[1] Heard learned advocates for the respective parties.
[2] This Court on 01.09.2005 passed following order " -
"1. Rule.
Learned A.P.P. Mrs. M.L.Shah waives service of Rule on behalf of the respondent-State.
2. Heard learned counsel appearing for the respective parties.
3. This is the regular bail application filed by the petitioner mainly on the ground that investigation is over, charge sheet is filed and he is in judicial custody since 10-2-2004 and he has also shown his willingness to pay the dues of the complainant-Bank by way of disposing of his property-plot situated near HDFC House, Mithakhali Six Roads, Ahmedabad City, admeasuring 1122 square meters, which is mortgaged with the Bank. According to learned counsel for the petitioner the said property will fetch the price by which the dues of the complainant can be settled. Learned counsel for the petitioner has also submitted copy of the undertaking which may be filed by the petitioner after his release and advance copy of the same is given to the learned counsel for the complainant-Bank also and the complainant-Bank is also ready to deal with the above property and ready to credit the sale proceed in the account of the petitioner.
4. Keeping in mind the fact that investigation is over, charge sheet is filed and petitioner is ready to dispose of the property mentioned above and clear the dues of the bank, just to give him an opportunity and test his bona fide, he is ordered to be released on temporary bail for a period of three months from the date of actual release in connection with Crime Register No. I 452 of 2002 of Naranpura Police Station on his executing a bond of Rs.5,000/- (Rupees Five Thousand Only ) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall ;
(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 address of his residence at the time of execution of the bond and shall not change his residence without prior permission of this Court ;
(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) give full cooperation to the complainant bank in disposing of the his property- plot situated near HDFC House, Mithakhali Six Road, admeasuring 1122 sq. mts., which is mortgaged with the complainant Bank and for that purpose sign all documents either in favour of the complainant Bank or in favour of the concerned party as directed by the complainant-Bank and shall file an undertaking to that effect before the trial Court concerned and before the complainant Bank within a period of two weeks from the date of his release ;
(h) bear the expenses of public auction which may be given for the purpose of selling the above mentioned property ;
5. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.
6. Bail bonds to be executed before the lower Court having jurisdiction to try the case.
7. S.O.
To 1-12-2005."
[3] It is submitted by Mr.Pramthesh Dave, learned advocate for the applicant that there is no breach of conditions of the order dated 01.09.2005 passed by this Court, therefore, applicant is entitled for bail.
[4] It is submitted by Mr.Shah, learned advocate appearing for the respondent - Bank that as per the order passed by this Court, expenses incurred by the Bank was not paid, so there is breach of conditions of the order passed by this Court and, therefore, application may be rejected. It is submitted by the learned advocate for the bank that in the suit which was pending, decree is also passed.
[5] In the order dated 01.09.2005 passed by this Court, it is specifically mentioned that if there is any breach of the conditions, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. There is no substance in the argument of learned advocate for the respondent Bank as the bank has already recovered an amount of Rs.1,00,11,111/- from the property of the applicant which was auctioned.
[6] In view of above, present application is allowed. Order dated 01.09.2005 passed by this Court is hereby confirmed. Rule is made absolute to the aforesaid extent. Direct service is permitted.
[7] Respondent
- Bank is at liberty to file application before the appropriator Court if there is any breach of conditions of the order dated 01.09.2005 passed by this Court. If such application is preferred, in that event, learned Trial Court will decide the same in accordance with law.
[M.D.Shah, J.] satish Top