1. The applicant original accused has preferred this application for regular bail under Section 439 of the Criminal Procedure Code, 1973 for his release on bail in connection with the offence registered as I-C.R. No. 410/2011 filed before the Ellis Bridge Police Station, Ahmedabad for the offences punishable under Sections 406, 420 and 114 of the I. P. Code.
2. According to the F.I.R. lodged by Imtiyazbhai Abdul Hamid Shaikh before Ellis Bridge Police Station on 18/10/2010 that he came to know that a company, viz., Golden Trio Investment (G. T. Investment), gives interest at the rate of 15% per month on the amount invested in the company and the applicant is the Managing Director and two other persons are Directors of the said Company. Therefore, he met the applicant and the other Directors who induced him to invest in their company and assured that interest at the rate of 15% per month would be paid for the investment. Relying upon the assurance, he invested Rs.10,00,000/- on 12/2/2011 in the Company of the applicant which included Rs. 2,50,000/- each of his relatives viz. Mohmmad Rafik Saiyed, Firozkhan I Pathan and Arif Pathan. The entire amount was invested in his name. The applicant gave share certificate no. 366 along with the cheque of Rs.10,00,000/- drawn in his favour drawn on Axis Bank, Paldi Branch. Thereafter, the applicant and the other accused persons paid Rs. 1,50,000/- towards interest on 10/3/2011 but when he went to take amount of interest on 10/4/2011, he found the office closed. On inquiry he came to know that the office is closed down. Therefore, the cheque given by the accused drawn on Axis Bank was presented in the Bank on 26/8/2011 but the cheque returned unpaid as the account was closed. Therefore, F.I.R. was lodged before Ellis Bridge Police Station, Ahmedabad for the offences punishable under Sections 406, 420 and 114 of the I. P. Code.
3. On the basis of F.I.R., investigation was started. During the course of investigation, the applicant was arrested on 19/10/2011 and since then he is in custody. On completion of investigation charge sheet came to be filed against the accused on 24/12/2011 in the Court of Metropolitan Magistrate, Ahmedabad for the offences under section 406, 420 and 114 of I. P. Code. As the applicant is in Judicial custody, the present application is filed to enlarge the applicant on bail on the grounds mentioned in the application.
4. I have heard learned Senior Counsel Mr. SV Raju appearing with learned advocate Mr. Bhahoria for the applicant, learned APP Mr. Kodekar for the opponent State at length and in great detail. I have also perused the investigation papers.
5. Learned Senior Counsel Mr. Raju submitted that this is Successive Bail application as earlier bail applications filed before filing of the charge sheet were rejected. He further submitted that the investigation is over and looking to the nature of charges and punishment on conviction, the applicant is not required to be detained in custody as it would amount to punishment before conviction. He further submitted that as charge sheet is filed, there is no question of tempering with the evidence and as the applicant is a practicing advocate, he is not likely to flee. He also submitted that the applicant is ready to deposit the amount allegedly collected and undertaking-cum-affidavit of the applicant is also filed in that regard. He further submitted that the applicant has co-operated with the investigation and he is practicing Advocate, therefore, would be available at the time of trial. Therefore, the applicant is required to be released on bail. He relied on the decision in case of Sanjay Chandra v. Central Bureau of Investigation reported in 2012 (1) SCC 40.
6. Learned APP Mr. Kodekar submitted that about 870 persons have been duped by the applicant and other co-accused and the amount of about Rs.9,12,00,000/- have been collected by them. He further submitted that the applicant has committed white collar offence and he would not be available at the time of trial and as he is an advocate he is likely to tamper with the evidence. Therefore, this application is required to be rejected. He further submitted that if the Court is inclined to exercise discretion in favour of the applicant then applicant may be directed to deposit the amount of Rs. 9,12,00,000/-.
7. The applicant has sought bail on the ground that investigation is over and charge sheet is filed and maximum punishment prescribed for the offences alleged against him is three years imprisonment and he is in jail since more than three months and it is not likely that trial would be over within short time.
8. The respondent State has filed affidavit of Shri Piyushbhai Devjibhai Solanki, PSI, Ellis Bridge Police Station, Ahmedabad City, objecting to the grant of bail to the applicant. It is stated in the affidavit that after arrest of the applicant on 19/10/2011 search was carried out at the house of the applicant and documents like Memorandum of Association and Articles of Association of the Company as well as Agreement of Understanding between the accused and other persons were seized. It is also stated that in the copy of Memorandum of Understanding receipt has been accorded by the parties that Rs. 9,12,00,000/- invested in G. T. Investment Pvt. Ltd and G. T. Investment have been paid to the party to the Memorandum by the applicant and co-accused. It is further stated that the documents collected during the investigation could not be produced with the charge sheet on account of inadvertence but last column of charge sheet indicates that Rs.9,12,00,000/- were invested by the investors in the Company. It is also stated that the family members of the applicant are residing in U.K. and there are chances the applicant would flee and the investigation is still on in respect of two other absconding accused. Therefore, the bail application is required to be dismissed.
9. It emerges from record that the applicant had earlier filed regular bail applications during pendency of investigation but all the bail applications came to be rejected. This application is filed after filing of charge sheet. The record indicates that the investigation qua the applicant is over and charge sheet was filed on 24/2/2011. It appears from the investigation papers that in all statements of eighteen witnesses were recorded during course of investigation and out of that fifteen witnesses were the investors in the company. Learned Senior Counsel Mr.Raju states that the amount allegedly invested by those 15 witnesses comes to about Rs. 72,05,000/- and out of that Rs. 6,59,000/- were paid to some of the Investors-witnesses. According to the affidavit filed on behalf of State about 870 persons were duped and the amount of Rs.9,12,00,000/- was invested by the investors in the company. However, the charge sheet does not indicate that 870 persons were duped. The Investigation papers do not indicate that the total amount of investment comes to Rs. 9,12,00,000/-.
10. The affidavit filed on behalf of the State does not clearly state the foundation of apprehension of tampering with the evidence or that applicant will not be available at the time of trial. The statement made in that regard is vague and there is no material to support the apprehension. It emerges from the affidavit that the applicant has co-operated with the investigation and has been in jail since 19/10/2011. It is true that the offence alleged against the applicant is an economic offence but it is settled proposition that seriousness of the charge is one of the relevant consideration while exercising discretion under Section 439 of the Code, but the Court is also required to take into account the punishment that can be imposed after trial and conviction.
The Court cannot lose sight of the fact that investigation is over and charge sheet is already filed. Therefore, presence of the applicant may not be necessary for further investigation. It appears from the charge sheet that number of witnesses will have to be examined at the trial. Therefore, it is not likely that trial would be over within short time. Honourable Supreme Court has in various decisions including the decision relied upon by applicant time and again stated that bail is the rule and committal to jail an exception. The State has not been able to make out any case of exception. Considering the seriousness of the charges alleged and the maximum sentence that could be imposed and considering the fact that the applicant is in jail since more than 4 months, in my view, further detention of the applicant as pretrial prisoner would not serve any purpose. It appears that state has objected bail on the ground that co-accused are absonding but the applicant can not be denied bail on that ground. There is no material to show that the applicant will misuse his liberty. It is also settled position that denial of bail has to be resorted to in most extra ordinary circumstances but there is no material to resort to denial of bail.
11. In the decision in case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012) 1 SCC 40, Honourable Supreme Court has held that balanced approach is required to be adopted in respect of grant of bail. In the said decision the Court observed as under:
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases,`necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23.Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson."
12. In view of law laid down by Honourable Supreme Court in the said decision the applicant is required to be released on bail. However, stringent conditions are required to be imposed to secure his presence at the time of trial. In view of the fact that the applicant has shown his willingness to deposit the amount and has filed affidavit-cum-undertaking in this Court in that regard, one of the condition required to be imposed on the applicant while releasing him on bail is to direct him to deposit amount of investment alleged made by the witnesses whose statements have been recorded during investigation which comes to about Rs. 70,00,000/- before the Trial Court after his release.
13. In view of above, this application is allowed and the applicant Saiyed Ali Gulamnabi Saiyed is ordered to be released on bail in connection with offence registered as I-C.R. No. 410/2011 of Ellis Bridge Police Station, Ahmedabad on his executing a bond of Rs.100,000/- (Rupees one lac only) with two sureties of the like amount to the satisfaction of the lower Court and subject to the conditions that he shall:
[a] deposit the amount of Rs.70,00,000/- (Rupees seventy lac only) before the trial Court on or before 31st July, 2012.
[b] not take undue advantage of his liberty or abuse his liberty;
[c] not act in a manner injurious to the interest of the prosecution;
[d] maintain law and order;
[e] not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the court or to any other authority.
[f] not leave India without prior permission of the Court concerned;
[g] furnish the address of his residence at the time of execution of the bond and shall not change the residence without prior permission of this Court;
[h] surrender his passport to the Lower Court, within a week;
(j) Remain present before the trial Court on the dates fixed for hearing of the case. If he is unable to remain present he shall take permission of the Court and make a request that he may be permitted to be present through his advocate.
14. If breach of any of the above conditions is committed, the Court concerned will be free to issue warrant or to take appropriate action in the matter.
15. Bail before the Lower Court having jurisdiction to try the case.
16. Rule is made absolute.
17. Direct service is permitted.
(BANKIM.N.MEHTA, J.) *ASMA Top