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2023 DIGILAW 416 (GUJ)

VICKY PRAVINCHANDRA DHABUWALA v. STATE OF GUJARAT

2023-03-07

NISHA M.THAKORE

body2023
JUDGMENT : NISHA M. THAKORE, J. 1. This application is filed by the applicant-original complainant under Section 439(2) of Code of Criminal Procedure, 1973, seeking cancellation of bail of respondent Nos.2 and 3, who came to be enlarged on bail vide order dated 06.08.2021 passed by this Court in Criminal Misc. Application No. 11190 of 2021. 2. The brief facts, narrated by the original complainant in the present application, are as under: 2.1. The applicant is the original complainant of FIR bearing registration No. I-C.R. No. 11210048210445 of 2021 registered with Umra Police Station, District-Surat for the offences punishable under Sections 406, 420 and 409 of the I.P.C. The present respondent Nos.2 and 3 are the original accused Nos.1 and 2. 2.2 The gist of the aforesaid complaint inter alia alleges that the accused herein are the respondent Nos.2 and 3, who are the partners of Gravity Associates. The said firm is engaged in construction of residential project, which includes construction of flats scheme situated in Olpad, Ward No. 13, Entry No. 2690 of old T.P. Scheme No. 5 (Athwa-Umra) final plot No. 206 admeasuring 191.68 sq. Mtrs. The said project was named as “Law Chamber-3.” The aforesaid scheme was lodged in the year 2016. The accused claimed to have got sanction the plans for low rise building consisting of four floors and the fifth floor as per the sanction plan was approved by the local authority only to the extent of construction of one flat. 2.3 In spite of the aforesaid facts, the accused persons circulated brochures indicating more than one flat on the fifth floor. The complainant bona fidely entered into an agreement to sell for purchase of two flats from the accused persons for a total consideration of an amount of Rs.1.15 crores. 2.4 It is the case of the complainant that an amount of Rs.91 Lakhs was paid to the accused persons towards the aforesaid sale consideration and had booked flat Nos. 501 and 503 on the fifth floor situated in the aforesaid scheme of “Law Chamber-3.” It is further alleged by the complainant that the accused had also entered into an agreement to sell with the present applicant for flat No. 304, against which, the accused had realized consideration of Rs.9 lakhs. In spite of having realized the consideration amount, no sale deed was executed by the accused persons. In spite of having realized the consideration amount, no sale deed was executed by the accused persons. Subsequently, it was realized that accused had mortgaged the whole premises of the aforesaid scheme to a finance company named “Shriram City Finance.” It was found that the accused persons had failed to make payment of installment towards such loan, which laid to fixing of notice by the said finance company on the premises. By such notice, the third parties were questioned about creating any rights on the disputed property. The aforesaid fact was disclosed to the complainant only when he came to visit the premises. In view of the aforesaid facts and circumstances, the complainant thought it fit to visit the office of local authority to inquire about the sanction plan whereby, he became aware about the fraud being committed by the accused persons insofar as the permission with regard to the construction of flats on fifth floor is concerned, hence, the FIR. 2.5 The opponent Nos.2 and 3 were arrested in respect of the aforesaid FIR. Initially, their application seeking release on regular bail was rejected by the learned Sessions Judge, Surat. The accused, therefore, approached this Court seeking regular bail. During pendency of the application, the investigation was concluded and charge-sheet came to be filed. Hence, this Court had permitted withdrawal of such application with a liberty to approach the learned Sessions Judge, Surat. The accused persons, once again, approached learned Sessions Judge, in view of the change of the circumstances of filing of charge-sheet and the liberty granted by this Court. 2.6 The learned Sessions Judge, upon appreciation of the investigation case papers, rejected such application. Thereafter, the opponents approached this Court praying for regular bail, which came to be registered as Criminal Misc. Application No. 11190 of 2021. The aforesaid bail application of the accused persons was vehemently objected by the original complainant-applicant herein. The accused persons voluntarily through their learned advocate declared before this Court about depositing of an amount of Rs. 10 Lakhs within a period of three days from the passing of the order dated 30.07.2021, and thereafter, an amount of Rs.45 Lakhs were to be deposited within a period of two months before the learned Sessions Court, Surat. The applicant-complainant relying upon the assurance of the accused persons, agreed to accept the aforesaid proposal made by the accused persons. 3. The applicant-complainant relying upon the assurance of the accused persons, agreed to accept the aforesaid proposal made by the accused persons. 3. This Court, considering the nature of allegations made against the accused-respondents herein in the FIR as well as consent, granted by the learned advocate for the original complainant, proceeded to exercise its discretion to enlarge the respondents-accused on regular bail. The court had granted regular bail by stipulating conditions, which also includes condition of deposit of remaining amount of Rs.45 Lakhs before the learned Sessions Court, Surat within a period of two months. The same reads as under: “(a) deposit remaining amount of Rs. 45 lacs before the learned District and Sessions Court Surat within a period of 2(Two) months from the date of their actual release as undertaken by them today; failing which, original complainant would be at liberty to file an application for cancellation of bail granted by this court today.” 3.1 The Court, while disposing the aforesaid application of regular bail, observed that the amount so deposited shall be invested in any nationalized bank nearest to the court complex in fixed deposit initially for a period of three years in favour of the concerned court through Nazir and the same shall be subject to outcome of the trial court proceedings. The rights and contentions of the respective parties were kept open based on the aforesaid order and the respondents herein came to be enlarged on regular bail. It further transpires from the record that the respondents herein failed to abide by the condition No. (a) of the bail order dated 06.08.2021 in absence of deposit of amount of Rs.45 Lakhs as agreed before this Court. In such circumstances, the applicant-original complainant was thus, constrained to approach this Court by filing the present application seeking cancellation of bail of both respondent Nos.2 and 3. 4. Heard learned advocates appearing for the respective parties and learned APP Ms. M.H. Bhatt appearing for the respondent-State. 5. Learned advocate Ms. Amrita Ajmera has appeared on behalf of Mr. Daifraz Havewalla, learned advocate on record for the applicantoriginal complainant. The present application was pressed for urgent hearing by learned advocate appearing for the applicant-original complainant. 6. Considering the averments made in the application, this Court initially vide order dated 26.11.2021, had issued notice upon respondents. The respondent Nos.2 and 3 had failed to appear before this Court. Daifraz Havewalla, learned advocate on record for the applicantoriginal complainant. The present application was pressed for urgent hearing by learned advocate appearing for the applicant-original complainant. 6. Considering the averments made in the application, this Court initially vide order dated 26.11.2021, had issued notice upon respondents. The respondent Nos.2 and 3 had failed to appear before this Court. Thus, this Court vide order dated 14.11.2022, had issued notice upon the respondents Nos.2 and 3 thereby calling upon the respondents, as to why a warrant should not be issued for noncompliance of bail conditions. Learned advocate Mr. Aniq A. Kadri had appeared on behalf of respondent Nos.2 and 3-original accused and had prayed for time. 7. It was submitted before this Court that the accused intends to comply with the directions issued by this Court, vide order dated 06.08.2021. Subsequently, learned senior advocate Mr. I.H. Syed had appeared with learned advocate Mr. Aniq Kadri for the respondent Nos.2 and 3 and had sought time to file affidavit-in-reply before the next date of hearing. The affidavit-in-reply was placed on record on 19.01.2023. The respondents have tried to offer explanation for the delay, which had occurred in complying the conditions by submitting that the respondents were facing financial difficulties due to which, they were unable to deposit the said amount of Rs.45 Lakhs. 7.1 The attention of this Court was invited to the application being Criminal Misc. Application (Modification of Order) No. 1 of 2021 filed by the respondents-accused. However, this Court, vide order dated 11.02.2022, had rejected the request of the respondents-accused to extend the time. It was further contended that the respondents-accused have suffered financial loss because of involvement in the FIR, they are unable to find work in their business community in Surat. 7.2 In such circumstances, respondents-accused have alternatively offered property i.e. Office No. 402, 4th Floor, Law-Chamber-2, City Survey Ward No. 1, Nanpura, Godha Street, Timaliwad, Nanpura, Surat, as against the deposit of amount of Rs.45 lakhs. In support of their submissions, the respondents have placed on record the valuation report of the said property, which is worth Rs.41,11,199.72/- as on date. So far as the remaining amount of Rs. 3 Lakhs is concerned, the respondents-accused had shown their readiness and willingness to deposit such amount by way of demand draft before this Court preferably within a period of ten working days. 8. So far as the remaining amount of Rs. 3 Lakhs is concerned, the respondents-accused had shown their readiness and willingness to deposit such amount by way of demand draft before this Court preferably within a period of ten working days. 8. The aforesaid contentions of the respondents-accused was vehemently objected by learned advocate Ms. Amrita Ajmera appearing for the applicant-original complainant. She had relied upon the order dated 11.02.2022 passed by this Court in Criminal Misc. Application (Modification of Order) No. 1 of 2021 in Criminal Misc. Application No. 11190 of 2021 and had submitted that in absence of any modification of the imposed conditions, the alternative offer of property may not be accepted. She has further submitted that the property described is not a title clear property as the same is subjected to mortgage as evident from the averments made in the FIR. In such circumstances, this Court vide order dated 24.01.2023, had requested the learned APP appearing for the respondent-State to verify the fact as to whether the property offered by the respondents-accused is subjected to mortgage or loan transaction. The applicant-original complainant had placed on record the affidavit-in-rejoinder and had tried to highlight the conduct of the respondents-accused. It was further contended that the alternative offer made by the respondents-accused is mere eye wash and the claim of the respondents about the title of the property being clear is an incorrect statement being made before this Court. 8.1 She had placed reliance upon the contents of the Criminal Misc. Application (Modification of Order) No. 1 of 2021 filed by the present respondents-accused and had submitted that in spite of specific condition being incorporated in the bail condition though the respondents-accused had mortgaged to arrange an amount of Rs.21 Lakhs. The same amount instead of being deposited in compliance of condition was utilized towards the settlement of the loan, availed by the company of the respondents-accused namely M/s. Gravity Associates. She had also invited attention of this Court to the letter of acceptance of the proposal of the respondents-accused by the finance company as well as the details about deposit of such amount of Rs.21 Lakhs in the account of finance company. She had also invited attention of this Court to the letter of acceptance of the proposal of the respondents-accused by the finance company as well as the details about deposit of such amount of Rs.21 Lakhs in the account of finance company. She referred to various dates and submitted that in spite of two months time period granted by this Court vide order dated 06.08.2021, being expired on 06.10.2021, followed by the facts that the application being Criminal Misc. Application (Modification of Order) No. 1 of 2021, for modification/extension of time being rejected by this Court on 11.02.2022, and thereafter, being served with the notice dated 14.11.2022, the respondents-accused have intentionally avoided compliance of the aforesaid bail condition, which called for immediate action by this Court. She therefore, urged this Court to cancel the bail of the respondent Nos.2 and 3 herein. 9. Learned senior advocate Mr. I.H. Syed appearing with learned advocate Mr. Aniq Kadiri for the respondent Nos.2 and 3-original accused, had submitted that the accused are very much available and have responded to the court’s notice. He has further submitted that because of the circumstances beyond their control, the condition could not be complied with. He has further submitted that in fact the condition incorporated in the bail order of deposit of amount of Rs.45 Lakhs is against the legal principles reiterated on number of occasion by the Hon’ble Apex Court. He has relied upon the recent order passed by the Hon’ble Apex Court in the case of Bimla Tiwari vs. State of Bihar delivered in Special Leave Petition (CRL.) Nos. 834-835 of 2023 on 16.01.2023. By relying upon the aforesaid decision, learned senior advocate Mr. I.H. Syed has submitted that Hon’ble Apex Court has deprecated the practice of incorporating such condition of deposit of amount in the criminal cases involving money dispute. 9.1 He has further submitted that the Hon’ble Apex Court has observed that the process of criminal law, particularly, in the matters of grant of bail is not a keen to money recovery proceedings. He therefore, submitted that this is nothing but an arm twisting approach to recover the money and the court may not permit the applicant in the guise of present proceedings of cancellation of bail, to be utilized for the purpose of money recovery. He therefore, submitted that this is nothing but an arm twisting approach to recover the money and the court may not permit the applicant in the guise of present proceedings of cancellation of bail, to be utilized for the purpose of money recovery. Lastly, he has submitted that the respondents-accused were always ready and willing to abide by the conditions imposed by this Court vide order dated 06.08.2021, enlarging the respondents-accused on bail. He therefore, once again, has requested to the Court to grant reasonable time to abide by the conditions incorporated in the bail order. 10. Learned APP Ms. M.H. Bhatt appearing for the respondent-State has placed reliance upon the report dated 06.12.2022 submitted by the Police Inspector, Umra Police Station, Surat City, whereby the Investigating Officer has confirmed about the deposit of amount of Rs.10 Lakhs before the Nazir office of District Court, Surat on 04.09.2021. The concerned police officer has further submitted that the remaining amount has not been deposited by the respondents-accused. In such circumstances, the accused-persons have failed to abide by the condition incorporated in the bail order granted by this Court. 11. Indisputably, the respondents-accused came to be released on regular bail pursuant to the order dated 06.08.2021 passed in Criminal Misc. Application No. 11190 of 2021. It is evident from the order itself that the learned advocate appearing for the respondents-accused have assured before this Court at the stage of hearing of regular bail to deposit an amount of Rs.10 Lakhs and had further shown their readiness and willingness to deposit remaining amount of Rs.45 Lakhs within a period of two months before the Court of learned Sessions Judge, Surat. The applicant-original complainant had acceded to such offer and had expressed no objection for the release of the respondents-accused on bail. 12. This Court notices that the dispute between the parties as alleged in the complaint was with regard to the agreement executed for the project developed by the present applicant, more particularly, flat No. 501 and 503 on the fifth floor as well as flat No. 304 on the third floor, which was booked by the applicant-original complainant. 12. This Court notices that the dispute between the parties as alleged in the complaint was with regard to the agreement executed for the project developed by the present applicant, more particularly, flat No. 501 and 503 on the fifth floor as well as flat No. 304 on the third floor, which was booked by the applicant-original complainant. Considering the nature of allegation and the broad consensus prevailing between the parties, the Court thought it fit to exercise the discretion and enlarged the accused on regular bail with the condition to deposit the remaining amount of Rs.45 Lakhs before the concerned court within a period of two months from the date of their actual release. At the same time, this Court had tried to balance the rights of the parties and had further directed the amount to be invested in the nationalized bank in fixed deposit initially for a period of three years in name of the nazir of the concerned court and the same was made subject to the outcome of the trial court proceedings. The Court had also further clarified that such deposit of the amount by the original accused, was subject to the rights and contentions of either parties. Thus, it was expected from the original accused to comply with the bail condition without any further delay. 13. The respondent-accused on one hand failed to abide by such condition after being enlarged on bail and on the other hand, approached this court by way of filing Criminal Misc. Application (Modification of Order) No. 1 of 2021, praying for extension of time to comply with such condition. It transpires from the record that learned advocate appearing for the original accused failed to appear before this Court and having noticed the fact that time period of three months had already expired, this Court vide order dated 11.02.2022, proceeded to reject such application treating it as infructuous. Even after rejection of such application way back in the month of February 2022, the original accused chose not to comply with such condition, which laid to filing of present application seeking cancellation of bail at the instance of the original complainant. This application seeking cancellation of bail is filed by the applicant-original complainant on 17.11.2021. Even after rejection of such application way back in the month of February 2022, the original accused chose not to comply with such condition, which laid to filing of present application seeking cancellation of bail at the instance of the original complainant. This application seeking cancellation of bail is filed by the applicant-original complainant on 17.11.2021. From the record, it transpires that after issuance of notice by this Court on 14.11.2022, the original accused on one ground or the other grounds have sought for time. 14. Considering the request and the intention to abide by the bail condition, the Court had adjourned this matter on various occasions. In spite of sufficient time being granted in absence of any application modifying the condition imposed, the Court had taken up this matter for hearing on merits. At one stage, affidavit-in-reply came to be filed by the respondents-accused explaining the circumstances and financial constraints, which were beyond the control of the original accused to comply with such condition. This Court had granted opportunity to come with some reasonable offer, whereby the original accused had offered the property situated in the very said project, which was subsequently found to be mortgaged. 15. In such circumstances, the offer made by the original accused was not accepted by the applicant-original complainant. This Court notices that the condition of deposit of amount was invited by the accused at the stage, when they were under judicial custody and were seeking regular bail. Considering the fact that an amount of Rs.10 Lakhs was deposited before the nazir office of the concerned court and the assurance being given to deposit remaining amount of Rs.45 lakhs, the Court had thought it fit to exercise its discretion. The allegations made in the FIR goes to indicate that the project was launched way back in the year-2016. The original complainant had invested his hard earned money against purchase of three flats of an amount of Rs.91 Lakhs towards the sale consideration for flat Nos.501 and 503 and an amount of Rs.9 lakhs towards flat No. 304 in the aforesaid scheme. In fact, from the order dated 06.08.2021, it transpires that the amount was directed to be deposited in the nazir office of the concerned court. Thus, the amount was not released in favour of the original complainant. In fact, from the order dated 06.08.2021, it transpires that the amount was directed to be deposited in the nazir office of the concerned court. Thus, the amount was not released in favour of the original complainant. The incorporation of the condition of deposit of amount in facts of the case is a self invited order, which the accused having availed benefit of the discretion being enlarged on bail are now turning around by taking a defence that this Court could not have incorporated such condition as held by the Hon’ble Apex Court in the case of Bimla Tiwari (supra). 16. Thus, the question arises for this Court for consideration is whether a violation of such condition should result in the cancellation of bail. Apt would be to refer to the legal principles laid down by the Hon’ble Apex Court in the case of Dolat Ram and Others vs. State of Haryana, (1995)1 SCC 349 . The Hon’ble Apex Court has held that “once the bail is granted, upon satisfaction of the court based on the material placed on record, the same should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial.” The aforesaid principle has been re-affirmed thereafter in various judicial pronouncements. Thus, from the various decisions, it is evident that mere violation of condition alone is not sufficient to cancel the bail granted by this Court. Before taking such decision, the High Court is expected to conduct a summary inquiry based on the records and arrived at a conclusion as to whether it is absolutely necessary to cancel the bail or not. 17. In the facts of the present case, admittedly the application filed by the original accused seeking extension of time has not been entertained by this Court. 17. In the facts of the present case, admittedly the application filed by the original accused seeking extension of time has not been entertained by this Court. In fact, the very incorporation of the condition to deposit of an amount of Rs.45 lakhs within a period of two months and the further liberty granted to the complainant to approach this Court to prefer the application for cancellation of bail in case of non compliance, itself is evident to suggest that the incorporation of such condition was vital inasmuch as to strike the balance between the parties, while enlarging the accused on bail and at the same time securing the interest of the complainant, the Court noticing the alleged total consideration of an amount of (Rs.91 lakhs + 9 Lakhs) being paid by the original complainant towards the purchase of the property, had directed the accused to deposit 50% of such amount. Such condition was incorporated only on the basis of the offer being made by the accused persons at relevant point of time. 18. The Court, which has granted bail by virtue of power conferred under Section 439 of Cr.P.C., has power to cancel the bail in terms of Section 439(2) of Cr.P.C. However, such power has to be exercised only if it is absolutely necessary. It is equally important that mere violation of condition of bail itself cannot be a reason to cancel the bail, unless it is shown that the involvement of the accused has affected the administration of justice or has affected the trial court proceedings. 19. Thus, the stand taken by the accused of this Court having no jurisdiction to incorporate such condition of deposit in the bail matter is deprecated/disapproved of. I am of the view and as rightly submitted by the learned advocate for the applicant-original complainant, the accused persons have tried to intervene with the administration of course of justice by making false assurance before this Court. I am of the view and as rightly submitted by the learned advocate for the applicant-original complainant, the accused persons have tried to intervene with the administration of course of justice by making false assurance before this Court. This Court vide order dated 06.08.2021, considering the circumstances of the case and the nature of allegations made against the applicant in the FIR as well as the consent granted by the learned advocate for the original complainant had thought it fit to exercise the discretion and enlarged the applicants on regular bail, the Court had in fact recorded the assurance given by learned advocate for the accused and had subsequently incorporated to deposit of remaining amount of Rs. 45 Lakhs as a condition for grant of bail. Liberty was granted to the original complainant to file application for cancellation of bail. 20. In such circumstances, the present application succeeds. The accused persons shall surrender forthwith, failing which, investigating agency shall be at liberty to arrest the accused. Rule is made absolute to the aforesaid extent.