Bombay High Court
Priti Jagdamkumar Gupta vs The State Of Maharashtra on 6 September, 2018
Author: Prakash D. Naik
Bench: Prakash D. Naik
Sknair 901-ba-1518-18.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 1518 OF 2018
Priti Jagdamkumar Gupta ... Applicant
Vs.
State of Maharashtra ... Respondent
...
Mr. Dharmapal Dave a/w Mr. Akshay Naik & Mr. Hemant Salvi
I/by Naik Patil Salvi & Associates for the applicant.
Mr. R.M. Pethe, APP for the Respondent-State.
...
CORAM : PRAKASH D. NAIK, J.
DATE : 6th SEPTEMBER, 2018.
P.C.
1. Applicant is arrested on 5th March, 2018 in C.R. No. 631 of
2016 registered with Borivali Police Station for the offences
punishable under sections 420, 465, 468 and 471 read with
Section 34 of the Indian Penal Code.
2. The applicant preferred this application for bail before the
Sessions Court which was rejected on 4th June, 2018.
3. The brief allegations are as follows :-
The applicant is the partner of M/s Parekh Apparels. On
behalf of the said firm, the application for loan was preferred with
Ahmedabad Merchantile Co-operative Bank Limited on 8 th
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December, 2014. It is alleged that applicant had produced
document with respect to partnership alongwith her loan
application. She had also filed the other documents in support of
loan as a guarantor KYC document, Income Tax return etc. She
also produced balancesheet and partnership deed of the firm
showing herself and others as a partner. In the deed, it was stated
that share of the co accused Tej Parekh as 45%, Balkrishna Anchan
as 25%, Yasmin Mirza as 20% and applicant herself as 10%.
Projection report was produced before the bank. Thereafter, the
bank verified the documents and sanctioned loan of
Rs.2,40,00,000/- to the firm. Thereafter, the firm applied for loan
for purchasing sewing machine to the tune of Rs.80 Lakhs
alongwith projection report. She also produced proforma invoice
of Rs.1,12,38,570/- of Mehile Machines India Ltd dated 9 th
January, 2015 as well as receipts for advanced payment to said
company. The accused also produced Leave and License
agreement pertaining to the place where the machines would be
installed. The bank officers inspected the premises and after
verification of documents, the proposal for loan was forwarded to
the main branch of the bank at Ahmedabad on 16 th February,
2015. The bank officer inspected the premises mortgage by the
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firm and prepared extension of Mortgage Deed and demand
promissory note and guarantee bond from the guarantor of the
firm. The firm paid monthly interest till August, 2015 and
thereafter stopped payment of installment. Again an application
was preferred for temporary over draft of Rs.40,00,000/- for two
months and the receipt of Rs.1,29,80,000/- dated 6th April, 2015
of other shops was also produced. The documents were forwarded
to the main branch Ahmedabad and loan was sanctioned vide
letter dated 6th May, 2017. The Bank accordingly prepared
demand promissory note and letter of continuing, guarantee bonds
for the period of two months. The repayment was due in July,
2015 but the same was not made. Hence, the bank suspected foul
play. Inquiries were made with the partner-cum-loan applicant for
the firm. Notice was issued to the partners cum guarantor but the
same was not replied. Inquiries were made to Mehile Machines as
well as other supplier and it was found that they have not placed
any such order with accused. Thus, the accused had relied upon
forged and fabricated documents while obtaining loan as stated
herein above. Several persons were arrested and on completing
the investigation, the chargesheet has been filed.
4. The applicant and others had initially preferred an
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application for anticipatory bail which was rejected by this Court
on 19th January, 2018. The co accused had preferred application
for bail before the Court and all the other co accused are presently
on bail. Learned advocate for the applicant submitted that
investigation is completed and chargesheet has been filed. Further
custody of the applicant is not required and all other accused
except applicant are on bail. Reliance is placed of order granting
bail to the co accused. It is further submitted that the bank had
also initiated proceeding under the SARFAESI Act for attachment
of property. The amount was transferred to the account of Parekh
Apparels I.e firm and not personal account of the applicant. The
co-accused who were partners of the firm namely Balkrishna
Anchan, Yasmin Mirza and Yasin Mirza were signatories to the
bank account. The other accused who were attributed over act
namely Tej Parekh and Dilip Parekh were granted regular bail by
the Court. Applicant is having minor daughter. She has been in
custody for a long period of time. She has to look after her minor
child.
5. Learned APP submitted that applicant has played a primary
role in the transaction. The role of furnishing all the documents
making application and transacting with the bank official is
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attributed to the applicant. The other accused who are granted
bail had taken a stand that applicant is a prime accused and is
being assigned the main role in the alleged transactions. It is
submitted that the bank was put to be huge loss by making false
representation on the basis of forged and fabricated documents.
The applicant is not entitled for bail on parity. It is submitted that
the case of the prosecution is that the applicant had produced the
balancesheet, partnership deed, receipts and various other
documents in support of the request for credit facilities which were
found to be false and fabricated. It is further submitted that the
amount is yet to be recovered and the offence is of serious nature.
6. Learned Sessions Judge while rejecting the application for
bail vide order dated 4th June, 2018 has observed that the
applicant alongwith co accused by preparing false and fabricated
documents obtained loan from the bank and did not repay the
loan amount. The accused had relied upon the false documents,
the applicant was conducting the business of the firm. She has
played major role in the crime to cheat the complainant bank. The
possibility of applicant tampering prosecution witness cannot be
ruled out.
7. Having heard both sides and scrutinizing the documents on
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record, it is apparent that applicant has been arrested on 5 th
March, 2018. M/s Parekh Apparels is the firm which has applied
for various credit facilities. Alongwith the applicant there were
other partners in the said firm. The prosecution case is that
applicant was instrumental in transacting the loan proposal and
had furnished several documents. She has produced several
documents which were allegedly found to be false. However, it
can be seen that all the other accused are granted bail and only the
applicant has continued to be in custody from the date of arrest.
Credit facilities were obtained on behalf of the said firm.
8. It is not the prosecution case that the applicant has
misappropriated the amount personally and the amount is being
transferred to her account. It is true that credit facilities to the
tune of crore was availed of and the applicant had played vital role
in the said crime. However the question which arise for
consideration as to how long the applicant can be incarcerated in
the custody, in the light of the fact that all other accused are
released on bail. The co-accused Tej parekh had been granted bail
vide order dated 20th July, 2018 by this Court. While granting bail
to the said accused it was observed that main role is attributed to
the other accused and at the time the loan was sanctioned the said
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accused was aged about 18 years. The other accused namely
Yasmin Mirza and Yasin Mirza who were also partners of the said
firm were granted anticipatory bail by the Sessions Court vide ABA
No. 93 of 2017 by order dated 21 st April, 2017. While granting
anticipatory bail the Court has observed that Ms Yasmin Mirza is a
partner of Parekh Apparels and Yasin Mirza is guarantor and their
liability is of civil in nature i.e repayment of loan of their share in
the partnership business and to the extent of guarantee. It was
also observed that civil suit is pending and criminal liability is
different. It was also observed that first information report does
not disclose that said accused had approached the bank for
transacting the loan proposal. The other accused namely Dilip
Parekh who was arrested was granted bail by the Sessions Court
Dindoshi vide order dated 7th July, 2018. While granting bail to
the said accused it was observed by the Sessions Judge that
investigation has been completed and the chargesheet has been
filed. The applicant is in jail since 5 th March, 2018. Sufficient
period has elapsed after the arrest of the said applicant. There are
no criminal antecedents against him and the Court do not find any
material to keep him in custody. It was observed that co accused
Balkrishna Anchan, Yasmin Mirza and Yasin Mirza were granted
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pre-arrest bail by this Court on 21st April, 2017 while subsequently
co accused Tej Parekh had been granted bail on 26 th April, 2018.
Thus, all partners of M/s Parekh Apparels are on bail, except the
accused Priti Gupta. It was also observed that there is no prima-
facia material in the chargesheet to show the involvement of the
said accused in the commission of the offence. Accused Dilip
Parekh had initially applied anticipatory bail before this Court
which was rejected vide order dated 19 th January, 2018. While
rejecting his application, this Court had observed that Dilip Parekh
though is not a partner of the said firm, as per the record, it
appears that he was the person who was transacting on behalf of
the said firm with the said bank and it appears that he is the
mastermind behind the present crime. It further appears that Dilip
Parekh in concert with applicant and Tej Parekh has maneuvered
all transactions. The trial court had also rejected his application on
the basis of role played by him. Thus, it is apparent that the
prosecution case is that Dilip Parekh is also involved in the alleged
crime. He has been granted bail by the Sessions Court. So also,
Bank Manager, Amish Bharat Mehta was granted Anticipatory Bail
by the Hon'ble Supreme Court.
9. Considering the aforesaid circumstance, the applicant is also
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entitled for bail. She is in custody from 5 th March, 2018. The
investigation is completed and the chargesheet has been filed.
Further detention is not required. In view of above, I pass the
following order.
ORDER
i) Criminal Bail Application No. 1518 of 2018 is allowed;
ii) The applicant is directed to be released on bail in connection with C.R. No. 631 of 2016 registered with Borivali Police Station on furnishing P.R. Bond of Rs.25,000/- (Rs. Twenty Five Thousand only) with one or more sureties in the like amount;
iii) The applicant shall attend Borivali Police Station once in a month on first Saturday between 10 a.m. to 12 noon till further order;
iv) The applicant is permitted to furnish cash security in the sum of Rs.25,000/- for a period of four weeks;
v) The applicant shall not tamper with the evidence and/or influence the prosecution witnesses.
vi) The application stands disposed off. Digitally signed Sachidanand by Sachidanand Kuttan Nair ( PRAKASH D. NAIK, J. ) Kuttan Nair Date:
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