Research › Search › Judgment

Gujarat High Court · body

2023 DIGILAW 415 (GUJ)

Chintan Hemantkumar Vyas v. State of Gujarat

2023-03-07

A.Y.KOGJE

body2023
ORDER : 1. This application is for successive bail in connection with the FIR being I-C.R. No.11216004200346 of 2020 registered with the Dabhoda Police Station, Gandhinagar, for the offences punishable under Sections 406, 408, 420, 477A, 120B and Section 114 of the Indian Penal Code. 2. The charge-sheet in connection with the aforesaid offence came to be filed on 6.10.2020. Thereafter, the applicant had filed Criminal Misc. Application No.988 of 2020 for regular bail before the Sessions Court, which came to be rejected on 21.10.2020. The applicant, thereafter, filed Criminal Misc. Application No.17866 of 2020 before this Court, and by order dated 3.2.2021, the application was disposed of as withdrawn with a liberty to file a fresh application if the trial does not commence within a period of six months. Accordingly, the applicant filed Criminal Misc. Application No.17117 of 2021, which came to be allowed by order dated 13.1.2022, on several conditions including a condition for voluntary deposit of an amount of Rs.1 crore within a period of nine months. 3. It appears that as the applicant did not comply with the conditions of bail, the complainant filed S.L.P. (Criminal) No.1656 of 2022 before the Apex Court, which, ultimately came to be disposed of by order dated 25.1.2023, whereby the order dated 13.1.2022 in Criminal Misc. Application No.17117 of 2021 came to be set-aside and the aforesaid application for bail stood restored for reconsideration by this Court. 4. The protection granted by this Court was continued till the matter was listed before this Court on 16.2.2023, which was thereafter continued under order dated 16.2.2023 by this Court till the matter was taken up finally. 5. Learned advocate for the applicant submitted that the FIR has been filed after a period of one year of the incident having taken place and to make it a serious offence, false grounds are raised by the complainant by giving it a colour of economic offence, though, at best, it can be termed to be an offence wherein the employee has siphoned off the money of its employer company. 6. 6. Learned advocate for the applicant submitted that the complainant is representing a limited company which has its own mechanism of checks and balance regarding the accounts, and all the accounts of the company are required to be audited and, therefore, considering the period of offence as mentioned in the FIR, it is not believable that such activity of siphoning off the money would escape the attention of the auditors. 7. Learned advocate for the applicant vehemently submitted that the complainant has tried to encash upon a typographical error in connection with the date of arrest of the applicant mentioned in the order dated 13.1.2022 granting bail to the applicant. It is submitted that though the respondent complainant was aware that it was only a typographical error considering the immediate previous paragraphs of the order, still lot of weightage was given by the advocate for the complainant as if that was the only relevant consideration for enlarging the applicant on bail by the previous order of bail. 8. Learned advocate has submitted that the siphoning off the money from the accounts of the company as alleged in the investigation could not have gone unnoticed in today’s banking practice as any transaction in the company’s account would generate an alert on a registered mobile number and the investigating agency has failed to investigate as to whether such mobile alerts were given when the money allegedly has been siphoned off. 9. Learned advocate for the applicant has also emphatically argued that the complainant company itself is not a genuine company and its records are marred by adverse orders by the SEBI who has found the directors of the company indulging into insider trading activities and, therefore, the company itself is not of such a stature whose complaint can be entertained or given serious weightage. 10. Learned advocate for the applicant submitted that references are made in the FIR as well as in the investigation case papers to the affidavits given by the applicant which admitted the act of siphoning off the money by the applicant, however, such affidavits were taken under coercion by the officers of the complainant company and also with the aid of the police officers who had indulged into even beating the applicant. 11. 11. Learned advocate for the applicant submitted that the system of the company for money transfer involves many persons and, therefore, it is not believable that the applicant single handedly could operate such system for withdrawal and transferring the money to his accounts. 12. It is submitted that the system of transfer involves a password which is not given to all the employees but is restricted to employees of their confidence. The applicant submits that the applicant did not have any such authority or has not utilized any such authority. 13. Learned advocate lastly submitted that the applicant was in jail for a period of one and a half years and the maximum sentence that can be imposed is that of seven years. 14. As against this, learned APP has objected to grant of bail to the applicant mainly by pointing out the observations made by the Apex Court while remanding the matter back to this Court and submitted that not only the applicant has dishonoured his commitment made before this Court but has also failed to honour the commitment made before the Apex Court. 15. It is submitted that the voluntary deposit of Rs.1 crore was the mitigating circumstance for exercising discretion in favour of the applicant then and now as such the mitigating circumstance does not exist, there is no case for exercising discretion in favour of the applicant. 16. Learned APP, by drawing attention of this Court to the investigation case papers, submitted that apparently there are sufficient evidence of money trail which has travelled from the accounts of the complainant to the accounts of not only the applicant but also his relatives, namely, the mother, wife as well as the father who had already expired but the applicant had continued to operate such account. 17. Learned APP lastly submitted that the trial is already on the verge of commencement, however, on account of the applicant himself that the trial could not commence. He submitted that the applicant had filed an application for discharge, for which the matter has been adjourned before the trial court. 18. 17. Learned APP lastly submitted that the trial is already on the verge of commencement, however, on account of the applicant himself that the trial could not commence. He submitted that the applicant had filed an application for discharge, for which the matter has been adjourned before the trial court. 18. Learned advocate appearing for the complainant submitted that the applicant before the Apex Court had also offered to make part payment of the condition of bail, which was not honoured by the applicant himself and, therefore, the Apex Court, in strong words, has observed in its order dated 25.1.2023 in this regard. 19. Learned advocate for the respondent complainant has highlighted on the date of the arrest because of which only the order of grant of bail came to be set-aside. It is submitted that in fact it was the conduct of the applicant himself which was observed by the Apex Court that the order came to be passed setting aside the bail order and remanding the matter back to this Court. 20. Learned advocate submitted that the conduct of the applicant was such that from the beginning he had no intention to honour the voluntary statement made for deposit of the amount and, therefore, after the initial deposit of Rs.10 lakh the applicant has not deposited any amount till the matter came up before the Apex Court and while the matter was being argued before the Apex Court that further amount was deposited and, therefore, the conduct itself is that the applicant was not serious in honouring the voluntary statement for deposit of the amount. 21. Learned advocate for the complainant submitted that the applicant is trying to prejudice the Court against the complainant by referring to the orders passed by the SEBI. It is submitted that the proceedings before the SEBI were altogether different and, in fact, those proceedings have concluded on the basis of the settlement arrived at and nowhere there is a finding of any guilt on the part of any of the directors of the complainant company inviting them for misconduct like being of insider trading activity. He also drew attention of this Court to an order passed by the Securities Appellate Tribunal, Mumbai, dated 7.5.2021, wherein the order which is annexed along with the paper book by the applicant is already under consideration in appeal. 22. He also drew attention of this Court to an order passed by the Securities Appellate Tribunal, Mumbai, dated 7.5.2021, wherein the order which is annexed along with the paper book by the applicant is already under consideration in appeal. 22. Learned advocate submitted that the applicant has wrongly submitted that the affidavits referred to in the FIR admitting the guilt were taken under coercion. It is submitted that the affidavits in question were of the month of June/July, whereas the FIR came to be registered only in the month of August. The execution of the affidavits are supported by the statement of the witnesses as well as the statement of the Notary indicating the voluntary nature of such affidavits and just to prejudice the investigation, as an afterthought, such a stand is now taken that the applicant was coerced into signing the affidavits and that too by resorting to physical harassment by the police. 23. Lastly, it is submitted that the bail application of the applicant before this Court was withdrawn on 3.2.2021, which was an application after the charge-sheet, and thereafter the present application, which is a successive bail application after the charge-sheet and, therefore, the applicant has to bring on record substantial change in circumstances so as to invoke the discretion of this Court. In absence of any substantial change, the applicant is to be prevented from raising the same issues which the applicant had already argued but not accepted by this Court. 24. It is also submitted that though liberty was reserved for filing a fresh application if the trial does not progress satisfactorily, however, the delay in trial is attributable to the applicant himself considering the number of days which the applicant has taken and the applicant has taken time of almost nine months to argue the discharge application which was filed only when the trial court embarked upon framing of charge. 25. At this stage, learned APP submitted that the applicant is also having antecedents of similar nature, wherein he is alleged to have siphoned off money even from the relatives. 26. 25. At this stage, learned APP submitted that the applicant is also having antecedents of similar nature, wherein he is alleged to have siphoned off money even from the relatives. 26. Learned advocate for the complainant has further submitted that the applicant has misused the accounts of his relatives including his wife and the wife who, later on realising about the fraud played by the applicant, has filed an application for quashing before this Court, wherein she has stated on oath that the applicant has admitted of having played fraud with his company for the sake of money. Attention is drawn by the learned advocate to such pleadings on affidavit by the wife, which is a part of the paper-book herein. In rejoinder, learned advocate for the applicant submitted that the applicant has filed a successive bail pursuant to the permission granted by this Court in its previous order. 27. It is submitted that the reliance on the version of the wife in her quashing application is unwarranted as the wife of the applicant has already divorced the applicant and she is one of the accused persons and, therefore, her version cannot be given any weightage. 28. Learned advocate for the applicant submitted that the observations made by the SEBI in its order are against one Vishal Mehta and Malav Mehta who are connected with the subsidiary of the complainant company. He has drawn attention of this Court to a report of the Chartered Accountant to indicate that the company before the SEBI was Infibeam Avenues Limited, and in the report of the Infibeam Avenues Limited, the complainant company, namely, DRC Systems India Private Limited and NSI Infinium Global Private Limited, are shown as subsidiaries and associated companies respectively. 29. Learned advocate has also submitted that the delay in trial cannot be completely attributed to the applicant as the applicant has only taken few dates during the trial as most of the time the applicant was in custody and, therefore, not within his authority to seek adjournments. 30. Having considered the rival submissions canvassed by the parties and having perused the documents on record, the case of the applicant is that the accused Chintan Hemantkumar Vyas is a Chartered Accountant. 30. Having considered the rival submissions canvassed by the parties and having perused the documents on record, the case of the applicant is that the accused Chintan Hemantkumar Vyas is a Chartered Accountant. He was working as an Accountant from 6.6.2011 at NSI Infinium Global Limited Company and DRC Systems India Limited, at present situated at - Gift-2 Building, Block No.56, Road-5, Zone-5, Gift City, Gandhinagar. The accused had been working at the said company for a long time, therefore he had acquired the trust of the company. On the basis of said trust, the company assigned responsibility to the accused to perform financial transactions of the company. Misusing the said trust, the accused hatched a conspiracy, and from 6.10.2012 to 15.5.2019, he transferred an amount of Rs.1,73,00,077/- in parts, in his account with the S.B.I., Naroda Industrial Estate Branch, account no.30124637638 in the name of Chiragbhai, for his personal benefit from the account of the company at H.D.F.C. Bank, account no.00068300000110 and Axis bank, account no.912020025358731, concealing the said details from the company and transferred the amount of Rs.3,04,00,130/- in the joint account of the accused and his father Hemantkumar Harshadray Vyas with the S.B.I., Vejalpur Branch, account no.20090006303 in the name of Hemant Enterprise/ Harikumar and transferred the amount of Rs.2,10,21,926/- in the joint account of the accused and his mother Minaxiben Hemantkumar Vyas with the I.C.I.C.I. Bank, Satellite Branch, account no.006701518600 in the name of Minaxi Enterprise and the accused transferred the amount of Rs.1,43,82,695/- in the account of his father with the I.C.I.C.I. Bank, Satellite Branch, account no.006701515437 in the name of Hemant Enterprise/ Harikumar and the accused transferred the amount of Rs.25,00,000/- in the account of his wife Janki Chintan Vyas with the I.C.I.C.I. Bank, Satellite Branch, account no.006701021742 and thus transferred huge amount of Rs.8,56,04,828/- on-line in the aforementioned accounts misusing his designation. From the aforesaid transferred money, the accused Chintan Vyas transferred the amount of Rs.94 lakh in parts from his bank account to the account of Suresh Jayantilal Thakkar for his personal transaction. From the aforesaid 94 lakh, the accused Suresh Jayantilal Thakkar returned the amount of Rs.79 lakh to the accused Chintan Vyas and did not return the amount of Rs.15 lakh. Thus, all the accused, in collusion with one another, siphoned off the money of the complainant company. 31. From the aforesaid 94 lakh, the accused Suresh Jayantilal Thakkar returned the amount of Rs.79 lakh to the accused Chintan Vyas and did not return the amount of Rs.15 lakh. Thus, all the accused, in collusion with one another, siphoned off the money of the complainant company. 31. As indicated in the preceding paragraphs, the matter has been placed before this Court pursuant to the directions of the Apex Court contained in the order dated 25.1.2023. In the aforesaid order, the Apex Court has observed as under : “It has also been pointed out on behalf of the appellant that respondent No.1 has totally failed to honour his own commitments and has also failed to comply with the requirements of the orders passed by the High Court as also the orders passed by this Court. In this regard, learned counsel for the appellant has particularly referred to the order dated 18.07.2022 passed in this matter that reads as under : “It has rightly been pointed out by the learned counsel for the parties that in the order dated 20.05.2022, the proposition of making payment is referable to the respondent No. 1. The order dated 20.05.2022 shall stand corrected and shall read as under :-“Learned counsel for the respondent No.1 submits that the said respondent, despite all his best efforts, could only arrange an amount of Rs. 7 lakhs until now for further deposit, which he shall be depositing positively by Monday i.e., 23.05.2022 in the Trial Court. Learned counsel further submits on instruction that the respondent No. 1 shall be making further payment of a sum of Rs. 30 lakhs by 10.07.2022. The submissions are taken note of. List this matter on 18.07.2022.” Today, it has been submitted on behalf of the respondent No. 1 that the said amount of Rs. 7 lakhs was indeed deposited on 20.05.2022 but, the respondent No. 1 could not make further deposit as stated before the Court on 20.05.2022. Learned counsel for the respondent No. 1 further submits on instructions that the respondent No. 1 is expecting certain inflow of funds to honour the commitment made before the Court and for that purpose, prays for some further time. Taking note of the submissions so made, we enlarge the time for making the said payment of a sum of Rs. 30 lakhs by the respondent No. 1 by 22.08.2022. Taking note of the submissions so made, we enlarge the time for making the said payment of a sum of Rs. 30 lakhs by the respondent No. 1 by 22.08.2022. Learned counsel for the petitioner submits that as per the High Court’s order, the petitioner would be required to make payment of a sum of Rs. 1 crore within a period of 9 months from the date of the order of the High Court i.e., 13.1.2022 and the payment until now made and even promised by the respondent No. 1 is not likely to meet with the said requirements. As at present, we have only taken note of the submissions made by the learned counsel for the respective parties. All other aspects shall be examined and dealt with on the next date. List the matter on 24.08.2022.” Though, we have repeatedly observed that the proceedings in consideration of the prayer for grant of bail may not be proceeded as if for money recovery but, in the peculiar circumstances of the present case and looking to the nature of the order passed by the High Court as also the submissions made before this Court, the undeniable position remains that the respondent No.1 has not been able to honour his commitment as also the orders passed by this Court. This is coupled with the fact that in paragraph 5 of the order impugned, the High Court has proceeded as if the accused respondent No. 1 was in jail since ‘19.04.2014’ although in this matter, FIR itself was registered only on 10.08.2020.” 32. From the record, it appears that the applicant had volunteered to deposit an amount of Rs.1 crore within a period of nine months from the date of his release. Accordingly, the period of nine months had expired on 13th October 2022, still the applicant had not deposited the amount as per the condition of bail. Not only that, the applicant did not even file any application for extension of the time period in case he face financial difficulties. The record would indicate that the applicant had deposited an amount of Rs.10 lakh on 2.2.2022. Thereafter, there is no deposit made by the applicant before the trial court though the applicant was required to make such deposit periodically. The record would indicate that the applicant had deposited an amount of Rs.10 lakh on 2.2.2022. Thereafter, there is no deposit made by the applicant before the trial court though the applicant was required to make such deposit periodically. As indicated in the preceding paragraphs, the Apex Court has observed about the conduct of the applicant that he has not been able to honour his commitment though the Apex Court had also given chance to the applicant to make the deposit as per the condition of bail. 33. In view of the aforesaid findings by the Apex Court, the mitigating circumstance for which the discretion was exercised in favour of the applicant would no longer remain and, therefore, on that basis the Court would not exercise discretion in favour of the applicant now. 34. Insofar as the merits is concerned, the Court has found sufficient evidence on record to indicate the money trail has travelled from the accounts of the company to the accounts of the applicant, his mother and wife and also in the joint account of the applicant and his father which, surprisingly, still operational despite the fact that the father of the applicant had expired in the year 2016 itself. This is clear indication of the applicant to commit the offence. 35. The Court also finds that from the overall conduct of the applicant even at the time of making a statement of voluntarily depositing the amount with the trial court, the applicant was not serious to comply with the same as is demonstrated from his subsequent conduct, namely, after the initial deposit, the applicant was required to make periodical deposit with the trial court which he has failed and it was only when the matter reached the Apex Court that further amount of Rs.7 lakh was deposited. It is pertinent to observe that the intention of the applicant is also clear that he never wanted to honour his commitment as in condition no.8(h) of the order dated 13.1.2022, this Court had directed the applicant to file an undertaking before this Court giving schedule of his deposit and comply with such undertaking. The Court had directed that such undertaking to be filed within a period of two weeks of his release. The Court had directed that such undertaking to be filed within a period of two weeks of his release. The record of the file does not indicate that any such undertaking was ever filed before this Court to give out the schedule of making the deposits. 36. The Court has found sufficient evidence from the investigation case papers involving the applicant and, therefore, the Court is not inclined to exercise discretion in favour of the applicant. 37. The application, therefore, deserves to be and is hereby dismissed. 38. At this stage, learned advocate for the applicant has prayed for stay of this order. 39. Considering the fact that the applicant is not in custody at present and considering the observations made by the Apex Court in its order dated 25.1.2023, the Court deems it fit to allow the applicant to continue on bail for a period of three weeks from today.