Gujarat High Court
Bhaumik Dilipkumar Gandhi vs State Of Gujarat on 30 April, 2021
Author: A. S. Supehia
Bench: A.S. Supehia
R/CR.MA/4421/2021 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 4421 of 2021
=============================================
BHAUMIK DILIPKUMAR GANDHI
Versus
STATE OF GUJARAT
=============================================
Appearance:
MR ND NANAVATY, SENIOR ADVOCATE WITH MR ANKIT SHAH(6371) for
the Applicant(s) No. 1
MR HRIDAY BUCH(2372) for the Applicant(s) No. 1
MR JK SHAH, APP(2) for the Respondent(s) No. 1
=============================================
CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 30/04/2021
ORAL ORDER
1. Heard the learned advocates for the respective parties through video conferencing.
2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 seeking regular bail in connection with an FIR being C.R.No.I03 of 2019 registered with Valsad and Dang A.C.B. Police Station, Dist. Valsad for the offences punishable under Sections 13(1)(a), 13(2) of the Prevention of Corruption Act, 1988 and under Sections 409, 465, 466, 467, 471, 476(A), 120B, 34 of the Indian Penal Code, 1860.
3. The brief facts of the present case are as under : 3.1 It is alleged that the Officers and Contractors of GSLDC (Gujarat State Land Development Corporation) has without there being any actual work carried out with regard to construction of Khet Talavadi and in connivance of each other with a preplanned Page 1 of 8 Downloaded on : Fri Apr 30 22:17:16 IST 2021 R/CR.MA/4421/2021 ORDER conspiracy had with a common intention in abetment of each other during the year 2019 prepared fake and fabricated documents relating to Farm Pond, First and final Bill as well as Measurement Book by showing fake entries, signatures of the Site Engineer, Supervisor and Account Clerk which were placed on these documents, so as to show that the work against the said bills has been completed and verified by the GSLDC Official posted on the said site. Using those entries and vouchers to be genuine, such official usurped an illegal amount of Rs.6,92,600/ by misusing the office of public servant of GSLDC and misused their power and position with their conspiracy and eventually causing loss to the Government Exchequer and attained unlawful gain without doing the actual work and did not pass the subsidy to poor farmers and thereby committed serious economic offence.
3.2 It is further alleged that the Auditor of Pipara & Co. has also connived in the offence committed by the Office Bearers & Contractors of GSLDC, wherein, it is further alleged that due diligence way not performed by the Auditor, Mr.Bhaumik Dilipkumar Gandhi being an employee of Pipara & Co., doing the Audit work as per standard procedure of GSLDC and breached the rules of Audit and wrongly affixed stamp on the First & Final Bill and Measurement Book. It is further alleged that the present applicant had affixed the stamp of preaudit in various documents owing to which the GSLDC has encashed forged bills Page 2 of 8 Downloaded on : Fri Apr 30 22:17:16 IST 2021 R/CR.MA/4421/2021 ORDER and thereby misappropriated the Government Revenue of Rs.6,92,600/ in connivance of other accused.
4. Mr.Nanavaty, learned Senior Advocate appearing with Mr.Hriday Buch and Mr.Ankit Shah, learned advocates for the applicant submitted that the applicant is innocent and has been wrongly implicated in this serious offence. Mr.Nanavaty has submitted that the Investigating Agency has grossly misconceived and misinterpreted the concept of Pre Audit and Concurrent Audit in the present case. Nowhere the Investigating Agency is able to show that only on account of stamping of preaudit seal on First & Final Bill and Measurement Book, by the Auditor applicant, the same has resulted into passing on the bills by the concerned Department. Rather the bills were in fact verified by the GSLDC officers posted at the site and the officials have placed their signatures together with their designations, indicating their verification of work done at the site. He has submitted that the Auditor's duty was to check if the work done was as per the plan shared by the headoffice (Sanction of work), criteria adopted for measurement.
4.1 Nanavaty, learned Senior Advocate has submitted that the applicant's name did not appear in the FIR when it was registered in the year 2019, which speak volumes on the innocence of the applicant. At the most the applicant is a prima facie witness in the case. He has submitted that there is no connivance of Page 3 of 8 Downloaded on : Fri Apr 30 22:17:16 IST 2021 R/CR.MA/4421/2021 ORDER the applicant with the other coaccused and even there are no statements to such effects. Even there are no prima facie evidence to the effect that the present applicant has received any kickback from the Office Bearers or Contractors or any such persons of GSLDC. The applicant has not received any unlawful and unjust gain and he has not procured any bill or invoice and the stamp affixed were genuine in nature. He has further submitted that the applicant has all the way cooperated in the investigation process as and when called for. In the year 2018, if there was any malice on the part of the applicant, he could have absconded, but that has not been the case and the applicant has all the way cooperated in the investigation.
4.2 Mr.Nanavaty, learned Senior Advocate has also submitted that two of the coaccused namely, Babubhai Keshabhai Prajapati and Laxmanbhai Veljibhai Chaudhary have been released on anticipatory bail by this Court vide order dated 22.02.2019 passed in Criminal Misc. Application No.2428 of 2019 and the other coaccused namely, Pravinbhai Balchandrabhai Premal has also been released on anticipatory bail by this Court vide order dated 15.04.2019 passed in Criminal Misc. Application No.5530 of 2019. Lastly, it is urged by the learned Senior Advocate for the applicant that considering the aforesaid facts, the applicant may be released on bail.
Page 4 of 8 Downloaded on : Fri Apr 30 22:17:16 IST 2021R/CR.MA/4421/2021 ORDER
5. Learned Additional Public Prosecutor appearing on behalf of the respondentState has opposed grant of regular bail considering the nature and gravity of the offence and submitted that the applicant may not be released on bail.
6. Having perused the materials placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant regular bail to the applicant. This Court has considered following aspects;
(i) The role attributed to the accused;
(ii) The investigation is over and the chargesheet is filed;
(iii) The main accused have been released on anticipatory bail by this Court by various orders;
(iv) The applicant was working as an Auditor in the audit firm Pipara & co. and his duty was only to check if the work done was as per the plan shared by the headoffice (Sanction of work), criteria adopted for measurement.
(v) The applicant's name did not appear in the FIR when it was registered in the year 2019. At the most the applicant is a prima facie witness in the case.
(vi) Prima facie it appears that there is no connivance of the applicant with the other co accused and even there are no statements to such effects. Even there are no prima facie evidence to Page 5 of 8 Downloaded on : Fri Apr 30 22:17:16 IST 2021 R/CR.MA/4421/2021 ORDER the effect that the present applicant has received any monetary benefits from the Office Bearers or Contractors or any such persons of GSLDC.
(vii) the applicant in similar offence pertaining to the same incident, but different F.I.R has been granted bail by the coordinate bench of this Court vide order dated 28.04.2021 passed in Crim.M.A No.5557 of 2021.
This Court has also taken into consideration the law laid down by the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 SCC 40.
7. In the result, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an FIR being C.R.No.I03 of 2019 registered with Valsad and Dang A.C.B. Police Station, Dist. Valsad, on executing a personal bond of Rs.10,000/ (Rupees Ten Thousand Only) with one local surety of the like amount to the satisfaction of the learned 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) not leave India without prior permission of the concerned Trial Court and surrender his passport, if any, to the lower court within a week;
Page 6 of 8 Downloaded on : Fri Apr 30 22:17:16 IST 2021R/CR.MA/4421/2021 ORDER
(d) not leave the State of Gujarat without prior permission of the concerned Trial Court;
(e) mark presence before the concerned Police Station on alternate every Monday for initial six months and thereafter, on alternate Monday of every English calendar month, for a period of six months, between 10:00 a.m. and 2:00 p.m.;
(f) furnish latest 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 Trial Court;
8. The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the concerned Trial Court will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the Trial Court having jurisdiction to try the case.
9. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, learned 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. Rule is made absolute accordingly.
Page 7 of 8 Downloaded on : Fri Apr 30 22:17:16 IST 2021R/CR.MA/4421/2021 ORDER
10. Registry is directed to intimate the concerned jail authority and the concerned Sessions Court about the present order by sending a copy of this order through Fax message, email and/or any other suitable electronic mode.
11. Learned advocate for the applicant is also permitted to send a copy of this order to the concerned jail authority and the concerned Sessions Court through Fax message, email and/or any other suitable electronic mode.
Sd/ (A. S. SUPEHIA, J) dolly Page 8 of 8 Downloaded on : Fri Apr 30 22:17:16 IST 2021