General Co-operative Bank Depositors Acc. Holders and Share Holders Association vs State of Gujarat and Others

Sharad D. Dave, J.—Rule. Mr. A. D. Oza, learned P. P. waives service of rule on behalf of the respondent No. 1 and Mr. P. S. Champaneri learned advocate for the respondent No. 2. The applicant, General Co-operative Bank Depositors Account Holders and Share Holders Association, has filed this application for cancellation of bail granted to opponent No. 2 in connection with C.R. No. 1-121/02 with Naranpura Police Station.

It is the case of the applicant that there are two group of companies one that of Chairman of the Bank who owes Rs. 34 crores and the second is that of C. N. Shah group of companies who owes Rs. 45 crores to the General Co-operative Bank in collusion and in connivance with the Bank officers, the total amount due to the bank is Rs. 79 crores. The first group Chairman and three other accused are already released on regular bail by the learned Magistrate whereas Mr. C. N. Shah who is also a member of loan advance committee is still not traceable and his son Nimesh C. Shah was arrested by the police and was on bail granted by the learned City Sessions Judge. It is the case of the petitioner that earlier all the accused were charged with offences punishable under Sections 406, 409, 420. 467, 468, 471 and 120B of Indian Penal Code and Sections 16 and 24 of the Banking Regulation Act on 11-1-2002. However, on the next day, the police gave application to delete Sections 16 & 24 of Banking Regulation Act and adding Section 20 of the said Act. Thereafter, on 15-2-2002 the Police gave application for deleting Sections 406, 420, 467 and 471 of I.P.C. On 19-2-2002, application was given for adding Section 409 of I.P.C. and again gave application on 21-2-2002 for deleting Section 409 of I.P.C. On 22-2-2002, application was given for adding Sections 406 and 420 of I.P.C. In the meantime, on 22-2-2002, the arrested accused were released on bail. On 24-2-2002, application was given for adding Sections 406, 409, 420, 471, 467, 468 and 120B of I.P.C. and Sec. 20 of Banking Regulation Act. Therefore, in the submissions of Mr. Prajapati, learned advocate for the applicant, the investigating agency has given applications to add and delete certain sections at their sweet will to see that the accused may be released on bail. According to Mr. Prajapati L.A. for the petitioner/ applicant, in very cursory manner, the learned Trial Court judge has granted bail to the opponent No. 2 Mr. Nimesh Shah in Cri. Misc. Application No. 399/02 on 5-3-02. While going me through the order of learned trial court, learned advocate for the applicant submitted that no stringent conditions were enforced on opponent No. 2 while releasing him on bail. It is further submitted that if we go through the order of the learned Trial Court Judge, on one hand it is stated that there is fraud of Rs. 70 crores and on the other hand it comes to the conclusion that the offences charged are triable by the Metropolitan Magistrate Court and that accused is not going to tamper with the written evidence of the case which are in the custody of the Police. At one stage also, it is mentioned that the court has not understood what is the case against the opponent No. 2. In view of the aforesaid circumstances, runs the submissions of learned advocate for the applicant, that the opponent No. 1 State of Gujarat has not filed any application for cancellation of bail of opponent No. 2, the applicant has every right to come to the court and pray for cancellation of bail granted to opponent No. 2.

So far as who can apply for cancellation of bail is concerned, Mr. Prajapati learned advocate for the petitioner has relied on the decision in case of Puran Vs. Rambilas and Another etc. etc., wherein it is stated that the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of the nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled.

So far as the locus standi of the present petitioner for filing application for cancellation of bail is concerned, Mr. Prajapati learned advocate for the petitioner has relied on the decision in case of Chandulal Harilal Lodhiya v. State of Gujarat and others reported in 1993(1) G.L.R. 596 and also relied on the judgment of Apex Court in case of Manohar Lal Vs. Vinesh Anand and Others, . Mr. Raval learned counsel for opponent No. 2 submitted that the association is a third party to the incident as they are the creditors to the bank. Complaint is filed by the bank and therefore only administrator of the Bank has a right to file application for cancellation of bail.

So far as the bail amount is concerned, Mr. Prajapati learned advocate for the petitioner has submitted that the learned City Sessions Judge has granted bail of opponent No. 2 by ordering to give surety of Rs. 25,000/- against the due amount of Rs. 45 crores. Against the aforesaid submissions, Mr. Raval, learned counsel for the opponent No. 2 has relied on the binding decision of the Apex Court in case of Jagannath Mishra Vs. State of Bihar, and submitted that even in the aforesaid case, the Chief Minister was charged for misappropriation of amount was released on bail on certain conditions. Therefore, in this case, the court has done nothing wrong in releasing the applicant on bail on terms and conditions stated therein.

Against the aforesaid submissions, Mr, A. D. Oza, learned P.P. for the State submitted that this is a fit case wherein the bail granted by the learned Trial Court is required to be cancelled on the ground that Rs. 45 crores are owed by C. N. Shah group to the General Co-operative Bank Ltd. and the said loan was obtained by their family members and that Mr. C. N. Shah himself is not available and is trying to evade his arrest. Moreover. 2nd and 3rd charge are created over the properties which are not sufficient to cover the amount advanced to the loanee. The aforesaid work is done under the guidance and in connivance with the bank officers, on mere say of Mr. C. N. Shah who was influenced man in the General Cooperative Bank Ltd. Mr. Oza learned P. P. has also produced certain statements before me which I have perused. In view of the aforesaid circumstances, Mr. Oza learned P.P. has supported the say of the petitioner herein and prayed for cancellation of bail granted to opponent No. 2.

Mr. P. M. Raval learned counsel for Mr. P. S. Champameri, learned advocate for the opponent No. 2 has submitted that present opponent No. 2 is not Director nor he is holding any post in the hierarchy of the bank. Against the loan that has been granted by the bank officers, he has given the property which is more than available. Learned counsel for the opponent No. 2 has relied on the affidavit filed by opponent No. 2, more particularly page No. 30 of the paper book, wherein it has been mentioned that at present he is maintaining staff of 450 persons and if the bail granted is cancelled the entire business will come to a standstill resulting into unemployment of about 450 persons and no payment could be made by the group of companies to the bank. As on 9-7-02, the opponent No. 2 has deposited Rs. 2,57,53,000/- in the bank and that he intends to pay Rs. 12.90 crores on or before December, 2003 and thereby wants to reduce the liability of the opponent No. 2 and its associates. By drawing my attention to various letters produced with the paper book, learned counsel for the opponent No. 2 has submitted that he has given his list of properties to the General Cooperative Bank Ltd. and that he has also shown willingness to sell the said property after consent given by General Cooperative Bank Ltd. and the said sale proceeds shall be deposited directly in the bank. Letter dated 6-7-02 written by Minister for Protocol and Cooperation, Government of Gujarat has mentioned to the Administrator, General Cooperative Bank Ltd. and Registrar, Cooperative Societies to accept the proposal of opponent No. 2 whereby showing his willingness to pay Rs. 12.90 crores before December, 2003. This would show, runs the submission of learned counsel Mr. Raval on behalf of the opponent No. 2, the bona fide of opponent No. 2 and their assurance to pay the amount within the specified span.

It is the say of learned counsel Shri Raval that once bail is granted u/s 439 of Criminal Procedure Code, the same cannot be cancelled u/s 439(2) of the Code. In support of his submissions, Mr. Raval has relied on following authorities :

Bhagirathsinh Judeja Vs. State of Gujarat,

Dolat Ram and Others Vs. State of Haryana,

Chandraswami and another Vs. Central Bureau of Investigation,

Mr. Raval learned counsel for the opponent No. 2 submitted that in case of Keshab Narayan Banerjee and Another Vs. The State of Bihar, wherein the court ordered the accused to furnish security for rupees one lakh or in fixed deposit in nationalized bank with two sureties residing in the State for like amount. The Apex Court came to a conclusion that the condition amounted to denial of bail itself and ordered the accused to furnish bail bond of Rs. 25,000/- with two sureties each for like amount. Therefore also the court below has granted bail on the conditions keeping in mind the judgment of the Apex Court.

I have gone through the authorities cited by the learned counsel for the opponent No. 2 and also perused the paper book as well as papers produced before me by the learned advocates for the respective parties.

I have perused the authority of this Court in case of Chandulal (supra) wherein it has been held that the State has not challenged the order of bail passed by the learned Trial Judge, but it would not be a ground for this Court not to entertain this application filed at the instance of private party. In this case also, the State has not applied for cancellation of bail. The third party-association has a right to file application for cancellation of bail.

In case of Bhagirathsinh Jadeja (supra), the Division Bench of the Supreme Court in paras 5 & 6 has observed as under:

very cogent and overwhelming circumstances are necessary for an order seeking cancellation of the bail. It is now well settled by a catena of decision of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not that the accused should be detailed by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering withe evidence.

In case of Dolat Ram (supra), the Apex Court has observed in para 4 as under:

Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are : interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice of abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.

In case of Chandraswami and another (supra) the Apex Court observed that Section 437(1) of Criminal Procedure Code provides that when any person accused of, or suspected of, the Commission of any non-bailable offence is brought before a Court, he may be released on bail unless his case falls in Clauses (i) or (ii) thereof. The person who is suspected of having committed an offence u/s 120B read with Section 420 of I.P.C. would be entitled to bail, of course the paramount consideration would always be to ensure that the enlargement of such persons on bail will not jeopardize the prosecution case.

It has to be considered that bail is sought to be cancelled by these applications u/s 439(2) of the Code of Criminal Procedure and, as such, this Court is not exercising any appellate or revisional powers. There are various decisions which indicate that bail can be cancelled u/s 439(2) where it is found that the accused is found to be tampering with evidence either during investigation or during trial; where the person on bail commits similar offence or any other serious offence while on bail or where the accused is found to be absconding and because of this, the trial gets delayed; or where the offence committed by the accused is such that it has created serious law and order problem in the society or where it is found that the accused has misused his privilege of bail or where the life of accused itself is in danger. In the present case, none of these grounds are indicated. In view of the aforesaid discussion, I am of the opinion that when the opponent No. 2 is depositing Rs. 20 lacs per month, without any default, 1 do not see any reason to cancel the bail of the opponent No. 2 and see that 450 persons may be unemployed and no amount would be deposited to the bank. It is true that Rs. 45 crores are due against Mr. C. N. Shah group and that every year the interest would be increasing. However, in view of the various binding decisions of the Apex Court, I am of the opinion that it is not a worthy case wherein plea of cancellation of bail is required to be granted. Accordingly, this Criminal Misc. Application is rejected. Rule is discharged.