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2019 DIGILAW 347 (GUJ)

Mansukh Govindbhai Ranpariya v. State of Gujarat

2019-04-09

VIPUL M.PANCHOLI

body2019
ORDER : 1. 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 C.R. No. I – 7 of 2019 registered with Umra Police Station, Surat for the offenses punishable under Sections 406, 420, 465, 467, 468, 504, 506(2) and 120B of the Indian Penal Code. 2. Learned advocate for the applicant submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. He further submits that the applicant will keep himself available during the course of investigation, trial also and will not flee from justice. 3. 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 submit that upon filing of such application by the Investigating Agency, the right of applicant accused to oppose such application on merits may be kept open. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted anticipatory bail. 4. It is contended by learned advocate for the applicant, by referring to the MOU that, as per the MOU entered into between the applicant and the original complainant, copy of which is produced at page 118 of the compilation, Rs.80 lacs were required to be paid to the complainant for the services which are to be rendered by the complainant as a project consultant whereas Rs.80 lacs were invested by the complainant in the project floated by the present applicant and others. It is contended that out of Rs.80 lacs which were received by the applicant, the applicant has paid the amount to the concerned flat owners and the applicant has not misappropriated any amount. He, therefore, urged that the alleged offences are not committed by the applicant. It is further contended by learned advocate for the applicant that if the applicant has violated the terms and conditions of the MOU, the complainant can file civil proceedings before the competent Court for implementation of the said document or agreement. However, the present FIR is nothing but abuse of process of the Court. 5. It is further contended by learned advocate for the applicant that if the applicant has violated the terms and conditions of the MOU, the complainant can file civil proceedings before the competent Court for implementation of the said document or agreement. However, the present FIR is nothing but abuse of process of the Court. 5. Learned Additional Public Prosecutor appearing on behalf of the respondent – State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. 6. Learned advocate Ms. Samta Godiawala appearing for the complainant as well as the learned Additional Public Prosecutor have vehemently opposed this application. Learned advocate for the complainant has referred to the averments made in the affidavit filed by the complainant and contended that the applicant has duped the complainant by not implementing the MOU, copy of which is produced at page 118 of the compilation. It is also contended that the signature of the complainant is forged by the applicant. It is, therefore, urged that this application may not be entertained. 7. 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 anticipatory bail to the applicant. This Court has also considered the aspects that; (i) it is not in dispute that the amount of Rs.80 lacs given by the complainant for investment in the project is paid by the applicant to the concerned flat owners; (ii) in fact, the complainant has also admitted the said aspect in the affidavit filed by the complainant. This Court has also considered the aspects that; (i) it is not in dispute that the amount of Rs.80 lacs given by the complainant for investment in the project is paid by the applicant to the concerned flat owners; (ii) in fact, the complainant has also admitted the said aspect in the affidavit filed by the complainant. Learned Additional Public Prosecutor has also verified the said aspect from the concerned police officer who is present in the Court and from the investigating papers; (iii) when the applicant has already paid the amount to the concerned flat owners and he has not misappropriated the amount given by the complainant, discretion is required to be exercised in favour of the applicant; (iv) co-accused are released on anticipatory bail by this Court or by the Sessions Court, copy of the orders are produced along with the application; (v) it is also required to be noted that in the affidavit filed by the complainant, it is specifically averred by the complainant that flat owners were also not signing on the papers of the NA stating that they want more money from the accused. On requesting flat owners to return back the amount, the flat owners blatantly refused to do so; (vi) it is further stated that the said act of the flat owners is contrary to the agreement to sale entered into with the other accused persons; (vii) it is further stated that the flat owners, inspite of being aware and entering into agreement with the accused no.1-the applicant did not sign the papers for NA and passing of the plan with the sole intention to usurp the money; (viii) it is further stated that the accused nos.7 and 12 being flat owners are also responsible and they are willing to sell it off to the third party, inspite of undisputed aspect that they have availed a sum of amount from the accused no.1-applicant; (ix) in view of the aforesaid undisputed facts stated by the complainant in the affidavit, I am inclined to exercise the discretion in favour of the applicant. 8. This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. 8. This Court has also taken into consideration the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Ors., reported at [2011] 1 SCC 694, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab, reported at (1980) 2 SCC 565 . 9. 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 C.R. No. I – 7 of 2019 registered with Umra Police Station, Surat 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 16.4.2019 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 Sessions 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; 10. 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. 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. 11. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. 12. Rule is made absolute to the aforesaid extent. Direct service is permitted.