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Gujarat High Court · body

2024 DIGILAW 1810 (GUJ)

Pravinchandra Harilal Shah v. State Of Gujarat

2024-09-04

GITA GOPI

body2024
ORDER : Gita Gopi, J. 1. Present application under Section 439 of the Criminal Procedure Code, 1973, is filed by the applicant with a prayer of bail in connection with the FIR No.11196010230014 of 2023 registered with DCB Police Station, Vadodara City, Vadodara dated 21/09/2023 for the offences punishable under Sections 406, 409, 420, 507, 120-B of the Indian Penal Code and Section 3 of the Gujarat Protection of Interest of Depositors (In Financial Establishments) Act, 2003 (for short ‘the GPID Act”). 2. Ms. Krupa Soni, learned advocate for the applicant submitted that the applicant is authorized signatory of the registered company under the Company Act namely Suth Commerce Pvt. Ltd. having its Identity No.U74999GJ2018PTC100637, Pan No.AAJDCS7630L, having its registered office at 98, Ramdevnagar Society, Bapod, Vadodara and also having certificate of incorporation given by the State Government. Main function of the company is to finance in the share bazaar and to make MOU regarding investor’s funds and impress upon the investors by giving security cheques. 3. Ms. Soni, learned advocate submitted that original complainant and other investors used to invest their funds in share markets and for those funds, the original complainant and other investors time to time would receive interest and they have received more money than the principal amount which they have invested. Ms. Soni, learned advocate submitted that despite receiving regular interest and the returns, taking advantage of the recession which had come in the corporate sector and business world because of Covid-19 Pandemic, the complainant and others demanded more money in lieu of security cheques given by the company and thereby started threatening the applicant accused. Ms. Soni, learned advocate submitted that on 09/05/2023, the applicant wrote complaint against the original complainant and other investors to the Police Commissioner, Hon’ble Home Minister, Human Rights Commission, District Collector and Police Inspector, Panigate Police Station and pursuant to that, inquiry was made. 4. Ms.Soni, learned advocate submitted that the applicant is in fact a victim and after filing of complaint on 18/05/2023, the applicant was kidnapped and was threaten to return money. The applicant had lodged a complaint against investors in Karelibaug Police Station and they were arrested pursuant to the complaint lodged by the applicant and the matter was thereafter settled by taking an undertaking from the parties by the Police Officer. The applicant had lodged a complaint against investors in Karelibaug Police Station and they were arrested pursuant to the complaint lodged by the applicant and the matter was thereafter settled by taking an undertaking from the parties by the Police Officer. Ms.Soni, learned advocate submitted that criminal proceedings under Section 138 of the Negotiable Instruments Act are also pending before the concerned court. 5. Ms. Soni, learned advocate submitted that no case could be drawn against the applicant who is senior citizen aged about 73 years as he has not committed any offence in view of regular payment of interest and the returns on their investment and that there would not be any case of alluring investors as was informed investment and, thus, there could not be any case of cheating or committing breach of trust. Ms. Soni, learned advocate further stated that taking into consideration the health issues of the applicant, if released on bail, he would be in a position to repay the money. 6. Ms. Soni, learned advocate has relied upon the decisions of Sanjay Chandra vs. CBI reported in (2012) 1 SCC 40 , Manish Sisodia vs. Director of Enforcement in Criminal Appeal arising out of SLP No.8781 of 2024 with SLP (Criminal) No.8772 of 2024 and order of this Court dated 05/05/2021 passed in Criminal Misc. Application No.3388 of 2021 in case of Dineshkumar Radanji Gadhvi vs. State of Gujarat. 7. Learned APP submitted that the applicant has been arrested on 21/09/2023 and the complaint was against the present applicant and two other persons where the original amount alleged to have been defrauded was noted as Rs.6,70,76,251.50 but after regular inquiry and investigation as per the provisions of the GPID Act, learned APP submitted that now, the figure would come to more than Rs.32,75,99,102/-. Learned APP submitted that the only amount which could be recovered from the accused applicant is Rs.8,47,529/-. 8. Learned APP further stated that the police has also inquired from the accused of any of his property or other sources of income or investment for the attachment so that the recovery could be made from such property, following the provisions of the GPID Act. 9. Learned APP has relied upon the decision in the case of Manik Madhukar Sarve and others vs. Vitthal Damuji Meher and others in Criminal Appeal No.3573 of 2024 @SLP (Cri.) No.3945 of 2022). 10. 9. Learned APP has relied upon the decision in the case of Manik Madhukar Sarve and others vs. Vitthal Damuji Meher and others in Criminal Appeal No.3573 of 2024 @SLP (Cri.) No.3945 of 2022). 10. By order of this Court, even the son of the applicant was called, so that he could apprise the Court of any of his father’s property or any other investment so that the Investigating Officer could proceed under the GPID Act for the recovery, but the son stated that he has no relation with his father since last 17 to 18 years and according to him, his father would never repay the money to any of the persons. 11. In Criminal Misc. Application No.3388 of 2021 in case of Dineshkumar Radanji Gadhvi vs. State of Gujarat, this Court, in para-5.3, has observed as under: “5.3. GPID Act came into force to protect the interest of the depositors of the Financial Establishments and for the maters connected there with or incidental thereto, and for that purpose, the Act provides attaching the money, property or assets belonging to or believed to have been acquired by such Financial Establishment either in their own name or in the name of any other person, from out of the deposits collected by the Financial Establishment, and in case, it transpires that such money, property or assets are not available for attachment or are not sufficient for repayment of the deposits then such other property or assets of the Financial Establishment or of the promoter, director, partner or member of the said establishment, as the State Government may think fit, be attached by issuance of an order published in the official gazette by the State Government. Section 4 of GPID Act provides for recording of reasons in writing, for issuance of such others to be published in the official gazettee.” 12. Here, the Investigating Officer submitted that the amount due runs in crores but the accused failed to give any details of any of his property and investment nor the family members have any information about the investments of the accused. Hence, the recovery is not possible. 13. Here, the Investigating Officer submitted that the amount due runs in crores but the accused failed to give any details of any of his property and investment nor the family members have any information about the investments of the accused. Hence, the recovery is not possible. 13. In case of Manik Madhukar Sarve (supra), relied upon by learned APP, the Hon’ble Supreme Court, having considered the case under the Maharashtra Protection of Interest of Depositors Act, 1999, has very rightly observed that the deposits are made by people having meager earnings without anything else to fall back upon and has observed about the systematic siphoning of the funds with the aid of other office-bearers, considering the allegations with the material produced on record by the Investigating Officer and the nature of economic offence, effecting large number of people, the Apex Court had considered the active role of the accused and noted that the discretion granted by the single judge to grant bail was in tune of the principles that conventionally govern exercise of power of bail which had been demonstrated through the case laws and further had noted that release of accused on bail can seriously lead to dissipation of the properties where the investment has been allegedly made out of funds. Considering the interest of the victims of the scam, the appeal was allowed directing the accused to surrender and failing which the trial court was directed to proceed in accordance with law. 14. Herein the present case, the affidavit of the Investigating Officer notes that even after the complaint, many more people were coming before him raising the grievance regarding the money. The affidavit shows the details of more than 55 witnesses and still further more investigation which added five more witnesses and, thus, according to the Investigating Officer, due total amount is about Rs.32,75,99,102/- where recovery could be made of the negligible amount of Rs.8,47,529/-. The Investigating Officer has further informed the Court that there is another FIR being FIR No.11196007230600 of 2023 has been registered before the Gorva Police Station, Vadodara on 21/12/2023 for the offences punishable under Section Section 22 of the Banning of Unregulated Deposit Scheme Act, 2019 and Sections 406, 409, 420, 120B of the Indian Penal Code. 15. The moot question that would arise is about the availability of the accused to attain the trial. 15. The moot question that would arise is about the availability of the accused to attain the trial. The family members are also not sure of the repayment of money. The conduct of the applicant accused also suggest that if he would be released on bail, he may not attain the trial. 16. This Court had also directed the police to inquire from the accused in jail regarding the repayment of the money but the applicant accused was reluctant to give any information about his investment to the police. 17. Taking this factum into consideration and the amount involved in the large scam which duped money of many persons, this Court does not find it appropriate to exercise discretion to enlarge the applicant from the jail. In the result, present application is rejected. Notice is discharged.