Hitesh Devendera Gupta vs State Of Gujarat

A.S. Supehia, J

[1] Heard the learned advocates for the respective parties.

[2] By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for bail in connection with the FIR being C.R.No.11208055210354 of 2021 registered with DCB Police Station, Rajkot City for the offences under Sections 406, 420 and 114 of the Indian Penal Code, 1860 and under Section 3 of the Gujarat Protection of Interest of Depositors (In Financial Establishment) Act, 2003.

[3] Learned advocate for the applicant submits that the nature of allegations are such for which custodial interrogation of the applicant at this stage is not necessary. He further submits that the applicant will keep himself available during the course of investigation, as well as trial also and will not flee from justice.

[4] Learned advocate Mr.Popat appearing for the applicant has submitted that the impugned F.I.R. concerns the allegations made by the investors including the first informant in crypto currency through different entities viz. Cybertron and Megatron, which is digital exchange controlled by Genesis Decode FZC. He has submitted that the first informant has alleged that the first informant was lured by the co-accused for investing in the said crypto currency exchanges. It is submitted that the first informant had several meetings with the co-accused, who were running the firm and there is no allegation against the applicant about any false representation with regard to luring of any investors however, the applicant was found on stage of Udaipur and the expensive car key was given by him to an unknown person to inspire the confidence of individual investing with the accused. It is submitted that the applicant has been styled as Director(Investments) in the aforesaid company but in fact, he is neither Director nor concerned with the company. It is submitted that the company runs by the co-accused and the applicant himself is a victim of the offence and in fact, the applicant is one of the highest investors in the company and has invested Rs.25,00,000/- in the Megatrone Company. It is submitted that the said company is operating its virtual currency through a company known as Genesis Decode FZC, which runs by the co-accused namely, Brijesh Jagdishchandra as well as Dhaval Bharatbhai. He has submitted that the incorporation of the said company and Memorandum of Articles also indicate that the applicant has nothing to do with the said company and hence, the present application may be allowed.

[5] Learned advocate Mr.Popat, on instructions, has submitted that the applicant is ready and willing to pay an amount of Rs.12,00,000/- since the main accused Brijeshkumar Jagdishchandra Gadiyali is released on regular bail by the trial court vide the order dated 15.04.2022 passed in Criminal Misc. Application No.484 of 2022 on a condition of depositing of Rs.33,06,695/- as a bank guarantee.

[6] Learned advocate for the applicant, on instructions, states that the applicant is ready and willing to abide by all the conditions, including imposition of conditions with regard to powers of investigating agency to file an application before the competent Court for his remand. He further submits that upon filing of such application by the investigating agency, the right of the applicant accused to oppose such application on merits may be kept open. Learned advocate, therefore, submits that considering the above facts, the applicant may be granted bail.

[7] On the other hand, the learned Additional Public Prosecutor appearing on behalf of the respondent– State has opposed grant of bail looking to the nature and gravity of the offence. He has submitted that the applicant has in fact acted as a Director and also an Investor. It is submitted by him that the entire transaction was done in cash and hence, there is no evidence in this regard.

[8] Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant bail to the applicant.

[9] This Court has considered following aspects;

(a) Prima facie, the papers of the investigation reveals that the applicant has in fact invested considerable amount in the concerned company floated by the main accused;

(b) The applicant is ready and willing to deposit an amount of Rs.12,00,000/-; looking to the over all facts and circumstances of the present case, I am inclined to consider the case of the applicant;

(c) The main accused Brijeshkumar Jagdishchandra Gadiyali is released on regular bail by the trial court with a condition to deposit bank guarantee of Rs.33,06,695/-;

(d) Prima facie considering the facts of the case, the custodial interrogation of the applicant is not necessary at this stage;

[10] This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (Nct of Delhi), AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 312.

[11] In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with FIR being C.R.No.11208055210354 of 2021 registered with DCB Police Station, Rajkot City on his executing 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 29.04.2022 between 11.00 a.m. and 2.00 p.m.;

(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 concerned trial court and if having passport shall deposit the same before the concerned trial court within a week.

(g) shall deposit an amount of Rs.12,00,000/-. Rs.2,00,000/-shall be deposited within a period of 10 days and Rs.10,00,000/- shall be deposited within a period of six weeks and an undertaking to that effect shall be given to this Court as well as to the trial court within a period of three days.

[12] Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicant, if he considers it proper and just and the Magistrate would decide if on merits. The applicant shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the concerned Magistrate to consider such a request in accordance with law. 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 bail order.

[13] At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.

[14] The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Direct service is permitted.