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2022 DIGILAW 1348 (GUJ)

Chandan Chhaganlal Maheshwari v. State Of Gujarat

2022-10-12

NIKHIL S.KARIEL

body2022
ORDER : 1. Heard learned Senior Advocate Mr. Jal S. Unwalla with learned Advocate Mr. Malav M. Mulani for the applicants in Criminal Misc. Application Nos. 15289 of 2022 and 15287 of 2022, learned Advocate Mr. Hriday Buch with learned Advocate Mr. Jay M. Thakkar for the applicant in Criminal Misc. Application No. 16069 of 2022, learned Advocate Mr. Tejas M. Barot for the applicant in Criminal Misc. Application No. 16216 of 2022, learned Additional Public Prosecutor Mr. L.B. Dabhi on behalf of the respondent-State and learned Advocate Mr. Anand B. Gogia for the first informant. 2. By way of these applications under Section 438 of the Code of Criminal Procedure, 1973, the applicants pray for being released on anticipatory bail in connection with FIR being C.R. No. 11993006220764 of 2022 registered with 'A' Division Gandhidham Police Station, District Kachchh, on 21.07.2022 for offences punishable under Sections 406, 420, 467, 471, 474 and 34 of the Indian Penal Code. 3. Learned Senior Advocate Mr. Unwalla for the applicants of Criminal Misc. Application Nos. 15289 of 2022 and 15287 of 2022 would submit that the applicants were the borrowers, more particularly the applicants having availed of loans from the Bank in question for purchase of trucks and whereas the allegation being that the applicants had obtained a No Objection Certificate and on basis of such No Objection Certificate from the Bank the trucks in question had been sold to a third party. It is submitted by learned Senior Advocate that the borrowers at the relevant point of time had admittedly deposited an amount of Rs. 1 Crore 74 Lakhs and whereas though according to the applicants, the said amount was towards the loan accounts in question, since there were other loan accounts of the applicants running with the Bank at the relevant point of time, the said amount had been appropriated towards other loans. Learned Senior Advocate would also submit that the document in question i.e. the No Objection Certificate is also not a forged document. Learned Senior Advocate would also submit that the applicants without prejudice to their rights and contentions are ready and willing to deposit an amount of Rs. 70 Lacs with the Bank towards the loan accounts from which the trucks in question had been purchased. Thus submitting learned Senior Advocate would request that this Court may exercise discretion in favour of the applicants. 4. 70 Lacs with the Bank towards the loan accounts from which the trucks in question had been purchased. Thus submitting learned Senior Advocate would request that this Court may exercise discretion in favour of the applicants. 4. Learned Advocate Mr. Tejas Barot for the applicant of Criminal Misc. Application No. 16216 of 2022 would submit that the FIR in question is filed approximately after 14 months of a show-cause notice which was issued by the Bank to the said applicant, more particularly with regard to the same issue. Learned Advocate would submit that the applicant had not instructed anyone to issue NOC. Learned Advocate would further submit that apart from the delay, the applicant had retired from the service in the interregnum and as of now the applicant is aged about 72 years and suffering from various ailments including Parkinsonism and progressive dementia. Thus submitting, learned Advocate Mr. Barot would request that this Court may enlarge the applicant on anticipatory bail. 5. Learned Advocate Mr. Hriday Buch for the applicant of Criminal Misc. Application No. 16069 of 2022 would submit that the said applicant was working as a Credit Manager at the relevant point of time and apart for the submission with regard to delay in filing the FIR, it is submitted that at the relevant point of time an amount of Rs. 1 Crore 74 Lakhs had been deposited with the Bank and whereas at the relevant point of time the accounts had not been classified as NPAs and whereas it is also contended that the applicant had issued NOC at the behest of his Senior Officers. Thus submitting learned Advocate Mr. Buch would request that this Court may release the present applicant on pre-arrest bail. 6. Learned Senior Advocate as well as learned Advocates appearing for the respective applicants, on instructions, states that the applicants are 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 their remand. It is further submitted that upon filing of such application by the Investigating Agency, the right of applicants-accused to oppose such application on merits may be kept open. 7. These applications have been vehemently opposed by learned Additional Public Prosecutor Mr. It is further submitted that upon filing of such application by the Investigating Agency, the right of applicants-accused to oppose such application on merits may be kept open. 7. These applications have been vehemently opposed by learned Additional Public Prosecutor Mr. Dabhi appearing on behalf of the respondent-State, who would submit that looking to the nature and gravity of the offence the applicants may not be released on anticipatory bail by this Court. 8. These applications have also been opposed by learned Advocate Mr. Gogia, however, learned Advocate Mr. Gogia would submit that if the applicants concerned volunteer to deposit any amount then the same may be deposited with the Bank within some short period of time. 9. Having heard the learned Advocates for the respective parties and having perused the investigating papers as well as documents on record, the following relevant aspects are considered by this Court: [1] That at the relevant point of time when the NOC had been issued by the Bank, it appears that a substantial amount i.e. approximately Rs. 1 Crore 74 Lakhs had been deposited with the Bank. While it appears that it is the case of the applicants that the said amount was towards the accounts in question, it appears that at the relevant point of time, the said amount was appropriated towards other loan accounts of the applicants. [2] It also appears that prima facie at the relevant point of time some conscious decision had been taken by the Officers of the Bank with regard to grant of NOC and whereas later on since the accounts have been classified as NPAs, now the said decision is being questioned by way of departmental proceedings as well as by way of FIR in question. [3] It also appears that the applicant of Criminal Misc. Application No. 16216 of 2022 being the General Manager at the relevant point of time, and whereas while it does not appear that the NOC had been given on account of any extraneous consideration, in case there was any alleged negligence, it appears that the departmental proceedings have already been opened by the Bank. Though it is clarified that such observations of this Court may not be termed as any direction to the Bank to conduct any departmental inquiry in case they are not so inclined. That the said applicant is also suffering from various ailments. Though it is clarified that such observations of this Court may not be termed as any direction to the Bank to conduct any departmental inquiry in case they are not so inclined. That the said applicant is also suffering from various ailments. [4] Insofar as the applicant of Criminal Misc. Application No. 16069 of 2022 is concerned, it appears that he was the Credit Manager and whereas it appears that he was acting at the instance of his superior, more particularly as noted hereinabove, it does not appear that the NOC had been granted for any extraneous consideration. [5] It also appears that the FIR is delayed, more particularly even with reference to the show-cause notice issued by the Bank to its own employees since it clearly appears that the FIR is filed after a period of 14 months from the show-cause notice. [6] This Court has also taken into consideration the voluntary statements of applicants of Criminal Misc. Application Nos. 15289 of 2022 and 15287 of 2022 that without prejudice to their rights and contentions they are ready and willing to deposit an amount of Rs. 70 Lacs with the Bank, though that is not the only aspect which as weighed with this Court. 10. 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 v. State of Maharashtra and Ors. reported in (2011)1 SCC 694 , this Court is inclined to consider these applications. 11. In the result, the present applications are allowed by directing that in the event of applicants herein being arrested pursuant to the FIR being C.R. No. 11993006220764 of 2022 registered with 'A' Division Gandhidham Police Station, District Kachchh, the applicants shall be released on bail on furnishing a personal bond of Rs.25,000/- (Rupees Twenty Five Thousand only) each with one surety of like amount, on the following conditions that the applicants : (a) shall cooperate with the investigation and make themselves available for interrogation whenever required; (b) shall remain present at the concerned Police Station on 17.10.2022 between 11:00 a.m. and 2:00 p.m.; (c) the applicants, except the applicant No. 1 of Criminal Misc. Application No. 15287 of 2022 and applicant of Criminal Misc. Application No. 15287 of 2022 and applicant of Criminal Misc. Application No. 16216 of 2022, shall mark their presence at the concerned Police Station once in a month for a period of three months; (d) the applicants of Criminal Misc. Application Nos. 15289 of 2022 and 15287 of 2022 shall file an undertaking before this Court on or before 17.10.2022 to the effect that without prejudice to their rights and contentions they will deposit the amount of Rs. 70 Lakhs as volunteered by them, with the Bank within a period of six months. The undertaking shall also state about the amount of Rs. 20 Lakhs will be deposited within a period of 30 days from today and whereas remaining Rs.50 Lakhs will be deposited in five equal monthly installments of Rs. 10 Lakhs. The said applicants shall ensure that there shall not be breach of the undertaking; (e) 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; (f) 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; (g) 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; (h) shall not leave India without the permission of the Court and, if having passports shall surrender the same before the Trial Court within a week. 12. Despite this order, it would be open for the Investigating Agency to file an application for police remand of the applicants to the competent Magistrate, if he thinks it just and proper and learned Magistrate would decide it on merits. The applicants 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. The applicants 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 applicants, 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. 13. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the applicants on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted.