Chandrakant Gunvantrai Pandya vs State Of Gujarat

,,,,

Dr. Ashok Kumar C. Joshi, J",,,,

This successive bail application is filed by the Applicant â€" Accused viz. Chandrakant Gunvantrai Pandya under Section 439 of the Code of,,,,

Criminal Procedure for enlarging the applicant on Regular Bail in connection with I-C.R. No. 15 of 2019 registered with ACB Police Station,",,,,

Ahmedabad, District : Ahmedabad (City) for the offences punishable under Sections 13(1)(B) and 13(2) of the Prevention of Corruption Act and",,,,

under Section 109 of the IPC.,,,,

Heard learned Advocate Mr. Dipen K. Dave for the Applicant and learned APP Ms. Maithili Mehta for the Respondent State through Video,,,,

Conference.,,,,

The facts in nutshell, as per the main allegations against the applicant in the F.I.R is that on 05.04.2019, Assistant Director, Field -2, ACB, Gujarat",,,,

State, Ahmedabad has filed a complaint stating that the order came to be passed by Assistant Director, ACB, Gujarat State against the applicant-",,,,

accused viz. Chandrakant Gunvantrai Pandya, the then Additional Resident Collector, Surendranagar for making disproportionate assets and the",,,,

complainant herein has made preliminary investigation and filed a complaint. As alleged in the FIR, Mr. Chandrakant Pandya has misused his post and",,,,

committed irregularity and illegality and corrupton for being wealthy and invested those wealth in movable and immovable properties in the name of his,,,,

daughters viz. Radhik Pandya, Bhumika Pandya w/o. Jinalbhai Dave and Kamini Dhirajlal Acharya (Niece) and for making this disproportionate",,,,

assets, Mr. Dharmeshbhai Manibhai Patel, Chandrakant Manibhai Patel and Suketuchandra Ranchhodbhai Patel have helped the accused-",,,,

Chandrakant Pandya by taking cash from the accused and transferred the entry from their bank accounts. Thefore, the complaint was filed. In the",,,,

year 2005 at Rajkot, the case of disproportionate assets was filed against the applicant, but, the complainant has not disclosed the fact that in the said",,,,

case, after investigation, no offence was made out and therefore, final report was filed by ACB and it was accepted by the Ld. Special Court, Rajkot.",,,,

Therefore, the complainant tried to hide the said fact from the Honorable Court.",,,,

3.1 That the applicant has taken divorce due to some personal reasons and they have two daughters viz. Radhika and Bhumika and both are married,,,,

and living at Ahmedabad doing business by their own and are filing the income-tax returns also. It is also contended that the applicant has no concern,,,,

with the properties of assets of his daughters as they are earning. As per allegations in the complaint, Dharmesh Patel and his wife Sonalben have",,,,

given loan to applicant and his daughters as well as niece Kaminiben Acharya, but not clarified that they have given loan to whom and how much and",,,,

they have not given loan to applicant but, have given loan to his daughters and niece. The applicant has no connection with the said loan as his",,,,

daughters who are married and niece who is also married, are doing their own business and earning. Therefore, the applicant cannot be made",,,,

responsible for the said loan in any manner.,,,,

3.2. That their property was also calculated for the purpose of considering and calculating the disproportionate assets. That section 13(1) (e) defines,,,,

the said aspect. Section 13(1)(e) of the Prevention of Corruption Act, 1988 is reproduced as under for the sake of ready reference :",,,,

“[(1) A public servant is said to commit the offence of criminal misconduct,â€"",,,,

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant",,,,

cannot satisfactorily account, of pecuniary resourcesor property disproportionate to his known source of income.",,,,

Explanation. For the purpose of this section, “Known source of income†means income received from any lawful source and such receipt has",,,,

been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.â€​‘",,,,

3.3. That Rule 2(c) of the Gujarat Civil Services (Conduct) Rules, 1971, states that so far as definition of “Members of the Family†is concerned,",,,,

the wife or husband as the case may be, of the Government Servant whether residing with the Government Servant or not but does not include a wife",,,,

or husband as the case may be, separated from the Government Servant by a decree or order of a competent Court, or in accordance with the",,,,

personal law applicable to the Government Servant. Rule 2 (c)(ii) states that son or daughter or step son or step daughter of the Government Servant,,,,

and wholly dependent on him or her but does not include a child or step child who is no longer in any way dependent on the Government servant or of,,,,

whose custody, the Government Servant has been deprived of by or under any law. Rule 2 (c)(iii) states that any other person related, whether by",,,,

blood or marriage, to the Government Servant's wife or husband, and wholly dependent on the Government Servant.",,,,

3.4. That Article 21 of the Constitution of India provides right to life and personal liberty and without any due procedure of law and in complete,,,,

disregard of the provisions of the Prevention of Corruption, Act and Gujarat Civil Service (Conduct) Rules, 1971, the present case was fabricated and",,,,

thus, which took away the basic and fundamental right of the applicant. Therefore, applicant seeks liberty and placed reliance on the judgement of the",,,,

Hon'ble Apex Court rendered in the case of Thakur Bhim singh vs. Thakur Kansingh reported in (1980) 3 SCC 72.,,,,

3.5. That the applicant had already sold Bunglow on 21.03.2014 vide sale deed, therefore the same cannot be considered as the property of the",,,,

applicant as well as at Serial No.26, the Investigating Officer has shown the HDFC mutual fund amount of Rs.25,00,000/- which was also withdrawn",,,,

by the applicant on 17.06.2011, therefore the said investment cannot be counted as the existing ownership of the applicant. The applicant submits that",,,,

in Column No.8 also, the amount of Rs.66,94,325/- for the construction on the plot is mentioned as per valuation report. The amount in Column No.8 is",,,,

mentioned together for the plot and construction both, and therefore, the amount of Rs.40,14,060/- cannot be counted in Column No.7 separately again",,,,

of the plot. The Investigating Officer without applying his mind has made investigation just to prove the offence instead of carrying out neutral,,,,

investigation and has filed a charge-sheet without following process of law.,,,,

3.6. That the Investigating Officer has counted the amount of 30% as also which is unbelievable and irresponsible. The applicant's total income during,,,,

the check period is Rs.82,02,321/-and 30% of the said amount is Rs.24,6,697/-, which is his household expense and therefore, applicant may be",,,,

granted regular bail in the interest of justice.,,,,

Learned advocate for the applicant has placed reliance on judgment of the Hon'ble Apex Court in the case of DSP Chainnal vs. Inbasagaran,,,,

reported in AIR 2006 SC 552, wherein it is held that without any appropriate evidence, no any expenses can be counted in the name of the joint",,,,

account holder and therefore, the applicant may be granted regular bail in the interest of justice.",,,,

4.1 Learned advocate for the applicant has submitted that the present applicant is senior citizen who is suffering from memory loss of temporary,,,,

period and he is diabetic and generalizes was also diagnosed by the Medical Doctor in the month of August, 2020. The Medical Test reports of MRI",,,,

of Brain, blood test, profiling for diabetic along with other medical test results are also attached which are also being aided by the Certificate issued by",,,,

the medical doctor with regard to the condition of the applicant as the rest is needed. He has submitted that charge-sheet is already filed and the,,,,

Investigation is almost over.,,,,

Sr. No,Particulars,Amount,`Sold/date,"Amt consider by IO

in income (annexur

e-C)

1,Ruchi Bunglow,"27,61,899",21.3.14(6),"54,00,000

2,Menka Society,"1,18,825",7,"31,00,000

3,Construction Menka,"18,87,125",--,---

7,C K House land,"40,14,060",---,Valuation

26,HDFC Pandya,"25,00,000",24,"44,56,755

27,HDFC PANDYA,"32,00,000",24,(19 SOLD

28,HDFC/KAMINI,"51,00,000",25,"57,17,462

30,Parsuram society/R,"35,00,000",18,"35,00,000

31,HDFC RADHIKA,"86,50,000",21,"75,78,934

34,PNB/BHUMIKA,"25,00,000",19,"25,00,000

38,SCR REALITY/KAMINI,"86,50,000",20,"85,00,000

,TOTAL,"4,10,00,000",,

household has been shown as Rs. 58,73,296/-. but the applicant's total income during check period is Rs. 82,02,321/- and 30% of the said amount is",,,,

Rs.24,6,697/-. The applicant is living alone and therefore, the household expenses of one person and four persons are totally different than what the",,,,

Investigating officer has mentioned. Difference is Rs. 34,12,599/-.",,,,

4.6. It is further contended that the check period for the applicant is counted from 01.04.2008 to 19.02.2019. Investigating Officer has counted assets,,,,

as on 01.04.2008 Rs.33,96,289/-. The applicant submits that previously also an offence of disproportionate assets was registered against the applicant",,,,

in ACB Police Station, Rajkot. At that time, after investigation by the then Asst. Director, ACB, the income of the petitioner for the period from",,,,

13.06.1996 to 25.08.2004, was Rs. 68,22,571/- against the disproportionate assets of Rs.70,33,485/-. Therefore, after investigation, as on 25.8.2004, the",,,,

assets of the petitioner is Rs.70,33,485/- as per investigating officer, then after 4 years, as per the salary of the petitioner and other income source, the",,,,

income of the petitioner as on 1.4.2008, should be Rs.70,33,485/- or more than that, but the investigating officer has counted the assets before the",,,,

check period as Rs.33,96,289/-.",,,,

Difference 36,37,196.",,,,

Table Difference Amt. After A/C Correction ACB Counted,,,,

A 36,37,196 70,33,485 33,96,289",,,,

B 4,10,00,000 8,14,80925 11,84,80,925",,,,

C 66.67.135 8,30,63217 7,63,96,082",,,,

D 34,12,599 2,53,07,060 2,87,19,659",,,,

TOTAL 5,10,00,000 1,26,91,283 6,74,08,213",,,,

% 15 % 88%,,,,

4.7 It is further contended that in Column No.6 also the house tax amount is shown as Rs.57,422/-, which in fact, is Rs.15,258/-. The applicant submits",,,,

that, the investigating officer has mentioned at Sr. No. 10,11,13,14 & 21 about the financial help taken by the applicant from different persons and",,,,

returned by him by the way of cash, which in fact, the applicant has not returned the said financial help taken by the applicant from different persons.",,,,

4.8. That in Sr. No.19, the amount is paid for furniture, by one Dharmesh Patel, which is shown as purchase of hardware by bill, but not any amount",,,,

paid by the applicant after going to reside in the house in 2018. The applicant submits that in Column No.28 the locker rent is shown Rs.15298/-, but",,,,

the said locker is in the name of Kaminiben (niece) of the applicant and she is operating the same and the applicant has never used the same. Further,",,,,

in Column No.29, it has been mentioned that the amount of Rs.95,000/- has been withdrawn using ATM and the account is mentioned in the name of",,,,

applicant and Kaminiben (niece), but the said account is of Kaminiben and applicant has no concern. Further, in Column No.30 it is mentioned that",,,,

Rs.3,24,451/- has been withdrawn using ATM and the said account is shown of applicant and Radhikaben (daughter of the applicant), but the said",,,,

account is operated by Radhikaben and the applicant’s name is only as joint holder and he has never operated the same. Hence the investigating,,,,

officer has without proper investigation, mentioned the said expenses in the name of applicant. The applicant submits that the Honorable Supreme",,,,

Court in the case of DSP Chainnai versus Inbasagaran reported in AIR 2006 SC 552, wherein it is held that without any appropriate evidence, no any",,,,

expenses can be counted in the name of joint account holder.,,,,

4.9 That during the period of demonetization, the applicant has only deposited Rs.44,000/-mentioned the said amount in income-tax return also. But, the",,,,

investigating officer, has mentioned the amount which was deposited by third person, which is totally illegal. However, the investigating officer has",,,,

mentioned all the amount in the name of applicant, which was deposited duing 2016 to 2019, without any proof.",,,,

4.10 That the assets mentioned in Annexure-B at Column Nos.5, 19, 20, 30, 31, 32, 33 & 36 are of his daughter Radhika and not of the applicant and",,,,

he has no connection with it whatsoever. Further, the assets shown at Annexure-C in Column No.4, 13,17, 18, 21, 22, 27, 28, 29 are made from his",,,,

daughter’s earning and also from her personal income and which has been shown in her income tax return also. Further, the expenses occurred,",,,,

which are shown in Annexure-D in Column No.17, 18, 26, 30, 35, 36, 39, 40 are also from her personal income and which has also been shown in the",,,,

income tax return. Therefore, the daughter of the applicant viz. Radhika has made the assets from her personal income and she is filing income-tax",,,,

returns also regularly.,,,,

4.11 That the assets mentioned in Annexure-B at Column No.2,3,4,9,11,21, 23, 24 & 34 6 are of his daughter Bhumika and not of the applicant and he",,,,

has no connection with it whatsoever. Further, the assets shown at Annexure-C in Column No.5,7 & 19 are made from his daughter’s earning and",,,,

also from her personal income and which has been shown in her income tax return also. Further, expenses occurred, which is shown in Annexure-D",,,,

in Column No.24 & 25 are also from her personal income and which has also been shown in the income tax return. Therefore, the daughter of the",,,,

applicant viz. Bhumika has made the assets from her personal income and she is filing income-tax returns also regularly.,,,,

4.12 That the investigating officer has counted the daughter’s assets in the name of applicant and shown as disproportionate assets and done,,,,

grave injustice to the applicant. The Honorable Supreme Court has held in the case of Krishnan K. Agnihotri v. State of Madhya Pradesh reported in,,,,

AIR 1977 SC 796, that burden of proof is on the shoulder of complainant and for that the complainant should produce strong evidence regarding that",,,,

but the investigating officer has not produced any evidence in the charge-sheet.,,,,

Per contra, learned APP Ms. Maithili Mehta has filed an affidavit, but subsequently, she has stated before this Court that earlier, affidavit may not",,,,

be taken into consideration, but the new affidavit has been filed on 01.01.2021.",,,,

5.1 Learned APP has vehemently opposed the bail application and placed reliance upon the newly filed affidavit and submitted that the,,,,

disproportionate income to his known source of income is approximately 88.25%.,,,,

5.2 Learned APP has argued that the applicant-accused Shri Chandrakant Gunvantrai Pandya, the then Resident Additional Collector, Surendranagar,",,,,

has, during the check period of date 01.04.2008 to 19.02.2019, misused the power of public servant as Additional Collector intentionally in order to",,,,

become rich illegally, committed corruption and earned more income to the tune of Rs. 6,74,08,213/- (Rupees Six Crores Seventy Four Lacs Eight",,,,

Thousand Two Hundred Thirteen only) i.e. 88.24% (as per A.B.C.D. Registers) than his known sources of income and utilized that money for making,,,,

disproportionate investments in movable and non-movable properties in the names of his daughters (2) Radhika Pandya (private person) (3) Bhoomika,,,,

Pandya W/o Zinal Dave (private person) (4) Kamini Dhirajlal Acharya (Religious niece â€" private person). In order to acquire these properties.,,,,

Sr. No,Check period,Date 01.04.08 to date 19.02.2019,,

1,Assets before the check period (A),"Rs. 33,96,289 (Rupees Thirty Three

Lacks Ninety Six Thousand Two

Hundred Eighty Nine â€" As per

Register-A)",,

2,Assets at the end of the check period (B),"Rs.11,84,80,925/- (Eleven Crores

Eighty Four Lacs Eighty Thousand

Nine Hundred Twenty Five only â€

As per Register-B)",,

3,Income/receipt during the check period (C),"Rs.7,63,96,082/- (Rupees Seven

Crores Sixty Three Lacs Ninety Six

Thousand Eighty Two only â€" As per

Register -C)",,

4,Expenditure during the check period (D),"Rs.2,87,19,659/- (Rupees Two

Crores Eighty Seven Lacs Nineteen

Thousand Six Hundred Fifty Nine only

â€" As per Register -D)",,

5,"Unexplained assets may be calculated as follows

• Total assets ie. (B+D) Minus total income i.e. (A+C)=D.A","Calculation

(B+D)-(A+C)

(11,84,80,925+2,87,19,659) â€

(33,96,289 +

7,63,96,082)=Rs.6,74,08213/",,

6,Percentage,"Rs.6,74,08,213/- (Rupees Six Crores

Seventy Four Lacs Eight Thousand

Two Hundred Thirteen only)",,

7,"Vii Net D.A

• In terms of Amount","• Rs.6,74,08,213/- (Rupees Six

Crores Seventy Four Lacs Eight

Thousand Two Hundred Thirteen only)",,

8,• In terms of Percentage,• (88.24%),,

corrupt practices as public servant and earned money, which was utilized for investments in movable and non movable properties in the name of his",,,,

daughters (2) Radhika Pandya, private person (3) Bhoomika Pandya W/o Zinal Dave, private person (4) Kamini Dhirajlal Acharya (Religious niece),",,,,

private person. In order to acquire these properties, (5) Dharmesh Manibhai Patel, private person (6) Chandrakant Ranchhodbhai Patel (NR1), private",,,,

person (7) Suketuchandra Ranchhodbha Patel (N.R.I.), private person in consideration of cash money earned by doing corrupt practices by the",,,,

Accused Chandrakant Pandya, gave entries in their Banks accounts, and, having done so, the Accused No.2 to 7 have committed to criminal",,,,

accomplishment in the corrupt practices of the Accused Chandrakant Pandya.,,,,

5.6. It is also contended that on 21/06/12, an amount of Rs.24,00,000/- was transferred from the Account No. 14790100015393 of Bank of Baroda of",,,,

Accused Dharmesh Patel into the Account No. 376600010010327 of S.B.I. of Bhoomika, daughter of Accused Chandrakant Pandya. From this",,,,

money, an F.D. of Rs. 25,00,000/- was made from the Account of Bhoomika. As there is Over-draft facility, Rs.25,00,000/- was spent in C.K. House.",,,,

On 21/06/12, two different cheques of Rs.8/- lacs each, totaling to Rs.16,00,000/- were issued from the Bank of Baroda Account of Sonal Patel, wife",,,,

of Accused Dharmesh Patel and deposited into the S.B.I. Bank Account No. 20078478568 of Bhoomika Pandya, daughter of Accused Chandrakant",,,,

Pandya, out of which, an investment in Flat No. C-101, Divyapunj Shalom, Chandkheda, Ahmedabad, was made in the name of Bhoomika Pandya in",,,,

the year 2013.,,,,

Graph - 1 Showing Association of Transaction of Dependents of Applicant/Accused Chandrakant Pandya with Co-Accused of this,,,,

Crime:,,,,

Graph-2 showing Association of the Daughter of Applicant-Accused with Accused Dharmesh Patel,,,,

(b) Investigation into the Anonymous Properties:,,,,

5 7. It is further contended that during the primary investigation in this case, Shri Dharmesh Patel, Sonal Patel and Dipak Dhirajlal Pandya own two-",,,,

wheeler and four-wheeler vehicles. In this, a Fortuner Toyota car No. .GJ 6MD 0012 was purchased by cheque in December 2012 in the name of",,,,

Accused Dharmeshbhai Patel and a Honda company car WRV No.GJ 6LK 0012 was purchased by cheque in the year 2017 in the name of his wife,,,,

Sonal Patel, for which, no loan has been taken. Thus, the Accused Dharmesh Patel, although he was not capable from income point of view, has",,,,

purchased such luxury vehicles in his name and in the name of his wife. It has been found during the investigation that the use of these vehicles was,,,,

made by the present Applicant/Accused Chandrakant Pandya and his daughters and Co-Accused in this crime (1) Radhika Pandya (2) Bhoomika,,,,

Pandya w/o Zinal Dave (3) Kamini Dhirajla charya (Religious niece). Therefore, there is reason to believe that the purchases have been made from",,,,

the illegal income of Applicant/Accused Chandrakant Pandya in association with each other. As this has been purchased during the check period,",,,,

enquiries as also documentary information as to who has made the investment are yet to be obtained.,,,,

All Bank Account of Chandrakant Pandya & Family Member & Kamini Acharya,,,,

Sr.No,Year,Cash Withdrawal,Cash Deposit,

1.,2008-09,"84,000/-","2,01,000/-",

2.,2009-10,"1,52,000/","41,500/-",

3.,2010-11,"2,08,000/-","1,64,500/-",

4.,2011-12,"13,70,100/-","66,000/-",

5.,2012-13,"22,38,000/-","5,18,500/-",

6.,2013-14,"42,59,600/-","52,57,000/-",

7.,2014-15,"63,54,200/-","18,71,000/-",

8.,2015-16,"5,06,100/-","12,60,000/-",

9.,2016-17,"3,06,100/-","16,99,800/",

10.,2017-18,"3,01,600/-","14,35,000/-",

11.,2018-19,"54,000/-","28,74,500/-",

`Total,,"1,58,33,700/-","1,53,88,800/-",

Sr. No.,Particulars,Amount,Sold/date,"Amt consider by IO in

income (annexure -C)

1,Ruchi Bunglow,"27,61,899",,

2,Menka Society,"1,18,825",,

3,Construction Menka,"18,87,125",--,--

7,C K House land,"40,14,060,",--,valuation

26,HDFC Pandya,"25,00,000",24,"44,56,755

27,HDFC PANDYA,"32,00,000",24,(19 SOLD

28,HDFC/KAMINI,"51,00,000",25,"57,17,462

30,Parsuram society/R,"35,00,000",18,"35,00,000

31,HDFC RADHIKA,"86,50,000",21,"75,78,934

34,PNB/BHUMIKA,"25,00,000",19,"25,00,000

38,CR REALITY/KAMINI,"86,50,000",20,"85,00,000

,TOTAL,"4,10,00,000",,

Application deserves to be allowed and accordingly stands allowed. This Court has also gone through the FIR and police papers and also the earlier,,,,

order passed by the learned Sessions Court where the learned Sessions Judge has disallowed the bail Application at initial stage. The Applicant,,,,

Accused - CHANDRAKANT GUNVANTRAI PANDYA is ordered to be released on bail in connection with the aforesaid FIR on executing a,,,,

personal bond of Rs.50,000/- (Rupees Fifty thousand only) with one surety of the like amount to the satisfaction of the trial Court, subject to the",,,,

following conditions that she shall:,,,,

(a) 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 any Police Officer or tamper with the evidence.,,,,

(b) maintain law and order and not to indulge in any criminal activities.,,,,

(c) furnish the documentary proof of complete, correct and present address of his residence to the Investigating Officer and to the Trial Court at the",,,,

time of executing the bond and shall not change his residence without prior permission of the trial Court.,,,,

(d) provide his contact numbers as well as the contact numbers of the sureties before the Trial Court. In case of change in such numbers inform in,,,,

writing immediately to the trial Court.,,,,

(e) file an affidavit stating immovable properties whether self acquired or ancestral with description, location and present value of such properties",,,,

before the Trial Court, if any.",,,,

(f) not leave India without prior permission of the Trial Court,,,,

(g) surrender passport, if any, to the Trial Court within a week. If he does not possess passport, he shall file an Affidavit to that effect.",,,,

(h) shall maintain all the rules and regulations framed by the Corporation regarding contemporary status of corona virus/Covid-19, State Government",,,,

or by any competent authority, including social distancing.",,,,

Bail bond to be executed before the Trial Court having jurisdiction to try the case. It would be open for the Trial Court concerned to give time to,,,,

furnish the solvency certificate if prayed for.,,,,

If breach of any of the above conditions is committed, the Trial Court concerned will be free to issue warrant or take appropriate action according",,,,

to law. The Authorities will release the Applicant forthwith only if he is not required in connection with any other offence for the time being.,,,,

It is made clear that the observations made in this order is confined to bail purpose only, therefore, neither the trial Court nor any competent",,,,

authority /statutory authority shall influence from the discussions made in this order.,,,,

Rule is made absolute. The Registry is directed to communicate this order by Fax / by E-mail to the concerned Court / Authority.,,,,