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2019 DIGILAW 446 (GUJ)

Pitamber Tarachand Manglani v. State Of Gujarat

2019-04-22

VIPUL M.PANCHOLI

body2019
ORDER : 1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973 (‘the Code’ for short), the applicantaccused has prayed for anticipatory bail in connection with the FIR being C.R.No.I–120 of 2018 registered with Maninagar Police Station, District Ahmedabad, for the offence punishable under Sections 406, 420, 465, 467, 468, 471, 506(1), 120B and 114 of the Indian Penal Code. 2. Heard Mr.Aftabhusen A. Ansari, learned advocate assisted by Ms.Punita H. Joshi, learned advocate for the applicant, Mr.L.B. Dabhi, learned Additional Public Prosecutor for the respondent State and Mr.R.R. Marshall, learned Senior Advocate assisted by Mr.Harmish K. Shah and Mr.Ashok N. Parmar, learned advocates for the original complainant. 3. It is submitted by the learned advocate for the applicant that the FIR being C.R. No.I120 of 2018 is registered with Maninagar Police Station, District Ahmedabad, against the applicant and others for the alleged offences punishable under Sections 406, 420, 465, 467, 468, 471, 506(1), 120B and 114 of the Indian Penal Code. It is submitted that mainly, it is alleged in the said FIR that the complainant along with three other persons are the Directors of Dipla Hotels Pvt. Ltd. It is also stated that previously, there were four members of the said Company, namely, (1) Kunal Manglani, (2) Meena Manglani, (3) Pitambar Manglani and (4) Dilip Rasiklal Shah, who had executed an Agreement for Sale of share on 07.05.2015 wherein 70% of the shares are claimed to be that of the family members of the complainant. It is also alleged that the applicant has forged the signature of his son i.e. Kunal Pitambar Manglani and by using the said forged signature, the applicant has appointed one Mr.Rohit Chawla as a Director in the said Company. It is alleged that though the son of the applicant is not in India, on the basis of the forged letterpad of the said Company and on the basis of the fabricated letter of appointment, in connivance with the Company Secretary, the accused submitted online form for appointment of a new Additional Director being Form No.D.I.R.12 and thereby the accused have committed the alleged offence. 3.1 It is, thereafter, contended that the applicant was apprehending his arrest and, therefore, he filed Criminal Misc. Application No.6118 of 2018 before the Sessions Court, Ahmedabad. 3.1 It is, thereafter, contended that the applicant was apprehending his arrest and, therefore, he filed Criminal Misc. Application No.6118 of 2018 before the Sessions Court, Ahmedabad. However, the said application came to be dismissed by the Sessions Court vide order dated 04.10.2018 and, therefore, the present application is filed. 3.2 Learned advocate appearing for the applicant has mainly submitted that there is a dispute between the applicant and his family members on one side and the original complainant and his family members on the other side with regard to the aforesaid Company. The dispute is pending between the parties before the National Company Law Tribunal (‘NCLT’ for short). It is contended that the online form being Form No.D.I.R.12 was submitted by the Company Secretary on 03.07.2018 and, therefore, when the complainant came to know about the same, he filed a written complaint dated 13.07.2018 before the Police Inspector, Maninagar Police Station against one Manisha Govind Priyani, Kunal Pitambar Manglani and Rohit Chawla. Copy of the said complaint is produced at Page71 of the compilation. After referring to the same, it is submitted that the complainant has not made any allegation against the present applicant in the said written complaint and the allegations are mainly levelled against the aforesaid persons. However, shockingly, after a period of approximately two months, the FIR in question is registered against the present applicant and one Dilip N. Motwani, Company Secretary. It is, therefore, urged that in the FIR in question, the applicant is wrongly implicated after a period of two months with malafide intention and, therefore, this Court may exercise discretion in his favour. 3.3 It is, thereafter, contended that the applicant is aged about sixtythree years and the complainant has implicated him in the FIR in question with malafide intention and with a view to settle the dispute pending between the parties before the NCLT. Thus, looking to the age of the applicant, this Court may consider his case for anticipatory bail. 3.4 It is further submitted that the complainant has narrated wrong facts in the FIR in question and in fact, Mr.Kunal Pitambar Manglani, is the present Director of the aforesaid Company and is having all the powers to appoint or to modify the constitution of the Company. 3.4 It is further submitted that the complainant has narrated wrong facts in the FIR in question and in fact, Mr.Kunal Pitambar Manglani, is the present Director of the aforesaid Company and is having all the powers to appoint or to modify the constitution of the Company. It is submitted that Ms.Manisha Govind Priyani had taken instructions from Mr.Kunal Pitambar Manglani on 20.06.2018 for appointment of Additional Director under the provisions of Section 161 of the Companies Act, 1956, which provides for appointment of Additional Director/Alternate Director and Nominee Director and, thereafter, on 03.07.2018, she had filed Form No.D.I.R.12 and, thereby, added the name of Mr.Rohit Chawla as Additional Director in the Company. Thereafter, on 09.07.2018, Ms.Manisha Govind Priyani had removed the name of Mr.Rohit Chawla from Additional Directorship of the Company under the instructions of Mr.Kunal Manglani. At this stage, it is pointed out by the learned advocate for the applicant that Ministry of Corporate Affairs’ site allows the Directors to upload attachment and other necessary documents and, therefore, the person, who is not a Director, cannot submit any application online. Even the digital signature of a Director cannot be forged in any manner. Thus, the allegation that digital signature of Kunal Manglani is forged, cannot be believed. 3.5 It is, thereafter, submitted that the coaccused is enlarged on anticipatory bail by this Court and, therefore, on the ground of parity as well, the case of the applicant be considered. 3.6 Learned advocate for the applicant further submits that though the complainant has stated about the antecedents against the applicant in the affidavitinreply filed in the present matter, it is required to be noted that while considering the case of the applicant for regular bail in connection with the FIR being IC. R. No.47 of 2017 registered with Sabarmati Police Station, the Coordinate Bench of this Court has discussed all the aforesaid aspects while passing the order on 22.02.2019 and, therefore, the complainant cannot rely upon the socalled antecedent of the applicant. At this stage, learned advocate has referred the order dated 22.02.2019 passed by the Coordinate Bench of this Court in Criminal Misc. Application No.29551 of 2017, a copy of which is produced at Page151 of the compilation. At this stage, learned advocate has referred the order dated 22.02.2019 passed by the Coordinate Bench of this Court in Criminal Misc. Application No.29551 of 2017, a copy of which is produced at Page151 of the compilation. 3.7 Learned advocate for the applicant would further contend that the case of the prosecution rests on documentary evidence, which are in custody of the Investigating Agency and, therefore, in the facts and circumstances of the present case, custodial interrogation is not required. 4. On the other hand, Mr.L.B. Dabhi, learned Additional Public Prosecutor, has opposed this application and pointed out that prima-facie case is made out against the applicant as the applicant has forged the signature of his son Kunal Pitamber Manglani and thereby submitted online form for appointment of Additional Director in the Company in question. It is also submitted that there are antecedents reported against the applicant and, therefore, this Court may not exercise discretion in favour of the applicant. 5. Mr.R.R. Marshall, learned Senior Advocate appearing for the original complainant, has also supported the submissions canvassed by the learned Additional Public Prosecutor and referred the averments made in the affidavitinreply filed by the original complainant. Copy of the said reply is produced at Page81 of the compilation. 5.1 It is submitted that the complainant has produced the list of criminal cases which are registered against the applicant and submitted that looking to the antecedents, this Court may not exercise discretion in favour of the applicant. It is further submitted that in connection with the FIR being C.R. No.I47 of 2017 registered with Sabarmati Police Station against the applicant, when this Court has entertained bail application, the complainant filed Special Leave Petition before the Honourable Supreme Court and the HonourableSupreme Court has modified the said order by imposition condition to deposit Rs.25 lacs before the concerned trial Court and Rs.25 lacs be paid to the complainant. 5.2 It is further submitted that though the application filed by the applicant for anticipatory bail was rejected by the Sessions Court on 04.10.2018, he filed an application before this Court after a period of five months. Thus, looking to the conduct of the applicant, this application may not be entertained. 5.3 It is, thereafter, submitted that when the applicant has forged the signature of his son, custodial interrogation of the applicant is required and, therefore, this application may not be entertained. Thus, looking to the conduct of the applicant, this application may not be entertained. 5.3 It is, thereafter, submitted that when the applicant has forged the signature of his son, custodial interrogation of the applicant is required and, therefore, this application may not be entertained. 5.4 Learned Senior Advocate has placed reliance upon a decision rendered by the Honourable Supreme Court in the case of Neeru Yadav Vs. State of Uttar Pradesh and another reported in (2016) 15 SCC 422 . 6. Having heard learned advocates appearing for the parties and having gone through the material produced on record, it has emerged that the FIR in question is filed for the alleged offences punishable under Sections 406, 420, 465, 467, 468, 471, 506(1), 120B and 114 of the Indian Penal Code. Mainly, the allegation against the applicant is that he has forged the signature of his son Kunal Manglani, who is not in India. However, it is required to be noted that the FIR in question is registered on 03.09.2018, for the alleged incident, which has occurred on 03.07.2018. Thus, there is a delay of two months in lodging the FIR. It is also required to be noted that online application was submitted by the concerned Company Secretary in the prescribed form, by which, one Rohit Chawla is added as Additional Director of the Company. When the complainant came to know about the same, he filed a written complaint dated 13.07.2018 against Manisha Govind Priyani, Kunal Manglani and Rohit Chawla. In the said written complaint, the complainant has not made any allegation against the present applicant. It is required to be noted that the present applicant is not the beneficiary of the transaction in question. It is required to be noted that it is not in dispute that the proceedings are pending between the parties before the NCLT for the dispute with regard to Dilpa Hotels Pvt. Ltd. In the Company Petition filed before the NCLT, the present applicant and his family members are the petitioners whereas the complainant and others are the respondents. It is the specific case of the applicant that with a view to see that the dispute pending before the NCLT is settled, the FIR in question is registered with malafide intention, wherein the applicant is wrongly implicated. 7. It is the specific case of the applicant that with a view to see that the dispute pending before the NCLT is settled, the FIR in question is registered with malafide intention, wherein the applicant is wrongly implicated. 7. Learned Senior Advocate appearing for the complainant has mainly placed reliance upon the socalled antecedents of the applicant by referring to the list of cases mentioned in the affidavitinreply. However, it is required to be noted that in another FIR being C.R. No.I47 of 2017 registered with Sabarmati Police Station, the applicant filed the application under Section 439 of the Code before this Court and this Court has allowed the said application vide order dated 22.02.2019. The Coordinate Bench of this Court has observed in Paragraphs10 to 16 about the cases, which are referred in the affidavitinreply. I have gone through the reasoning recorded by the Coordinate Bench of this Court in the aforesaid paragraphs. It is required to be noted that the aforesaid order was challenged by the original complainant before the Honourable Supreme Court and the Honourable Supreme Court has not interfered with the said order on merits. However, the same was modified by giving further direction to the applicant to pay an additional amount of Rs.25 lacs to the complainant. In view of the aforesaid, this Court is of the view that the reliance placed by the learned Senior Advocate appearing for the original complainant on the socalled antecedents, is misconceived. 8. The applicant is aged about sixtythree years and the case of the prosecution depends upon the documentary evidence. The documents are in custody of the Investigating Agency and, therefore, in the facts and circumstances of the present case, custodial interrogation of the applicant is not required. Moreover, coaccused, Dilip Narottamdas Motwani, is released on anticipatory bail by the Coordinate Bench of this Court vide order dated 15.10.2018. Thus, in the overall facts and circumstances of the present case, judicial discretion in favour of the applicant is required to be exercised. 9. Taking into consideration the facts of the case, nature of allegations, gravity of offence, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant anticipatory bail to the applicant. 9. Taking into consideration the facts of the case, nature of allegations, gravity of offence, role attributed to the accused, without discussing the evidence in detail, at this stage, this Court is inclined to grant anticipatory bail to the applicant. 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. as 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, as reported at (1980) 2 SCC 565 . 10. 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–120 of 2018 registered with Maninagar Police Station, District Ahmedabad, 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 01.05.2019 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 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; 11. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. 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 I 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. 12. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. 13. Rule is made absolute to the aforesaid extent. Direct service is permitted.