Sumeet Mongia S/O Manjitsingh Mongia vs State Of Gujarat

Ilesh J. Vora, J

By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant - accused has prayed for anticipatory

bail in connection with the FIR being I. C.R. No.64 of 2019 registered with “B†Division Patan City Police Station, Dist.: Patan, for the offences

punishable under Sections 420 and 114 of IPC and under Section 66(D) of Information Technology Act.

Brief facts giving rise to present application are that the complainant Dipak Shankarlal Thakkar is investor, mainly in the stock market. In the year

2015, the accused no. 5 Aditi Sharma being an employee of High Brow Market Research Investment Adviser Pvt. Ltd., called on mobile phone to the

complainant and appraised him about background of the company, inter-alia stating that based on profile, the company will promise assured profits to

its investors. The complainant became a member by paying Rs.5000/-. It is alleged in the complaint that on investment of Rs.24 lakhs, the company

will be able to assured Rs.2 crores return against the investment. Based on the promise, the complainant invested Rs.73 lakhs during 22.12.2015 to

12.06.2017. Thereafter, there was no response from the company and its Directors and they failed to extend good returns as promised earlier. The

complainant went to Indore, Madhyapradesh at the office of the Company, where, he met Hemant Agrawal, Swapneel Prajapati, and Sumant Singh

(present applicant), who was present as an Advocate of the Company. It is alleged in the FIR that at relevant point of time, they had assured about

return of invested money, however, neither they return back the profit nor invested money to the complainant, as a result of which, the present FIR for

the offences for criminal breach of trust and forgery being lodged.

This Court has heard learned counsel Kshitij Amit for the applicant, Ms. Hetvi Sancheti, learned advocate for the original informant and Mrs. Krina

Calla, learned APP for the respondent State.

Learned counsel Mr. Amin submitted that the applicant herein neither made any forged document nor given any assurance to the complainant for

his investment made at the instance of employee of the Company; that the applicant herein is Chartered Accountant, having stake of 5% share,

purchased on 07.06.2017 and being a share holder, he having no active role for day to day affairs and he nowhere connected with the assurance

and/or promise given by the company nor he was beneficiary of the alleged investment; that there is an inordinate delay in lodging the FIR, as incident

took place between 2015 to 2017, whereas, the FIR came to be registered on 16.06.2019 i.e. almost after 2 years and 6 months for which, there is no

reasonable explanation offered by the complainant; that case is based on the documentary evidence and therefore, in the absence of past antecedent

of like nature, the custodial interrogation of the applicant is not necessary; that the name of the applicant being referred by the complainant in the FIR

on the ground that at relevant point of time, i.e. in the year 2017, when complainant came at the office of the company, the applicant in the capacity of

an Advocate was present in the meeting and he never assured to return back the invested money.

In the aforesaid facts, the learned counsel Mr. Amin submitted that the case is made out for anticipatory bail and same may be allowed.

Ms. Hetvi Sancheti, learned counsel for the original complainant reiterating the facts of the affidavit filed by the complainant, submitted that there

are specific allegations made in the FIR as when he had represented himself as an Advocate for the company, made several attempts to coax the

complainant into signing various documents / agreements by making false representation. She drew the attention of this court to the final report of

regulatory authority SEBI, holding the company and its Directors responsible for the fraudulent activities PAN India and have defrauded to 281

persons to the tune of crores of rupees. In these background facts, she submitted that the investigation at this crucial stage cannot be allowed to be

stifled and complexity of the applicant herein is prima-facie not ruled out without his custodial interrogation as the rest of the accused are absconding

and therefore, the applicant herein failed to make out a case for anticipatory bail and same may be rejected.

Learned APP Mrs. Krina Calla for the State has opposed the petition, contending that considering the gravity of the offence and role attributable to

present applicant, his custodial interrogation is necessary for effective investigation and therefore, application may not be entertained.

Having heard the learned counsel for the respective parties and upon perusal of the material placed on record, it appears that High Bro Market

Research Private Limited, is registered as an Investment Adviser under the Securities and Exchange Board of India, (Investment Adviser)

Regulations, 2013 with effect from 21.02.2014 and the company is a corporate body and its registered office is at Indore, Madhya Pradesh. Record

indicates that Chandan Rajput, Rahul Trivedi, Sunil Atode, Girish Pahvani, Laxmikant Sharma, Mohit Chhaparwal, Hemant Agrawal and Swapneel

Prajapati were either promoters or Directors of the company. The present applicant herein is the share holder, having 5% stake in the company. The

modes-operandi of the company is to lured the investors promising the amount of profit which an investor can earn on his investment value across

different market segment. The company was charging exorbitant fees from a client, which is much more than the proposed investment of the client

and promising unrealistic target to the investors. The company had manipulated the risk profiles of the clients and made false promise for profit/target

which are practically impossible to achieve. Many complaints were received across the India, against the company for the fraudulent transactions by

the SEBI authority. The SEBI had conducted detailed inquiry and held responsible the company and its Directors for the fraudulent activities.

In the aforesaid background facts, if we look at the allegations made in the FIR against the applicant herein, this court is of considered view that in

the year 2017, for the first time, the complainant met the Directors of the company personally at registered office at Indore, where the applicant herein

was present in the meeting. The complainant had submitted written complaint to the SEBI authority for the alleged fraudulent activities of the

Directors of the Company wherein, nothing being alleged against the present applicant herein that he being a share holder of the Company, was

responsible for the alleged act of Directors. The Investigating Officer failed to point out the facts, whether the applicant being a share holder of the

Company, was any way benefited from the alleged transaction of investment made by the complainant. Record indicates that except the present FIR,

no any other complaint being lodged against the applicant herein. Merely remaining present in the meeting, does not mean that the applicant

participated in the day to day affairs of the company and he was part to the fraudulent activities undertaken by the Directors of the Company. Thus,

prima-facie, it appears that the applicant has been arraigned as an accused, mainly on the ground that he being an Advocate / Chartered Accountant

of the Company, was present at the meeting, as referred in the FIR.

It is settled law that, anticipatory bail is not to be grated as a matter of Rule and it has to be granted only when the court is convinced that

exceptional circumstances exists to resort to that extra ordinary remedy. In view of the foregoing reasons and considering the role attributable to

present applicant in the alleged offence, his custodial interrogation is not necessary. The applicant having roots in the society and he does not flee from

justice. I find no reason to decline pre-arrest bail to the applicant. 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 a FIR being I. C.R. No.64 of 2019 registered with “B†Division Patan City Police

Station, Dist.: Patan, on his 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 himself available for interrogation whenever required;

(b) shall remain present at concerned Police Station on 11.02.2022 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 their residence

till the final disposal of the case till further orders;

(f) shall not leave India without the permission of the Trial Court and if having passport shall deposit the same before the 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 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.