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2018 DIGILAW 991 (GUJ)

Dineshbhai Jayantilal Tanna v. State of Gujarat

2018-08-20

SONIA GOKANI

body2018
JUDGMENT AND ORDER : Sonia Gokani, J. Leave to amend the cause title by the original complainant bank as party respondent No.2. 2. Present application is preferred seeking anticipatory bail under section 438 of the Criminal Procedure Code in connection with First Information Report being C.R. No. I- 284 of 2017 registered with 'A' Division police station, Rajkot for the offence punishable under sections 406, 420, 409 and 120(B) of the Indian Penal Code. 3. So far as the present applicant is concerned, he is one of the partners of Green Farm Agri Exports. He has mortgaged totally 09 properties with the Bank. Out of which, one is exclusively held by his wife, seven are held by himself and one is held by family of the partner. The applicant has been protected by this Court from 03.07.2018 and he has enjoyed this protection till date. He has cooperated with the Investigating Officer all throughout. As and when he has been called by the Investigating Officer, he has appeared and co-operated. 4. During the course of hearing, this Court has extensively heard learned advocate Mr.Jay Thakkar for the petitioner and learned advocate Mr. Tarak Damani for the complainant and learned Additional Public Prosecutor Mr. Pujari for the State. 5. During the course of hearing, the parties have attempted to settle their disputes, which essentially and predominantly revolve around the outstanding dues of the bank by fixing a specified amount by way of one time settlement against the total dues of Rs. 15.52 crores of both Green Farm Agri Exports and Best Agri Exports. 6. Both the firms have agreed to repay the amount by one time settlement to the tune of Rs. 12.25 crores. The terms and conditions of which are produced by way of a Memorandum of Understanding and the same is produced on record. Those properties, which have been already mortgaged in the bank and which have been valued in the valuation report of approximately Rs. 5 crores, shall be sold off with the help of the petitioners by the bank as early as possible and remaining amount shall be paid by the petitioners as stated above fully and finally to the tune of Rs. 13.25 crores, which will be considered as overall settlement towards all proceedings civil as well as criminal initiated by the Bank. 7. 13.25 crores, which will be considered as overall settlement towards all proceedings civil as well as criminal initiated by the Bank. 7. Learned advocates on both the sides have urged that there is no dispute with regard to the said settlement. The terms of repayment and other terms have been detailed and may be part of this order, as it is being separately permitted to be taken on record. Considering the protection given to the present applicant from January, 2018, which has continued till date and the fact that he has cooperated with the Investigating Officer all through out and with the settlement now arrived at with the Bank with certain stringent conditions, this application is being allowed. 8. On perusal of the First Information Report and other papers and also on hearing both the sides, considering the nature of allegations in the First Information Report, he would be entitled to grant of anticipatory bail bearing in mind the principles laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, (2011) 1 SCC 694 . 9. In the result, this application is allowed by directing that in the event of the applicant herein being arrested pursuant to First Information Report being C.R.No.I-284 of 2017 registered with 'A' Division police station, Rajkot, the applicant shall be released on bail on furnishing two solvent sureties of Rs. 9. In the result, this application is allowed by directing that in the event of the applicant herein being arrested pursuant to First Information Report being C.R.No.I-284 of 2017 registered with 'A' Division police station, Rajkot, the applicant shall be released on bail on furnishing two solvent sureties of Rs. 50,000/- (Rupees Fifty Thousand only) with two solvent sureties of like amount to the satisfaction of the trial Court on following conditions that he :- (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at concerned Police Station on 29/08/2018 between 11:00 am to 2:00 pm; (c) shall mark presence once in two months before the concerned Investigating Officer and this will continue for the period of one year; (d) shall not hamper the investigation in any manner nor shall directly or indirectly make any inducement, threat or promise to any witness so as to dissuade them from disclosing such facts to the Court or to any Police Officer; (e) shall at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall not change the residence till the final disposal of the case or till further orders; (f) will not leave India without the permission of the Court and, if is holding a Passport, shall surrender the same before the trial Court immediately; (g) shall adhere to the terms and conditions arrived at by and between the parties strictly and scruplously. Default at any stage will entitle the bank or the Investigating Officer to move this Court for cancellation of bail; (h) the applicant shall cooperate in the bank's endeavour to sell the mortgaged properties and before the DRT or any other forums, if any proceedings have been initiated, no attempt shall be made to thwart those proceedings. No attempt on the applicant shall be made to jeopardize the case of the Bank. (i) 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. 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 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; (j) If arrested, to 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 this Court; 10. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail. 11. Rule made absolute to the aforesaid extent. Direct service is permitted.