Bhaveshbhai Jyantilal Patel vs State Of Gujarat

Ilesh J. Vora, J

This successive bail application, after filing of the chargesheet, is filed by the applicant, who has been arrested in connection with the FIR being C.R.No.11216005220315 of 2022 registered with Dehgam Police Station, Dist.: Gandhinagar for the offences punishable under Sections 406, 409, 420 and 477A of the Indian Penal Code. The applicant is in judicial custody since 24.06.2022. The Sessions Court, vide its order dated 08.10.2022 declined the prayer of bail made by the accused-applicant. Aggrieved with the order, the accused has preferred instant application.

Brief facts giving to file the present application are that the complainant is the Director of the Company viz. Ambition Mica Private Limited. In the year 2011-2012, the accused joined the company as Accountant and in the year 2015, he was promoted to the post of Chief Finance Officer. It is alleged that the applicant-accused, being a head of Finance Department, committed an act of criminal breach of trust, cheating and by falsification of account, he defrauded the company to the tune of Rs.28,78,05,884/-. It is further alleged that during the verification of stock of the company, there is a huge deficiency of raw material, goods in work in process and finished goods. The stock verification was done by Auditor Nihalani and Company. It is found that the stock was maintained on paper and upon physical verification, there is a deficiency of stock worth Rs.28,78,05,884/-. In such circumstances, it is alleged that the applicant – accused by misusing his position made alteration in the accounts, willfully and with intent to defraud, falsifies record of the company and encash the stock for his personal benefits.

Mr.Hriday Buch, learned counsel for the applicant, would submit that even if all the allegations levelled against the applicant are taken at their face value, no prima facie case is made out against the applicant for the offence as alleged. The entire story disclosed in the FIR is financially motivated and got up by the complainant himself with a view to secure 18% GST gain and to get relief from the bank loan. He would further submit that on 25.09.2021, the complainant came to know about the deficit stock. In this connection, referring to the audited books of accounts prepared by the C.A. Ashok Thakkar and Company, it is argued that on 30.09.2021, the stock was shown worth Rs.31,78,00,80,000/- and the audited papers were uploaded before the BSE with the signature of the complainant. Thus, prima facie it appears that with a view to get Government benefits, the present FIR is being lodged after longtime.

In view of the aforesaid contentions, learned counsel would further submit that the applicant being a Chief Financial Officer was never entrusted work of accounting and was never incharge of storage and/or stock department. It was the duty of the factory incharge to look into maintenance of the stock, storekeeper and other persons, who were performing their job to maintain inward and outward register, gate-passes, security check, quality check, etc. Thus, practically it is not possible for any one person individually to defraud the company as alleged in the company.

Mr.Hriday Buch, learned counsel would further submit that Section 409 has been wrongly invoked by the police as the ingredients of section are not attracted to the facts of the present case.

In such circumstances, it is prayed that when chargesheet is filed and further custody of the applicant is not necessary, keeping him behind the bar would not serve any fruitful purpose and therefore, discretion may kindly be exercised enlarging the applicant on bail.

On the other hand, Mr.C.B. Raval, learned counsel for the original informant and Ms.Krina Calla, learned APP for the respondent – State vehemently opposed the bail application and contended that the applicant was incharge of the company and entire affairs of the company looked after by him including the sales, stock, and accounting. Reiterating the contents of sworn affidavit of the complainant, it is submitted that the applicant is a mastermind of the offence and by falsification of the account, he defrauded the company by disposing the various kind of goods and pocketed huge amount. Thus, there is a reasonable ground to believe that the accused has committed the offence and considering the nature and gravity of accusation, it is not a case to exercise judicial discretion.

Having regard to the peculiar facts and circumstances of the present case and contentions raised by learned counsel for the respective parties, it appears that the applicant was in service with the complainant company. It is alleged that between 2015-2021, the applicant-accused has committed the alleged offence. Considering the turnover and business of the company, company has employed various auditors as contemplated under the Company Act. Upon perusal of the chargesheet case papers except statement of witnesses, nothing incriminating material found from the custody of the applicant. The I.O. has also examined and verified the bank account of the applicant, which facts do not throw any light with respect to monitory benefits alleged to have been received by the applicant-accused. In such circumstances, this Court is of the opinion that entire prosecution case is based on the documentary evidence and the same is part of the chargesheet and further custody of the applicant is not necessary for investigation purpose. Thus, without entering into the merits of the case, when presence of the applicant is easily available at the time of trial, this Court is inclined to release the applicant on bail.

Hence, the bail application is allowed and the applicant is ordered to be released on regular bail in connection with the FIR being C.R.No.11216005220315 of 2022 registered with Dehgam Police Station, Dist.: Gandhinagar, on executing a personal bond of Rs.10,000/- (Rupees Ten thousands only), with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall:

No.

Conditions

a

not take undue advantage of liberty or misuse liberty;

b

not act in a manner injuries to the interest of the prosecution;

c

surrender passport, if any, to the lower court within a week;

d

not leave India without prior permission of the Sessions Judge concerned;

e

furnish latest address of 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 trial Court;

The authorities shall release the applicant if he is not required in connection with the any other offence. If breach of any above condition is committed, the Sessions Judge concerned shall take appropriate action or issue warrant against the applicant. The bail bond to be executed before the learned trial Court having jurisdiction to try the case. It will be open for the sessions judge concerned to delete, modify and/or relax any of the above conditions, in accordance with law. Nothing stated hereinabove, shall tantamount to the expression of any opinion on the merits of this case. Rule is made absolute to the aforesaid extent. Direct Service is permitted.