Jitendrasinh Kesarsinh Balawat vs State Of Gujarat

Gita Gopi, J

Rule. Mr. Pranav Trivedi, learned Additional Public Prosecutor, waives service of notice of rule on behalf of respondent-State.

This application has been preferred under section 438 of the Code of Criminal Procedure seeking anticipatory bail in connection with the first

information report being I-C.R. No.49 of 2019 registered with Paldi Police Station, Ahmedabad, for the offences punishable under sections 407, 420,

408 and 411 of the Indian Penal Code.

Mr. Hardik Dave, learned advocate for the applicant, submitted that original culprit â€" Mahipalsinh @ Mepasa Jitendrasinh Jodha has been

released on bail and approximately Rs.61 lacs is already recovered from him. The allegation is of handing over money of Rs.1 crore 60 lacs by owner

of the company AKM Enterprises to make payment to parties at Banglore instead of that accused- Mahipalsinh kept back money and did not reach

the Banglore. Mr. Dave, further submitted that when the police inquired about rest of the money, the said co-accused named present applicant and

thereby, under section 411 of the IPC, applicant is alleged as accused. Mr. Dave also submitted that actually the present applicant had lended money

to Mahipalsinh and just to avoid repayment of the borrowed money, he has falsely implicated the applicant in the criminal case. No such money is in

possession of the present applicant and thus, prayed to grant anticipatory bail to the applicant.

Mr. Pranav Trivedi, learned Additional Public Prosecutor, relying upon the affidavit of Police Sub-Inspector, Paldi Police Station, submitted that the

present applicant had retained about Rs.30 lacs and all the money which are the legal due money of the company and the said is required to be

recovered from the present applicant. Hence, no discretion should be exercised in favour of the applicant.

Heard the learned advocates for the parties and perused the material on record. The present applicant has been named on the statement of co-

accused â€" Mahipalsinh and about Rs.61 lacs have been recovered from the Mahipalsinh. As per the police, there is misappropriation of Rs.30 lacs

by the present applicant-accused. The monetary transaction between the Mahipalsinh and the present applicant would also needed to be investigated.

As stated by advocate of the applicant, Mr. Dave, Mahipalsinh actually had borrowed money from the present applicant and thus to avoid payment, he

falsely implicated the present applicant hence, to those facts, discretion is required to be exercised in favour of the applicant.

This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs.

State of Maharashtra and Ors., reported at [2011] 1 SCC 694 ,wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution

Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at (1980) 2 SCC 565.

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 the first

information report being I- C.R. No.49 of 2019 registered with Paldi Police Station, Ahmedabad, on executing a personal bond of Rs.10,000/- (Rupees

Ten Thousand Only) with one surety of like amount on the following conditions:

(a) shall cooperate with the investigation and make themselves available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 18.08.2020 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; and

(g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would

decide it on merits;

Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate for police remand of the applicant. The

applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be

directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining 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 learned 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

anticipatory bail order.

At the trial, the concerned 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. Registry to communicate this order to the concerned Court/authority by Fax or Email

forthwith.