Gujarat High Court
Nimeshbhai vs State on 11 March, 2010
Author: H.B.Antani
Bench: H.B.Antani
Gujarat High Court Case Information System
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CR.MA/1444/2010 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 1444 of 2010
=========================================================
NIMESHBHAI
VIMALBHAI SHAH - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
YN OZA, SR.ADVOCATE WITH MR RAJESH K SAVJANI
for
Applicant(s) : 1,
MR HL JANI, ADDL.PUBLIC PROSECUTOR for
Respondent(s) : 1 MR SUDHANSHU PATEL for complainant
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 11/03/2010
ORAL
ORDER
This is an application under Section 439 of the Code of Criminal Procedure, 1973 [ Code for short] by the applicant who came to be arrested in connection with I-CR No. 447 of 2009 registered with Sector-7 Police Station, Gandhinagar for the offence punishable under sections 420, 465, 467, 468, 471 and 506[2] of Indian Penal Code.
Mr. Yatin Oza, learned Sr. Advocate appearing with Mr. R.K. Savjani for the applicant submitted that the applicant is an innocent person and he has been falsely implicated in the alleged offence. Even on bare perusal of the FIR, no offence is disclosed against the applicant and a false case is foisted on him. It is submitted that documents are prepared and supplied by the Company with whom the applicant had entered into a contract, which were subsequently found to have been fabricated by the representative of the Company. Therefore, the applicant had filed a complaint before the appropriate authority. Under the aforesaid facts and circumstances, it cannot be said that the applicant has committed any offence as the applicant is not connected with the alleged false and fabricated documents. It is submitted that the complaint is filed at Gandhinagar. However, no transaction or any part of the activity in relation to the work having been performed or undertaken has taken place within the territorial jurisdiction of Gandhinagar. Even the complainant has failed to produce any evidence disclosing the activity in Gandhinagar. Memorandum of understanding between the complainant and the applicant was executed in Ahmedabad and, therefore, considering the contents of the FIR at its face value, it does not authorize Gandhinagar police station to register the complaint. It has been contended that the police machinery has been put into motion for recovery of the amount of business transaction carried out by the complainant and the applicant by way of execution of memorandum of understanding at Ahmedabad. Present FIR is filed by the complainant as a counter blast of the applicant's complaint dated 25.9.2009 filed before the Satellite police station and before the Commissioner of Police, Ahmedabad against Pravakar Bikram Shah, Amit Gajjar and Snehal Gajjar for the offence punishable under Sections 420, 406, 506, 467, 468, 471 and 120B of IPC. It is submitted that considering the role attributed to the applicant, nature and gravity of charge levelled against the applicant in the FIR and since the dispute which is involved between the parties is of civil nature, the applicant deserves to be enlarged on bail.
Learned APP Mr. H.L. Jani, representing the opponent State, while opposing the bail application submitted that the applicant is involved in the commission of offence. On perusal of the role attributed to the applicant, which is reflected in the FIR and the manner in which the offence is committed by the applicant under Sections 420, 465, 467, 468, 471 and 506[2] of IPC, no discretionary relief be granted to him. Learned advocate submitted that the applicant, after receiving huge amount of Rs. 39.00 lacs had not done anything except by giving false promises and sending fake job offer letters to various places abroad. Thus, considering the role of the applicant whereby he has duped many customers and extorted huge amount of Rs. 39.00 lacs, no discretionary relief be granted to the applicant and the application may be dismissed.
Mr. Sudhanshu Patel, learned advocate appearing on behalf of the original complainant has filed detailed affidavit in reply opposing the bail application, wherein, it has been mainly contended that the applicant has extorted huge amount to the tune of Rs. 39.00 lacs from various clients of the complainant and has not cared to return the amount by making false promises to the clients of the complainant. It is submitted that even though the applicant is a Chartered Accountant, he is having criminal track record and as he is highly influential person having connection with police department and political persons, no bail be granted to the applicant. Thus, considering the fact that the applicant has siphoned off huge amount of the complainant with criminal and dishonest intention from the very beginning and has also forged valuable documents and as he is having criminal track record and involved in similar type of offences, the application does not call for interference and it may be dismissed.
I have heard Mr. Y.N. Oza, learned Sr. Advocate appearing with Mr. R.K. Savjani for the applicant, Mr. H.L. Jani, learned APP for the opponent State as well as Mr. Sudhanshu Patel appearing for original complainant, at length and in great detail. The applicant is involved in the offence punishable under Sections 420, 465, 467, 468, 471 and 506[2] of IPC. I have perused the police papers as well as compilation of documents produced and annexed with the application by the learned counsel for the applicant. Statement of witnesses and police papers which are referred to and relied upon by the learned APP are carefully perused by me.
The applicant was having proprietary firm providing consultancy services, VISA services and advisory/facilitation services for getting Visa H2B petition and other study/career programmes in the name and style of GENEXXT Total Education Solutions. The aforesaid work and services were provided through Job Tours Agenica De Viagens E Tur. Ltd. Brasil based company and JL Recruitment & Consulting LLC.dbo Uncle Sam Jobs a registered company in the State of Florida with whom the applicant has entered into an agreement. In 2008-09, bunch of applicants in India and Nepal approached the applicant to approach Job Tours of Brazil and Uncle Sam Jobs of Brazil through Mr. William Santos and Mr. Alex partners of Job Tours of Brazil and Mr. Lee and Marcio of Uncle Sam Jobs, who had recruited 72 applicants under H2B petition furnished by the two firms. The company owned by the applicant assisted the persons as their consultants and facilitated payments on their behalf. It is submitted that one Pravakar Bikram Shah entered into a memorandum of understanding with the applicant for extension of applicant's services in Nepal. The agreement came to be executed in that regard at Ahmedabad on 6.8.09. It was agreed between the parties that Pravakar has to pay an amount of Rs. 5.00 lakhs to applicants as franchisee fees. It was also agreed in the memorandum of understanding that license holder had to market and promote the programmes of applicant's company as may be offered by the applicant from time to time and to pay the applicant's company as per the programme terms and thereby expect solutions from the applicant's company under each programm on best effort basis. It was further agreed between the parties that license holder was required to send clients' details only if license holder has agreed to applicant's programme terms and payments. Present complaint is filed by the complainant for the offences punishable under Sections 420, 465, 467, 468, 471 and 506[2] of Indian Penal Code registered with Sector 7 Gandhinagar police station. I have also considered the detailed affidavit in reply filed by the complainant, opposing the bail application, wherein, it has been contended that amount of Rs. 39,33,100/- was given on different dates in installments for sending the client of the complainant to USA under H2B Visa which is meant for temporary work placement in U.S. Amount which was sent to the applicant was duly received by him and receipt of the same was also given to the complainant on different dates vide e-mail and the final endorsement of the receipt of the total amount was also given by the applicant through e-mail address on 29th December, 2008. It is also contended that the applicant had sent job offer letters on 1st December, 2008 of M/s. WB, US based company in the names of 24 clients of the complainant out of 38 clients whose files were sent to him and part payment was made. Those letters are also produced by the complainant along with affidavit in reply. It is contended that subsequently, somewhere in July and August, 2009, from the website of WB, it was found that the address mentioned in the job offer letter sent by the applicant does not match and it was fake and forged one. After receiving huge amount, the applicant had not done anything except to give false promises and sending fake job offer letters and was also not responding properly.
In view of the aforesaid facts and circumstances, it is averred in the affidavit in reply that complainant was constrained to file complaint against the applicant for the offences punishable under Sections 420, 465, 467, 468, 471 and 506[2] of IPC. It is also contended that the applicant is involved in another offence being CR I 629/09 for the offences punishable under Sections 420, 406, 565, 506[1] and 114 of IPC registered with Navrangpura police station as well as in similar type of another complaint which is registered with one police station of Ahmedabad city against the applicant. Thus, considering the criminal antecedents of the applicant, it has been contended that no discretionary relief be granted to the applicant.
I have also considered the averments made in the application as well as detailed affidavit in reply filed by the complainant as well as the nature and gravity of the offence in which the applicant is involved and the manner and modus operandi in which the alleged offence is committed by the applicant.
Huge amount of Rs. 39.00 lacs is at stake in the present case. I have also considered the seriousness of the offence, manner in which the offence is committed and the modus operandi in which it is committed by the applicant as well as the provisions of Sections 420, 465, 467, 468, 471 and 506[2] of IPC, severity of punishment and criminal antecedents.
This court cannot overlook the fact that this is an application for bail, and this Court is not hearing a criminal trial or a criminal appeal. At this stage, this Court is not required to either hear the matter as if the Court is trying the accused or to undertake a detailed examination of the evidence and elaborate documentation of the merits of the case nor is the Court required to record a very detailed reasoned order.
Considering the aforesaid aspect, the applicant, in my view, is not entitled to claim discretionary relief of bail under Section 439 of the Code.
For the foregoing reasons, there is no merit in the application and the same is hereby dismissed. Rule is discharged.
[H.B. ANTANI, J.] pirzada/-
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