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2021 DIGILAW 363 (GUJ)

Manish Deviprasadji Kakrania v. State of Gujarat

2021-05-04

A.S.SUPEHIA

body2021
ORDER : RULE. Learned Additional Public Prosecutor waives service of notice of rule on behalf of the respondent – State. 1. Heard the learned advocates for the respective parties through video conferencing. 2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 seeking regular bail in connection with an FIR being C.R. No.11191011210023 of 2021 registered with D.C.B. Police Station, Dist.Ahmedabad for the offences punishable under Sections 406, 420, 409 and 120B of the Indian Penal Code, 1860. 3. The case of the prosecution in nutshell is that the aforesaid F.I.R. has been lodged by one Mr.Chintan Kishor Bhatia, partner of G.H.Enterprise INC alleging that the first informant is a partner of G.H.Enterprise INC holding 15% share and balance 85% is held by G.H.Commercial LLP of Ganpatlal Manmalji Jain. The first informant further claims that the firm is engaged in business of readymade garments and that he is handling the entire operation of the firm in Ahmedabad. The accused persons are the Directors of a company by name and style “Citylife Retails Private Limited”, which is engaged in business of readymade garments and has about 100 Retail stores all over India. Between 27.01.2018 and 15.04.219, the accused persons purchased goods from the informant worth Rs.1,06,62,276/and initially repaid the outstanding amount of Rs.66,97,124/- between 17.05.2018 and 18.01.2019. It is further alleged that the accused persons have yet not paid the outstanding amount and they have admitted their liability to the tune of Rs.40,69,146/-. It is the say of the informant that the accused persons changed the name of the company to “Sanvie Retails Private Limited” upon being blocked by CMATA, an association of clothing manufacturers and traders. It is further alleged that the accused has failed to pay the outstanding amount of various traders enlisted in the F.I.R. 4. Mr.J.M.Panchal, learned advocate appearing with Mr.Saurabh Amin, learned advocate appearing for the applicant submitted that the F.I.R. filed against the applicant is exfacie illegal and does not disclose any incriminating material against him. He has further submitted that the applicant ceased to be the Director of the company w.e.f. 04.07.2019 and even before that he was never involved in daytoday management of the affairs of the company and has no role in the alleged offence. He has further submitted that the applicant ceased to be the Director of the company w.e.f. 04.07.2019 and even before that he was never involved in daytoday management of the affairs of the company and has no role in the alleged offence. He has submitted that the applicant was actively involved in day-to-day affairs of his own business firm i.e.Jeevandas and Sons and was not involved in the day-to-day affairs of the company and he did not have any occasion whatsoever as alleged to meet and/ or communicate any of the suppliers as averred in the F.I.R. He has further submitted that the transactions alleged are civil transactions related to purchase and sale of goods entered into usual course of business. It is submitted that there is no culpability involved. It is submitted that part payments were made and it appears that the company failed to make the balance payment due to huge business losses suffered by it. He has submitted that it is wrongly alleged that the name of the Company has been changed from Citylife Retail Private Limited to Sanvie Retails Private Limited to defraud the supplier. It is submitted that there is no change of name of the company. The Sanvie Retail Private Limited is a totally separate company incorporated on 07.07.2020 and the applicant has nothing to do with the same. He has submitted that the applicant has never been convicted by any of the courts of law. However, there have been some FIRs that have been registered in Rajasthan in relation to dues of the very same company. In all these cases, the applicant has been enlarged on bail. 4.1 Mr.Panchal, learned advocate has pointed out the order dated 27.04.2021 passed by the Additional City Civil and Sessions Court, Ahmedabad, granting anticipatory bail to accused no.1 in Criminal Misc. Application No.2292 of 2021. Thus, he has submitted that the accused no.1, who had graver role to play, has been released on anticipatory bail. He has submitted that the applicant is ready and willing to deposit Rs.15,00,000/-before the trial court. Lastly, it is urged by the learned advocate for the applicant that the applicant may be released on bail. 5. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of regular bail considering the nature and gravity of the offence and submitted that the applicant may not be released on bail. 6. Lastly, it is urged by the learned advocate for the applicant that the applicant may be released on bail. 5. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of regular bail considering the nature and gravity of the offence and submitted that the applicant may not be released on bail. 6. Mr.Niral Mehta, learned advocate appearing on behalf of the first complainant, has vehemently opposed this application and submitted that in fact this scam is being operated by the accused persons, including the applicant and now they have shut the company by duping various people. He has submitted that the amount, which is fixed by the trial court while granting anticipatory bail application is a very meager amount and some more amount may be fixed in this case, if this Court is inclined to grant the bail. It is further submitted by him that the first informant is in the process of challenging the aforesaid order granting anticipatory bail before this Court. 7. Having perused the materials 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, this Court is inclined to grant regular bail to the applicant. This Court has considered following aspects; (i) The role attributed to the accused; (ii) Prima facie it appears that the applicant ceased to be the Director of the company w.e.f. 04.07.2019; (iii) Prima facie the transactions alleged are civil transactions related to purchase and sale of goods entered into usual course of business and the company failed to make the balance payment due to huge business losses suffered by it; (vi) Prima facie it appears that the name of the there is no deliberate change of name of the company and Sanvie Retail Private Limited appears to be a totally separate company incorporated on 07.07.2020; (vii) It is pointed out that in some FIRs that have been registered in Rajasthan in relation to dues of the very same company, the applicant has been enlarged on bail; (viii) The accused no.1, who had graver role to play, has been released on anticipatory bail; (ix) The applicant is ready and willing to deposit Rs.15,00,000/before the trial court. 8. 8. This Court has also taken into consideration the law laid down by the Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, (2012) 1 SCC 40 . 9. In the result, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an FIR being C.R. No.11191011210023 of 2021 registered with D.C.B. Police Station, Dist.Ahmedabad, on executing a personal bond of Rs.10,000/-( Rupees Ten Thousand Only) and subject to the conditions that he shall; (a) not take undue advantage of liberty or misuse liberty; (b) not act in a manner injurious to the interest of the prosecution; (c) surrender his passport, if any, to the lower court within a week; (d) not leave the State of Gujarat without prior permission of the concerned Trial Court; (e) mark presence before the nearest Police Station from his residence in Kolkata once in a month, between 10:00 a.m. and 2:00 p.m.; (f) furnish latest 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 the Trial Court; (g) deposit Rs.2,00,000/- within a period of 01 (one) week from the date of receipt of this order before the trial court; (h) file an undertaking before the trial court to the effect that the amount of Rs.13,00,000/- will be deposited within a period of 04 (four) weeks before the trial court; It goes without saying that any breach of the aforesaid conditions would entail automatic cancellation of the bail. 10. The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the concerned Trial Court will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the Trial Court having jurisdiction to try the case. 11. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, learned 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. Rule is made absolute accordingly. 12. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, learned 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. Rule is made absolute accordingly. 12. Registry is directed to intimate the concerned jail authority and the concerned Sessions Court about the present order by sending a copy of this order through Fax message, email and/or any other suitable electronic mode. 13. Learned advocate for the applicant is also permitted to send a copy of this order to the concerned jail authority and the concerned Sessions Court through Fax message, email and/or any other suitable electronic mode.