Sunil Nanjibhai Mavadia vs State Of Gujarat & 1 Other(S)

Ashutosh J. Shastri, J

[1] The present application is filed under Section 439(2) read with Section 482 of the Code of Criminal Procedure seeking cancellation of regular bail granted to the respondent No.2 by the learned 5th Additional District and Sessions Judge, Ahmedabad (Rural) in Criminal Misc. Application No. 1331 of 2017 on 09.06.2017.

[2] The background of the facts which has given rise to filing of this application is that respondent No.2 - accused along with other co-accused persons have committed forgery and cheating by making a bogus company in the name of Goodluck Hotels Pvt. Ltd. and offered different schemes for its membership. It has been alleged that for golden membership an amount of Rs.1,42,000/- is fixed whereas diamond and platinum membership amount of Rs.2,50,000/- and Rs.3,50,000/-respectively is fixed and thereby induced the members to invest money for holiday tour packages.

[2.1] The applicant complainant accepted the said offer made by respondent No.2 and has purchased a golden membership to the tune of Rs.1,42,000/- paid by credit card and thereafter the respondent No.2 neither has given any holiday package nor has returned the money and thereby committed a serious act of cheating and forgery as mentioned in the FIR. The said incident is made the subject matter of filing of complaint being C.R.No.I-45 of 2017 lodged before Anandnagar Police Station, Ahmedabad City and after due investigation of the said offence, the Police Inspector, In-charge of investigation has submitted a charge-sheet against accused persons and submitted before the learned 4th Additional Judicial Magistrate, Ahmedabad (Rural) which was then registered as Criminal Misc. Application No.3826 of 2017.

[2.2] It has been averred by the applicant complainant that on account of this registration of FIR, opponent No.2 was arrested on 14.05.2017 and produced before the learned Magistrate on 15.05.2017 and remand was also sought for, which was granted for a period of 3 days and upon completion of said remand period, the opponent No.2 was produced before the learned Judicial Magistrate. At that point of time, opponent No.2 submitted an application for seeking regular bail at that very moment but the same was dismissed by the learned JMFC on 26.05.2017 and sent him to judicial custody.

[2.3] It is the case of the complainant that it is thereafter respondent No.2 filed a substantive regular bail application before the learned District and Sessions Judge, Ahmedabad (Rural), which was registered as Criminal Misc. Application No.1331 of 2017, which was granted by the learned District and Sessions Judge on 09.06.2017 and it is this order on 09.06.2017 is made the subject matter of present application for seeking cancellation of thereof.

[3] It appears from the record that notice appears to have been issued on this application on 10.07.2017 and thereafter rule has been issued on 28.07.2017 and later on for quite number of years, matter appears to have not been pressed by the applicant and it is in the month of April, 2022 on-wards, the same has been processed in which the learned advocates have represented and then argued the matter. With this background, the present application has been taken up for hearing.

[4] Mr. Viral K. Shah, learned advocate appearing on behalf of the applicant has contended that the order impugned in the application is not a reasoned order and while exercising discretion specific submissions which were made and tendered by way of written objections have not been dealt with and as such the order reflects clear non application of mind. According to Mr. Shah, learned advocate there are several complaints lodged against the respondent No.2 and the fraudulent act running into lacks of rupees and in such a huge scam the learned Judge ought not to have exercised the discretion so leniently at least the objections which have been raised ought to have been examined so much so that the affidavit filed by investigating officer at length has also not been properly considered and as such the very exercise of discretion is ill-founded. Hence, the same deserves to be corrected by quashing and setting aside the impugned order. While exercising discretion, the learned Judge appears to have in substance assigned the reason that offences which are alleged even if accepted are entailing him a short sentence and as such the said reason is not just and proper germane to law. Mr. Shah, learned advocate for the applicant has further vehemently contended that as many as 207 members have been duped to the extent of huge amount of Rs.2,48,00,000/- and after this incident the respondent has also arraigned in yet another incident similar in nature and as such considering this over all circumstances, a request is made that in such a serious offence of huge scam the learned Sessions Judge ought not to have exercised the discretion so lightly. Hence, that being the situation, a request is made to set aside the impugned order.

[5] In addition to the submission made by Mr. Viral K. Shah, learned advocate appearing for the applicant, Mr. Chintan Dave, learned APP appearing for the respondent State has also vehemently submitted that the learned Sessions Judge while passing the impugned order has not considered properly the material produced at length in the form of specific affidavit though it was pointed out that the offences alleged are very serious in nature and there is a systematic modus operandi executed by respondent No.2 in connivance with other directors in a very planned manner and as such no lenient view be taken of this incident. It has been vehemently contended that on account of this systematic plan executed to defraud the public there are as many as 207 members already duped whose monies to the extent of Rs. 2,48,00,000/- have been taken by these persons and that fact ought not to have been ignored simply because the offence is prescribing a particular sentence gravity of offence and pre planned execution of offence is also a relevant circumstance deserves to be considered while exercising the discretion. It has been contended further that these directors are also facing yet another complaint before Satellite Police Station in the form of first information report being C.R.No.I/40 of 2017 for the offences punishable under Sections 406, 420, 467, 120(B), 506(2) and 294(B) of the Indian Penal Code wherein the main directors have played an active role including present respondent No.2 in specific and therefore, such huge economic scam ought not to have been ignored from its gravity. The learned Sessions Judge has not properly assigned the reasons why the due discretion is required to be exercised. It has been contended that simply because the offence alleged is punishable up to 7 years only that is not the sole criteria for release of respondent accused. Hence, requested to set aside the impugned order as no proper consideration to relevant material has been made.

[6] As against this, Mr. B. A. Patel, learned advocate appearing on behalf of respondent No.2 has submitted that respondent No.2 is not a director but merely an employee and he has not played any active role in commission of alleged crime nor has dealt with the monies which have been given to the company by applicant and other related persons. No doubt the directors are facing the prosecution but the respondent No.2 being a mere employee who has neither introduced any scheme nor personally collected any money nor given any receipt regarding the scheme and hence, there is hardly any reason to cancel the bail in so far as it relates to present respondent No.2.

In fact, respondent No.2 has not taken undue advantage of the scheme being flouted by the company and as such there is hardly any reason made out to quash the order which has been passed in the month of June, 2017.

[7] Having heard the learned advocates appearing for the parties and having gone through the material on record what is emerging is that original accused No.1 and 2 happened to be directors of Goodluck Hotels Pvt. Ltd. who were engaging staff in their company at Sanathal and by projecting holiday package trying to extract money from the people at large. It has emerged from the investigation papers and the affidavit filed by investigating officer that there are as many as 207 members who paid their amount through cash and cheque totaling around Rs.2,48,00,000/- and by securing such no holiday package is offered neither monies have been returned and thereby executed a systematic alleged fraud as mentioned in the affidavit. It has also been stated clearly that the directors of Goodluck Villa company are also facing similar complaint lodged before Satellite Police Station being C.R.No.I-40 of 2017 where also the same kind of modus operandi alleged to have been executed. It has been specifically asserted in affidavit that respondent accused Anilbhai Patel in connivance with main other directors is in specific no how of the entire scheme and it has been specifically asserted in the affidavit that this respondent is a part and parcel of the said scam in which has played the specific role.

[8] In fact it has been further alleged that this Anilkumar Patel has acted as director at the relevant point of time and induced the persons to secure the membership. It has also been surfaced that few accused persons are still not available and this activity alleged to have spread over across the State. In the month of June, 2022 also, a report is submitted to Government Pleader Office which is placed on record by the learned APP indicating that some of the accused are still not available and as such when this kind of serious allegations which are being faced it was incumbent upon the learned Judge to pay an attention to these allegations and at least the objections which have been raised by the present applicant as well as submitted by investigating officer ought to have been dealt with which apparently not visible. In fact, from the order itself, the learned Judge has perused the FIR indicating that present respondent No.2 was working as Director of Sun Star Club which was the cell company of Goodluck Hotels Pvt. Ltd. and though such kind of serious crime alleged against respondent No.2 in which his active role is visible and projected before the learned Sessions Judge and it appears that simply because offence is punishable up to 7 years and triable by JMFC Court bail ought not to have been simply granted. At least cogent reasons ought to have been assigned as to why despite such material bail deserves to be granted, more particularly, when still co-accused persons are absconding and the scam is running into crores of rupees. Accordingly, it prmia facie appears that while exercising discretion learned Judge instead of gravity of offence has focused merely on the offence being punishable for 7 years Court see no just reason to accept such conclusion arrived at by the learned Sessions Judge. The specific assertions made by the investigating officer in his detailed affidavit dated 07.06.2017 as well as the affidavit filed by the complainant pointing out a systematic designed ought to have been dealt with even if learned Judge was of the opinion that bail deserves to be granted. Hence, the contentions and the objections which have been raised having not been properly dealt with by the Court below, it appears that exercise of discretion is ill-founded. However, since the objections are not dealt with in considered opinion of this the issue of grant of bail to respondent No.2 is required to be re-looked in consonance with the material already available on record before the learned Sessions Judge.

[9] While coming to this conclusion, the Court is mindful of the proposition propounded by series of decisions that whenever contentions and the objections have been raised if not dealt with the matter requires to be remanded for reconsideration and as such perusal of the record of this case indicates that while exercising due discretion the learned Judge has not dealt with some of the aspects which are specifically pointed out and as such this Court is of the opinion that by setting aside the impugned order the learned Judge deserves to be requested to re-look and reconsider and pass a fresh order in respect of request made by respondent No.2 for release on bail. Following are the propositions laid down by some of the decisions delivered by Hon'ble Apex Court and as such since the Court has considered the same, relevant observations are reproduced hereunder:-

(i) In the case of Birwati Chaudhary and Others versus State of Haryana and Others reported in (2018) 9 SCC 458, since the Court has considered the observations contained in paragraph Nos. 7, 8 and 9, same are reproduced hereinafter:

“7. The reason to remand the case has occasioned due to the fact that firstly, no adequate reason is given in the impugned order for not granting stay; and secondly, the reason given does not in itself justify the rejection having regard to the nature of controversy involved in the writ petition.

In short, justifiable reason(s) to support either the grant or rejection need(s) to be stated keeping in view the facts and the law applicable to the controversy involved. It is not so found in the impugned order and hence the order of remand is called for to decide the matter afresh in accordance with law.

In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order is set aside and the case is remanded to the High Court to decide the issue afresh on merits strictly in accordance with law without being influenced by any of out observations made above, within we have refrained to make having formed an opinion to remand the case to the High Court for the reasons mentioned above.”

(ii) In the case of Kushuma Devi versus Sheopati Devi (Dead) & Anr. reported in (2019) 5 SCC 744, the relevant observations contained in paras 7 and 8 since considered, the Court deems it proper to reproduce the same hereunder:-

"7. The need to remand the case to the High Court has occasioned because from the perusal of the impugned order dated 27.07.2012 quoted above, we find that it is an unreasoned order. In other words, the High Court neither discussed the issues arising the case, nor dealt with any of the submissions urged by the parties and nor assigned any reason as to why it has dismissed the writ petition.

This Court has consistently laid down that every judicial or/and quasijudicial order passed by the Court/Tribunal/Authority concerned, which decides the lis between the parties, must be supported with the reasons in support of its conclusion. The parties to the lis and so also the appellate/revisionary Court while examining the correctness of the order are entitled to know as to on which basis, a particular conclusion is arrived at in the order. In the absence of any discussion, the reasons and the findings on the submissions urged, it is not possible to know as to what led the Court/Tribunal/Authority for reaching to such conclusion. (See State of Maharashtra vs. Vithal Rao Pritirao Chawan, (1981) 4 SCC 129, Jawahar Lal Singh vs. Naresh Singh & Ors., (1987) 2 SCC 222, State of U.P. vs. Battan & Ors ., (2001) 10 SCC 607, Raj Kishore Jha vs. State of Bihar & Ors., (2003) 11 SCC 519 and State of Orissa vs. Dhaniram Luhar)."

[10] Yet another such decision taken by the co-ordinate bench of this Court in the case of Yashwantkumar Hiralal Patel versus Pritesh Kanubhai Patel and another decided on 01.09.2017 in Criminal Misc. Application No.14200 of 2017 whereby the concerned Court was requested to reconsider by remanding the matter and the Court is of the opinion on the basis of that also that present case is made out at least to reconsider in the light of material available on record and to pass a fresh order. However, for deciding a fresh till the decision is taken respondent No.2 since already enlarged on bail may not surrender and would abide by the fresh decision which may be taken in accordance with law, the relevant observations contained in para 25 since considered, the Court deems it proper to reproduce the same hereunder:-

"[25] On account of foregoing reasons, the order dated 06.05.2017 passed by the Sessions Judge, Mahisagar at Lunawada in Criminal Misc. Application No.48 of 2017 is quashed. Considering the role played by the respondent, the case of the respondent No.1 is relegated back to the Sessions Court for considering the bail application of this respondent accused a fresh on its own merits. The Sessions Court to decide the bail application a fresh within a period of four weeks from today. As the respondent accused has been on bail since May, 2017, he is not required to surrender and the application be decided a fresh considering the applicant to be in deemed custody."

[11] The aforesaid circumstances are sufficient enough to pass following order which would meet the ends of justice:-

(i) The impugned order dated 09.06.2017 is hereby quashed and set aside with a consequential direction that the learned concerned Sessions Judge shall take into consideration the material which is already available on record and after examining and after due opportunity to respondent No.2 and the parties to the proceedings shall decide afresh Criminal Misc. Application No.1331 of 2017 and pass suitable order in the interest of justice.

(ii) Since the concerned learned Session Judge is to re-examine the material in respect of request made by respondent No.2 for grant of bail, this Court has not expressed any opinion on merit with regard to any of the contentions and it is independently open for the learned Session Judge to examine and pass suitable order in accordance with law on the basis of material on record.

(iii) Till fresh decision is taken, the respondent No.2 may not be compelled to surrender as he is already on bail but simultaneously he is also directed to strictly adhere to the conditions which are already imposed upon him and shall co-operate with the hearing since the impugned order is to be reconsidered. It is further made clear that if respondent No.2 is will not cooperate with the hearing, it would be open for the concerned learned Sessions Judge to take appropriate decision. This exercise of reconsideration and passing a fresh order to be undertaken within a period of six weeks from the date of receipt of the certified copy of this order.