Gujarat High Court
Jayantibhai Ranchhodbhai Patel vs State Of Gujarat on 25 January, 2023
Author: Samir J. Dave
Bench: Samir J. Dave
NEUTRAL CITATION
R/CR.MA/1200/2023 ORDER DATED: 25/01/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 1200 of 2023
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JAYANTIBHAI RANCHHODBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR KUNAL S SHAH(5282) for the Applicant(s) No. 1
MR L. B. DABHI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE SAMIR J. DAVE
Date : 25/01/2023
ORAL ORDER
1. The present application is filed by the applicant to get anticipatory bail under section 438 of the Criminal Procedure Code in connection with the FIR registered vide C. R. No.1112110015220088/2022 at DCB Police Station, District Surat for the offences punishable under sections 406, 420, 465, 468, 471, 120-B, 34 and 114 of the IPC.
2. The brief facts of the case are that one partnership firm namely Shriji Corporation was formed in the year 2009 where the applicant is a partner. The Shriji Corporation had Page 1 of 10 Downloaded on : Sun Sep 17 21:11:21 IST 2023 NEUTRAL CITATION R/CR.MA/1200/2023 ORDER DATED: 25/01/2023 undefined constructed one scheme namely 'Devprayag Residency' and thereafter, there is a dispute between the partners and therefore, mutually they have divided the share where the Devprayag Residency is required to be shared by the other partners namely Ashwinbhai Laljibhai Viradiya. In the year 2009, the said partnership firm was run and handled by one Mr. Ashwinbhai Laljibhai Patel (Viradiya). Pursuant to which the applicant including other person had executed power of attorney for the Devprayag Residency A/1 in favour of Ashwinbhai Laljibhai Viradiya on 27.07.2009. Thereafter, upon execution of power of attorney in the year 2009, because there is an inter-say arrangement between the partners where the Devprayag Residency building a/1 and Devprayag Resident Building B/3 was given to accused no.1 and his family members. The applicant has nothing to do with those two blocks. Thereafter, accused no.1 has sold one of the flats being No.A/203 to Mahesh Page 2 of 10 Downloaded on : Sun Sep 17 21:11:21 IST 2023 NEUTRAL CITATION R/CR.MA/1200/2023 ORDER DATED: 25/01/2023 undefined Harshadrai Trivedi, who is accused no.6 in the FIR. Again said flat has been mortgaged by said person. Thereafter, accused nos.1, 2 and 3 and others had created one M/s. Abhed Enterprise where the applicant is not a partner but accused no.1 and other are partners in the said firm. Thus, behind the back of the applicant and using the said power of attorney the accused no.1 had sold the flat and thereafter by mortgaging the property has obtained a loan from the Union Bank by the accused nos.4 and 5 and he has not paid the said loan. It was further brought on the record by the complainant that the said flat was twice sold by the accused no.1. That after filing of the said complaint the original loanee has paid the entire loan of Rs.25,00,000/- in the flat No.A/ 1-203 of Devprayag Residency and the bank has issued NOC and the Union Bank as mentioned in the FIR. With these sorts of allegations, FIR Came to be filed against the present applicant Page 3 of 10 Downloaded on : Sun Sep 17 21:11:21 IST 2023 NEUTRAL CITATION R/CR.MA/1200/2023 ORDER DATED: 25/01/2023 undefined and other accused.
3. Learned advocate appearing for the applicant submits that investigation is over and charge sheet is filed. He submits that FIR is filed at a belated stage after about more than 10 years without any satisfactory explanation of such delay. Alleged loan transaction was happened in the year 2012 whereas FIR has been lodged in the year 2022. The applicant is a partner in M/ s. Shriji Corporation and M/s. Shriji Corporation has never obtained any loan from the Bank. He also submits that the entire crime was committed by the accused no.1 by using power of attorney and obtained loan in M/s. Abhed Enterprise in connection with which the applicant has nothing to do with the said Firm. FIR is in the nature of recovery proceedings and the bank authorities have not initiated any civil proceedings to recover the loan amount from the alleged accused persons which even Page 4 of 10 Downloaded on : Sun Sep 17 21:11:21 IST 2023 NEUTRAL CITATION R/CR.MA/1200/2023 ORDER DATED: 25/01/2023 undefined otherwise would be time barred at this stage. Thus, the bank is using police machinery as a lever to harass present applicant and his family members and FIR is lodged with malicious intention to harm the reputation of the applicant only with a view to create extra pressure upon the applicant to recover the amount which is alleged to have been outstanding. There is no evidence on record to indicate the involvement of the present applicant with the crime in question and the applicant has been implicated in the offence alleged on the basis of suspicion. The applicant has no criminal antecedents also. Hence, considering the nature of offence and role attributed to the applicant, the applicant may be enlarged on regular bail by imposing suitable conditions.
4. On the other hand, learned APP appearing for the respondent-State opposes the grant of bail looking to the nature and gravity of offence Page 5 of 10 Downloaded on : Sun Sep 17 21:11:21 IST 2023 NEUTRAL CITATION R/CR.MA/1200/2023 ORDER DATED: 25/01/2023 undefined alleged against the applicant. He submits that there is all likelihood that presence of the applicant accused may not be secured and he may likely to temper with the evidence if granted bail. He, therefore, prays that no discretion in favour of the applicant is required to be exercised.
5. I have heard learned advocates appearing for both the sides and perused the material documents produced on record.
6. Considering the submissions made by learned advocate for the applicant and learned APP for the respondent State as well as the documents produced on record, there appears no reasonable grounds for believing that the present applicant is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The applicant accused with other accused persons have availed huge amount of loan from the bank by showing more than the Page 6 of 10 Downloaded on : Sun Sep 17 21:11:21 IST 2023 NEUTRAL CITATION R/CR.MA/1200/2023 ORDER DATED: 25/01/2023 undefined real amount of the property for sanction of the loan amount and thereby duped money of bank in connivance of each other. While rejecting bail application of the applicant, the court below, after considering the prima facie evidence produced on record, has rightly observed that the prosecution has proved the case against the applicant. It is also observed in the order of rejection of bail of the court below that relevant documentary evidence is also not produced for the property for which loan was availed as well as no documentary evidence is produced for use of the loan amount after getting it and thereby active role of the applicant accused in the offence alleged is proved.
7. In case of Prahlad Singh Bhati versus N.C.T. Delhi and another reported in 2001 AIR SCW 1263, has observed as under in para 8 of the report :
"8. The jurisdiction to grant bail has to be exercised on Page 7 of 10 Downloaded on : Sun Sep 17 21:11:21 IST 2023 NEUTRAL CITATION R/CR.MA/1200/2023 ORDER DATED: 25/01/2023 undefined the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purpose of granting the bail, the Legislature has used the words 'reasonable grounds for believing" instead of "the evidence" which means the court dealing with grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."
8. Having heard the learned advocate for the parties and perusing the investigating papers and as well as taking into consideration the facts of the case, nature of allegations, Page 8 of 10 Downloaded on : Sun Sep 17 21:11:21 IST 2023 NEUTRAL CITATION R/CR.MA/1200/2023 ORDER DATED: 25/01/2023 undefined gravity of offences, role attributed to the accused and considering the law which has been laid down by the apex court and considering the averments made in the complaint filed by the original complainant and after considering the observations made by the learned sessions judge concerned, this court is of the considered view that custodial interrogation can be one of the grounds to decline anticipatory bail. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail and this is not the case where the discretion should be exercised in favour of the applicant for anticipatory bail. Therefore, this application is required to be rejected.
9. Before parting with this judgment, it is hereby clarified that the aforesaid observations made in this order have been made for the purpose of considering the present application for anticipatory bail. Therefore, same shall not Page 9 of 10 Downloaded on : Sun Sep 17 21:11:21 IST 2023 NEUTRAL CITATION R/CR.MA/1200/2023 ORDER DATED: 25/01/2023 undefined come in the way of the trial court for considering the application that may be filed by the applicant for regular bail or at the time of trial and the trial court concerned shall not be influenced by the observations made hereinabove.
10. In the result, this application is rejected.
Interim relief, if any, stands vacated. Rule Stands discharged.
(SAMIR J. DAVE,J) MEHUL B. TUVAR Page 10 of 10 Downloaded on : Sun Sep 17 21:11:21 IST 2023