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Gujarat High Court · body

2022 DIGILAW 578 (GUJ)

Chiman Singh S/o Khuma Ji v. State Of Gujarat

2022-04-25

A.S.SUPEHIA

body2022
ORDER : 1. Heard the learned advocates for the respective parties. 2. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for bail in connection with the FIR being C.R.No.I-20 of 2017 registered with “B” Division Patan City Police Station, District Patan for the offences under Sections 406, 409, 420 and 114 of the Indian Penal Code, 1860 (IPC), and Section 3 of the Gujarat Protection of Interest Depositors (in Financial Establishment) Act, 2003. 3. It is the case of the prosecution that Arbuda Credit Co-operative Society Limited (Multi State), Mount Abu, Sirohi, Rajasthan, which is a registered society under the Multi State Cooperative Society Act, whereby all its members deposited the amount but thereafter, no amount was given to the members. 4. Learned advocate for the applicant has submitted that the Society is already registered and from period between the year 2013 to 2017, neither such incident has taken place nor such similar offences have emerged at any relevant point of time. He has submitted that the accounts have also been audited by the Government authorized persons and the present incident happened only because the members demanded the deposits before the maturity dates and subsequently, demonetization also took place. It is submitted that on bare perusal of the F.I.R., nothing has been entrusted to the applicant moreover, his presence is also not figured in any of the F.I.R. in Gujarat. It is submitted that the applicant is involved by different individuals to save themselves from the prosecution. It is submitted that all the complainants are receiver of the deposits and were getting commission on it and on the contrary, the complainants are beneficiaries and not the applicant. He has further submitted that so far as the impugned F.I.R. is concerned, the prime accused No.1-Rakesh Kumar @ Bobby S/o. Davendra Kumar, Accused No.2-Aashaben Rakeshkumar Agarwal and accused No.6-Chhayaben Mukeshkumar Agarwal have already been enlarged on regular bail by this Court vide order dated 03.07.2019 passed in Criminal Misc. Application No.10116 of 2019, by the Sessions Court at Ahmedabad(Rural) vide order dated 09.07.2021 passed in Criminal Misc. Application No.2085 of 2021 and order dated 01.07.2021 passed in Criminal Misc. Application No.1994 of 2021 respectively. Application No.10116 of 2019, by the Sessions Court at Ahmedabad(Rural) vide order dated 09.07.2021 passed in Criminal Misc. Application No.2085 of 2021 and order dated 01.07.2021 passed in Criminal Misc. Application No.1994 of 2021 respectively. It is submitted that all the amounts have been transferred to the Head Office at Abu, pursuant to which offence has also been registered in Abu and, therefore, filing of multiple complaints on the same grounds will not be tenable. He has submitted that the prime accused-Rakeshkumar Agarwal has been granted bail in all the cases by this Court and in two cases by the District Court. 4.1 Learned advocate for the applicant submitted that the nature of allegations are such for which custodial interrogation of the applicant at this stage is not necessary. He further submitted that the applicant will keep himself available during the course of investigation, as well as trial also and will not flee from justice. He has further submitted that the prime accused No.1-Rakesh Kumar @ Bobby S/o. Davendra Kumar, Accused No.2-Aashaben Rakeshkumar Agarwal and accused No.6-Chhayaben Mukeshkumar Agarwal have already been enlarged on regular bail by this Court vide order dated 03.07.2019 passed in Criminal Misc. Application No.10116 of 2019, by the Sessions Court at Ahmedabad(Rural) vide order dated 09.07.2021 passed in Criminal Misc. Application No.2085 of 2021 and order dated 01.07.2021 passed in Criminal Misc. Application No.1994 of 2021 respectively. 4.2 Learned advocate for the applicant, on instructions, submitted 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. He further submitted that upon filing of such application by the investigating agency, the right of the applicant accused to oppose such application on merits may be kept open. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted bail. 5. On the other hand, the learned Additional Public Prosecutor appearing on behalf of the respondent–State has opposed grant of bail looking to the nature and gravity of the offence. He has submitted that the investigation reveals that the applicant was a member of the said Society and in connivance with other accused have siphoned away the money. 6. 5. On the other hand, the learned Additional Public Prosecutor appearing on behalf of the respondent–State has opposed grant of bail looking to the nature and gravity of the offence. He has submitted that the investigation reveals that the applicant was a member of the said Society and in connivance with other accused have siphoned away the money. 6. Having heard the learned advocates for the parties and perusing the material 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, I am inclined to grant bail to the applicant. 7. This Court has considered following aspects; (a) The Society is registered and between the year 2013 to 2017, no such offence has been emerged; (b) Prima facie it appears that the present incident has occurred only because the members have demanded the deposits prematurely; (c) The prime accused, being accused No.1 and other accused being accused Nos.2 and 6 are enlarged on regular bail by this Court and Sessions Court respectively; (d) The amounts have been transferred to the Head Officer, Abu pursuant to which, offence has also been registered in Abu; (e) The applicant does not have any active role in the affairs of the Society and he is not the beneficiary of the deposits; (f) The applicant has not gained any financial benefits from such deposits; (g) Prima facie considering the facts of the case, the custodial interrogation of the applicant is not necessary at this stage; Looking to the over all facts and circumstances of the present case, I am inclined to consider the case of the applicant. 8. This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (Nct of Delhi), AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 312 . 9. In the result, the present application is allowed. 8. This Court has also taken into consideration the law laid down by the Apex Court in the cases of Sushila Aggarwal vs. State (Nct of Delhi), AIR 2020 SC 831 and Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 312 . 9. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with FIR being C.R.No.I-20 of 2017 registered with “B” Division Patan City Police Station, District Patan on his executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that he : (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at the concerned Police Station on 02.05.2022 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 till further orders; (f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week. 10. Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicant, if he considers it proper and just and the Magistrate would decide if on merits. The applicant shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the application of the prosecution for police remand. The applicant shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the 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 concerned 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 bail order. 11. At the trial, the concerned trial Court shall not be influenced by the prima facie observations made by this Court in the present order. 12. The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Registry is directed to send a copy of this order to the concerned authority/court 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 authority/court through Fax message, email and/or any other suitable electronic mode.