By filing this petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, the petitioner - original accused has challenged condition No. 1 imposed by learned Additional Sessions Judge, Ahmedabad, in Criminal Miscellaneous Application No. 4995 of 2011 while granting bail on 6.1.2012.
2. According to the petitioner, State CID Crime, Gandhinagar Zone, registered an offence as I-C.R. No. 5 of 2011 for the offences under Sections 406, 409, 420, 465, 467, 468, 471, 477(A), 120 of Indian Penal Code and Section 46 of Banking Regulation Act against the petitioner and other accused. FIR in respect of the said offences came to be filed by Kartik Rameshchandra Patel, Manager of the Gujarat Industrial Co-operative Bank Limited, Relief Road Branch, Ahmedabad. According to the FIR, the Board of Directors without obtaining required documents and in breach of Regulations granted advances and the petitioner was shown at serial No. 53 out of 78 persons against whom FIR was filed. During the course of investigation, the petitioner was arrested. Therefore, he filed Criminal Miscellaneous Application No. 4995 of 2011 in the Court of learned Additional Sessions Judge, Ahmedabad, to enlarge him on bail under Section 439 of the Code of Criminal Procedure, 1973. At the time of hearing of the bail application, the trial Court without his consent, willingness and without considering the pleadings, imposed condition No. 1 directing him to deposit the principal amount of loan in the Bank within three months and thereafter to pay the amount of interest on such amount within three months while releasing him on bail.
3. Being aggrieved by the said condition imposed in the order releasing him on bail, the petitioner has preferred this Revision Application.
4. I have heard learned advocate Mr. Raval for the petitioner, learned APP Mr. Shah for respondent No. 1 and learned advocate Mr. K.J. Panchal for respondent No. 2 at length and in great detail. I have also considered the affidavit and further affidavit filed by respondent No. 2.
5. Learned advocate Mr. Raval for the petitioner submitted that it is alleged in the complaint that the petitioner obtained loan and did not repay the loan amount and was arrested as FIR was filed against the petitioner and other accused who were either office bearers of the Bank or borrowers of the Bank. He also submitted that while releasing the petitioner on bail the Court imposed condition to deposit the alleged outstanding amount of loan together with interest as one of the conditions to release the petitioner on bail without his consent. He submitted that the trial Court could not have imposed such condition as it would amount to virtually passing a decree of alleged outstanding amount of loan without following proper procedures for recovery of outstanding amount. He also submitted that the petitioner has challenged the condition imposed while releasing him on bail. Therefore, it is not an interlocutory order and hence the Revision Application is maintainable. He further submitted that the alleged loan was advanced to the petitioner in the year 2000 and in the year 2001 the petitioner had served a notice to the Bank disputing the fact of advance of loan and the Bank did not take any action for about 10 years and filed FIR only in the year 2011. He also submitted that the Bank did not file any suit for recovery of the alleged outstanding amount and by incorporating condition to pay the alleged outstanding amount, the Court has granted recovery of the alleged outstanding amount without giving an opportunity to the petitioner. Therefore, the condition imposed while granting the bail on the petitioner is required to be deleted as trial Court has committed error in exercising jurisdiction vested in it and hence the present Revision Application is required to be allowed. He relied on the decision of this Court in the case of MAHERSING VS. P.B. PODDAR reported in 2004(4) GLR 3332, the decision of Hon'ble Supreme Court in the case of SANDEEP JAIN VS. NATIONAL CAPITAL TERRITORY OF DELHI reported in (2000) 2 SCC 66 and decision in the case of AMARJIT SINGH VS. STATE OF NCT OF DELHI reported in JT 2002(1) SC 291.
6. Per contra learned advocate Mr. Panchal for respondent No. 2 submitted that the petitioner has challenged interlocutory order and therefore in view of bar under Section 397(2) of the Code, the Revision Application is not maintainable. In the alternative he submitted that considering the fact that huge public money is involved in the offence and the petitioner has obtained benefit out of the public money, he should be directed to deposit reasonable amount in the Bank so that interest of public is safeguarded. He also submitted that this Court has in identical matters, imposed condition to deposit amount while releasing the accused on bail in case of offence of Bank fraud and therefore this Court should also adopt the same policy. He relied on the decision of Hon'ble Supreme Court in the case of SURESHCHANDRA RAMANLAL VS. STATE OF GUJARAT reported in (2008) 7 SCC
591.
7. It is settled proposition that under Section 397(2) of the Code, the powers of revision conferred by Section 397(1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceedings. It is also settled proposition that order of grant or refusal of bail is interlocutory order and therefore revision against such order is not maintainable. Therefore, the question is whether the present revision petition is against interlocutory order.
8. It appears from the prayer made in the revision petition that the petitioner has challenged one of the conditions imposed while releasing him on bail. Therefore, the order under challenge is not the challenge to the grant of bail. Therefore, it cannot be said that the order imposing condition is an interlocutory order and therefore revision petition is not maintainable.
9. It appears from the impugned order that the petitioner is enlarged on bail on condition that he deposits the outstanding amount and interest thereon with the Bank within a stipulated period. The copy of FIR annexed with the compilation indicates that the first informant has alleged that the petitioner obtained loan of Rs. 8.40 lakh but did not repay the same and the accused and the Board of Directors hatched a criminal conspiracy and loan amount was advanced to the accused by the Board of Directors without obtaining proper security. It appears that in order to secure the amount allegedly advanced to the petitioner, the trial Court imposed condition to deposit the outstanding amount together with interest. Learned advocate Mr. Panchal conceded that no civil suit is filed against the petitioner to recover the alleged outstanding amount. It also appears that the alleged loan was given in the year 2000. Therefore, as the alleged amount was advanced to the petitioner in the year 2000, serious question of limitation would arise for recovery of such amount as no civil proceedings are filed to recover the amount. By imposing the condition to deposit the amount together with interest, learned trial Judge has virtually passed a decree without any proceeding in that regard. Therefore, in my view, learned trial Judge committed error in imposing condition to deposit the amount while releasing the petitioner on bail.
10. In the decision of MAHERSING VS. P.B. PODDAR (supra) this Court ruled that Section 441 does not empower the Court to impose condition for cash security and Court cannot exercise powers for recovery of amount by imposing condition to deposit the amount. In the present case, as observed earlier, the trial Court has imposed condition to deposit the entire alleged outstanding amount together with interest. Therefore, Criminal Court has exercised powers for recovery of the amount. Hence in view of the said decision, the trial Court committed error in imposing such condition.
11. In the decision of SURESHCHANDRA RAMANLAL VS. STATE OF GUJARAT (supra) relied on by learned advocate Mr. Panchal, Hon'ble Supreme Court exercising power under Section 438 of the Code imposed condition of deposit of amount with the Bank in liquidation while releasing the accused on bail. In the said decision the Court considered the fact that the accused was at the relevant time Ex-Vice Chairman of the Bank and had deteriorating health. In the facts of the said case and more particularly considering the health of the accused, the Court enlarged the accused on anticipatory bail by imposing condition to deposit the amount. In the present case, the facts are different and therefore the said decision cannot be made applicable to the facts of the present case.
12. Learned advocate Mr. Panchal also submitted that in similar matters the accused have been released on bail by imposing condition to deposit the amount with the Bank and therefore this Court should not interfere with the condition imposed by the trial Court or in the alternative some amount should be ordered to be deposited. In view of the settled legal proposition the Court cannot ignore the fact that by imposing condition of depositing the amount, the Court would be passing a decree without giving opportunity to the petitioner to put up his defence. Therefore, this submission of learned advocate Mr. Panchal cannot be accepted.
13. It also appears from the contentions raised by the petitioner that he did not show his willingness to deposit any amount with the Bank. On the contrary, by serving notice in the year 2001, he disputed the fact of sanction of loan and receipt of payment of loan amount. In light of this, the trial Court committed error in imposing condition of depositing the amount.
14. In view of above, the Revision Application is required to be allowed as the trial Court committed error in imposing condition No. 1 in Criminal Miscellaneous Application No. 4995 of 2011 while granting bail on 6.1.2012.
15. In the result, the Revision Application is allowed. Condition No. 1 imposed by the trial Court to deposit amount while granting bail on 6.1.2012 in Criminal Miscellaneous Application No. 4995 of 2011 is set aside. Rule made absolute.
(BANKIM N. MEHTA, J) (pkn) Top