Jayantilal Jethalal Thakkar vs State Of Gujarat

Vipul M. Pancholi, J

Rule. Learned APP Mr.Patel waives service of Rule on behalf of the respondent State.

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with FIR being C.R.No.I-4 of 2019 registered with CID Crime Border Zone Bhuj Police Station, Kutch Bhuj for offence under Sections 409, 406, 465, 467, 468, 471 and 120B of the Indian Penal Code.

The facts in brief as narrated in the FIR are that the accused Jayantilal Jethalal, President of Dumra Seva Sahakari Mandli, Kanubha Mamubha Jadeja the Secretary, Karamsinh and Chhaganlal Committee members and Ex-Manager of Kothar Branch Bank Sanjay R Tripathi, hatched conspiracy and obtained loan from Kutch District Central Cooperative Bank Ltd. (`KDCC Bank' for short) in the names of 621 members of Dumra Seva Sahakari Mandli to the tune of crores of rupees for which they have created false details regarding payment to the members, forged signatures and thumb impressions of the members of the Mandli and misappropriated the said amount for their personal use. It is also stated that the principal amount of Rs.1,59,42,777/- and interest of Rs.4,01,69,824/- totalling to Rs.5,61,12,601/- is to be recovered.

The applicant is arrested in connection with the said FIR and he is in jail since 11.7.2019 and now the chargesheet is filed. This application is, therefore, filed by the applicant after filing of the chargesheet before this Court.

Learned Advocate appearing on behalf of the applicant submits that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions.

Learned advocate for the applicant has mainly submitted that the applicant was a director of KDCC Bank from 2002-2009. He was also President of Dumra Seva Sahakari Mandli. It is submitted that because of outstanding amount of loan of Dumra Seva Sahakari Mandli, the applicant was suspended by KDCC on 4.4.2008 and the applicant challenged the said order of suspension before Registrar, Cooperative Societies and the said order was quashed and set aside by the said authority and the applicant was thereafter restored to the post of Director. It is submitted that KDCC Bank filed Special Civil Application No.5780 of 2008 before this Court in respect of the disputes between the said bank and the applicant and another. Learned advocate for the applicant has referred to the order passed by Division Bench dated 8.4.2008 in the said petition, copy of the said order is placed at page 52 of the compilation.

It is thereafter contended that the allegation against the applicant is that he has illegally taken the demand draft of Rs.25 lacs on 5.5.2005 from the account of the Mandli in his personal name and deposited in his saving bank account. It is submitted that the said allegations are not correct because on that date, the cash on hand of the Mandli was less and the General Manager of the bank stated that the facility of remittance cannot be made and as the account of President of the society i.e. the present applicant was in head office of the bank, as per the instructions of the General Manager of the bank, the DD was prepared in the name of the applicant and thereafter the said amount was lent to different members of the society and all these documents are already in possession of the bank. It is also contended that notice dated 31.10.2014 was issued by KDCC bank to Dumra Seva Sahakari Mandli and thereafter the applicant has replied to the said legal notice and requested to give benefit of one time settlement scheme. It was also informed to the bank that the notices are issued to the members who had not repaid the loan amount and Mandli has also filed criminal complaint no.23 of 2014 against the defaulting members.

At this stage, it is also pointed out that Mandli has also filed Special Civil Application No.18235 of 2014 before this Court challenging the notices issued by the bank and requested to give benefit of Agricultural Debt Waiver and Debt Relief Scheme of 2008 and the benefit of one time settlement scheme to the members of the society. It is also contended in the said petition that outstanding amount of loan was substantially repaid. However, KDCC bank has adjusted the amount of installments of amount towards interest and penal interest. The said petition was thereafter disposed off vide order dated 19.2.2018 giving liberty to the applicant to apply before the concerned authority and with a direction to the concerned authority to consider the same in accordance with Rules. However, no such benefit was given to the members of the Mandli.

It is also pointed out by learned advocate for the applicant that KDCC bank has recently instituted Summary Lavad Case No.2 of 2019 before Board of Nominees, Rajkot for the recovery of the loan amount worth Rs.5,41,57,939/- out of which principal amount is Rs.1,59,42,777/-. It is submitted that in the plaint of the said Lavad suit, the bank has not alleged anything about misappropriation or forgery.

Learned advocate Ms.Shah appearing for the applicant thereafter submitted that even as per the case canvassed by learned Additional Public Prosecutor, on the basis of the instruction given by the investigating officer who is present in the Court, that out of Rs.11 crores, approximately Rs.10 crores have been repaid by the applicant. It is, therefore, urged that if out of Rs.11 crores, Rs.10 crores is already deposited, there is no question of committing alleged offences by the applicant. It is, therefore, urged that the applicant be enlarged on bail.

Learned advocate would thereafter submit that the share certificates worth Rs.1 crores of Mandli are lying with the complainant-KDCC bank and therefore the said amount can be adjusted against outstanding principal amount of Rs.1,59,42,777/-.

Learned advocate for the applicant further submits that the applicant is aged about 56 years and is suffering from heart disease and has also undergone angioplasty. The applicant was admitted in the civil hospital on many occasions because of ailment and medical papers of the applicant are annexed with the written submissions submitted by learned advocate.

It is also contended that the case is triable by Court of Magistrate and after the applicant is arrested in connection with murder case of ex-MLA Jayantibhai Bhanushali on 11.4.2019, the applicant has been victimized and thereafter approximately five FIRs are now registered against the applicant.

At this stage, it is submitted that the applicant has been enlarged on bail in connection with three cases by the concerned Court, copy of the said orders are produced on record. It is further submitted that in connection with two FIRs, the applicant has filed application under Section 482 of Cr.P.C. The applicant and co-accused have filed two different applications and this Court has stayed the further proceedings of the concerned FIRs. It is also submitted that one FIR is registered against the applicant during the pendency of this application.

It is, therefore, urged that the applicant is victimized and hence this Court may exercise discretion in favour of the applicant.

Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence.

Learned APP has submitted that the applicant got DD of Rs.25 lacs on 5.5.2005 issued in his name and the said amount is deposited in his personal account. It is further submitted that as a President of Mandli, the applicant was aware about the fact that four members of the Mandli have already expired and in spite of that, the applicant has availed loan in their names by forging signatures/by putting thumb impressions. In support of the said submission, learned APP has referred to the relevant statements and death certificates. It is also submitted that for six members of the Mandli, twice loans have been sanctioned which is not permissible. It is also submitted that in case of 114 members of the Mandli, loans have been sanctioned in their names though the said members have not submitted an application for availing loan. It is also pointed out that amount of Rs.6,67,83,819/- was deposited in the account of peon of complainant bank. However, the said peon was not aware about the said transaction. It is, therefore, submitted that there is ample material in the investigating papers connecting the applicant with the alleged incident and principal amount of Rs.1,59,42,777/- and interest to the tune of Rs.4,01,69,824/- is outstanding totalling to Rs.5,61,12,601/- which is required to be recovered and therefore this Court may not exercise discretion in favour of the applicant. Learned APP thereafter submitted that there are antecedents and total six cases are registered against the applicant and therefore he may not be enlarged on bail.

Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order.

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, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

This Court has considered following aspects;

(a) the applicant is in jail since 11.7.2019;

(b) the investigation is over and chargesheet is filed;

(c) the case is triable by Court of Magistrate;

(d) the case of the prosecution rests on documentary evidence and all the documents are in possession of the investigating agency;

(e) from the submissions canvassed by learned advocates appearing for the parties and from the material placed on record and from the investigating papers, it is revealed that though it is alleged that Rs.11 crores was taken by the applicant, it is not in dispute that the applicant has deposited approximately Rs.10 crores and therefore even as per the case of the prosecution, principal amount of Rs.1,59,42,777/- is outstanding. (f) it is also not in dispute that the complainant bank has already filed Summary Lavad Case No.2 of 2019 before Board of Nominees, Rajkot for recovery of total outstanding amount of Rs.5,61,12,601/-.

(g) prior to lodging the FIR in question, the Mandli has filed Criminal Complaint No.23 of 2014 against the defaulting members.

(h) it is the specific case of the applicant that the complainant KDCC bank has not granted the benefit of Agricultural Debt, Waiver and Debt Relief Scheme, 2008 and the benefit of one time settlement scheme to the members of the Mandli.

(I) it is not in dispute that after the applicant is arrested in connection with the FIR filed under Section 302 of IPC with regard to murder of ex-MLA -Jayantibhai Bhanushali, all the other five FIRs are registered. It is pointed out by learned advocate for the applicant that the applicant has been enlarged on bail in three cases and in two cases, this Court has stayed the further proceedings. Now, another FIR is registered against the applicant during the pendency of this application. Thus, it is the specific case of the applicant that he is victimized.

(j) the applicant is aged 56 years and suffering from various ailments and medical papers are placed on record along with the written submissions.

(k) it is not the case of the prosecution that the applicant will tamper with any evidence or he will not be available at the time of trial; looking to the over all facts and circumstances of the present case, I am inclined to consider the case of the applicant.

This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, reported in [2012] 1 SCC 40.

Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R.No.I-4 of 2019 registered with CID Crime Border Zone Bhuj Police Station, Kutch-Bhuj on executing a personal bond of Rs.10,000/-(Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that heshall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injurious 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 concerned trial court;

[e] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;

[f] furnish the present 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 concerned trial court;

The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.

At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

Rule is made absolute to the aforesaid extent. Direct service is permitted.