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Gujarat High Court · body

2020 DIGILAW 939 (GUJ)

Shivaji Shankar Nikade v. State of Gujarat

2020-12-02

B.N.KARIA

body2020
ORDER : 1. By way of present application, applicant has prayed to enlarge the applicant on regular bail in connection with the FIR being C.R. No.82/2019 registered with Dediyapada Police Station, Rajpipla dated 06.08.2019 for the offence punishable under Sections 406, 409 and 114 of the Indian Penal Code r/w Section 3 of Gujarat Protection of Interest of Depositors (Financial establishment) Act, 2003. 2. Heard learned advocate for the applicant and learned APP for the respondent-State. 3. Learned advocate for the applicant submits that applicant is totally innocent and has been falsely implicated in the complaint. That he has been falsely involved into the said incident and there is no recovery or discovery from him and there is no evidence to suggest that the complainant has paid the money. That investigation is completed and chargesheet has been filed. That similar such other complaints have also been filed in Maharastra and Silvasa, where the alleged misappropriated amount runs into around 900 crores. That the Hon’ble Courts have enlarged the applicant on bail on the ground that all 66 properties have been seized and 52 bank accounts have been frozen by the EOW and all the monies are now being secured. He further submits that in this scenario, the applicant is required to be released on bail in the present case. That the story with which the complaint is filed is not believable insofar as the complainant had not even lodged the complaint immediately and nobody would believe occurrence of such incident of 2014 to 2018 and the complaint is filed on 06.08.2019. That co-accused namely the Ganesh Hajare being the Manging Director had preferred an application for regular bail being Criminal Misc. Application No.22987 of 2019 and this Hon’ble Court vide order dated 09.01.2020 was pleased to enlarge the said accused on regular bail, and therefore, on the ground of parity also the applicant deserves to be enlarged on bail. 4. Learned APP for the respondent-State has objected the submissions made by learned advocate for the applicant and submitted that in the company 77 agents and 924 investors have invested their money and in all amount of Rs.1,76,71,900/- is misappropriated. 4. Learned APP for the respondent-State has objected the submissions made by learned advocate for the applicant and submitted that in the company 77 agents and 924 investors have invested their money and in all amount of Rs.1,76,71,900/- is misappropriated. That, the applicant along with other co-accused have collected huge amount from the people and though assured to return amount on maturity, have not repaid the deposit amount on its maturity and thereby they cheated people like complainant and other people of villages. That, the applicant is the Chairman of the company and he is leading the company and other co-accused are Directors of the Company and thus, they all are responsible for the misappropriation of such amount. That, the applicant is very influential person and there are all chances of tempering with the evidence, if he is released on bail at this stage. That, the applicant is the main accused and has played vital role in floating the schemes of the company and hence, considering the role of the applicant and his involvement in the offence, the applicant is not entitled for the parity with other co-accused who are released on bail and ultimately, learned APP for the respondent-State has requested to dismiss present application. 5. Having gone through the contents of the complaint, material placed on record as well as arguments advanced by learned advocate for the applicant and learned APP for the respondent-State, it appears that the criminal complaint was lodged by Sumitraben Vasava against the present applicant and other co-accused with Dediyapada Police Station on 06.08.2019 being FIR vide CR No. I82/ 2019 for the offence punishable under Sections 406, 409 and 114 of Indian Penal Code read with Section 3 of Gujarat Protection of Interest of Depositors (Financial Establishment) Act 2003. It appears from the complaint that the present applicant is the Chairman of the company named Atharva 4 U Infra and Agro Limited. As per further allegations made in the complaint, present applicant in furtherance of his common intention along with other accused, who were agents and office bearers, received huge amount of Rs. 1,76,71,900/from the villagers and misappropriated the said amount for their own use by cheating and dishonestly inducing the investors and committed the offence. As per further allegations made in the complaint, present applicant in furtherance of his common intention along with other accused, who were agents and office bearers, received huge amount of Rs. 1,76,71,900/from the villagers and misappropriated the said amount for their own use by cheating and dishonestly inducing the investors and committed the offence. It appears that the name of the present applicant as well as specific role was clearly mentioned in the FIR as he being a Chairman of the said company. In the month of August 2014, the accused persons namely Dineshhai Tapsingbhai Vasava and Mavjibhai G. Jadav came to the residence of the complainant informing that Atharva 4 U Infra and Agro Limited has come with very goods savings schemes and period of its maturity term is three years. They also shown booklets of the said company with registration number and its website stating their schemes and investment plan of the Company and thereby being impressed with the attractive schemes of the company, the complainant opened RD account in the company, and thereafter, as the insistence of the accused and assured for the repayment of the amount and advised to work as agent to get commission, the complainant was influenced by such attractive schemes and therefore, she became an agent of the company. Even the accused no.1 and 2 and complainant had a meeting with the people of village and other agents informed them to invest money in the company and to make consumers and agents of the company. The accused no.1 to 6 were doing frequent meetings with the villagers of Dediyapada and Sagbara and other interior villages and explained to invest in the scheme of the company. They also appointed some agents to collect money from several consumers and opened branch office of the company at Nilvada village near Dediyapada on 27.03.2016.The complainant and her family members have opened their accounts and invested their moneys in the FD Scheme of the company. 6. From the affidavit filed by investigating officer, it appears that in this company 77 agents and 924 investors have invested their money in the company and thereby in all amount of Rs. 1,76,71,900 was misappropriated. 6. From the affidavit filed by investigating officer, it appears that in this company 77 agents and 924 investors have invested their money in the company and thereby in all amount of Rs. 1,76,71,900 was misappropriated. The present applicant alongwith other co-accused have collected huge amount from the people and though assured to refund amount on maturity, have not repaid the deposit amount on its maturity and cheated people like the complainant and other people of the villages. The applicant was the chairman of the Company and he was leading the company while other co-accused were the directors or agents of the company. It appears that during the course of investigation, statements of several witnesses were recorded by Investigating Officer wherein they have stated that investment of their money was made in the company and they do not get repayment of their invested amount and their money were misappropriated by the present applicant and co-accused persons. It also appears that applicant is habitual offender and has committed serious offence and thereby six other FIR's were registered against the present applicant, which are as under: 1. C.R. No. 55/2018 at E.O.W. Mumbai for offences u/s 406, 409, 420, 120B of IPC and Sections 3 and 4 of M.P.I.D. Act, 2. Selvas Police Station C.R. No.201/2018 for offnces u/s. 406, 420, 34 of I.P.C. 3. Naupada (Thane) Police Station C.R. No.380/2018 for offences u/s.406, 408, 409, 420, 34 and Section 3 of M.P.I.D. Act, 1999 4. E.O.C. Panji (Goa)C. R. No.55/2018 for offences u/s. 406, 409, 420 of IPC and Sections 3 and 5 of Goa Protection of Interest of Depositors Act, 1999; 5. C.R. No.I77/20 at Junagadh City B Division Police Station, Gujarat for offences u/s 406, 408, 409 of I.P.C. and Section 3 and 4 of G.P.I.D. Act, 6. C.R. NO.I51/ 19 at Chorwad Police Station, District : Junagadh for offnces u/s. 406, 408, 409 of IPC and Sections 3 and 4 of G.P.I.D. Act. 7. Present applicant is the Chairman of the the company and was running the said company with other Directors, Office-bearers and employees of the company and he has not repaid the amount to the investors and not deposited any amount as muddamal recovery. He appears to be main accused and has played vital role in floating the schemes of the company. Present applicant is the Chairman of the the company and was running the said company with other Directors, Office-bearers and employees of the company and he has not repaid the amount to the investors and not deposited any amount as muddamal recovery. He appears to be main accused and has played vital role in floating the schemes of the company. In another offence registered against the applicant and co-accused, it is alleged that misappropriated amount runs into around Rs. 900/crores. The co-accused Ganesh Ramdas Hajare (as he being Managing Director) was released by coordinate bench of this Court (Coram: Hon'ble Mr. Justice Vipul M. Pancholi, J.) in Criminal Misc. Application No. 22987 of 2019 vide order dated 09.01.2020. The present applicant was also released on bail by designated court under M.P.I.D. Act by City Civil and Sessions Court, Mumbai in MPID Case No. 23 of 2018 in C.R.No. 55 of 2018. Learned advocate, in his arguments, has submitted that the entire case is based on documentary evidence and 66 properties are secured and 52 bank accounts are frozen in the offence, and therefore there is no question of tampering any evidence if the applicant is released on bail. The applicant is in judicial custody since last one and half years. The ground of parity would not be applicable to the facts of the present case as the other co-accused namely Ganesh Ramdas Hajare was released by this court being a Managing Director. The present applicant being the Chairman of the company and is more responsible than the office bearers of the company rather than Managing Director of the company. Admittedly, no amount received by the present applicant from the different investors is repaid to them nor deposited by the present applicant. Securing any property of the applicant or frozening the bank account would not serve the purpose of the investors. 8. Jurisdiction to grant bail has to be exercised on the basis of well settled principle having regard to the facts and circumstances of each case. Securing any property of the applicant or frozening the bank account would not serve the purpose of the investors. 8. Jurisdiction to grant bail has to be exercised on the basis of well settled principle having regard to the facts and circumstances of each case. Relevant factors are, (I) nature of accusation (ii) severity of punishment in case of conviction and nature of material relying upon by prosecution (iii) reasonable apprehension of tempering with witnesses or apprehension of threat to complainant or witnesses (iv) reasonable possibility of securing presence of the accused at the time of trial or likelihood of his absconding (v) character, behaviour, means, position and standing of the accused and (vi) higher interest of public or State and similar other consideration. 9. Investigating Officer has declared on oath in his affidavit that there is direct evidence against the applicant in commission of offence and is very influential person. There are all chances of tempering with the evidence, if he is released on bail at this stage. The applicant would influence the witnesses. 10. Considering the above said factors, involvement of the present applicant and he being a Chairman of the company, as he received huge amount of different investors and has not returned back to them, this court is of the considered view that prayer made by the applicant cannot be granted. Hence, present applicant stands rejected. 11. Rule stands discharged.