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2024 DIGILAW 154 (GUJ)

Anand Chandra v. State Of Gujarat

2024-01-19

J.C.DOSHI

body2024
ORDER : By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11206020210665 of 2023 (CR No.I-81 of 2021) registered with Kadi Police Station. 2. The short facts of the case as emerging from the FIR are that one Mr. Chetankumar Punjabhai Patel, proprietor of M/s. Yug Enterprise filed a written complaint before the Kadi Police Station under Sections 406, 420 and 409 of the Indian Penal Code, 1860 against one Mr. Amit Rameshbhai Prajapati, Supervisor of Warehouse of Arya Collateral Warehousing Services Private Limited situated at Chamber No. 1, Old Survey No. 200, New Survey No. 340, Village Karannagar, Taluka Kadi, Mahesana, Gujarat – 382715. It is alleged in the complaint that starting from 16.03.2021 to 24.04.2021 about 7,496 bags of Jeera' was stored at the Kadi Warehouse. In 7,496 bags of Jeera, the total quantity of Jeera being stored was 4,50,270 Kg's. The market value of jeera being Rs. 125/- per kg, the total amount of Jeera stored in the Kadi Warehouse by Mr. Chetan Patel was amounting to Rs. 5,62,83,750/-. That Mr. Chetan Patel paid rent of Rs. 1,65,000/- to Arya Collateral towards rent of 7,496 bags of Jeera. That on the said Jeera Mr. Chetan Patel availed finance from ICICI Bank amounting to Rs. 2,16,00,000/-. Axis Bank amounting to Rs. 93,38,000/- and from Aryadhan amounting to Rs. 94,12,000/-. Thus, the total loan availed by Mr. Chetan Patel was Rs. 4,03,50,000/- by pledging the said Jeera stored in the Kadi Warehouse. That Mr. Amit Prajapati was appointed as the supervisor in Kadi Warehouse on recommendation of Mr. Prakash Dhirubhai Parmar on 10.03.2021. That Mr. Prakash D. Parmar is the Area Manager of Aryadhan Financial Solutions Private Limited and that Mr. Amit Prajapati reports to one Mr. Deepak Vishwakarma, who is the Cluster Manager, under whom various other Warehouses in the State of Gujarat are controlled including Kadi Warehouse. That on 24.05.2021, the Cluster Manager Mr. Deepak Vishwakarma called Mr. Chetan Patel and informed that Mr. Amit Prajapati, the Warehouse Supervisor, has taken away all the stock lying in the Kadi Warehouse and has given the keys of the Warehouse to the Watchman. Thereafter, Mr. Chetan Patel along with Mr. That on 24.05.2021, the Cluster Manager Mr. Deepak Vishwakarma called Mr. Chetan Patel and informed that Mr. Amit Prajapati, the Warehouse Supervisor, has taken away all the stock lying in the Kadi Warehouse and has given the keys of the Warehouse to the Watchman. Thereafter, Mr. Chetan Patel along with Mr. Prakash Parmar and 2 Security Guards went to the Kadi Warehouse to verify the Stock, which was found missing from the warehouse. That Mr. Amit Prajapati is alleged to have been committed breach of Trust with the Complainant Mr. Chetan Patel and Arya Collateral and misappropriated the Jeera stored in the warehouse amounting to Rs. 5,62,83,750/- and filed a complaint before the Kadi Police Station against him. 3. Upon filing of the aforesaid complaint, the applicant preferred an application seeking anticipatory bail before the learned court below which came to be rejected and thus present application is filed. 4. Heard learned Advocates appearing for the respective party at length. 5. Learned Senior Counsel Mr.Unwala assisted by Mr.Thakore, learned Advocate for the petitioner would submit that petitioner is an innocent person falsely implicated in the offence. He would further submit that the petitioner is the Director of Arya Collateral Warehousing Services Private Limited whereupon it is alleged that the huge quantity of cumin seeds bags i.e. 7496 bags were initially kept and then it was sold to some third party after obtaining loan from the financial institutions. He would further submit that the petitioner is nowhere involved in this scam and he is just a Director of the company which is providing financial assistance by mortgaging cumin seeds bag. 5.1 Learned Senior Counsel Mr.Unwala for the petitioner would further submit that name of the petitioner is revealled from the statement of co-accused recorded under Section 164 of the Code of Criminal Procedure by which it is stated that petitioner has embezzled crores of rupee which in fact is not correct statement. He would further submit that statement recorded under Section 164 of the Code can be used only against the accused; not against the third party and therefore petitioner cannot be arraigned as accused upon statement recorded u/s 164 of Cr.PC. He would further submit that this is case of no evidence. He would further submit that statement recorded under Section 164 of the Code can be used only against the accused; not against the third party and therefore petitioner cannot be arraigned as accused upon statement recorded u/s 164 of Cr.PC. He would further submit that this is case of no evidence. 5.2 Learned Senior Counsel Mr.Unwala for the petitioner taking this Court through Annexure-E colly would further submit petitioner is living at Delhi and extended all co-operation to the IO. He would submit that whenever he was called upon by the IO, he appeared. He invited attention of this Court to the WhatsApp Chat at Annexure-F to indicate that petitioner is regularly in touch with the IO and has joined the investigation and thus it cannot be said that the petitioner is absconding. 5.3 Learned Senior Counsel Mr.Unwala for the petitioner would further submit that petitioner is the Director of Aryadhan Financial Limited which has extended loan to the main accused who is complainant herein. Thus, the petitioner cannot be accused and the victim at the same time. It is also submitted that all other co-accused persons are released on regular bail by the co-ordinate Bench of this Court and they have played major role than the petitioner. He would further submit that as per case of prosecution petitioner only has played minimal role in commission of offence which is coming from the statement of co-accused and therefore considering the said fact, the petitioner is required to be granted anticipatory bail. 5.4 Learned Senior Counsel Mr.Unwala for the petitioner would further submit that as the petitioner has co-operated with the investigation and remained present before the IO as and when was required and is still ready to co-operate with the investigation, this Court may exercise the discretion in favour of the petitioner by granting anticipatory bail. By making above submissions, he would submit to allow this petition. 6. On the other hand, learned APP Ms.Patel for the respondent – State vehemently objected the anticipatory bail application and submits that petitioner is the main accused and at his command only the entire conspiracy has been hatched. By making above submissions, he would submit to allow this petition. 6. On the other hand, learned APP Ms.Patel for the respondent – State vehemently objected the anticipatory bail application and submits that petitioner is the main accused and at his command only the entire conspiracy has been hatched. She would submit that firstly all the accused with their pre-plan put the 3081 cumin bags in the Arya Collateral Warehousing Services Private Limited and upon which co-accused Mr.Chetan Patel obtained loan from the Axis Bank, ICICI Bank and Arya Dhan Finance Company to tune of Rs.1,70,26,480/- and disbursed this amount amongst them. She would further submit that thereafter false story was created that total 4408 cumin bags are placed in Arya Collateral Warehousing Services Private Limited between 21/04/2021 and 24/04/2021 and made forged weighing scale receipts and store receipts and also prepared forged documents to obtain loan from the Bank; without putting Jeera Bag into the godown. She would further submit that by making forged documents and receipts they had obtained loan to the tune of Rs.2,44,12,020/- from the aforesaid Banks wherein Rs.1,54,12,020/- was taken by petitioner whereas Rs.90,00,000/- were transferred to accused – Chtenkumar Patel. 6.1 She would further submit that not stopping there, the cumin bags were sold on the open market and then the false complaint was filed by the accused–Chetan Patel that said Jeera Bags were stolen and thus this was nothing but an eyewash to realize the insurance. She would further submit that in fact there is a huge financial scam involving a sum of Rs.5,62,83,750/- which has been designed by the petitioner, hand in gloves with co-accused–Chetan Patel and others. 6.2 She would further submit that co-ordinate Bench of this Court while enlarging the co-accused persons on bail after filing of the charge-sheet has also observed that present petitioner is the kingpin and is the main culprit who has committed the offence. She would further submit that petitioner is the mastermind of the offence who has perpetrated the entire scam and thus his custodial interrogation is required. She would submit that as far as the offence against the petitioner is concerned, to carry further investigation his custodial interrogation is required in view of statement of co-accused recorded under Section 164 of Cr.PC. She would further submit that this statement can be read in view of Section 10 of the Evidence Act. She would submit that as far as the offence against the petitioner is concerned, to carry further investigation his custodial interrogation is required in view of statement of co-accused recorded under Section 164 of Cr.PC. She would further submit that this statement can be read in view of Section 10 of the Evidence Act. By making above submissions, she would submit to dismiss the petition. 7. Having heard the learned Counsel appearing for the respective parties and on examining the records, startling facts which emerge before this Court are that the FIR is filed by the accused–Chetan Patel just to paint the entire scam that cumin bags are stolen from Arya Collateral Warehousing Services Private Limited. What appears on perusal of records that perplaned larger conspiracy was hatched with a view to obtain loan from the financial institutions upon cumin seeds bag kept in the godown and then to show that they were stolen to obtain insurance claim. So, this is first part of the offence. 7.1 The second part of the offence which is discerned from the record that the wheat bag were used for making forged weighing receipts, as also other forged documents were prepared. The said forged receipts and documents were placed before the financial institutions to obtain huge loan and thereafter the FIR came to be filed that the cumin bags were stolen. It also appears from the statement of one of the accused recorded under Section 164 of Cr.PC that petitioner is main gainer and the mastermind of the offence. The statement clearly reveals the name of the petitioner wherein it has been stated by him that he has acted on the instructions and command of the petitioner. It also revealed from the statement recorded that all other accused are involved; but petitioner is the mastermind mind who hatched the conspiracy and as decided lastly accused–Chetan Patel filed a complaint just to show that cumin bags were stolen; but it was sold by them, as also by making some forged receipts and documents financial assistance was also obtained from the Bank/s and not a single rupee has been repaid to the Bank/s. 8. The concerned IO has also filed a report which indicates that the huge financial scam running in the sum of Rs.5,62,83,750/- came to be unearthed where the petitioner has played a major role and he is the major gainer and to examine his role, custodial interrogation is required. Thus, it cannot be said that there is no material exist against petitioner to investigate the offence any further. May it be, at earlier point of time, the petitioner did remain present before the IO; but that does not mean that he has co-operated with the investigation. Charge-sheet papers also indicate that name of the petitioner is shown in column no.2 i.e. as absconding accused and considering the call details which indicates that petitioner is in contact with the other accused during the alleged scam and his involvement in the offence is prima facie can be seen. 9. It also appears from the order granting regular bail by the co-ordinate Bench of this Court in CR.MA No.5115 of 2022 and allied matters where the role of the present petitioner is found graver than the other accused while enlarging other accused on bail. At this juncture, let refer to the findings arrived at by the co-ordinate Bench while enlarging other accused. Paragraph 5 of the said order dated 23/03/2022 reads thus: “5. Heard learned advocates on both the sides and perused the material on record. It appears that applicant of Criminal Misc. Application No.5115 of 2022 was the Area Manager, who had informed the police about the misdeeds of the co-accused and the fact that the bags of the cumin seeds were disposed of without any orders and out of Rs.2,10,00,000/-, Rs.1,60,00,000/- have also been paid to the Director of the Company; and the allegations are against the main accused, who is Director of the Company of procuring loans from different Banks on the cumin seeds, who is on run, and the loan amount has not been repaid. Thus, considering the role attributed to all and when the money has already been paid by applicant of Criminal Misc. Application No.3493 of 2022 and applicant of Criminal Misc. Application No.4738 of 2022 and the applicant of Criminal Misc. Application No. being the Area Manager, this Court finds this to be a fit case where discretion could be exercised in favour of the applicants.” 10. In case of Pratibha Manchanda and another Vs. Application No.3493 of 2022 and applicant of Criminal Misc. Application No.4738 of 2022 and the applicant of Criminal Misc. Application No. being the Area Manager, this Court finds this to be a fit case where discretion could be exercised in favour of the applicants.” 10. In case of Pratibha Manchanda and another Vs. State of Haryana and another reported in (2023) 8 SCC 181 , the Hon’ble Apex Court in para 21, observed as under:- “21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome.” 11. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused, but several other purposes. Power u/s 438 of the Code is an extraordinary power and the same has to be exercise sparingly in appropriate and fit case. This privilege should be extended only in exceptional cases. It is a judicial discretion conferred upon the court, and it is to be properly exercised after application of mind as to the nature and gravity of the accusation, possibility of the applicant fleeing from justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the Court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the Court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. The fact of the case demands custodial interrogation of the petitioner. Under the circumstances, the petitioner is not entitled for anticipatory bail. 12. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the Court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. The fact of the case demands custodial interrogation of the petitioner. Under the circumstances, the petitioner is not entitled for anticipatory bail. 12. In view of the above, no case is made out to exercise the extraordinary jurisdiction to grant anticipatory bail. Accordingly, present petition fails and stands dismissed. Needless to say that observations made herein above are limited to decide the present application.