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2022 DIGILAW 1207 (GUJ)

SAHENAZ MOZAM SHAIKH v. STATE OF GUJARAT

2022-10-04

NIKHIL S.KARIEL

body2022
ORDER : 1. Heard learned senior advocate Mr. I.H. Saiyed with learned advocate Ms. Ketki Jha for the applicant and learned Additional Public Prosecutor Mr. Ronak Raval on behalf of the respondent-State and learned advocate Ms. Khyati Chugh for learned advocate Mr. Parth Bhatt for the first informant in Criminal Miscellaneous Application No. 22263 of 2019 and learned advocate Mr. Abhishek Mehta for the first informant in Criminal Miscellaneous Application No. 13792 of 2020. 2. By way of this application under Section 438 of the Code of Criminal Procedure, 1973, the applicant prays for being released on anticipatory bail in connection with FIR being CR-I 6 of 2019 registered with CID Crime Police Station, Ahmedabad Zone, on 05.08.2019 for offences punishable under Sections 406, 420, 120-B, 465, 467 and 294(B) of the Indian Penal Code. 3. At the outset, it is required to be noted that the applicant of Criminal Miscellaneous Application No. 22263 of 2019 had initially been protected vide an order dated 02.12.2019 and whereas it also appears that after hearing both the parties vide an order dated 25.11.2020, the learned Co-ordinate bench of this Court had protected both the applicants and whereas such protection has enured in favour of the applicants till date. 4. Learned senior advocate Mr. Saiyed for the applicant would submit that the dispute between the parties involves a commercial transaction which took place between the parties and whereas there is no criminality whatsoever involved and as a matter of fact the learned senior advocate would submit that the documents which is placed on record by the first informant being under the title of ‘Summary of Expenses’ clearly shows that the amount of Rs. 2,60,00,000/- approximately, which is the amount allegedly defrauded by the applicants, was infact expenses which had been incurred by the first informant party in developing business of a venture/company in which the first informant party as well as the applicants were stakeholders. Learned senior advocate would further submit that since the venture, which had been jointly entered into by the parties concerned, did not take off as successfully as the parties had intended to, the first informant has preferred the FIR more particularly for recovery of his dues, the said dues being expenses which had been incurred by the first informant party in promoting the joint venture. Learned senior advocate would also draw the attention of this Court to the observations of the learned co-ordinate bench to the orders dated 22.10.2019 and 20.11.2019 in Criminal Miscellaneous Application No. 18838 of 2019 and Criminal Miscellaneous Application No. 19592 of 2019 respectively, whereby the learned co-ordinate bench had inter-alia while releasing the co-accused on regular bail had observed that the FIR prima-facie appears to be filed for the purpose of recovery of amount which is invested in the company and whereas it is further observed by the learned co-ordinate bench that the offence is registered on account of failed business which otherwise was on the strength of technology developed by the applicant. Having regard to such submissions and further requesting this Court to consider that applicant of Criminal Miscellaneous Application No. 22263 of 2019 is a lady accused, learned senior advocate would request this Court to consider the application and release the applicants on pre-arrest bail. Learned senior advocate Mr. Saiyed 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. Learned Advocate would 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. 5. This application is vehemently objected by learned advocate Ms. Khyati Chugh on behalf of the first informant in Criminal Miscellaneous Application No. 22263 of 2019. Learned advocate would submit that the applicants, may not be enlarged on pre-arrest bail more particularly considering the role attributed to the present applicants and further considering the fact that the applicants had played a major role in the transaction whereby the first informant was required to invest a large sum in a business venture more particularly upon the allurement given by the applicants. Learned advocate would submit that as such the entire business venture was itself a fraudulent transaction and whereas the present applicants having played a major role in the entire episode, this Court may not exercise discretion in their favour. 6. This application is also vehemently opposed by learned advocate Mr. Abhishek Mehta on behalf of the first informant in Criminal Miscellaneous Application No. 13792 of 2020. Learned advocate Mr. 6. This application is also vehemently opposed by learned advocate Mr. Abhishek Mehta on behalf of the first informant in Criminal Miscellaneous Application No. 13792 of 2020. Learned advocate Mr. Mehta would submit that as such the said applicant had infact misrepresented himself to the Director of the company in question whereas prior to that date vide orders of the Ministry of Corporate Affairs, the present applicant had been suspended as a Director. Learned advocate would submit that inspite of such a position, the said applicant had also sent statutory documents, which prima-facie establishes the culpability of the present applicant. Having regard to such submissions, learned advocate would request this Court not to exercise discretion in favour of the present applicants. 7. This application is also vehemently opposed by learned Additional Public Prosecutor Mr. Raval appearing on behalf of the respondent-State, who would submit that the present applicants had allured the first informant party to invest in their company by giving false promises and whereas as it appears, later on, the promises which had been given by the present applicants turned out to be fictitious. As far as order of this Court dated 14.09.2022, learned APP would submit that Mr. B. M Patel, Deputy Superintendent of Police is present before this Court and whereas with regard to communication issued by the then Investigating Officer being the Detective Police Inspector, Economic Offence Wing, CID (Crime), Gandhinagar to the Managing Director, Uttarakhand Power Corporation Limited, more particularly asking the Managing Director to exercise caution in dealing with the present applicants, would submit that such a communication was not part of the charge-sheet documents. 8. Having heard the learned Advocates for the parties and having perused the investigating papers as well as documents on record, the following relevant aspects are considered by this Court: (1) It prima-facie appears that while the first informant claims about being defrauded of an amount of Rs. 2,60,00,000/- (approx), it also appears that such amount had been spent by the first informant party, more particularly for business development of the joint venture between the parties concerned. 2,60,00,000/- (approx), it also appears that such amount had been spent by the first informant party, more particularly for business development of the joint venture between the parties concerned. (2) It also appears as per the chart showing the break-up of the said amount which is a part of the record under the heading ‘Summary of Expenses’ that a major part of the amount was spent in business development i.e. in travel to the United States as well as hotel accommodation etc and whereas according to the submission of senior advocate for the applicants that most of the expenses including travel to the United States was by the first informant himself. It also appears that the other expenses as mentioned in the chart, relates to office expenses etc and whereas prima-facie it does not appear that any part of the said amount had traveled to the present applicants. (3) This Court is prima-facie of the opinion that the amount in question was a part of the commercial transaction and whereas since the commercial venture which was jointly undertaken by the parties did not take off as expected the first informant had turned around and filed the FIR. (4) This Court is also inclined to take note and rely upon the observations of the learned co-ordinate bench though made in the context of releasing co-accused on regular bail, but in the considered opinion of this Court such observations would hold good for the purpose of the present application also. In Criminal Miscellaneous Application No. 18838 of 2019, the learned Coordinate bench made the following observations: “(IV) Submission of the learned Advocate for the applicant that from the FIR, it appears that the complaint is filed for the purpose of recovery of the amount which appears to have been invested in the Company. It is submitted that, the applicant is Director, was only on pay roll of the company and so is reflected in the Affidavit of the Investigating Officer. In Criminal Miscellaneous Application No. 19592 of 2019, the learned Coordinate bench made the following observations: (IV) The submission of the learned Senior Counsel for the applicant that the offence is registered on account of a failed business which otherwise on the strength of the technology developed by the applicant had a better future. In Criminal Miscellaneous Application No. 19592 of 2019, the learned Coordinate bench made the following observations: (IV) The submission of the learned Senior Counsel for the applicant that the offence is registered on account of a failed business which otherwise on the strength of the technology developed by the applicant had a better future. (V) The submission of learned Senior Counsel for the applicant that even from the allegations of the First Informant Report which merely refers to the demand of money by the complainant to the applicant for the purpose of running of the business of the Company. (VI) The submission of the learned Senior Counsel for the applicant that through the joint venture had successfully carried out the Project with Uttarakhand Power Corporation Ltd. which is a Government Company and therefore, the allegations in the complaint that the applicant had no technology or business for development cannot be accepted.” (5) It also appears that while the applicant of Criminal Miscellaneous Application No. 13792 of 2020, is alleged to have signed on certain documents as Director of the Company, more particularly when he was under suspension as a Director at the relevant point of time and whereas in the considered opinion of this Court, it does not appear that the first informant who was allured in entering into the transaction only on the account of the presence of the said applicant on account of the fact that the said applicant had portrayed himself to be a Director of a Company whereas he was under suspension at the relevant point of time. (6) It also appears that the applicant of Criminal Miscellaneous Application No. 22263 of 2019 is a lady accused. 9. In this view of the matter and considering the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others, (2011) 1 SCC 694 , this Court is inclined to consider this application. 10. In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to the FIR being CR-I 6 of 2019 registered with CID Crime Police Station, Ahmedabad Zone, the applicant shall be released on bail on furnishing a personal bond of Rs. 10. In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to the FIR being CR-I 6 of 2019 registered with CID Crime Police Station, Ahmedabad Zone, the applicant shall be released on bail on furnishing a personal bond of Rs. 1,00,000/- (Rupees one lakhs only) each 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 the concerned Police Station on 10.10.2022 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 or till further orders. (f) shall not leave India without the permission of the Court and, if having passport shall surrender the same before the Trial Court within a week. 11. Despite this order, it would be open for the Investigating Agency to file an application for police remand of the applicant to the competent Magistrate, if he thinks it just and proper and learned Magistrate would decide it on merits. 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. 12. 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 while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted.