Gujarat High Court
Ganpatbhai Dashbhai Mali vs State Of Gujarat on 21 September, 2020
Author: Biren Vaishnav
Bench: Biren Vaishnav
R/CR.MA/10706/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 10706 of 2020
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GANPATBHAI DASHBHAI MALI
Versus
STATE OF GUJARAT
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Appearance:
MR PC KAVINA, SENIOR ADVOCATE WITH MR AMIT N
CHAUDHARY(5599) for the Applicant(s) No. 1
MR DARSHAN D PATEL(11063) for the Applicant(s) No. 1
VAIDEHI K TRIVEDI(6972) for the Applicant(s) No. 1
MR ABHISHEK M MEHTA(3469) for the Respondent(s) No. 1
MS SHRUTI PATHAK, ADDL PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 21/09/2020
ORAL ORDER
1. This is an application filed by the applicant seeking regular bail post charge-sheet under Section 439 of the Code of Criminal Procedure in connection with offence registered as FIR No. 11196030200053 lodged at Sayajiganj police station, Vadodara for offences punishable under section 120B, 406, 420, 465, 467, 471 and 114 IPC.
2. One Vishal - son of Jagdish Liladhar Mehta lodged the FIR against the applicant - accused no. 2 Ganpatbhai Mali , accused no. 1 - Mukesh Chandrakaant Shah and one Chandrasinh Vala. The case of the prosecution is that the complainant and his father deal in the business of real estate. In October 2011, the accused no. 1 - Mukesh Shah came to their office along with a farmer Vajubhai Bhalia saying that the farmer wanted to sell land admeasuring 4-04-69 (hec/Are/square meter). The complainant and his father took the land and it was decided that the Page 1 of 6 Downloaded on : Tue Sep 22 20:59:33 IST 2020 R/CR.MA/10706/2020 ORDER consideration could be Rs.401,11,111/- and a token amount of 5,51,111/- was paid. The complainant further alleged that over a period of time various cheques were issued in the name of the vendor on the instructions of Mukeshbhai. When they insisted for execution of sale deed the accused started avoiding execution of the sale deed. An FIR was filed that it was accused no. 2 - present applicant who impersonated himself as the farmer, procured PAN card and Aadhar card details from Vajubhai Bhalia, the farmer and opened a bank account in SBI, Sevasi branch. In the process of opening the account in the name of the farmer Vajubhai Bhalia, the accused no. 2 - applicant herein used the photograph of accused no. 3 Chandrasinh to pass off as the farmer based on the Aadhar card and the election card details obtained from the farmer. He then induced the purchaser i.e. the complainant's father to issue several cheques totalling to an amount to Rs.2,06,11,111/-. The cheques were deposited in this bank account and then withdrawn by the applicant - accused no. 2.
3. Mr. Percy Kavina, learned Senior Advocate appearing with Mr. Amit Chaudhary, learned advocate for the petitioner would submit that the transaction in question is of the year 2011 and the FIR has been filed 9 years after the incident i.e. in the year 2020. He would further submit that prima facie reading of the FIR would indicate that essentially it is a civil dispute. Mr. Kavina would invite the attention of this court to the averments in the FIR in the context of forging of documents and would submit that this would fall in the realm of civil dispute not attracting provisions of the sections invoked. He would further claim parity inasmuch as according to him the accused no. 3 - Chandrasinh Vala has been released on regular bail by the Additional District Judge Vadodara by an order dated 15.05.2020.
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4. Ms. Shruti Pathak, learned APP appearing for the respondent State drew the attention of the court to the charge-sheet papers as well as the copy of the PAN Card, Driving License, Election Card which had the photograph of accused no. 3 passing off as Vajubhai - the farmer. She would also draw the attention of the court to the account opening form and submit that the applicant nominated himself as the nominee in the account. Attention was also drawn to the statement of the vendor which was recorded indicating that he was into the business of selling land. He bonafide believed the accused and that the accused no. 1 with the accused no. 2 called him at a hotel and agreed to have his land sold to a willing purchaser. He then procured the aadhar card, pan card and the ration card photocopy. On being called to execute a sale deed finding that he needed some money for the wedding of his daughter he found that he had received two cheques of the State Bank of India, Sevasi. When he tried to use these cheques for withdrawing the amounts he found that the balance was Rs.121/- in the account. He eventually found that it was the accused no. 2 who had fraudulently using the documents in his possession opened an account in his name. She would therefore submit that the involvement of the accused no. 2 as a kingpin is undisputed. She would distinguish the case of the accused no. 3 who was released on bail and submit that the role of accused no. 3 was limited inasmuch as the photograph of accused no. 3 was used in place of the vendor farmer.
5. Mr. Abhishek Mehta, learned advocate appearing for the complainant would support the prosecution case.
6. Considering the submissions made by learned advocates for the respective parties, at the outset, a suggestion was made to the learned Page 3 of 6 Downloaded on : Tue Sep 22 20:59:33 IST 2020 R/CR.MA/10706/2020 ORDER advocate for the applicant that the applicant deposit an amount of Rs. 2 crores and secure bail on such condition which offer was refused by learned advocate for the applicant.
7. Perusal of the FIR together with the charge-sheet papers would indicate that the role of the accused no. 3 at best was of his photograph being used in the account opened with the SBI, Sevasi branch in the name of Vajubhai Bhalia. The role of accused no. 3 was clearly much less invasive in the commission of the offence. What prima facie appears from reading the FIR with the documents annexed with the charge-sheet indicate that the accused no. 2 induced the farmer Vajubhai Bhalia and allured him to deliver the land in question for a consideration with a dishonest intention. He procured the documents establishing the identity of the farmer, used such documents to open a bank account in the name of the vendor, procured consideration from the purchaser by way of cheques and deposited them in the account fully knowing that the account that was opened was at his behest through the account opening form by using photographs of the accused no. 3 to pass them off as the identity of the farmer.
8. Perusal of the statement of Vajubhai Bhalia would prima facie indicate that he received calls from accused no. 2 arranging a meeting at a hotel where he promised the farmer of arranging a buyer. He then procured the aadhar card, the pan card and other details such as passport sized photograph and used them for opening an account in the name of Vajubhai Bhalia which the farmer realised when he used the cheque book received from the bank for withdrawing the amount and found a balance of Rs.121/- therein. These circumstances would prima facie indicate the complicity of the accused no. 2 - the applicant herein and the pivotal role Page 4 of 6 Downloaded on : Tue Sep 22 20:59:33 IST 2020 R/CR.MA/10706/2020 ORDER that he has played in alluring an innocent farmer to part with his land. In using the documents for opening a bank account in the name of the farmer, obtaining cheques of consideration and then withdrawing them from the account and the exercise of opening the account by using photograph of accused no. 3 prima facie indicate the ingredients of Section 405 read with Section 420 IPC being apparent.
8.1 It is a settled position of law that while granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character 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/State and other similar considerations. It has also to be also borne in mind that this court has to only satisfy itself 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.
9. Having gone through the entire records of the case, this court is of the opinion that discretion in this case best not be exercised in the case of accused no. 2 and no parity can be claimed by him in context of the role that he has played in comparison to accused no. 3 whose photograph was only attached to the documents with the account opening form. Perusal of the charge sheet papers also indicate that the accused no. 1 is absconding. This is one more reason for which the case of the applicant for releasing him on regular bail ought not to be exercised. The application of the applicant for releasing him on regular bail therefore Page 5 of 6 Downloaded on : Tue Sep 22 20:59:33 IST 2020 R/CR.MA/10706/2020 ORDER stands rejected. It is made clear that observations in this order are made purely for adjudicating present application only and trial court shall not be influenced by any observations made in this order.
(BIREN VAISHNAV, J) Divya / BIMAL Page 6 of 6 Downloaded on : Tue Sep 22 20:59:33 IST 2020