Ajaykumar Sachidanand Mishra vs State of Gujarat

Abhilasha Kumari, J.—Rule. Mr. L.R. Pujari, learned Additional Public Prosecutor, waives service of notice of Rule on behalf of the Respondent. On the facts and in the circumstances of the case, and with the consent of the learned Counsel for the respective parties, the application is being heard and finally decided today.

This application has been filed u/s 439 of the Code of Criminal Procedure for grant of bail in connection with FIR, being C.R.No.I-18 of 2009, registered with Vapi Udyognagar Police Station, Vapi Town, for offences punishable under Sections 406, 420, 465, 466, 467, 468, 471, 474, 484, 485 and 114 of the Indian Penal Code.

Briefly stated, the case of the prosecution is that the applicant and other accused persons (five in number), are involved in the commission of the above-mentioned offences involving hatching and executing a conspiracy, whereby the complainant was induced to part with a huge sum of money, to the tune of about 8,73,40,000/-, in cash, cheques and Demand Drafts, a substantial part of which ultimately came to be deposited in the Bank account of accused No. 1, who transferred it to the account of accused No. 2. The allegation against the applicant is that two Drafts received by Dena Bank,Vapi Branch, where the applicant was working as Manager have been transferred and credited to the Bank account of accused No. 1 at Zampa Bazar Branch, Surat, instead of putting them into the Suspense Account of the Bank. It is further the case of the prosecution that the applicant is involved in hatching a conspiracy with the other accused persons, whereby the complainant was assured that Dena Bank has charge over certain property which is to be auctioned by an order of the High Court of Gujarat. The investigation revealed that the said order of the High Court of Gujarat is a forged and fabricated one, on which even the signatures of the Hon''ble Judge, who is purported to have passed the order, as well as the Assistant Registrar of the High Court, have been forged. According to the prosecution, it is on the basis of the above order that the complainant and two others were assured by the accused persons that they would be given charge of the property after making payment. In this manner the complainant was made to part with an amount of about Rs. 8,73,40,000/- in cash, Demand Drafts and cheques, which came to be deposited in the account of accused No. 1.

Mr. S.V. Raju, learned Senior Advocate for the applicant has made the following submissions:

(a) That the applicant is not even named in the FIR and no role has been attributed to him. There is no allegation that the applicant had received or pocketed any sum of money. The allegations against Bank Officials in the FIR are general in nature and nowhere is the applicant connected with the commission of the above-mentioned offences.

(b) That the Bank has initiated a Departmental Inquiry in which five officers and three staff members have been charge-sheeted, but the applicant is not one of them.

(c) That the allegations against the applicant to the effect that it is at his behest that the money has been credited into the account of accused No. 1 and his involvement in the other offences and forgery of the order of the High Court, are not substantiated by any evidence on record.

(d) That the computer print out and the FSL report regarding the computer print out of the purportedly forged order of the High Court show that it has been modified on 1-4-2009, which is after the arrest of the applicant.

(e) That the applicant has been in custody since 8-3-2009 but other persons, who are involved in crediting the Demand Drafts into the account of accused No. 1 have not been arrested. In any case, most of the money has been returned by accused No. 1 to the complainant.

(f) That the applicant is not likely to abscond or tamper with evidence, which is of a documentary nature, and in the possession of the investigating agency, therefore, no useful purpose would be served by keeping him in jail.

(g) That there is a change in circumstances since filing of the last bail application as the Departmental Inquiry initiated by the Bank does not name the applicant, who has been informed by the Bank that there is no complaint against him.

(h) On the basis of the above submissions, it is urged by the learned Senior Advocate for the applicant that the application be allowed and bail may be granted to the applicant.

The bail application has been strongly opposed by Mr. L.R. Pujari, learned Additional Public Prosecutor, who has made the following submissions:

(a) There is ample evidence on record to show that the applicant is very much a part of the conspiracy hatched by the accused persons to dupe the complainant for parting with huge sums of money, in cash, Demand Drafts and cheques.

(b) There is cogent material indicating that it is at the behest of the applicant that the Demand Drafts were credited to the account of accused No1, instead of going into the Suspense Account of the Bank. The Demand Drafts were received at Vapi Branch of Dena Bank where the applicant was working as Manager, and were transferred to the Account of accused No. 1 at Zampa Branch, Surat at the instance of the applicant, as is revealed by the material on record.

(c) There is also evidence on record to indicate that the applicant is involved in the conspiracy to forge the order of the High Court of Gujarat. Further, the report of the FSL is also against the applicant.

(d) A strong prima facie case is made out against the applicant and in view of the material on record, this is not a fit case wherein the Court may exercise discretion by granting bail.

Having heard learned Counsel for the respective parties and after perusal of the material on record, including papers of the charge-sheet, evidence and report of the F.S.L., the following aspects emerge for consideration, and have been duly considered:

(i) The material on record, prima facie, indicates that the allegations against the applicant to the effect that he is involved in the conspiracy with other accused persons, to dupe the complainant on the pretext that Dena Bank had charge over certain properties which were purportedly to be put to auction, on the basis of a forged and fabricated order of the High Court of Gujarat, appears to be well founded.

(ii) The report of the Forensic Science Laboratory also indicates, prima facie, the involvement of the applicant in the commission of the alleged offences.

(iii)The material on record further leads to the prima facie view that the applicant is involved in crediting of the Bank Drafts in question in the account of accused No. 1 at Dena Bank, Surat, while he was working in the said Bank at Vapi.

(iv) The applicant had made an application for bail before filing of the charge-sheet, being Criminal Misc. Application No. 4118 of 2009, which was permitted to be withdrawn, by order dated 9-4-2009 of this Court. Further, the applicant had once again approached this Court after filing of the charge-sheet by making Criminal Misc. Application No. 7930 of 2009, which was permitted to be withdrawn by order dated 4-9-2009. The applicant then filed Criminal Misc. Application No. 2245 of 2010, which was permitted to be withdrawn by order dated 23-6-2010, with liberty to approach the Sessions Court, on filing of the supplementary charge-sheet. The present application has been filed after rejection of the bail application by the Sessions Court by order dated 30-7-2010. There is no change in circumstances after filing of the supplementary charge-sheet and the ground urged by the learned Counsel for the applicant, to the effect that the applicant is not named in the Departmental Inquiry initiated by the Bank cannot be considered to be a change in circumstances, for grant of bail. Moreover, the standard of proof in a Departmental Inquiry and in a Criminal Trial are different, and the Trial Court is bound to appreciate and evaluate the evidence on record, according to settled principles of criminal law.

(v) The length of incarceration of the applicant would not be relevant in view of the fact that, his prima facie involvement in the commission of the alleged offences appears to be borne out from the record.

Having taken into consideration the above aspects emerging from the material on record, and for reasons stated herein-above, in the considered view of this Court, the present is not a fit case wherein discretion can be exercised in favour of the applicant. The offences alleged against the applicant are grave and serious in nature. It cannot be lost sight of, that an order of the High Court is alleged to have been forged, which forms the basis of the conspiracy allegedly hatched by the applicant and other accused persons.

In view of the totality of the facts and circumstances mentioned herein-above, the application is rejected. Rule is discharged.

It is made clear that the Court has considered the matter only from the perspective of bail and no observations made in this order may be taken to have any bearing on the merits of the case. The Trial Court shall proceed in accordance with law, without being influenced by any observation made in this order.