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2022 DIGILAW 1293 (GUJ)

NAVEEN JANAKBABU PARASHAR v. STATE OF GUJARAT

2022-10-10

ILESH J.VORA

body2022
ORDER : 1. The applicant, by way of this application, filed under Section 439 of the Code of Criminal Procedure, seeks regular bail in connection with the FIR being I-C.R. No. 9 of 2022 registered with CID Crime, Gandhinagar Police Station of Economic Offences Wing, for the offences punishable under Sections 406, 409, 420, 467, 468, 471, 477A, 120B of IPC. 2. Brief facts leading to filing of present application are that, the complainant Shashinbhai Patel being a Director of Sadbhav Engineering Ltd. lodged an FIR against seven persons. The accused No. 7 is Gayi Adi Management Trade Pvt. Ltd. Hyderabad. The applicant accused is the Director of accused No. 7 company. The FIR came to be lodged on 23.08.2022. The complainant availed loan from accused No. 7 M/s. Gayi Adi Management Pvt. Ltd. Company and as per the arrangement/understanding, the loan was extended to the tune of Rs. 6 crore, against which the borrower-complainant had to transfer /securitized 3183300 shares of M/s. Sadbhav Engineering Ltd. as a collateral against the loan amount and the same was reduced in writing. The transactions entered into writing in the month of January, 2020. It is further case of the prosecution that, the accused GSV Securities Pvt. Ltd. was the instrumental in the alleged loan contract, as the company is broking company. It is the case of the prosecution that, the complainant had transferred the disputed shares in the demat account, opened with GSV Securities Pvt. Ltd and simultaneously, loan of Rs. 6 crore was being sanctioned by the accused No. 7 company. It is alleged that, the demat account opened with GSV Securities Pvt. Ltd. was fraudulently without any authority, was misused by the accused No. 7 and with the forged signature of the complainant, the disputed shares were sold off by accused No. 7 to make profit, have committed the offence of cheating, criminal breach of trust and forgery for the purpose of cheating and created a false account to defraud the complainant. 3. In the aforesaid facts, the FIR came to be registered with EOW, CID Crime, Gandhinagar. The applicant herein has been arrested from his house at Hyderabad on 25.08.2022. He moved an application under Section 439 of Cr.P.C. before the City Sessions Court, Ahmedabad, which came to be rejected vide order dated 13.09.2022. 3. In the aforesaid facts, the FIR came to be registered with EOW, CID Crime, Gandhinagar. The applicant herein has been arrested from his house at Hyderabad on 25.08.2022. He moved an application under Section 439 of Cr.P.C. before the City Sessions Court, Ahmedabad, which came to be rejected vide order dated 13.09.2022. Being aggrieved by the said order, the applicant has approached this Court by present bail application. 4. This Court has heard learned Senior counsel Mr. Sanjay Hegde assisted by Mr. Kunal Shah, Randhir Kumar and Anik E. Shaikh, ld. counsel appearing for and on behalf of the applicant accused, learned counsel Mr. Keyur Vyas, appearing for and on behalf of the original informant and learned APP Mrs. Krina Calla, for the State respondent. 5. Learned Senior counsel for the applicant Mr. Sanjay Hegde submits that, the FIR arising out of purely civil and contractual dispute between two companies and therefore, the action on the part of the complainant is nothing, but an arm twisting exercise for negotiation which clearly established that he has misused the State machinery to fulfill his ulterior motive. It is in this context, learned Senior Counsel submits that, the complainant had requested for loan from accused No. 7 company. Pursuant to the same, understanding was also reduced into writing having certain terms and conditions. The loan of Rs. 6 crore by the lender company accused No. 7 was sanctioned to the complainant borrower company against which shares of Sadbhav Engineering Ltd. was transferred as a collateral securities and as per the agreement, the complainant opened his demat account and the complainant had provided signed DIS slips to lender company as a collateral against the loan advanced and assured that, the borrower company will repay the amount along with interest as per the understanding. However, the complainant failed to maintain value of collateral and also failed to repay the interest and principal amount and did not transfer the additional shares, thereby, causing huge loss to the accused lender company and therefore, the lender company was left with no other option to recover money and to reduce loss, sold the disputed shares in the year 2020, which were transferred to the demat account of lender company through signed DIS slips provided by the complainant as per the agreed reciprocal arrangement. The learned Senior Counsel pointed out that, the complainant with dishonest intent to dupe the lender company, in collusion with the official of its company, sent a forged and fabricated document via email dated 02.05.2020 with the forged signature of Mr. Shrinivas, which was used in various forums to falsely implicate the lender company and its Director. 6. Mr. Hegde, learned Senior Counsel submitted that, in the month of June, 2021, the complainant company lodged a complaint before the Central Depository Services (India) Ltd. vide letter dated 18.06.2021 regarding the same transaction. Further, the complainant company filed another complaint dated 10.06.2021 alleging the similar nature of allegations made in the present FIR, before the Navrangpura Police Station, Ahmedabad, wherein, the applicant was not even named as a party. The investigating officer of Navrangpura Police Station had thoroughly examined the complaint and observed that, the dispute is of civil nature and no action is required to be taken and same was closed vide letter dated 09.11.2021. The complaint filed with CDSL was also closed in March, 2020. It is in this context, it was submitted that, after two years, despite of closure of previous two complaint on the same transaction, the complainant with mala-fide intention filed a subsequent fresh complaint without disclosing earlier results of complaints. Thus, the entire alleged transaction is contractual and civil in nature and relationship between the accused and complainant is that of borrower and lender and as per the loan cum pledge agreement, the borrower is entitled to redeem sell or dispose of all collateral. He further submitted that the borrower company is a listed company and the complainant company was informed about the transfer of shares and therefore, since 2020, the complaint was aware about the transfer of shares. 7. In the aforesaid facts and circumstances of the case, the learned Senior Counsel Mr. Hegde submitted that, registration of FIR is gross abuse of process of law and the applicant has been falsely implicated in the alleged offence. The applicant is in custody since 25.08.2022 and having responsibility of a family and the investigation qua the applicant is virtually over and his further custody is not necessary and therefore, when the applicant does not have any criminal record, keeping him behind bar for indefinite period would violate the fundamental rights enshrined under Article 21 of the Constitution of India. 8. 8. Opposing the bail application, learned counsel Mr. Keyur Vyas appearing for the original informant and learned APP Mrs. Krina Calla for the State contended that, since January, 2020, the applicant is working as a Director and had actively participated in the alleged transaction. During the investigation, it reveals that, Rs. 16 crore was being received as a sale consideration which is four times of the loan amount. The applicant transferred 1,75,000 shares in his demat account and sold it with sale consideration of Rs. 87,60,808/-. In such circumstances, it is submitted that, the applicant being mastermind of the alleged conspiracy, used forged signature of the complainant for his financial gain. The investigation is at a crucial stage and therefore, considering the nature of accusation and the financial stake, this Court may not exercise discretion in favour of the applicant. 9. Heard at length respective parties and perused the material placed on record. 10. It is no doubt true that, the loan was availed by the complainant from the lender company (accused No. 7), against which, the borrower had transferred shares of Sadbhav Engineering Ltd. as a collateral and entire transaction was reduced in writing in form of loan-cum-pledge agreement (13.01.2020). The demat account on 21.01.2020 was also opened. Between 10.10.2020 to 15.04.2020, the accused company sold shares to recover the money and to reduce their loss. This Court is of view that the complainant company is a listed company and therefore, it cannot be said that, the compliant company was not aware about the sale of the shares. It is on record that, in the month of June, 2021, an attempt was made by the complainant company to lodge an FIR with Navrangpura Police Station, Ahmedabad and after through examination, it was held that, the dispute is civil in nature and no action is required to be taken against the accused. Even the complaint filed before CDSL was ordered to be closed on 04.03.2022. So far present FIR is concerned, the complainant nowhere mentioned about the earlier proceedings of complaints. In such circumstances, it prima facie appears that, it is a contractual dispute between two companies with regard to breach of terms and conditions of loan -cum-pledge agreement. Even the complaint filed before CDSL was ordered to be closed on 04.03.2022. So far present FIR is concerned, the complainant nowhere mentioned about the earlier proceedings of complaints. In such circumstances, it prima facie appears that, it is a contractual dispute between two companies with regard to breach of terms and conditions of loan -cum-pledge agreement. A reference can be made to the case of Indian Oil Corporation vs. NEPC (India) Ltd. and Others, 2006 (6) SCC 736 , wherein, it was observed that, any effort to settle civil dispute and claims which do not involve any criminal offence, by applying pressure through criminal prosecution should be depricated and discourage. 11. Learned Senior Counsel on instructions without prejudice to the rights and contentions of the applicant, states that, the applicant is willing to deposit Rs. 80 lacs before the trial Court within a week from his release and also file an undertaking to this effect also. 12. In view of the foregoing discussions and considering the peculiar facts and circumstances of the present case, and role attributed to the present applicant, without discussing on merits of the case, I am inclined to release the applicant on bail with a condition to deposit the amount as proposed. 13. Hence, the present application is allowed and the applicant is ordered to be released on regular bail in connection with an FIR being I-C.R. No. 9 of 2022 registered with CID Crime, Gandhinagar Police Station of Economic Offences Wing on executing a personal bond of Rs. 25,000/- (Rupees Twenty Five thousands only) with one surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall: (a) not take undue advantage of liberty or misuse liberty. (b) not act in a manner injuries to the interest of the prosecution. (c) surrender passport, if any, to the lower court within a week. (d) not leave India without prior permission of the Sessions Judge concerned. (e) mark presence before the concerned Police Station on alternate Monday between 11:00 a.m. and 1:00 p.m. till filing of the charge-sheet. (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 this Court. (g) deposit Rs. (e) mark presence before the concerned Police Station on alternate Monday between 11:00 a.m. and 1:00 p.m. till filing of the charge-sheet. (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 this Court. (g) deposit Rs. 80 lacs before the trial Court concerned within a period of one week from his release and also file an undertaking to that effect also. 14. 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 Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the learned Lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law. Nothing stated hereinabove, shall tantamount to the expression of any opinion on the merits of this case. Rule is made absolute to the aforesaid extent. Direct service is permitted.