Baldevbhai Varvabhai Rabari vs State Of Gujarat

Hasmukh D. Suthar, J

RULE. Learned APP waives service of notice of Rule on behalf of the respondent – State of Gujarat.

[1.0] By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No.11191005230229 of 2023 dated 09.08.2023 registered with Khadiya Police Station, Ahmedabad City for the offences punishable under Sections 406, 420, 465, 467, 468, 471, 474 and 120(B) of the Indian Penal Code, 1860.

[2.0] Learned Senior Advocate Mr. Sudhir Nanavati assisted by learned advocate Mr. Vandan Baxi for the applicant submits that the applicant has nothing to do with the offence and the applicant himself is the victim of the offence and he has been falsely implicated in the offence. The allegation in the FIR is leveled qua alleged loan transaction of the year 2019. The FIR is registered after a delay of 4 years. Further, 8 FIRs are registered with different police stations qua administration of Color Merchant Cooperative Bank Ltd. In connection with many of the offences, the co-accused are either enlarged on regular bail or on anticipatory bail by the coordinate Bench as well as the learned Sessions Court. Whatever allegation leveled in the FIR is qua forgery. The role attributed to the present applicant is that it is an undisputed and admitted fact that the present applicant was rendering his professional services as recovery agent and separate agreement with the Bank in this regard came to be executed and pursuant to the said document, the applicant performed his duties and the applicant has not granted any approval / sanction of land or has not executed any document. Even, the applicant has not received any cheques or blank cheques and he has not put any forged signature. Even, in one of the FIRs filed by the Bank registered with Anandnagar Police Station, present applicant is cited as a witness and hence, now nothing remains to be recovered or discovered from the present applicant and therefore, custodial interrogation at this stage is not necessary. Further, the applicant is not having any past antecedent. Besides, the applicant is available during the course of investigation and will not flee from justice. In view of the above, the applicant may be granted anticipatory bail.

[3.0] Learned Additional Public Prosecutor appearing on behalf of the respondent – State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. He has submitted that present applicant is involved in the offence and he has played active role in connivance and in collusion of the accused persons. Further, the applicant had called the complainant at his office and paid the cash amount which establishes the complicity of the present applicant in the offence. Further, considering the investigation papers, it appears that the applicant has collected huge amount of 5 Crores. Hence, as custodial interrogation of the applicant is required, he has requested to dismiss the present application.

[4.0] Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon’ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided.

[5.0] This Court has given thoughtful consideration to the arguments canvassed on behalf of both the parties.

[5.1] The complaint is filed at the instance of one Manojbhai Nathulal Vaishnav wherein he has alleged that in the year 2019, in the name of “Ved Home Realty”, the complainant approached the officers of Color Merchant Cooperative Bank Ltd. and necessary documents came to be executed. At that time, agents Chintan Shah, Dinesh Desai and Manager Rutul Shah and Kinnar Shah in collusion and by hatching conspiracy cheated the complainant under the guise of getting sanction of loan of Rs.20 lakh. The said amount was not transferred in the account of the present applicant and even signature of the present complainant and his mother being forged and amount was transferred in the account of Ved Home Appliances instead of Ved Home Realty and stamp was counterfeited and forging the signature in the RTGS form being made and amount was transferred in another account by forging the signature of mother of the complainant.

[5.2] Going through the investigation on allegation, the role attributed to the present applicant is that he has played active role of recovery agent. There is no any allegation or material which suggests that the present applicant has forged the signature of the complainant or his mother and that applicant is instrumentality in transferring and/or sanctioning the loan amount. Whatever allegation leveled is that the applicant threatened the complainant and except this, no allegation is leveled against the present applicant. Considering the aforesaid facts and the fact that applicant is not having any criminal antecedent and also the fact that the co-accused who are attributed with graver role than that of the present applicant have been granted either regular bail or anticipatory bail by the coordinate Bench as well as the learned Sessions Court, keeping open the right in favor of prosecution to seek remand of the present applicant as also considering the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. reported in (2011) 1 SCC 6941, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. reported in (1980) 2 SCC 665 and also the decision in the case of Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1, I am inclined to allow the present application.

[6.0] In the result, the present application is allowed by directing that in the event of applicant herein being arrested in connection with the FIR being C.R. No.11191005230229 of 2023 dated 09.08.2023 registered with Khadiya Police Station, Ahmedabad City, the applicant shall be released on bail on furnishing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that he:

(a) shall cooperate with the investigation and make himself available for interrogation whenever required;

(b) shall remain present at the concerned Police Station on 09/11/2023 between 11.00 a.m. and 2.00 p.m. and the IO shall ensure that no unnecessary harassment or inconvenience is caused to the applicant;

(c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;

(d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the Court and if having passport shall deposit the same before the Trial Court within a week; and

(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits;

(h) shall not indulge in any such illegal activity and shall not contact any witness and in case of breach of any of the conditions, the prosecution shall be at liberty to move application for cancelation of bail of the applicant;

[7.0] Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.

[8.0] At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicant on bail.

[9.0] Rule is made absolute to the aforesaid extent. Application is disposed of accordingly. Direct service is permitted.