Gujarat High Court
Janata Commericial Co Op Bank ... vs State Of Gujarat on 13 July, 2023
NEUTRAL CITATION
R/CR.MA/5022/2012 JUDGMENT DATED: 13/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 5022 of 2012
In
R/CRIMINAL MISC.APPLICATION NO. 10550 of 2005
With
R/CRIMINAL MISC.APPLICATION NO. 5035 of 2012
In
CRIMINAL MISC.APPLICATION NO. 10546 of 2005
With
R/CRIMINAL MISC.APPLICATION NO. 5036 of 2012
In
CRIMINAL MISC.APPLICATION NO. 10549 of 2005
With
R/CRIMINAL MISC.APPLICATION NO. 5039 of 2012
In
CRIMINAL MISC.APPLICATION NO. 10540 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JANATA COMMERCIAL CO OP BANK LTD(INLIQUIDATION)
Versus
STATE OF GUJARAT & 1 other(s)
================================================================
Appearance:
MR HEM DAVE FOR MR DIPAK R DAVE(1232) for the Applicant(s) No. 1
MR DAXAY D PATEL(6633) for the Respondent(s) No. 2
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NEUTRAL CITATION
R/CR.MA/5022/2012 JUDGMENT DATED: 13/07/2023
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PRATIKSHA D GUPTA(6344) for the Respondent(s) No. 2
MS MAITHILI D MEHTA, ADDL. PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 13/07/2023
ORAL JUDGMENT
1. Rule. Ms.Maithili D. Mehta, the learned Additional Public Prosecutor waives service of notice of rule for respondent No.1 - Stat of Gujarat. Learned advocate Mr.Daxay Patel, waives service of notice of rule for respondent No.2 - original accused.
2. All these applications are preferred under Section 439(2) of the Code of Criminal Procedure, 1973 by the applicant - Janta Commercial Co-operative Bank Ltd. (In Liquidation) - original complainant for cancellation of bail granted to the respondent No.2 herein - original accused by the Co-ordinate Bench of this Court vide common oral order dated 19.10.2005 passed in Criminal Misc. Applications Nos.10550/2005, 10546/2005, 10549/2005 & 10540/2005 for the offence punishable under Sections 406, 408, 409, 418, 419, 420, 467, 468, 102B, etc. of the Indian Penal Code.
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3. Heard Mr.Hem Dave, the learned counsel appearing on behalf of Mr.Dipak R. Dave, the learned counsel for the applicant
- original complainant, Ms.Maithili D. Mehta, learned Additional Public Prosecutor for the respondent No.1 - State of Gujarat and Mr.Daxay D. Patel, learned advocate for the respondent No.2 - original accused.
4. Mr.Dave, the learned advocate for the applicant has submitted that after granting bail, the respondent accused has committed breach of conditions imposed by this Court, more particularly, condition No.6(h). Learned advocate for the applicant further submitted that the respondent No.2 assured this Court to deposit Rs.25,00,000/- and upon his assurance, this Court had granted bail in his favour and after getting the order of bail, the respondent No.2 did not bother to deposit the amount as directed by this Court vide order dated 19.10.2005. He has, therefore, urged before this Court that the applications may be allowed and the bail granted to the respondent accused may be cancelled.
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5. Mr.Patel, the learned advocate for the respondent - accused is not in a position to defend the accused as allegations made in the present applications with regard to committing breach of conditions imposed by this Court. Learned advocate for the respondent accused has filed an affidavit on behalf of the respondent accused to controvert his submissions.
6. I have perused the FIR and the impugned order passed by the Coordinate Bench of this Court in the application for regular bail. I have considered the submissions canvassed by learned advocates appearing on behalf of both the sides and the averments made in the application. The Coordinate Bench of this Court, while granting bail, imposed certain conditions which are as under :
(a) not take undue advantage of his liberty or misuse his liberty ;
(b) not act in a manner injurious to the interest of the prosecution ;
(c) maintain law and order ;
(d) furnish the present and permanent address of his residence at the time of execution of the bond and shall not change his residence without prior permission of this Court ;Page 4 of 10 Downloaded on : Sat Sep 16 21:16:31 IST 2023
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(e) surrender his passport, if any, to the lower Court within a week ;
(f) not leave the State of Gujarat without the prior permission of the Sessions Judge concerned ;
(g) deposit an amount of Rs.1 lac ( Rupees One Lac ) before the concerned Bank within a period of two weeks from the date of his release ;
(h) friends of the petitioner who have shown their willingness to pay the amount of Rs.25 lacs to the Bank by way of selling three properties namely (i) property situated in BG Tower, First Floor, Asha Shopping Center Owners' Association, known as office No. C 119 (ii) property situated in City Survey No.2725, admeasuring 85.76 square yards, which is a three story building and (iii) property situated in survey No.2741/1/2/3 shall sell the above property within a period of four months from the date of release of the petitioner and they will deposit the amount of sale consideration directly with the Bank and they shall file an affidavit to the above effect within a period of three weeks from the date of release of the petitioner and shall furnish copy of the affidavit to the bank as well as to learned Public Prosecutor ;
(i) if any shortfall will remain to complete the amount of Rs. 25 lacs, the petitioner will pay the same by way of monthly installments which will start after final disposal of the above referred four properties ;
7. It was pointed out by the learned advocate for the applicant before this Court that on 27.07.2012 the respondent accused had tendered undertaking stating that he would deposit the remaining amount of Rs.22 Lakhs by way of monthly installments and therefore, this court disposed of all the applications seeking cancellation of bail vide order dated Page 5 of 10 Downloaded on : Sat Sep 16 21:16:31 IST 2023 NEUTRAL CITATION R/CR.MA/5022/2012 JUDGMENT DATED: 13/07/2023 undefined 27.07.2012. It appears that the said undertaking is not complied with by the respondent accused and he has not deposited the amount as undertaken to be deposited by way of monthly installments and therefore, the applicant has filed the present applications for breach of conditions and non-compliance of the order passed by this Court. It is clear breach of undertaking and clear breach of conditions imposed by this Court while granting bail to the respondent accused. There is a flagrant violation reported against the respondent accused and therefore, he is not entitled to any sympathy or liberty granted by this court by the impugned order.
8. The ratio laid down by the Apex Court in the catena of decisions that if the accused is flouting the conditions imposed upon him while granting bail, then in that case, he is not entitled for any leniency and in that circumstances, the bail is required to be cancelled. The reported decisions of the Hon'ble Apex Court in this regard are summarized as under :
[1] CBI versus Santosh Karnani and Anr., reported in 2023 SCC OnLine SC 427;Page 6 of 10 Downloaded on : Sat Sep 16 21:16:31 IST 2023
NEUTRAL CITATION R/CR.MA/5022/2012 JUDGMENT DATED: 13/07/2023 undefined [2] Deepak Yadav versus State of UP and Anr., reported in [2022] 8 SCC 559;
[3] Kamla Devi versus State of Rajasthan and Anr., reported in [2022] 6 SCC 725;
[4] Manoj Kumar Khokhar versus State of Rajasthan and Anr., reported in [2022] 3 SCC 501; [5] Brijmani Devi versus Pappu Kumar and Anr., reported in [2022] 4 SCC 497;
[6] Supreme Bhiwandi Wada Manor Infrastructure Pvt. Ltd versus State of Maharashtra and Anr., reported in [2021] 8 SCC 753;
[7] Nathu Singh versus State of UP and Ors., reported in [2021] 6 SCC 64;
[8] Jitendra Taneja versus State of UP and ors., reported in [2021] 5 SCC 308; and [9] Union of India versus K.A. Najeeb, reported in [2021] 3 SCC 713.
9. It is worthwhile to refer to the decision of this Court in the case of Jayshreeba Anirruddhsinh Gohil Vs. State of Gujarat reported in 2022 (4) GLR 2787 wherein this Court has held and observed in paragraphs no.8 and 11 as under:-
8. ............. If such an approach is permitted then every accused will get himself released on bail by making false statements and his subsequent conduct from resiling from such statement will be a blessing for him. There will be no sanctity attached to the proceedings of the Court, and the Page 7 of 10 Downloaded on : Sat Sep 16 21:16:31 IST 2023 NEUTRAL CITATION R/CR.MA/5022/2012 JUDGMENT DATED: 13/07/2023 undefined accused will be roaming freely without complying with the directions. Non-fulfillment of the commitment or withdrawal from the statement cannot dilute the directions issued by a Court of law.
11. Under the circumstances and in light of the aforesaid glaring facts, this Court has no other option but to cancel the bail granted to the respondent No.2-Original accused No.1 vide order dated 24.05.2021 in Criminal Misc.
Application No.3410 of 2021 passed by the City Sessions Judge, Ahmedabad. The impugned order dated 08.09.2021 passed in Criminal Misc. Application No.5749 of 2021 is hereby quashed and set aside.
The bail bonds are canceled. The respondent No.2- accused is directed to surrender immediately."
10. It is also worthwhile to refer to the decision of this Court in the case of Merubhai Ramabhai Kodiyatar (Hun) Rabari Vs. State of Gujarat reported in 2021 (2) GLR 1175 wherein this Court has held and observed in paragraph no.11 as under:-
"11. The condition of marking presence before the police station for a certain period, is a condition which a court may impose in the interest of justice. Such conditions are generally imposed to secure the presence of the accused for the trial and to prevent him from fleeing the course of justice and such condition becomes necessary so as to prevent him from tampering with evidence or to prevent him from inducing or intimidating the witnesses so as to dissuade them from disclosing the facts before the police or court; and sometimes to restraint the movement of the accused in a particular area or locality or to maintain law and order. There may be further consideration in the mind of the court while imposing the condition of marking presence before the concerned police station; generally, this condition bears importance till the filing of charge- sheet, as and when the charge-sheet is forwarded to the Magisterial Court empowered to take cognizance of the Page 8 of 10 Downloaded on : Sat Sep 16 21:16:31 IST 2023 NEUTRAL CITATION R/CR.MA/5022/2012 JUDGMENT DATED: 13/07/2023 undefined offence on the police report, the same accused is under the control of the court."
11. Considering the fact that there is a flagrant violation of the undertaking filed by the respondent accused himself, the request made on behalf of the applicant Bank for cancellation of bail granted to the accused is acceded to.
12. For the foregoing reasons and in view of the decisions of the Apex Court as aforesaid, I am of the opinion that the present applications deserve to be allowed and they are hereby allowed. The impugned common order dated 19.10.2005 passed in Criminal Misc. Applications Nos.10550/2005, 10546/2005, 10549/2005 & 10540/2005 are hereby quashed and set aside. The bail stands cancelled. The respondent accused is directed to surrender before the concerned Investigating Officer immediately, failing which, the concerned Investigating Officer is at liberty to approach the concerned Sessions Court for issuance of non-bailable warrant and if warrant is already issued against the accused person then the Investigating Officer shall take appropriate action for execution of the warrant issued by the Trial Court in accordance with law. Rule is made absolute. Page 9 of 10 Downloaded on : Sat Sep 16 21:16:31 IST 2023
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13. Mr.Daxay Patel, the learned advocate for the respondent accused has requested to stay the implementation of this order for a period of two weeks. In view of the fact that since last 12 years the respondent accused has not complied with the order passed by this Court and he is in flagrant violation of the undertaking filed by himself before this Court and therefore, under the circumstances reported hereinabove, the respondent accused is not entitled to any sympathy. Hence, the request made on behalf of the learned advocate for the respondent accused is hereby turned down.
(HEMANT M. PRACHCHHAK,J) Dolly Page 10 of 10 Downloaded on : Sat Sep 16 21:16:31 IST 2023