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Gujarat High Court · body

2023 DIGILAW 50 (GUJ)

Rameshbhai Revabhai Patel v. State Of Gujarat

2023-01-06

NIRZAR S.DESAI

body2023
JUDGMENT : 1. At the outset, after arguing the matter for almost three and half hours, once the arguments were concluded, though, learned advocate Mr. B. M. Mangukiya for the applicant never experience that any of his contentions were left out to be incorporated in the order in the past, apprehended that this Court may not incorporate some of the contentions raised by learned advocate Mr. Mangukia and therefore, the order is being dictated in presence of learned advocate Mr. B. M. Mangukiya and learned advocate Ms. Bela A. Prajapati. 2. By way of this application, preferred under section 439 of the Criminal Procedure Code, the applicant has prayed for his release in connection with the offence registered in CID Crime Police Station vide FIR I-9 of 2021 dated 18.08.2021. 3. The application for bail was preferred on 18.09.2021. At the time, when the bail application was preferred, the applicant was represented by some other advocate. Thereafter, the applicant was enlarged on temporary bail vide order dated 20.12.2021 as the assurance was given on behalf of the counsel of the applicant that the earnest efforts would be made for repaying the amount and to show bonafides particularly because the complainants were two unmarried senior citizens whose life time savings in purchasing the flats was taken and who are allegedly cheated by the present applicant. Considering the aforesaid aspect, the temporary bail was granted to the present applicant vide order dated 20.12.2021 with a condition that he shall surrender before the jail authorities on 25.02.2022. However, though an assurance was given, it seems that no efforts were made in the interregnum period to keep the words of assurance given by the advocate for the applicant and therefore, ultimately the applicant surrendered on 25.02.2022. 4. At the time when present application was preferred, the same was preferred before charge-sheet. During the pendency of this application, charge-sheet came to be filed and as the learned advocate for the applicant insisted that the application for bail be considered irrespective of the fact that the charge-sheet has been filed after the bail application was preferred and therefore, upon his insistence, after charge-sheet, the same bail application was argued by learned advocate for the applicant by pointing out the relevant material from the charge-sheet papers received by learned advocate for the applicant. 5. 5. Though the bail application is of the year 2021, once the applicant was enlarged on temporary bail, the same could not be heard till he surrendered. Once the applicant surrendered, after some time, the advocate for the applicant was changed and thereafter, the matter could not be heard as on a number of occasions, either any of the learned advocates appearing for the parties requested for time or learned advocates appearing for the parties were not present when the matter was called out or there was a leave note or sick note, when the matter was listed before this Court and that is how the matter is heard today i.e. on 06.01.2023. 6. In the present case, FIR is registered before CID Crime Police Station by daughter of one Jesingbhai Chandulal Doshi namely Bhanuben Jesingbhai Doshi aged 69 years at the time when the FIR was registered on 18.08.2021 alleging that the complainant herself and her sister - Jayamtiben who both are unmarried senior citizens and were retired before 14 years and leaving retired life. It is further stated that the complainant retired from the service as teacher in the year 2010 and therefore, the complainant and her sister thought to invest the amount received by them towards retirement benefits in such a manner that they may get good return. Ultimately, they visited two schemes floated by the present applicant being Shukan Glory Developers and Sukan Enjoy. As they liked the schemes, on 25.02.2012, sister of the complainant Jayamtiben decided to book Flat No. F -102 and paid a sum of Rs. 25,00,000/- in cash. Another flat being Flat No. E - 402 was booked by them on cash payment of Rs. 30,00,000/-. Thereafter, Jayamtiben booked the Flat No. F - 401, F-402, F- 403 and F-404 and paid a total sum of Rs.3,28,50,000/- to the accused persons. Despite long time having passed, as the three accused persons were not giving possession to them and were giving false promises, the complainant inquired amd came to know that there are various complainants filed against them before various police stations and they have been arrested and sent to Sabarmati Jail. 7. Despite long time having passed, as the three accused persons were not giving possession to them and were giving false promises, the complainant inquired amd came to know that there are various complainants filed against them before various police stations and they have been arrested and sent to Sabarmati Jail. 7. As per the FIR itself the complainant went to meet the applicant to Sabarmati Jail and while being in jail also, the applicant promised them to repay the amount, however, once he was bailed out and he never sticked to these promises and neither gave possession of the flat nor returned the amount collected. Hence, the complainant went to the place of scheme of the flat and found that those flats have been sold to some other persons. When the complainant went to the residence of the applicant, there also he did not repay the amount already given by the complainant. Ultimately, the complainant entered into a settlement on 05.08.2020 with proprietor of Shukan Corporation viz. Ramesh Revabhai Patel i.e. the present applicant, Mahesh Revabhai Patel and Dhiren Prahaladbhai Patel. On 11.08.2020, the settlement was notarized between the complainant and her sister and proprietors of Shukan Corporation i.e. Ramesh Revabhai Patel – present applicant, Mahesh Ravabhai Patel and Dhiren Prahaladbhai Patel. 8. As per the settlement, it was agreed between the parties that out of Rs. 3,28,50,000/- paid by the complainant, Rs. 50,00,000/- shall be given back to the complainant by September, 2020 and remaining Rs. 2,78,50,000/- would be repaid to the complainant, once the 100 flats of Shukan Smile Scheme are sold alongwith interest by October, 2020. However, after the aforesaid settlement was arrived at between the parties, the cheques which were given by the present applicant and other co-accused towards security were taken back and fresh cheques of Rs. 3,06,00,000-/ were given to the complainant for which as per understanding arrived at between the parties, the accused persons were to repay the amount by November, 2020. Though the aforesaid cheques were deposited by the complainant, as all those cheques were returned, the complainant filed the complaint against the present accused persons including the present applicant under sections 406, 420, 465, 467, 468, 471 and 120 B of the Indian Penal Code. 9. Though the aforesaid cheques were deposited by the complainant, as all those cheques were returned, the complainant filed the complaint against the present accused persons including the present applicant under sections 406, 420, 465, 467, 468, 471 and 120 B of the Indian Penal Code. 9. Pursuant to the aforesaid incident, FIR was registered against the present applicant, the applicant was arrested on 25.08.2021 and after his arrest, the present bail application is preferred. 10. Learned advocate Mr. Mangukiya appearing for the present applicant made following submissions:- (1) The case on hand is a Magistrate triable case and therefore, no punishment can be awarded beyond three years. Learned advocate Mr. Mangukiya relied upon the decision in case of Satender Kumar Antil V/s Central Bureau of Investigation and Anr. and pointed out that considering the fact that the punishment cannot be imposed for a period of more than three years, the present case would fall within category A as the criminal cases are categorized by the Hon’ble Supreme Court in the aforesaid judgment and as per the aforesaid judgment, in the cases were punishment is upto 7 years, grant of bail should be a natural consequences. (2) Learned advocate Mr. Mangukiya for the applicant submitted that bail is the rule and jail is the exception. In the instant case, the complainant ladies have lost their hard earned amount which was not on account of any cheating as alleged but on account of business transaction and therefore, any business transaction carried out with bonafide intention may not be construed as cheating and therefore, the applicant is required to be enlarged on bail. (3) Learned advocate Mr. Mangukiya submitted that ingredients of sections 465, 467 and 468 of the Indian Penal Code are missing on bare reading of the FIR and therefore, the Court may consider that the FIR is registered only in respect of section 406 of the Indian Penal Code, for which maximum punishment is three years and therefore, by discarding incorporation of sections 465, 467 and 468 which prescribed punishment upto 10 years, the Court may exercise its discretion and release the applicant on bail. (4) Learned advocate Mr. Mangukiya also submitted that co accused viz. Dhiren Prahaladbhai Patel has been enlarged by this Court vide order dated 11.04.2022 in Criminal Misc. Application No.5771 of 2022. (5) Learned advocate Mr. (4) Learned advocate Mr. Mangukiya also submitted that co accused viz. Dhiren Prahaladbhai Patel has been enlarged by this Court vide order dated 11.04.2022 in Criminal Misc. Application No.5771 of 2022. (5) Learned advocate Mr. Mangukiya submitted that the aforesaid applicant – co accused was enlarged on bail, as he offered to repay some amount. Since, each of the property of the present applicant is attached, he is not in a position to make any such offer and therefore, the bail is being denied to him. However, still the applicant claims parity as the bail is granted to the co-accused to whom identical role is attributed and therefore, merely because the applicant could not offer to repay any amount, he should not be denied the bail. (6) Mr. Mangukiya submitted that as per the column No. 5 of the charge-sheet, allegations are only in respect section 406 of the Indian Penal Code and though charge-sheet is filed under sections 465, 467, 468 and 471 of the Indian Penal Code, ingredients of those sections are missing nor any material is produced alongwith charge-sheet which may justify the addition of sections 465, 467, 468 and 471 and therefore, the applicant is required to be granted bail. (7) Learned advocate Mr. Mangukiya states that for substantiating the allegations in respect of sections 465, 467, 468 and 471, there must be something on record to show that some false documents are created and in absence of there being any allegations about creation of any false documents, sections 465, 467, 468 and 471 of the Indian Penal Code are unnecessarily incorporated in the charge-sheet and therefore, by discarding insertion of those sections, applicant is required to be bailed out. (8) Learned advocate Mr. Mangukiya lastly states that it is the duty of the Court to consider the charge-sheet and to verify as to whether the sections mentioned in the charge-sheet are rightly incorporated in the charge-sheet or not. 11. Since, all the aforesaid submissions made by learned advocate Mr. Mangukiya are now being incorporated in his presence, learned advocate Mr. Mangukiya states that now he does not have to make any further submissions. 12. Learned advocate Mr. Mangukiya relied upon three judgments. (1) Relying upon the case of Satender Kumar Antil V/s Central Bureau of Investigation and Anr. 11. Since, all the aforesaid submissions made by learned advocate Mr. Mangukiya are now being incorporated in his presence, learned advocate Mr. Mangukiya states that now he does not have to make any further submissions. 12. Learned advocate Mr. Mangukiya relied upon three judgments. (1) Relying upon the case of Satender Kumar Antil V/s Central Bureau of Investigation and Anr. in Miscellaneous Application No. 1849 of 2021 in Special Leave Petition (Criminal) No. 5191 of 2021 with Miscellaneous Application Dairy No. 29164 of 2021 in Special Leave Petition (Criminal) No. 5191 of 2021 dated 11.07.2022 by the Hon’ble Supreme Court by relying upon the same, learned advocate Mr. Mangukiya canvassed the following preposition of law:- Bail is a rule and jail is an exceptional, considering the fact that even if the applicant is felt guilty in respect of offence in question maximum punishment which can be imposed upon the present applicant is three years and therefore, his case would fall in category A as the offences are categorized in the following judgment and therefore, present applicant is required to be enlarged on bail. (2) Learned advocate Mr. Mangukiya relied upon the decision in case of Mahersing or his successor in office Intelligence Officer V/s. Pradipkumar Bharatlal Poddar Director of M/s. Suvidha passed in Criminal Revision Application No. 455 of 2003 decided on 24.09.2003 by this Court and by relying upon the paragraph no. 18 of the aforesaid judgment, learned advocate Mr. Mangukiya submitted that any condition requiring the accused person to deposit or pay any amount is not approved by this Court as well as the Hon’ble Supreme Court and as the co accused has been released on bail as he offered to pay some amount, such insistence should not be from the present applicant as well. (3) Lastly learned advocate Mr. Mangukiya relied upon the decision of Hon’ble Supreme Court in case of Sandeep Jain V/s National Capital Territory of Delhi represented by Secretary, Home Department in Criminal Appeal No. 59 of 2000 decided on 18.01.2000 and by relying the paragraph no. 4 of the aforesaid decision, learned advocate Mr. Mangukiya submitted that as in respect of the amount for which allegations of cheating is made against the present applicant not being a criteria to grant the bail ignoring the aforesaid, the present applicant is required to be bailed out. 13. Learned APP Mr. 4 of the aforesaid decision, learned advocate Mr. Mangukiya submitted that as in respect of the amount for which allegations of cheating is made against the present applicant not being a criteria to grant the bail ignoring the aforesaid, the present applicant is required to be bailed out. 13. Learned APP Mr. Soaham Joshi appearing for the respondent – State has vehemently opposed this application and submitted that conduct of the present applicant itself is questionable and the same would not justify any grant of bail to him. He submitted that there are number of offences of similar nature registered against him for which he was either granted bail and considering the fact that the present applicant is involved in many offences of similar nature as also considering the fact of victims are senior citizens who are in thier late sixty's or early seventy's and as they have been cheated by duping them of their life time savings, no leniency be shown in respect of the present applicant. The present applicant is in habit of cheating people by plotting the residential scheme which can be established from the various FIRs registered against him and therefore, he should not be enlarged on bail. 14. Learned APP Mr. Soaham Joshi also submitted that as far as the trial is concerned, the charge is already framed and though the matter for bail is being heard today i.e. on 06.01.2023, before the Trial Court, the matter is to come up on 11.01.2023 for complainant’s deposition. By pointing out the FIR as the complainant has alleged that in the past, though the settlement was arrived at, the applicant did not stick to the same as well as considering the fact that the present complainants are senior citizens whereas the present applicant is a builder, being influential person, there are all the chances that if the applicant is released on bail at the crucial stage of trial, he may influence the trial and therefore, bail may not be granted to him. 15. 15. He also submitted that now since the trial has started, at this juncture, not much time will be taken for trial to complete and therefore, considering the past conduct of the present applicant as at the time when the applicant was released on temporary bail, on his assurance that to show his bonafide, he wanted to repay the amount as recorded by the Coordinate bench in its order dated 20.12.2021 which the applicant could not fulfill nor there is any material to indicate that he made even slightest attempt to fulfill the assurance given to the Court, the present applicant may not be enlarged on bail. 16. Learned advocate Mr. Hardik Barot appearing for the complainant also vehemently opposed this application and submitted that the complainants are senior citizens, they are the only ladies in the family as they are unmarried as they were helpless, they were cheated by siphoning off the life time savings by the present applicant. In the past also, according to learned advocate Mr. Barot, the complainant was threatened by the present applicant while they went to meet them in the jail. 17. However, learned advocate Mr. Mangukiya for the applicant disputed the aforesaid statement and submitted that the complainant had never gone to visit Central Jail at Ahmedabad where the present applicant is arrested and sent. To dispute the aforesaid contention, learned advocate Mr. Mangukiya has placed on record, affidavit dated 19.09.2022 of the present applicant stating that he has never threatened the complainant. The affidavit is taken on record. Though affidavit is of 19.09.2022, the same is tendered today only. 18. Learned advocate Mr. To dispute the aforesaid contention, learned advocate Mr. Mangukiya has placed on record, affidavit dated 19.09.2022 of the present applicant stating that he has never threatened the complainant. The affidavit is taken on record. Though affidavit is of 19.09.2022, the same is tendered today only. 18. Learned advocate Mr. Barot also submitted that during the period, when the present applicant was enlarged on bail on temporary bail, when a meeting for settlement took place, the complainant and sister were threatened and therefore, states that if at this crucial juncture of trial, the applicant is enlarged on bail by using his might and influence, there is all possibility that he may tamper with the witnesses as one of the key witness is the employee of the present applicant himself as well as considering the fact that both the complainant and her sister are of 70 years and above, there are all chances that the present applicant may try to tamper with the witnesses which ultimately may result in miscarriage of justice and therefore to ensure the fair trial also, the present application is required to be dismissed. 19. I have heard learned advocates for the respective parties. Perused the record. I have considered the submissions made by learned advocates for the parties. 20. Main contention of learned advocate Mr. Mangukiya for the applicant is that bail is a rule and jail is an exceptional. The offence for which the present applicant was arrested and he is in jail since last more than one year, is an offence for which maximum punishment would be three years. According to learned advocate Mr. Mangukiya, in absence of there being any special circumstances, as the complainants were investors and normal course of business as the present applicant suffered loses, he could not repay the amount, cannot be termed as cheating and in absence of there being any false documents, there are no ingredients of sections 465, 467, 468 and 471 and therefore, by discarding those sections which prescribes for maximum punishment upto 10 years, the present applicant is required to be enlarged on bail, in view of the ratio laid down by Hon’ble Supreme Court in case of Satender Kumar Antil (Supra). 21. On perusal of record, this Court finds that the present complainant for the first time who booked two flats in the year 2012, by paying Rs. 25,00,000/- and Rs. 30,00,000/-. 21. On perusal of record, this Court finds that the present complainant for the first time who booked two flats in the year 2012, by paying Rs. 25,00,000/- and Rs. 30,00,000/-. Thereafter, periodically they booked more flats and ultimately, paid Rs. 3,25,50,000/- to the present applicant and other two co-accused persons. Time and again, they requested the present applicant and other accused persons for allotment of flats and to give possession of those flats. However, the possession of those flats was never given to them instead those flats were sold away to some other persons. In fact the record indicates that in the past also false promises were given to the complainants and the applicant also entered into settlement with the complainant. At no point of time, the present applicant made any attempt to show his bonafides by making the payment of any single paisa. Though notarized settlement took place on 11.08.2020 as per the aforesaid settlement, the complainant were to receive sum of Rs. 50,00,000/- by September, 2020 and remaining amount was to be paid to the complainant i.e. Rs.2,78,50,000/- by October, 2020, not a single rupee was repaid. 22. Further the record indicates that the flats for which the payments were made by the complainant were never allotted or possession of those flats were given to the complainant. It is alleged that those flats have been sold to other persons, however, the fact remains that possession of those flats has never even offered to the present applicant as learned advocate Mr. Mangukiya failed to produce any evidence or any material on record which would indicate that the flats which were allegedly booked by the complainant where ever offered in absence of possession of flats being given to the complainant or the amount allegedly paid by the complainant having been repaid to the complainant. According to this Court, this is nothing but a clear-cut attempt of cheating to elderly senior citizen helpless ladies who were in pious profession of teaching. Their savings of life time is siphoned off by the present applicant since, 2012. After number of attempts, as can be seen from the FIR, when the present applicant gave an application to the CID crime in the year 2019, ultimately, the offence was registered on 18.08.2021, that itself would show that how influential the present applicant is. 23. Their savings of life time is siphoned off by the present applicant since, 2012. After number of attempts, as can be seen from the FIR, when the present applicant gave an application to the CID crime in the year 2019, ultimately, the offence was registered on 18.08.2021, that itself would show that how influential the present applicant is. 23. Further the present applicant also does not deserve any sympathy and is not required to be enlarged on bail for the reason that the present applicant has not only played with the trust of these two elderly lady complainants but also with the Court, as can be from the order of temporary bail passed on 20.12.2021 an assurance was given to this Court on behalf of the applicant to show the bonafides that efforts would be made. However, after enjoying two months of temporary bail, the applicant surrendered and till date, there is no material on record to indicate that even slightest attempt were made to honour the words which were made before this Court. One can understand, if trust of the Court is broken by the present applicant, there is no question that he ever would stick to his word in respect of these two poor lady senior citizens. 24. Further as indicated by learned APP there is no contrary material produced that there are other FIRs also of similar nature registered against the present applicant which would indicate that the applicant is in habit of cheating the people by similar modus operandi, had it been a case of first offence, the things wold have been different. There are number of offences registered against the present applicant. 25. It is true that the Hon’ble Supreme Court in no uncertain terms has stated that normally it should be bail which should be the rule and jail should be the exceptional. But in the cases, where a person don’t stick to its words given to the Court or when he is an habitual offender, just to prevent other people of the society from further cheating, it is necessary that no leniency should be shown to that person. 26. But in the cases, where a person don’t stick to its words given to the Court or when he is an habitual offender, just to prevent other people of the society from further cheating, it is necessary that no leniency should be shown to that person. 26. Further with the aforesaid background, when the trial has already commenced and on 11.01.2023, the statement of complainant is to be recorded, considering the influential nature of the present applicant, there are all the chances that if he is granted bail as the applicant is a builder and an influential person, there are all the chances that he may tamper with the witnesses and that may ultimately affect the fair trial. Therefore, to ensure the fair trial as well, this application is required to be dismissed. 27. As far as the submission of learned advocate Mr. Mangukiya that this Court has granted the bail to the co accused vide order dated 11.04.2022 in Criminal Misc. Application No. 5771 of 2022, this Court while considering the bail application in paragraph no. 5 observed as under:- 5. In the facts and circumstances of the case and considering the nature of allegations, this Court is of the opinion that, discretion is required to be exercised to enlarge the applicant on regular bail. This Court has considered the following facts while exercising discretion in favour of the applicant :- (i) the investigation is over and the charge-sheet is filed; (ii) the applicant is in jail since 09.12.2021; (iii) learned senior advocate Mr.Panchal, upon instructions from Shri Prahaladbhai S. Patel, who happens to be the father of the applicant, submitted that family of the applicant, on their own volition and irrespective of the outcome of the trial, is ready to pay an amount of Rs.40/- Lakhs (Rupees Forty Lakhs) by way of two demand drafts of Rs.20/- Lakhs (Rupees Twenty Lakhs) each to the complainant viz. Bhanuben D/o. Jesingbhai Chandulal Doshi and her sister viz. Jayamatiben, within a period of two months from today, however, repayment of the aforesaid amount shall not be construed as admission of guilt on the part of the applicant; (iv) learned advocate Mr.Barot for the complainant is ready and willing to accept the amount on behalf of the complainant viz. Bhanuben D/o. Jesingbhai Chandulal Doshi and her sister viz. Jayamatiben and upon instructions, submitted that complainant viz. Bhanuben D/o. Jesingbhai Chandulal Doshi and her sister viz. Jayamatiben and upon instructions, submitted that complainant viz. Bhanuben D/o. Jesingbhai Chandulal Doshi and her sister viz. Jayamatiben do not have any objection if the applicant is granted bail in view of the fact that he repays the amount of Rs.40/- Lakhs (Rupees Forty Lakhs) to the complainant viz. Bhanuben D/o. Jesingbhai Chandulal Doshi and her sister viz. Jayamatiben; subject to the rights of the complainant viz. Bhanuben D/o. Jesingbhai Chandulal Doshi to prefer appropriate application for recovery of remaining amount before appropriate Court; (v) learned senior advocate Mr.Panchal, upon instructions, further submitted that after the aforesaid payment of Rs.40/- Lakhs (Rupees Forty Lakhs) is made to the complainant viz. Bhanuben D/o. Jesingbhai Chandulal Doshi and her sister viz. Jayamatiben, thereafter within a period of one year (12 months) further amount of Rs.10/- Lakhs (Rupees Ten Lakhs) will be paid through two different demand drafts of Rs.5/- Lakhs (Rupees Five Lakhs) each to the complainant viz. Bhanuben D/o. Jesingbhai Chandulal Doshi and her sister viz. Jayamatiben. 28. The aforesaid observation made by this Court would indicate that it is the father of the accused person who on his volition irrespective of outcome of trial was ready to pay a sum of Rs. 40,00,000/- and an additional amount of Rs. 10,00,000/- within a period of 12 months thereafter, after release of the applicant and learned advocate appearing for the complainant shown willingness to accept the aforesaid amount and had specifically stated that they do not have any objections, if the applicant is granted bail as the co accused was repaying the amount of Rs. 40,00,000/- to the complainant. That was one of the consideration while granting the bail to the co accused. 29. Today, this bail application is opposed tooth and nail by learned advocate for the complainant. Considering the past track record and in view of the aforesaid discussions, I do not see any reason to entertain this application and grant bail to the present applicant. 30. In view of above, the present application is required to be dismissed and the same is dismissed accordingly. Rule is discharged. No order as to costs.