1. This is an application, preferred under Section 439 of the Code of Criminal Procedure, by the applicant, who came to be arrested on 2.9.2011, in connection with CR No. I - 12 of 2010 registered at CID Crime, Gandhinagar Zone Police Station for the offences punishable under Sections 406, 409, 420, 465, 467, 468, 471, 120(b) and 114 of the Indian Penal Code. The said complaint has been lodged by complainant namely Ravchandbhai Patel on 25.8.2011 .
2. In the said complaint, the applicant No.1 is shown an accused No.1 in the FIR along with other accused. As per FIR, the present applicant along with other accused persons, named in the FIR, in collusion with each other and by forging mortgage deed between the present applicant and the ICICI bank, Reservation Agreement between the present applicant and Gujarat State Warehousing Corporation (GSWC) and by preparing and by using forged receipts of stock kept in Godowns of GSWC by accused No.2 to 6 obtained loan from the ICICI Bank to the tune of Rs.9,13,79,563/- and by not repaying the same duped ICICI Bank. Therefore, the complaint as aforesaid is registered against the present applicant.
3. Learned advocate Mr. Ravani, appearing on behalf of the applicant submitted that the applicant is an innocent person and he has been wrongly arraigned in the commission of the offence. He further submitted that the applicant is a reputed person and is permanent resident of Vadodara. He further submitted that the complaint is lodged after considerable delay and with a view to implicate the applicant in the offence, the complaint is lodged by applying second thought. He further submitted that the applicant is doing business of agricultural commodity trading and he was elected as President of Kapadvanj Nagar Seva Sadan. In the election, the applicant has defeated one Shri H.M. Patel, who was the then President, who is witness No.3 in the present case and therefore, said Shri H.M. Patel and other persons attacked on the applicant on 29.6.2008, so complaint being C.R. No.I 73 of 2008 was lodged before Kapadvanj Police Station against Shri H.M. Patel and others, and in that case, present applicant is an injured eye witness. In the said FIR, after filing of the charge-sheet, the real brother of the first informant namely Nareshbhai Reychandbhai Patel, accused No.7, had attacked on present applciant with the help of wooden log. Thereafter, said Shri H.M. Patel and others have started filing false FIRs against the present applicant and others, who are witnesses in the above charge-sheet just with a view to pressurize and settle political defeat and rivalry. Learned advocate Mr. Ravani further submitted that the brother of complainant has filed another complaint being C.R. No. I 50 of 2009 before Kapadvanj Police Station for the offences punishable under Sections 420, 465, 467, 468, 471, 114 of the Indian Penal Code and in the said case, this Court has granted anticipatory bail to the present applicant vide order dated 24.7.2009 passed in Criminal Misc. Application No.8374 of 2009. He also submitted that the said real brother of first information is facing the trial for the offence punishable under Section 307 of the Indian Penal Code. He further submitted that initiation of the present FIR by the first informant as Share Holder of ICICI Bank is nothing, but, abuse of process of law and just for the purpose of pressurizing the applicant and settling political issues. He further submitted that the ICICI bank had not initiated any criminal proceedings and had only initiated recovery proceedings by way of filing Special Civil Suit No.57 of 2006 before concerned Court and by way of filing Original Application No.28 of 2007 and other proceedings before the Debts Recovery Tribunal. He further submitted that it is not the case of the prosecution that the present applicant is the beneficiary of the alleged transaction. The allegation is of forging the signature of Shri Bhanubhai Patel, which is not found to be correct as said Shri Bhanubhai himself has accepted his signature on the mortgage agreement and therefore, the complainant, who is third party has no concern. He also submitted that the allegation of forgery in the Reservation Agreement will not attract offence punishable under Section 467 of the Indian Penal Code as the Reservation Agreement cannot be termed as valuable security. He also submitted that the dispute is of civil nature, but the complainant has tried to give criminal colour to the said dispute.
4. Learned advocate Mr. Ravani submitted that co-accused have been granted regular bail by this Court while deciding Criminal Misc. Application Nos.17807 of 2011 and 17877 of 2011 vide order dated 3.2.2012 and 29.2.2012. Therefore, considering the parity ground, the applicant may be released on regular bail by imposing suitable conditions.
5. Learned advocate Mr. Ravani has also relied on the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012) 1 Supreme Court Cases 40 and submitted that in that case, the Hon'ble Supreme Court has granted bail to the accused. While referring aforesaid case, he submitted that the accused is booked in scam case and the trial takes considerable long time and therefore, in such circumstances, the bail cannot be denied. Even no serious apprehension raised before the Hon'ble Supreme Court that the accused persons, if released on bail, would interfere with trial or tamper with the evidence. He further submitted that in that case, the Hon'ble Supreme Court observed that "Bail is the rule and jail an exception. Lengthy trial which may prolong beyond maximum sentence awardable under relevant law." He further submitted that if the applicant is released on bail, he will not tamper with the evidence and his presence can be secured during the trial. The applicant will not jump the bail. He, therefore, prayed that in view of the above, the bail may be granted to the applicant by imposing suitable conditions.
6. Learned APP Ms. Hansa Punani for the State submitted that the applicant is involved in the serious offences punishable under Sections 406, 409, 420, 465, 467, 468, 471, 120(b) and 114 of the Indian Penal Code and therefore, discretion may not be exercised in favour of the applicant.
7. Learned senior advocate Mr. N.D. Nanavati appearing on behalf of the original complainant submitted that the applicant is involved in a serious offence and therefore, considering the gravity of the offence, the bail should not be granted. The amount involved in the case, is very huge amount round about Rs.57 Lacs and so, the applicant is not required to be granted bail. He drew the attention of this Court towards the order passed by the learned Sessions Court and submitted that the applicant forged the documents for obtaining the loan from the bank and he has not repaid the loan amount. He further submitted that the applicant has played active role in the commission of the offence and therefore, parity ground may not be considered in this case. He further submitted that the applicant has got the M & C agency from the ICICI bank for giving agricultural loan to the agriculturist and the applicant has reserved the godown in the warehouse. Even the applicant forged the Reservation Agreement and thereby committed fraud. He read the agreement at Page 92. He also read the papers of charge-sheet and submitted that from the account of Umiya Traders, it appears that present applicant has committed forged documents. He drew the attention of this Court to one order passed in Criminal Misc. Application No.15602 of 2011 dated 29.12.2011, wherein the applicant Bharatbhai Mangaldas Kapadia was involved in the offence punishable under Sections 406, 409 and 114 of the Indian Penal Code in connection with the C.R. No.I-78 of 2011 registered with Manjalpur Police Station, Vadodara. In that case, the question of huge amount towards evasion of tax is involved and therefore, the bail was not granted to the applicant of that case. Therefore, the bail should not be granted to the applicant considering the nature of the offence and the manner in which the offence is committed by the applicant.
8. Perused the application along with papers and considered the submissions advanced by the learned advocates. This is a successive bail application filed by the applicant. There are 20 witnesses shown in the charge-sheet by the prosecution and the case is Magistrate triable case and it may take considerable time. Even looking to the facts of the case, it appears that there is previous political rivalry, the brother of the First Informant is accused for the offence u/s. 307 of the Indian Penal Code, wherein the applicant is injured witness as witness No.3 cited in the present FIR. Perusing the record, it appears that the ICICI bank has not filed any criminal proceeding but the present FIR is filed by the complainant who is shareholder of ICICI bank. So far as the signature of Bhanubhai Patel is concerned, there is no dispute about the same. I have also referred the order passed by this Court, wherein co-accused have been released by this Court.
9. I have perused the affidavits-in-reply filed by the original complainant. I have also perused the order passed by this Court in Criminal Misc. Application No.15602 of 2011, relied on by learned senior advocate Mr. Nanavati, wherein the applicants being Chairman and Managing Director of the Company and the applicants were involved in evasion of huge amount of tax worth Rs.70 Crores, which effects the economy of the State Exchequer and this Court has minutely perused the statements of the witnesses recorded by the police. No doubt, I am agree with the submissions of the learned senior advocate Mr. Nanavati to some extent so far as the fact of that case is concerned and the facts related to the scam in both the cases. However, in the present case, ICICI Bank has not filed any Criminal complaint, but the shareholder has filed the complaint against the applicant with a view to pressurize the applicant. The Sessions case is pending in which the present applicant is eye-witness to the incident and he is injured witness. Therefore, it clearly appears that with a view to give some pressure upon the applicant, the shareholder has filed complaint against the present applicant. Learned advocate Mr. Ravani relied upon the case of Sanjay Chandra (Supra) reported in (2012) 1 Supreme Court Cases 40, which has been reported after the said order dated 29.12.2011 passed in Criminal Misc. Application No.15602 of 2011. No doubt the case of Sanjay Chandra was decided on 23.11.2011 and in the said case, the Hon'ble Supreme Court has observed at para 40 as under :
"The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purpose of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance whenever his presence is required. "
10. I have minutely perused the observations made by the Hon'ble Supreme Court in the aforesaid case. Herein this case the present applicant is in jail from 2.9.2011 and therefore, the aspect of custody for long time is required to be considered in this case. Even the co-accused have been released by this Court as well as by the Sessions Court.
11. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Therefore, I am of the view that the applicant is required to be enlarged on bail by imposing some stringent conditions.
12. At this stage of bail, this Court is not discussing the evidence in detail nor going into merit of the case. This is successive bail application.
13. In the facts and circumstances of the case, the application is allowed and the applicant is ordered to be enlarged on bail in connection with CR No. I-12 of 2010 registered at CID Crime, Gandhinagar Zone Police Station, Gandhinagar on his executing a bond of Rs.1,00,000/- [Rupees one lac only] with one surety of the like amount to the satisfaction of the Trial Court and subject to the conditions that he shall:
14. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or to take appropriate action in the matter.
a) not take undue advantage of his liberty or abuse his liberty;
b) not to try to tamper or pressurise the prosecution witnesses or complainant in any manner;
c) maintain law and order and should cooperate the Investigating Officer;
d) not act in a manner injurious to the interest of the prosecution;
e) not leave the State of Gujarat without prior permission of the Sessions Judge concerned;
f) furnish the address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
g) mark presence before the concerned Police Station twice in a month more particularly on 1st and 15th of each English Calender month between 10.00 a.m. and 2.00 p.m. till the trial is over;
h) surrender his passport, if any, to the lower Court within a week.
15. If the breach of any of the above conditions is committed, the concerned Court will be free to issue warrant or take appropriate action in the matter.
16. Bail before the lower Court having jurisdiction to try the case. It would be open to the trial Court concerned to give time to furnish the solvency certificate if prayed for. Rule is made absolute. Direct service is permitted.
17. The observations made by this Court in this order being made for the purpose of deciding this application may not prejudice the parties in trial. Rule is made absolute to the aforesaid extent. Direct Service is permitted.
(Z.K.SAIYED,J.) ynvyas Top