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2023 DIGILAW 567 (GUJ)

STATE OF GUJARAT v. RAJESHKUMAR JAMNADAS RAMI

2023-04-06

NISHA M.THAKORE

body2023
ORDER : 1. This is an application filed under section 439(2) of Code of Criminal Procedure, by the State seeking quashing of the order dated 13.04.2022 passed by the learned 2nd Additional Sessions Judge, Ahmedabad (rural) at Viramgam in Criminal Miscellaneous Application No. 68 of 2022. By the said order, the learned Sessions Judge has enlarged the respondent no. 1- original accused no. 1 in connection with an offence registered with Detroj Police station ICR no. 111920172110361/2022, dated punishable under sections 406, 409, 420, 465,467,468, 470, 471 of Indian Penal Code. 2. The gist of the allegations against the accused no. 1 in aforesaid FIR registered is that in the year 2016, the respondent no. 1 while holding charge as Deputy Accountant at Taluka Panchayat, Detroj office had committed criminal breach of trust by misusing his position as government servant, by making bogus cheques and vouchers and using such bogus documents as genuine documents the accused had dishonestly diverted such amount in his account or in the name of relatives / friends. As per the allegations in the FIR, the total embezzlement of the amount involved was Rs. 30,80621:00. 3. It transpires from the record that before the registration of complaint, the department had conducted an inquiry whereby the District Accountant Officer, Ahmedabad Panchayat office had by order no. DP/HSB/MKM-1vashi/772/2021, dated 17.07.2021 had directed the District Primary Education officer, Ahmedabad to proceed for registration of the FIR against the respondent no. 1. It was stated that the respondent no. 1 while holding charge as Deputy Accountant at Dholera office had committed the offence of embezzlement of such amount. Such a fact emerged during audit of the accounts of the Financial Year of 2017-2018 and 2018-2019. It had come on record during analysis of the account details that though the retired primary teachers have already been extended the benefit of leave encashment, the respondent no. 1 had created a record of payment to one B.P. Kotadiya, retired teacher by tendering voucher no. 374, dated 07.06.2016 for an amount of Rs. 5,63,397/-, whereas on investigation no such voucher was found. Similarly, in the case of shri F. B. Thummariya, retired teacher payment was made towards leave encashment of an amount of Rs. 5,42,922/- on 27.06.2016 but on investigation no voucher was found. 374, dated 07.06.2016 for an amount of Rs. 5,63,397/-, whereas on investigation no such voucher was found. Similarly, in the case of shri F. B. Thummariya, retired teacher payment was made towards leave encashment of an amount of Rs. 5,42,922/- on 27.06.2016 but on investigation no voucher was found. On further inquiry of the case book details, it was found that the cheques were issued in the name of another person Kanjibhai Devabhai Makwana. It was also found that the employees so named have never rendered service in Detroj Taluka. There was embezzlement of Rs. 11,06,319/-. Again, it was noticed that details of cheque bearing no. 006362, dated 27.06.2016 was not mentioned in the cheque register. On inquiry, it was found that the same was drawn in the name of SBI, Viramgam and an amount of Rs. 19,74,302/- has been cleared. The interim audit revealed the involvement of the present applicant for misappropriation of Rs. 30,80,621/-. Thus, having noticed the primary involvement of respondent no. 1, the FIR came to be registered against respondent no. 1 on 18.07.2021. 4. The applicant was arrested 29.07.2021. The bail application being Criminal Miscellaneous Application No. 2458 of 2021 was preferred pending investigation, before the court of Learned 5th Additional Sessions judge, Ahmedabad (Rural) which was not entertained and rejected vide order dated 18.08.2021. The Court took into consideration the fact that investigation was in progress and prima facie, the material disclosed the involvement of the applicant. At the end of investigation the charge sheet came to be filed on 22.10.2021 for the offence under section 406, 409, 420, 465, 467, 468, 470, 471 of IPC wherein the present applicant emerged as main accused. The applicant had approached for regular bail Criminal Miscellaneous Application No. 68 of 2022, before the court of Learned Additional Sessions Judge, Ahmedabad (Rural). The Learned Sessions Judge by order impugned proceeded to exercise it’s discretion enlarging the respondent no. 1 accused on regular bail. 5. This application challenging aforesaid bail was filed by the State on 09.09.2022. This court by order dated 07.11.2022 had issued a rule, which was duly served. The matter was fixed for hearing considering the application filed by the respondent no. 1 for early hearing. 1 accused on regular bail. 5. This application challenging aforesaid bail was filed by the State on 09.09.2022. This court by order dated 07.11.2022 had issued a rule, which was duly served. The matter was fixed for hearing considering the application filed by the respondent no. 1 for early hearing. At one stage, attention of the court was invited to the order dated 30.09.2022 passed by the Coordinate Bench in Criminal Miscellaneous Application No. 12680 of 2022, whereby the respondent no. 1 had approached this court for bail in respect of another FIR with similar allegations, registered with Karanj Police station and the matter was adjourned on the grounds that an application filed by the State seeking cancellation is pending consideration. 6. Learned Additional Public Prosecutor Ms. Monali Bhatt had appeared on behalf of applicant-State and Mr. Punit Juneja , learned advocate, had appeared on behalf of respondent no. 1-original accused. The matter was heard at length. During the course of arguments, the Learned Additional Public Prosecutor has placed reliance upon the affidavit of IO along with charge sheet counter submitted by the Incharge Deputy Superintendent of Police, Economic Offense wing, CID Crime, Gandhinagar. The hearing of the matter was concluded and the matter was reserved for orders. 7. At the outset, the Court notices the grounds raised in the application and prayers sought for, essentially the State through investigating agency, has approached this Court invoking section 439(2) of the Code of Criminal Procedure seeking quashing of the order dated 13.04.2022 passed in Criminal Miscellaneous Application No. 68 of 2022, by the 2nd Additional Sessions Judge, Ahmedabad (Rural), with further direction to direct the accused to surrender in judicial custody. In light of the aforesaid fact, the Court is of the view that the present application preferred by the State is not essentially seeking cancellation of bail, on the ground of supervening circumstances. The present application is challenging the order for grant of bail, the ground of contention is with the very order of the Court granting bail. Taking into consideration the grounds raised, the illegality of due process is questioned on account of improper or arbitrary exercise of discretion by the court while granting bail. In such circumstances, this court would like to closely look into reasons assigned while granting bail. 8. Taking into consideration the grounds raised, the illegality of due process is questioned on account of improper or arbitrary exercise of discretion by the court while granting bail. In such circumstances, this court would like to closely look into reasons assigned while granting bail. 8. The accused had contended that the FIR was registered after 5 years from the date of alleged commission of offense. The only duty entrusted to the accused was to sign the bill and was not having any authority to sanction the bills. The bills were further verified, signed and placed by the head clerk before such bills were placed before the accused. It was further contended that the bills were also placed before TDO, who is otherwise authorized to issue and sign the cheques which are verified by the TPEO. The amount is only disbursed after appropriate orders are passed by the TDO. It was also contended that regular audit at intervals has been undertaken during 2016 to 2021 and no such facts as alleged in FIR were noticed. It was therefore prayed that since the investigation is over, he may be considered for bail. 9. The Sessions Court having noticed that investigation is over, on perusal of charge sheet papers observed that the investigation is not impartial. The court further prima facie found that the applicant was involved in case of falsification of account, making forged bills and misappropriation but then he was not the person who was entrusted with government funds. The accused involvement has transpired and is established but considering the fact that he being government servant , he is not likely to flee from trial and extending his judicial custody, even after filing of charge sheet, would amount to pre trial punishment, the learned sessions judge has proceeded to exercise discretion to grant bail subject to conditions incorporated. Considering the principles laid down by the Hon’ble Supreme Court in the case of Sanjay Chandra vs. CBI, (2012) 1 SCC 40 , the court proceeded to enlarge the accused on bail vide order dated 13.04.2022. Hence the State has invoked jurisdiction of this court under section 439(2) of the CRPC, seeking cancellation of bail by challenging the said order dated 13.04.2022, passed by the learned Additional Sessions Judge, Ahmedabad (Rural). 9. Hence the State has invoked jurisdiction of this court under section 439(2) of the CRPC, seeking cancellation of bail by challenging the said order dated 13.04.2022, passed by the learned Additional Sessions Judge, Ahmedabad (Rural). 9. Apt would be at this stage to consider the ratio laid down by the Hon’ble Supreme Court as regards scope of the powers of the High Court under section 439(2) Cr.P.C. In Dinesh M.N. (SP) vs. State of Gujarat, (2008) 5 SCC 66 , the Supreme court observed that although a court should avoid re-appreciation of evidence while granting bail. However when a plea for cancellation of bail is presented before the court, then under Section 439(2) can consider whether irrelevant materials were taken into consideration for granting bail. The reasoning for this is simple. The court dealing with the plea for cancellation of bail may not know as to what extent the irrelevant material weighed with the court for granting bail in the particular matter. Additionally, in Subodh Kumar Yadav vs. State of Bihar, (2009) 14 SCC 638 , the Supreme Court has observed that if a superior court finds that the subordinate court has erred in its decision for granting bail by considering irrelevant material, or non-application of mind, or fails to take note of any statutory bar to grant bail, or if there was improper conduct of proceeding e.g. failure to hear the prosecution/complainant where required. In such cases, the order granting bail is liable to be quashed. So it can be deduced that in common parlance the court will not re-appreciate evidence while granting bail. But in cases where the question is raised on the court’s decision for granting bail on the basis of considering irrelevant material on record, only then can the previous evidence be taken into account, to eliminate any discrepancies and reach a just decision. 10. In light of the aforesaid judicial pronouncement on the scope of jurisdiction of this court under section 439(2) of CRPC, the only question which falls for consideration of this Court is whether the learned sessions judge in light of the investigation, misdirected himself in exercising judicial discretion of enlarging accused on bail? 11. 10. In light of the aforesaid judicial pronouncement on the scope of jurisdiction of this court under section 439(2) of CRPC, the only question which falls for consideration of this Court is whether the learned sessions judge in light of the investigation, misdirected himself in exercising judicial discretion of enlarging accused on bail? 11. The learned Additional Public Prosecutor has placed reliance upon the documents like the affidavit filed by the IO, which is placed on record as Annexure B. She has also invited attention of this court to the grounds raised in the present application. The attention of this Court is also drawn to the registration of three FIRs against the present respondent no. 2 wherein also the case embezzlement of state money is alleged along with the provisions of offense under prevention of corruption act has been alleged. 12. The investigation is over which has culminated into filing of charge sheet wherein present respondent no. 2 has been arraigned as accused no. 1 as has emerged as main accused in the commission of alleged offense punishable under section 406, 409, 420, 465, 467, 468, 470, 471, 477(a) read with section 114 of IPC and section 13(1) and section 13(2) of the Prevention of Corruption (Amendment) Act, 2018. Indisputably, the report dated 06.04.2022 seeking addition of charge under section 13(1) and 13(2) of the corruption act and section 114, 465 and section 477(a) of the IPC has not been accepted by the learned sessions judge to the extent of incorporating offense under corruption act are concerned and has directed the IO to produced the charge sheet before the concerned Judicial Magistrate First class, vide order dated 12.04.2022. Thus, the respondent no. 2 has been charged for the offense under IPC alleged. 13. In the opinion of this court, the crux of the role of the accused - respondent no. 2 as contended by the prosecution as described in charge sheet is that as Government servant while holding charge as Deputy Accountant, misusing his official position , in spite of the fact that the leave encashment amount of the retired teachers have been paid, forged bills were created, claim of leave encashment was made based on the earlier orders, government record was corrected/ changed accordingly and the amount sanctioned was improperly diverted in the account of the accused. The investigation has revealed that an amount of Rs.5,63,397 :00 has been deposited on 07.06.2020 in the name of his accomplice Barkat Pyarali Kotadiya, who has been arraigned as accused subsequently and is arrested in the present offense. The investigation was in progress with regard to another entry of an amount of Rs.5,42,922/- found in the case of his brother in law Firozali Bahardurbhai. It had transpired during investigation that the accused had also deposited an amount of Rs. 5,00,000/- and Rs. 10,00,000/00 in his Dena Bank account, without any voucher or entry in the register. As regards redeposit of amount is concerned, the accused has re-deposited an amount of Rs. 17,15,860/- which pertains to different FIR. The IO has come with a case that such an amount has been re-deposited in absence of any office order, the accused has misused the seal of the concern TDO and himself has endorsed on behalf of TDO by acknowledging on the challan created by him. The registration of two FIRs is also reported by the IO in his affidavit. Similar charge has been alleged wherein in complaint bearing ICR no. 907 of 2021 registered with the Karanj Police station, an amount of Rs. 7,03,76,846/- is alleged to have been misappropriated and in complaint bearing ICR no. 250 of 2021 registered with Mandal police station, an amount of Rs. 63 lakhs is alleged to have been misappropriated. In light of the aforesaid offense alleged and on overall re-appreciation of the relevant documents placed on record, for consideration of this Court, prima facie, the case against the respondent no. 2 is based on the cogent material which has been brought on record to substantiate the allegations made about embezzlement of government money. The learned sessions judge has rightly noticed the prima facie case against the accused - respondent no. 2 about falsification of account, making forged bills and misappropriation etc. 14. Now, having noticed prima facie case, if one examines the impugned order, the learned sessions judge has proceeded to pass an impugned order of granting bail by taking into consideration the principles laid down by the Hon’ble Supreme Court in the case of Sanjay Chandra (supra). It was a case which entailed the fraudulent allocation of 2G bandwidth spectrum to private entities in the telecom sector causing the public exchequer an estimated loss of Rs.30,000 crores. It was a case which entailed the fraudulent allocation of 2G bandwidth spectrum to private entities in the telecom sector causing the public exchequer an estimated loss of Rs.30,000 crores. It also involved allegations of large-scale corruption and collusion which resulted in the arrest of the former telecom minister, high-ranking bureaucrats and top-level corporate executives. Initially, the Delhi High Court in the case of Sanjay Chandra vs. C.B.I. authorized their pre-trial detention even though the investigation was complete and there were no substantiated allegations of intimidation or tampering with the documentary evidence. The High Court eroded the most fundamental tenet of criminal law viz., the presumption of innocence. As a result, the judicial custody of the accused continued for six months despite them not having been indicted for the offenses charged, i.e. despite formal charges not having been framed under the Cr.P.C. The High Court took notice of the gravity of economic offense involving huge amounts as well as the involvement of accused ministers and bureaucrats. Moreover, despite cooperating during the investigation, the Court stated that their past actions “cannot be a guarantee that during trial, they will not interfere with the judicial process.” The High Court, therefore, made many observations on the merits of the allegations against the accused, effectively commenting on their guilt prior to judgment and departing from the settled dictum of ‘bail, not jail’. Thus, the denial of bail applications was primarily based on considerations of ‘public interest’. In Special Leave to appeal, the Hon’ble Supreme Court granted bail to the accused recognizing that the right to life and personal liberty was the “most basic of all fundamental rights.” The Court reversed the High Court’s order by taking cognizance of the factors like completion of investigation, prospective delay in concluding the trial and the six month incarceration, stating that the “right to bail is not to be denied merely because of the sentiments of the community against the accused.” The Supreme Court was of the view that by shifting the burden onto the accused to demonstrate their innocence at the pre-trial stage, while assuring the Court of their continuing cooperation, their right to be presumed innocent until proven guilty was rendered nugatory. Thus, the Hon’ble Supreme Court adopted liberal reading of bail laws by applying the principle of presumption of innocence before trial. 15. Mr. Thus, the Hon’ble Supreme Court adopted liberal reading of bail laws by applying the principle of presumption of innocence before trial. 15. Mr. Juneja has also invited my attention, after the arguments were concluded, order dated 10.02.2023 passed by the learned Sessions Judge in Criminal Miscellaneous Application No. 17 of 2023, whereby the present accused has been enlarged on bail in respect of offense punishable under section 13(1) and 13(2) of the Prevention of Corruption (Amended) Act, 2018 and section 114 and 477(a) of the Indian Penal Code, which is registered as ICR no. 361 of 2021 with Detroj Police Station. It appears from the order that in respect to the same incident, initially a report was filed by the CID crime, Gandhinagar seeking addition of aforesaid charges against present accused, which came to be accepted. The accused had approached the court seeking bail in respect of aforesaid charges as well. It has transpired from the order that IO failed to appear before the trial court though sufficient opportunity being granted, and in absence of any submissions being made, court noticing the custody of the accused 02.08.2021, has proceeded to grant bail by such order dated 10.02.2023. Mr. Juneja has submitted that no challenge is made by the prosecution to that order till date. In my view, the gravity of offense demands proper measures to be taken at the instance of the State noticing that the accused has been found involved repeatedly in misappropriation of funds. The criminal trial will takes it’s own recourse. However, the court at present is examining the offense in it’s limited jurisdiction of cancellation of bail. 16. In light of the aforesaid legal position, in the facts of the case, it can be carved out that the offense alleged against the respondent no. 2-accused is no doubt of serious nature and overwhelming material has been recovered which points finger against the accused involvement. Additionally, the Court cannot ignore the registration of three FIRs against the respondent no. 1. At the same time, this court cannot ignore the fact that the investigation is over and a charge sheet is filed. For the reasons stated, I am of the view that the discretion exercised by the court is judicious and not as a matter of course. Hence , present application seeking challenge to the impugned order of bail is not entertained and stands dismissed as rejected.