order passed by the Debts Recovery Tribunal for the entire parcel of land, which belonged to the Mill, one of the partners viz. Nandlal Kalabhai Pandav, made an application before the concerned authority and got the mutation entry posted in the year 2009 in his name as partner of Shiv Land Developers.
2.5 A civil suit bearing Regular Civil Suit No.38 of 2007 came to be preferred before the Court of the learned Principal Senior Civil Page 3 of 12 HC-NIC Page 5 of 14 Created On Mon Aug 21 02:03:46 IST 2017 5 of 14 R/CR.MA/18157/2017 ORDER Judge, Navsari, for declaration and permanent injunction in respect of the very parcel of the land, inter alia stating therein that the Mill had no right, title or interest in the suit property. It was also sought to register the document in favour of Shiv Land Developers. The application for interim injunction did not favour Shiv Land Developers and, therefore, an Appeal From Order bearing No.159 of 2008 came to be preferred, which ultimately came to be dismissed.
2.6 It is also the case of the prosecution that from the year 2009, both i.e. M/s.Meghdoot Dyeing and Printing Mills Ltd. and M/s.Meghdoot Knitting Mills Ltd., attempted to lodge a complaint against the act of Shiv Land Developers and eventually, it was the Director General of Police, Gujarat State, who directed in the year 2011 to lodge the first information report in question and, therefore, the present application.
3. A fortiori, Shri S.V. Raju, learned Senior Page 4 of 12 HC-NIC Page 6 of 14 Created On Mon Aug 21 02:03:46 IST 2017 6 of 14 R/CR.MA/18157/2017 ORDER Counsel appearing with learned counsel Shri Harshit Tolia and Ms.Samta Godiwala for the applicants, has urged that the applicants are the two of the partners of total nine partners of Shiv Land Developers. He has urged that the criminal trespass which is alleged against them was of the year 1999. The first information report was lodged in the year 2011 and, therefore, this belated first information report itself would entitle them the discretionary relief of regular bail in their favour. 3.1 The Senior Counsel has urged that the present applicants have no role to play in the entire gamut of facts. Though they were initially the partners of Shiv Land Developers, they never took any active interest and it was one of the partners viz. Nandlal Kalabhai Pandav, who had given the applications and he has already been protected by this Court in the quashing petition preferred by him. 3.2 It is further urged that the matter is resting on documentary evidence and the parties Page 5 of 12 HC-NIC Page 7 of 14 Created On Mon Aug 21 02:03:46 IST 2017 7 of 14 R/CR.MA/18157/2017 ORDER are already before the Civil Court and the disputes are essentially civil in nature and, therefore also, this Court may exercise the discretion in their favour.
3.3 It is argued further that none of the Courts has believed the possession of Shiv Land Developers and, therefore, has not granted the protection. Moreover, on August 15, 2009, both the applicants have retired themselves as partners from the said Shiv Land Developers. Those documents are brought on record today to emphasise that the applicants have nothing to do with the land in question.
4. A contrario sensu, Ms.Shruti Pathak, learned Additional Public Prosecutor, objected to grant of the present application and has taken this Court to the chronology of events to point out that the present applicants have attempted to take benefit of the partnership firm and the very partnership firm has fraudulently attempted to take benefit of the order of the Debts Recovery Tribunal and, therefore, this Court may not Page 6 of 12 HC-NIC Page 8 of 14 Created On Mon Aug 21 02:03:46 IST 2017 8 of 14 R/CR.MA/18157/2017 ORDER exercise discretion in favour of the applicants.
5. Shri Hriday Buch, learned counsel appearing for and on behalf of the original complainant, has vehemently resisted this application. According to him, the investigation is going on and no relief at this stage should be granted as there are possibilities of the applicants tampering with the evidence and/or hampering with the prosecution witnesses. He has pointed out as to how in the memorandum of the present application, there is no whisper about the applicants having retired from the said firm and thereby, has prayed for not entertaining the present application.
6. Having thus heard both the sides and having perused the material on record, as also the affidavitinreply filed on behalf of the original complainant, this Court notices that there is a civil dispute going on between the parties. Serious allegations have been levelled against the partnership firm and particularly, against the coaccused Mr.Nandlal Kalabhai Page 7 of 12 HC-NIC Page 9 of 14 Created On Mon Aug 21 02:03:46 IST 2017 9 of 14 R/CR.MA/18157/2017 ORDER Pandav, of getting the entry mutated fraudulently under the pretext of the order of the Debts Recovery Tribunal. This Court while deciding the Appeal From Order also had observed at an interim stage that the possession given by the Debts Recovery Tribunal was in respect of the plant and machinery of the Mill and not the land as averred. This Court further notices that the lease hold right in respect of the land bearing Survey No.182 part were also over in the year 2006.
7. In that view of the matter, considering the fact that the entry which has been posted was essentially at the instance of one of the partners viz. Nandlal Kalabhai Pandav, who appears to be active from the beginning i.e. right from the time this partnership firm had moved the Debts Recovery Tribunal, as also thereafter while getting the entry mutated and the fact that the investigation is still substantially over for continuing qua these persons from the year 2011, the benefit of discretionary relief deserves to be granted in Page 8 of 12 HC-NIC Page 10 of 14 Created On Mon Aug 21 02:03:46 IST 2017 10 of 14 R/CR.MA/18157/2017 ORDER their favour even though prima facie case against the partnership firm is made out, the matter predominantly is based on documentary evidence.
8. For the foregoing reasons, the present application is allowed and the applicants are ordered to be released on regular bail in connection with ICR.No.116 of 2011 registered with the Navsari Rural Police Station, on each of them executing two solvent sureties (i.e. total four solvent sureties) of Rs.25,000/ (Rupees Twenty Five Thousand only) with one surety of the like amount by each of them to the satisfaction of the trial Court and subject to the conditions that them shall :
(i) not take undue advantage of liberty or misuse liberty;
(ii) not tamper with the evidence or hamper the prosecution witnesses and shall not act in a manner injurious to the interest of the prosecution;
(iii) surrender their passport, if any, to the
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trial court within a week from the date of their release;
(iv) not leave the State of Gujarat without prior permission of this Court;
(v) mark their presence before the concerned Police Station between 11:00 a.m. and 02:00 p.m. on every first and third Mondays of the English calendar month for a period of six months;
(vi) not enter Navsari District, except for marking their presence and attending the Court proceedings;
(vii) furnish their present address of residence to (i) the Investigating Officer and also (ii) the trial Court, at the time of execution of the bond and shall not change the residence without prior permission of this Court;
(viii) not transfer, assign or alienate in any manner nor deal with in any mode or manner with the land in question, till completion of the trial;
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(ix) publish in the newspaper qua their
retirement from the said partnership firm for the common public to be made aware of such intention, as intended and argued before this Court;
9. The Investigating Officer is directed intimate the concerned Revenue Authority to ensure that a note is made in the official record not to effect transfer or create any charge in any manner nor mode in respect of the land in question without prior permission of the competent Court till the completion of trial.
10. The authorities will release the applicants only if they are not required in connection with any other offence for the time being.
11. If breach of any of the above conditions is committed, the trial Court concerned will be at liberty to issue warrant or take appropriate action in the matter and even the Investigating Officer will be at liberty to approach this Court in case of breach of any such condition.
12. Bail bond be executed before the trial Court Page 11 of 12 HC-NIC Page 13 of 14 Created On Mon Aug 21 02:03:46 IST 2017 13 of 14 R/CR.MA/18157/2017 ORDER having jurisdiction to try the case.
13. 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 applicants on bail.
Rule is made absolute to the extent aforesaid.
Direct service is permitted, TODAY.
(MS SONIA GOKANI, J.) Aakar Page 12 of 12 HC-NIC Page 14 of 14 Created On Mon Aug 21 02:03:46 IST 2017 14 of 14