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2019 DIGILAW 215 (GUJ)

BHOLANATH RAJPATI SHUKLA v. STATE OF GUJARAT

2019-03-12

VIPUL M PANCHOLI

body2019
JUDGMENT VIPUL M PANCHOLI, J. 1. This application is filed by the applicant under Section 438 of Criminal Procedure Code, 1973 ('the Code' for short) for releasing him on anticipatory bail in connection with FIR being C.R.No.I-17 of 2018, registered with Airport Police Station, Ahmedabad for the offences punishable under Sections 406, 409, 420, 465, 466, 467, 471, 472 and 120B of Indian Penal Code. 2. Heard learned advocate for the applicant and learned Additional Public Prosecutor Mr.Shah for the respondent-State. 3. It is mainly alleged in the FIR against the applicant that with a view to get the work order in pursuance to the tender issued by the Airport Authority of India, the applicant submitted a bid and thereafter produced the forged bank guarantee. 4. Learned advocate for the applicant mainly contended that the case of the prosecution rests on documentary evidence and therefore this Court may exercise discretion in favour of the applicant. 5. It is further contended that there is an arbitration clause in the tender document. Learned advocate has produced on record the tender document during the course of hearing and placed reliance upon Clause 19 of the said tender document which provides that in case of any dispute between the parties, the matter is required to be referred to arbitration. It is contended that instead of referring the matter to arbitration, the Airport Authority of India has filed FIR against the applicant and therefore this Court may exercise discretion in favour of the applicant. 6. It is further contended that the applicant is released on anticipatory bail by Karnataka High Court in similar type of case and therefore this Court may consider the case of the applicant for releasing him on anticipatory bail. 7. It is further submitted that the applicant has filed private complaint i.e. Regular Criminal Complaint No.148 of 2019 before the J.M.F.C., Thane against the officers of Bank of India under Sections 405, 406, 409, 415, 418 and 420 of Indian Penal Code. At this stage, it is submitted that the present FIR is filed on 24.8.2018 for the incident which has occurred in May, 2017. Therefore, there is delay in lodging the FIR and therefore also, this Court may exercise discretion in favour of the applicant. 8. At this stage, it is submitted that the present FIR is filed on 24.8.2018 for the incident which has occurred in May, 2017. Therefore, there is delay in lodging the FIR and therefore also, this Court may exercise discretion in favour of the applicant. 8. Lastly, learned advocate for the applicant submits that the applicant has deposited an amount of Rs.7 crores in his account on 5.5.2017 and therefore the bank has issued the bank guarantee, hence, looking to the statement of the bank account of the applicant, this Court may allow this application. 9. On the other hand, learned Additional Public Prosecutor Mr.Shah has referred to relevant documents collected during the course of investigation and submitted that the bank guarantee produced by the applicant is forged one. It is further submitted that though it is contended by learned advocate for the applicant that learned advocate was having Rs.7 crores in his account and therefore the bank guarantee is issued, is not correct. In support of the contention, learned Additional Public Prosecutor Mr.Shah has placed on record the statement of account of the applicant and other material from which it is revealed that out of said Rs.7 crores which was in the account of the applicant, Rs.4 crores and Rs.3 crores were transferred to his another account and therefore it cannot be said that from the said amount of Rs.7 crores, bank has issued the bank guarantee in favour of the applicant. He, therefore, urged that this application may not be entertained. 10. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that the applicant is the original accused no.1 in the FIR which is filed for the aforesaid offences. It is the specific allegation of the complainant that with a view to get the contract for parking, the applicant, in connivance with the bank officers, has produced forged bank guarantee. When the complainant came to know about the said aspect, FIR came to be filed. Thus, it cannot be said that there is delay in lodging the FIR as contended by learned advocate for the applicant. 11. When the complainant came to know about the said aspect, FIR came to be filed. Thus, it cannot be said that there is delay in lodging the FIR as contended by learned advocate for the applicant. 11. From the investigation papers produced during the course of hearing of this application, it is revealed that the Bank Manager has given his statement that the bank guarantee produced by the present applicant is forged one and no such bank guarantee was issued by the bank. Letter of the bank is also collected during the course of investigation. 12. At this stage, it is required to be noted that the present FIR is filed against the applicant on 24.8.2018 and thereafter the applicant has filed private complaint against the bank officers in January, 2019. Thus, reliance placed by learned advocate for the applicant on the private complaint filed against the bank officer is misconceived and such complaint cannot be taken into consideration at this stage while deciding the application filed by the applicant under Section 438 of the Code. 13. Reliance placed by learned advocate for the applicant on Clause 19 of the tender document is also misconceived. Clause 19 provides as under: "19. All disputes and differences arising out of or in any way touching or concerning this Agreement (except those the decision whereof is otherwise herein before expressly provided for or to which the Public Premises (Eviction of Unauthorized Occupants) Act and the rules framed there under which are now enforced or which may hereafter come into force are applicable, shall, in the first instance, be referred to a Dispute Resolution Committee (DRC) setup at the airports, for which a written application should be obtained from the party and points clearly spelt out. In case the dispute is not resolved within 45 days of reference, then the case shall be referred to the sole arbitration of a person to be appointed by the Chairman/Member of the Authority. The award of the arbitrator so appointed shall be final and binding on the parties. The Arbitration & Conciliation Act, 1996 shall be applicable. Once the arbitration clause has been invoked, the DRC process will cease to be operative. The award of the arbitrator so appointed shall be final and binding on the parties. The Arbitration & Conciliation Act, 1996 shall be applicable. Once the arbitration clause has been invoked, the DRC process will cease to be operative. It will be no bar that the Arbitrator appointed as aforesaid is or has been an employee of the Authority and the Award of the Arbitrator will not be challenged or be open to question in any Court of Law, on this account." 14. Thus, from the aforesaid clause, it is clear that all disputes and differences arising out of or in any way touching or concerning this agreement can be referred to the arbitrator. However, when the case of the complainant is that for getting the contract for parking, the applicant has produced forged bank guarantee, such type of dispute cannot be covered under Clause 19 of the tender document, as the said dispute is not related to the agreement. 15. From the material produced during the course of hearing by the learned Additional Public Prosecutor, it is revealed that the present applicant has systematically defrauded the complainant by producing the bank guarantee with a view to get the contract and therefore there is prima facie case against the applicant for which custodial interrogation of the applicant is required. In that view of the matter, I am not inclined to exercise discretion in favour of the applicant. Accordingly, this application is dismissed. Rule is discharged.