The applicant has preferred this application under section 439 of the Code of Criminal Procedure, 1973 for regular bail in connection with the offence registered as I – C.R. No.5 of 2011 registered with Gandhinagar Zone Police Station, Gandhinagar for the offence under sections 406, 409, 420, 465, 467, 468, 471, 477-A and 120-B of the IPC and section 46 of the Banking Regulations Act (for short “the Act”). 2. One Kartikbhai Rameshchandra Patel, Manager, Gujarat Industrial Cooperative Bank Limited, Relief Road branch, Ahmedabd filed FIR on 13.7.2011 against 83 accused. It was alleged that the acount holders of the complainant bank as well as Administrators of the Bank in collusion with other persons hatched a criminal conspiracy and sanctioned loan by violating Rules and Regulations of the bank and guidelines issued by the Reserve Bank of India. It was further alleged in the FIR that the acused in order to get the loan sanctioned, created false accounts and made false entries in the account and thereby, created false statement of account. It was also alleged that the accused person in collusion with the account holders created false valuation reports of the properties and got the loan sanctioned on the basis of such documents and caused financial loss to the bank.
3. On the basis of the FIR, offence came to be registered and investigation was started. During the course of investigation, the applicant came to be arrested on 3.3.2012. Since then, the applicant is in jail.
4. The applicant earlier preferred application being Criminal Misc. Application No.4101 of 2012 for regular bail, but the said application came to be withdrawn as the investigating officer submitted charge sheet on 13.4.2012. Therefore, the present application for regular bail has been filed after filing of the charge sheet.
5. I have heard learned senior counsel Mr. Raju for the applicant and learned advocate Mr. KJ Panchal for original complainant with learned APP Mr. NJ Shah for the respondent state. Learned advocate Mr. NV Solanki was also permitted to oppose the bail application as he stated that the Court had earlier by order dated 8.5.2012 in Criminal Misc. Application No.6247 of 2012 permitted him to file VP and assist learned APP.
6. Learned senior counsel Mr. Raju submitted that the present applicant is not named in the FIR and was discharging his duty as General Manager from 1997 till March 2008 and was not responsible for sanction of loans given to the borrowers as if the loans were being sanctioned by the Board of Directors. He also submitted that the applicant is suffering from serious heart ailment and has undergone a serious surgery of replacement of heart valve and he requires regular monitoring by Doctors and specialized follow up treatment in respect of heart surgery is not available in the jail and even in the jail, since 24.5.2012, the applicant is undergoing treatment at Civil Hospital as indoor patient and therefore, looking to the health condition of the applicant, he is required to be enlarged on bail. He further submitted that there are about 83 persons named in the FIR and out of then, only 26 accused have been arrested and the case is based on documentary evidence, which is seized by the investigating agency, hence, there is no question of tempering with the evidence. He also submitted that the charge sheet indicates that about 45 witnesses are required to be examined and there is voluminous documentary evidence collected during the investigation. He therefore, submitted that the trial would take long time and no useful purpose would be served in keeping the applicant in jail. Therefore, looking to the role allegedly played by the applicant in the commission of alleged offence, voluminous documentary evidence and number of witnesses, it is not likely that the trial would over within short time in view of the decision of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012) 1 SCC 40, the applicant is required to be released on bail during trial.
7. Learned APP Mr. Shah submitted that the applicant is not suffering from such a serious ailment and the treatment is available in the civil hospital. He also submitted that there is no evidence to indicate that condition of health of the applicant is such that he requires constant monitoring by the Doctor and the medical report does not indicate that at present, the applicant is suffering from any serious ailment. He also submitted that the applicant was a responsible officer of the complainant bank and did not follow the procedure prescribed for advancement of loan and created false documents and got sanctioned the loans by Board of Directors on his recommendations. He also submitted that the applicant frustrated the recovery process started by the bank and therefore, was responsible for the loss sustained by the bank, on account of which, the Board of Directors was superseded and the administration of the bank was given to the Administrator. He further submitted that the applicant attended several meetings of Board of Directors and was instrumental in passing the resolution of sanction of loan and was also responsible for forgery of documents on which the loans were disbursed. Therefore, looking to the role played by the applicant, present bail application is required to be dismissed.
8. Learned advocate Mr. Panchal for the original complainant adopted the arguments advanced by the learned APP and supported him.
9. Learned advocate Mr. NV Solanki submitted that charge sheet is filed only against some of the accused and investigation qua other accused is still pending. Therefore, if the applicant is released on bail, it is likely that he would temper with the evidence. He further submitted that as regards sickness, the applicant is being treated at Civil Hospital and therefore, report from the Civil Hospital with regard to his ailment could be seen to ascertain whether the applicant is suffering from such a serious ailment, which would require specialized treatment. He further submitted that son of the applicant has share in the property, which was mortgaged to the bank and thereby, the applicant has obtained monetary benefit. He further submitted that this is not a single act of forgery and mal-practice, but it is a series of such acts and the applicant has played vital role in all the offences at different times. He further submitted that the RBI's report also indicates that serious mal- practices were committed by the bank in administration and involvement of the applicant in the administration of the bank is borne out from the evidence collected by the investigating agency. He further submitted that the applicant is the main conspirator and if he is released on bail, other accused would also claim parity for bail and therefore, it is not in the larger public interest to release the applicant on bail.
10. The original complainant bank has filed Affidavit-in-reply contesting the bail application on the ground that the applicant was responsible for grant/sanction of facilities and recovery proceedings and he was given promotion from 29.3.2008 and was made Joint Managing Director/Chief General Manager. It was further stated in the affidavit that after the imposition of control and restrictions by RBI under section 35(A) of the Act and appointment of Administrator of the bank, the applicant was given charge and post of Joint Chief Executive Officer. It was also stated that it was the duty of the applicant to evaluate and inspect the notes of recommendations in respect of the sanction of loan above Rs.3 lacs and present it before the Board of Directors, but in utter disregard to the banking norms, rules and circulars of RBI, the Chairman, Regional Chairman, Managing Director as well as Board of Directors caused loss to the bank. It was also stated that the applicant was in service and was working with the bank and discharging duty as Joint Chief Executive Officer of the bank when he was arrested and in normal routine practice, it is only after the Board of Directors in their meeting allows the facility to be given to the account holder by passing a resolution that the role of the applicant would start, but the applicant gave consent to grant of illegal and temporary facility before the approval by the Board of Directors. Therefore, the bail application is required to be dismissed.
11. It appears from the FIR that the offences were allegedly committed between 1.4.1997 and 20.9.2008 and the FIR came to be lodged on 13.7.2011. It also indicates that the former Chairman, Directors and other responsible officers were named in the FIR, but the applicant was not named in the FIR. The FIR also alleges that the Board of Directors ignoring guidelines issued by the RBI, without obtaining sufficient securities and without verifying the documents disbursed loans on forged documents/ accounts and caused financial loss to the bank.
12. The FIR indicates that the alleged offences were committed between 1.4.1997 and 20.9.2008. It emerges that the applicant was employed in the bank as General Manager in the year 1997 and was promoted as Joint Managing Director from 29.3.2008. In order to connect the applicant with the offence, learned APP relied upon the statement of Bhagwatiprasad Patel, Kartik Rameshchandra Patel, Shantilal Motilal Modi and Gunvantbhai Mangaldas Shah. Statement of Bhagwatiprasad states about the duties to be performed by him. According to the statement, the applicant was attending the meetings of Board of Directors/executive committee as Managing Director. Statement of Kartik Rameshchandra states that 16 accounts were opened in the bank on the basis of letter written by the applicant as General Manager and it was approved by passing a resolution by the Board of Directors and amount recovered from the sale of properties of these accounts were credited in the said accounts. The tabular form in the statement indicates that the Non Banking Assets were taken in the year 2000 to 2003 when the applicant was working as General Manager. Statement of Shantilal Motilal Modi states about the procedure to be followed for sanction of loan. It appears from the statement that the General Manager has to put up the proposal for loan before Board of Directors and other officers were required to put up notes in support of recommendation made by Branch Manager. Statement of Gunvantbhai Mangaldas indicates that the applicant as General Manager gave him instructions on telephone to open new term loan account and debit the loan in the said accounts as Non Banking Assets. It also states that confirmation in that regard was given. Learned APP relied upon letter dated 22/23.1.2004 allegedly written by the applicant as General Manager and addressed to officer on duty. It appears from the letter that the applicant approved the sale of properties.
13. Learned APP also relied upon statement of Rameshbhai Bhagwandas Patel and Chirag Haribhai Vyas.
14. Except these statements, learned APP could not point out any evidence to connect the applicant with the offence. It also emerges from these statements that the applicant relied upon the recommendations made by Branch Manager with notes and forwarded them to the Board of Directors for consideration and the Board after considering the same, sanctioned the loans. Therefore, role of the applicant was very limited. It emerges that the case is based on documentary evidence and the investigating agency has seized the entire documentary evidence. It is significant that the RBI by notification dated 18.9.2008 suspended the Board of Directors and appointed Administrator, as the report made by RBI indicated that serious lapses were found in functioning of the bank, but the applicant was continued to work in the bank and when he was arrested, he was discharging his duty in the bank. Therefore, considering this fact with the fact that the applicant was not named in the FIR and as the entire case is based on documentary evidence, which has been collected by the investigating agency, further detention of the applicant is not required. It was submitted that the other accused are not arrested and therefore, it cannot be said that the investigation is over and therefore, the applicant should be detained. In my view, the FIR is filed against 83 persons and up till now, 26 persons are arrested. In view of the fact that the entire case is based on documentary evidence, the applicant cannot be detailed till all 83 persons named in the FIR are arrested.
15. It was also submitted by learned senior counsel that the applicant has been suffering from serious ailment. Copy of the report annexed at page No.82 of the compilation given by Apollo Hospital indicates that the applicant was suffering from coronary disease. It also indicates that the applicant was found having Calcific aortic stenosis with mild aortic incompetance and coronary artery disease and surgery of valve replacement was performed. The report also indicates that the applicant is required to take certain precautions. Certificate produced at page No.101 of compilation indicates that the applicant is undergoing treatment since 2003 and the applicant underwent aortic valve replacement + coronary artery bypass surgery at Apollo Hospital. It further indicates that the applicant is required to avoid certain diet as it may impair blood thinning efficacy of Tab Acitram. Learned APP disputed the fact that the applicant is required constant monitoring by the doctor and that the illness of the applicant is not so serious. In my view, the medical report and the certificate indicate that the applicant has undergone heart valve replacement surgery and is required to take precautions to avoid infection. Therefore, the ailment is serious in nature. Looking to the nature of surgery performed on the applicant, he would require regular monitoring by expert doctor to avoid complications. Even if treatment is available in jail, it may risk to life of the applicant if his health is not monitored by the doctor, who is regularly treating him. It is stated by learned senior counsel Mr. Raju that the applicant is hospitalized since 24.5.2012 and is still undergoing treatment at the Civil Hospital. This fact is not disputed by the learned APP. In view of this fact, even on the medical ground, the applicant is required to be enlarged on bail, as if he is detained in custody, it may cause risk to his life.
16. In the decision of Sanjay Chandra (supra), Hon'ble Supreme Court has ruled that gravity alone cannot be deceive ground to deny bail and each case has to be decided on its own merits. It also ruled that denial of bail on apprehension of tempering of evidence has to be resorted to in most extraordinary circumstances only and bail is the rule and jail an exception. In the present case, as observed earlier, FIR is filed against 83 persons and out of them, only 26 accused are arrested and charge sheet is filed only against 21 accused. It is also stated that voluminous documentary evidence has been collected and 45 witnesses are shown in the charge sheet. Considering these aspects, in my view, trial is likely to take considerable time. In view of the fact that the case is based on documentary evidence and the the documents are already seized by the investigating agency, it would be difficult to believe that the applicant would temper with the evidence. It is also required to be considered that even after suspension of Board of Directors and appointment of Administrator by RBI, the applicant was continued in the Bank. Therefore, detention of the applicant is not necessary. There is nothing on record to indicate that the applicant would not be available at the time of trial, if released on bail. It may be recorded that the applicant was arrested on 3.3.2012 and since then he is in jail. Therefore considering the nature of allegations made against the applicant, the role allegedly played by him in commission of the offence, the evidence collected against him and nature of sickness, in my view, discretion is required to be exercised in favour of the applicant and he is required to be enlarged on bail.
17. As regards other contentions raised by learned APP Mr. Shah, learned advocate Mr. Panchal and learned advocate Mr. Solanki, it appears that except the statements referred to herein above, there is no evidence pointed out by them to connect the applicant with the alleged offence. Therefore, other contentions are not required to be dealt with in this order and therefore, in light of the statements, it is difficult to come to a conclusion that the applicant was instrumental in forging the documents and getting the loan sanctioned and thereby, caused financial loss to the bank.
18. In the result, the application is allowed and the applicant is ordered to be released on bail in connection with First Information Report registered as I-C.R. No.5/2011 with Gandhinagar Zone Police Station, Gandhinagar, on executing a bond of Rs.50,000/- (Rupees Fifty 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 liberty or misuse liberty;
b) not act in a manner injurious to the interest of the prosecution;
c) surrender his passport, if any, to the trial court within a week;
d) not leave India without prior permission of the Court concerned;
e) furnish the present 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 the Court concerned;
19. The authorities will release the applicant only if not required in connection with any other offence for the time being.
20. If breach of any of the above conditions is committed, the Court concerned will be free to issue warrant or take appropriate action in the matter.
21. Bail bond to be executed before the Court having jurisdiction to try the case.
22. Rule made absolute. Direct Service is permitted.
shekhar* (BANKIM.N.MEHTA, J.)