Nitinkumar Rajeshbhai Rajput vs State Of Gujarat

A.S. Supehia, J

Heard the learned advocates for the respective parties.

RULE. Learned Additional Public Prosecutor waives service of notice of rule for and on behalf of respondent – State.

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.11196004220190 of 2022 registered with Gotri Police Station, Vadodara City, Dist. Vadodara for the offences under Sections 406, 408, 409, 465, 467, 468, 470, 471, 473, 474, 504, 506 and 120B of the Indian Penal Code, 1860.

It is the case of the applicant that one M.Case came to be filed as No.1/2022 and pursuant to the said M.Case, the FIR came to be registered. It is alleged in the M.Case that the complainant is a registered Company and having its office at Vadodara in the name and style as “Chola Mandalam Investment and Finance Company Ltd.” It is stated that the Company provides loan and finance. It is stated that the accused, who are Manager and DSA, Free Lancer-Additional Work Contractor, who, in connivance with each other, created bogus customers and the property which has shown and the loan was sanctioned. It is stated that amount of the loan was deposited in the account of builder, remaining amount in the account of Free Lancer-Additional Work Contractor and that is how committed a fraud with the company. It is alleged that Original accused No.1 to 4, were working with the Company and aware about the procedure of loan. Accused no.5 to 20, are Free Lancer Additional Work Contractors. It is stated that accused Nos.21 and 22, they are the valuers and by virtue of their position, they are supposed to make proper valuation. It is stated that original accused Nos.5 to 20, who are in contact with the customers and the customers who are in requirement of the loan, their KYC documents are submitted and after valuation is done, the loan is disbursed on mortgage of the property. It is stated that on enquiry, it came to the notice about fraud and on 19-10-2021, the Police Inspector of Gotri Police Station, was informed to take action. However, no action is initiated and therefore, a private complaint was filed and accordingly on registration of the M.Case and order upon it, the present FIR came to be filed.

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.

5.1 Learned advocate Mr.Dagli, appearing for the applicant has submitted that various co-accused, being accused Nos.5, 8, 11, 14, 15, 16, 17 and 19, have been either released on regular bail or on anticipatory bail by this Court as well as by the Sessions Court. One of such orders, on which, he has placed reliance is the order dated 05.07.2022 passed by this Court in Criminal Misc. Application No.10173 of 2022, wherein it is submitted that the accused had in fact received an amount of Rs.1,70,000/-and Rs.3,31,800/- from two other accused and the accused, who had transferred an amount of Rs.3,31,800/- has already been released on anticipatory bail.

5.2 It is further submitted that there are other orders passed by the Trial Court releasing the accused on anticipatory bail. It is submitted that the applicant, who was serving as a Branch Manager, was only required to verify the documents which were already verified by other persons employed by the company. It is submitted that the applicant would be the forth officer who has only to see the customer file and all the on ground verification was required to be done by the free lancers. It is submitted that free lancers were responsible for the actual verification, which was done on the ground and accordingly, the loan was sanctioned. It is submitted that the free lancers are already released on anticipatory bail as they have shown willingness to deposit the amount which they have received.

5.3 Learned advocate Mr.Dagli has further submitted that even as per the case of the prosecution, total amount of Rs.7,70,66,800/- is alleged to have been misappropriated / siphoned away. However, he has submitted that as per the charge sheet papers, the total amount of Rs.6,60,00,000/-approximately is white money which has gone into the account of the builder and free lancers. It is submitted by him that the investigation does not reveal that any single rupee has been transferred in the account of the present applicant or in any manner he has procured any amount. Thus, he has submitted that the applicantmay be released on bail under Section 438 of the Code of Criminal Procedure, by imposing suitable conditions. It is also submitted that the applicant is ready and willing to deposit reasonable amount.

5.4 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.

Vehemently opposing the submissions of learned advocate Mr.Dagli, learned Assistant Government Pleader Ms.Calla, under the instructions from the investigating officer, has placed reliance on the various statements of the co- accused as well as other witnesses and has submitted that the applicant who was serving as a Branch Manager is responsible for duping of various customers and sanctioning the loan and causing loss of the aforesaid amount mentioned in the FIR. She has submitted that the receipt of the concerned customers, who are already sanctioned the loan was forged and the forging such receipt, an additional loan got sanctioned. It is submitted that the applicant, who was working as a Branch Manager, was in fact aware of such illegality and has perpetuated the same and his custodial interrogation is required. Thus, she has submitted that the application may not be entertained.

Learned advocate Mr.Dhruvik K. Patel, appearing for the complainant has supported the submissions advanced by learned APP and has submitted that when such scam came to the notice of the finance company, the said FIR was registered and pursuant to the said FIR, some of the co-accused have deposited the amount, which was transferred in their account. It is thus submitted that the applicant, who was serving as a Branch Manager, was required to verify all these aspects before sanctioning the loan.

I have heard the learned advocates for respective parties.

It is not in dispute that this Court as well as the Trial Court as passed various orders releasing the co-accused on anticipatory bail and regular bail. The charge sheet is also filed. On specific query raised by this Court to the learned Additional Public Prosecutor with regard to any amount having deposited in the account of the present applicant or has he received any amount in cash, the investigating officer has informed that the investigation, at this stage, does not reveal that any amount has been procured by the present applicant.

The papers of the investigation also reveal that substantial amount has been paid to the builder as well as free lancers – Contractors who were employed by the company. It is also noticed by this Court and as stated by the learned advocate Mr.Patel, for the complainant that the free lancers, who have obtained such amount, have deposited such amount and are also in process of depositing the amount which they have received. In view of the aforesaid facts, since the investigation does not reveal at this stage that the applicant is beneficiary of any of the amount and 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.

This Court has considered following aspects;

(a) that the applicant is ready and willing to deposit an amount of Rs.5,00,000/- before the Trial Court.

(b) The investigation does not prima facie reveal that the applicant has received any money.

(c) that the co-accused have been enlarged on bail by this Court as well as by the Sessions Court; looking to the over all facts and circumstances of the present case, I am inclined to consider the case of the applicant.

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

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.

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.11196004220190 of 2022 registered with Gotri Police Station, Vadodara City, Dist. Vadodara, 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 12.09.2022 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.5,00,000/- before the Trial Court without a period of four weeks. The said deposit shall without prejudice to the rights and contentions of the present applicant. The trial Court shall invest the said amount in cumulative F.D.R. initially for a period fo two years and thereafter, it shall be renewed from time to time, till final disposal of the case.

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.

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

The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent.

Registry is directed to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.