Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 243 (GUJ)

Bhumishth Narendrabhai Patel v. State Of Gujarat

2024-02-05

J.C.DOSHI

body2024
JUDGMENT : 1. Vide Office Note dated 14.12.2023, the Hon’ble the Chief Justice has been pleased to direct the Registry to place this matter before the Court taking up anticipatory bail. Hence, present petition is listed before this Court. 2. Rule. Learned advocate Mr. Shaan Munshaw waives service of notice of rule for the original complainant and learned APP waives service of notice of rule for the respondent State. 3. 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.11191045230794 registered with Sola High Court Police Station. 4. Brief facts of the case are as under:- 4.1 One Nidhish Pankajbhai Kansara, aged about 32 years, residing at 4/12/113 Neelkanth Mahadev Lane, Darbar Road, Visnagar, Dist. Mehsana has given a complaint that he is operating a medical store in the name of Shivam Chemist at Visnagar. Father of the complainant and Mr. Dahyalal Mafatlal Patel were partners and were doing business of Hariom Chemist at Visnagar for past twenty-seven (27) years. Because of such long relations, he was introduced to the petitioner herein by said Dahyalal Mafatlal Patel. Said Dahyalal Mafatlal Patel is father-in-law of the petitioner herein. The petitioner herein had offered the complainant and his brothers to shift to Ahmedabad. The complainant and his brothers Jay Kansara & Vijay Kansara shifted to Ahmedabad and started working with the petitioner herein. The complainant i.e. Nidhish Kansara and Payal Bhumishth Kansara (wife of the petitioner herein) had in partnership started a business of Shivam Chemist at Motera and Jay Kansara & Vijay Kansara had joined a job in the office of the petitioner herein. It is alleged in the FIR that the petitioner had misused the proofs viz. photo ID, etc. of said three brothers. In the year 2017, the petitioner started companies viz. (a) M/s. United Pharmachem in the name of Nidhish Kansara, (b) M/s. On-Bio Science in the name of Jay Kansara and (c) M/s . Metrix Lifecare in the name of Vijay Kansara. It is alleged that the said three firms were opened without knowledge of the said three brothers and without their knowledge, financial transactions were made in the said three firms, bank accounts were opened in Mehsana Urban Bank and ICICI Bank. cheque books were issued. Metrix Lifecare in the name of Vijay Kansara. It is alleged that the said three firms were opened without knowledge of the said three brothers and without their knowledge, financial transactions were made in the said three firms, bank accounts were opened in Mehsana Urban Bank and ICICI Bank. cheque books were issued. Entire cheque book was signed by the complainant and his brother Vijay Kansara and the cheque book was kept with the petitioner herein. As a matter of fact, the said allegations are completely false and bogus. Hence, impugned FIR is filed and against that, present petition for anticipatory bail is preferred by the petitioner. 5. Heard Learned Senior Counsel Mr. SI Nanavati with learned advocate Mr. DK Trivedi for the petitioner, Learned Senior Counsel Mr. IH Syed with learned advocate Mr. Shaan Munshaw for the complainant and learned APP Mr. HK Patel. 5.1 Learned Senior Counsel Mr. SI Nanavati would submit that the FIR is delayed by five years. The alleged incident took place in the year 2017, but the FIR came to be lodged in 2023. He would further submit that the present FIR is a counter blast to the FIR lodged by the petitioner on 16.3.2020 at Annexure D. He would further submit that on going through the FIR, it is alleged that the petitioner and his father have misused various documents belonging to the first informant and created paper, medical company or medical firm and also used those documents to open the bank account in the Mehsana Urban Bank as well as in the ICICI bank and also obtained chequebook in name of the first informant. He would further submit that as per the case of the prosecution, the first informant was taken into trust and then the accused has obtained signature on blank papers as well as blank cheque leafs He would further submit that according to the prosecution, all these aspects took place in the year 2017, but the FIR came to be lodged in 2023. No explanation is come forward for delay of five years in lodging the FIR. He would further submit that the timing to lodge the FIR is very important. No explanation is come forward for delay of five years in lodging the FIR. He would further submit that the timing to lodge the FIR is very important. Criminal complaint against the first information has been filed under section 138 of the NI Act in a criminal court at Ahmedabad Rural vide Criminal Case Nos.15482 of 2019 to 15500 of 2019 by the accused and his father. He would further submit that in few criminal cases, a promissory note has been produced and when the matter was coming up for final hearing, the first informant filed present against the petitioner to settle the score. 5.2 Learned Senior Counsel Mr. SI Nanavati would further submit that accused Narendrabhai Patel has been given anticipatory bill by the Coordinate Bench of this Court in Criminal Misc. Application No.17538 of 2023. He would further submit that allegation of producing forged promissory note is levelled against that accused. He would further submit that one identical complaint was lodged on 10.6.2019, levelling identical allegations. This application was not considered and converted into the FIR at the relevant point of time. The first informant remained silent for that aspect and now when the criminal criminal cases filed under section 138 of the NI Act and come up for final hearing, he again filed the FIR alleging same allegations. He would further submit that on reading the FIR, it appears that an Application No.4027 of 2021 was filed by the first informant before the Sola High Court Police Station, but that application was never placed by the first informant or the police during the hearing. 5.3 Learned Senior Counsel Mr. SI Nanavati would further submit that present FIR is nothing but a counter blast to the proceedings under section 138 of the NI Act. It was within the knowledge of the first informant that he has signed the cheque. He has specifically mentioned that aspect in the FIR and therefore, presumption under section 139 of the NI Act is running against him and to evade from the liability of the criminal case filed under section 138 of the NI Act, present FIR has been falsely filed. He would further submit that as per the FIR, all the cheques are signed by the first informant. He would further submit that as per the FIR, all the cheques are signed by the first informant. His case is that it was a blank cheque, but that contention can be taken care during the proceedings under section 138 of the NI Act. At this juncture, it cannot be taken into consideration that the cheques of the first informant has been misused or his documents are misused. He would further submitted that in the FIR, nowhere it is stated that the present petitioner has forged certain documents and produced the same as genuine before the court. 5.4 As far as promissory note is concerned, it is submitted that promissory note has been produced by accused Narendrabhai Gangaram Patel in the criminal case. Qua that, the coordinate bench of this court has given observation in Criminal Misc. Application No.17538 of 2023 that if any complaint is filed for false promissory note, it can be taken care by the concerned court. In that circumstances, no case for custodial interrogation is made out. He would further submit that the present petitioner is permanent resident of Gandhinagar and he is having movable and immovable property and he is willing to cooperate with the investigating officer and readily available for the investigation. 6. On the other hand, Learned Senior Counsel Mr. IH Syed would submit that the petitioner is the person indulged in the activities of creating forged and fabricated documents in a criminal proceedings filed u/s 138 of the NI Act. The petitioner has also produced forged and fabricated Promissory Note. He would further submit that the petitioner is mighty. He would further submit that the first informant has repeatedly filed complaints against the petitioner, the details of which are at page No.154, 164, 175 and 186. All these complaints were filed prior in point of time to filing of the FIR at Annexure D. Thus, it cannot be said that the present FIR is a counterblast to the FIR filed against the first informant at Annexure D. 6.1 Learned Senior Counsel Mr. IH Syed having taken this Court through records of the case, would submit that first informant and his brother were on pay roll of the petitioner/accused, he by misusing the documents of the first informant and his brother has created paper pharmaceutical company or paper pharma firm for circulating transaction. Also misused blank signed cheques. 6.2 Learned Senior Counsel Mr. IH Syed having taken this Court through records of the case, would submit that first informant and his brother were on pay roll of the petitioner/accused, he by misusing the documents of the first informant and his brother has created paper pharmaceutical company or paper pharma firm for circulating transaction. Also misused blank signed cheques. 6.2 Learned Senior Counsel Mr. IH Syed would further submit that the GST proceedings undertaken against the first informant. In these proceedings, statement of the petitioner was recorded and this statement is having evidenciary value. He would further submit that in this statement, the petitioner has accepted that he has created various companies and shops, which are in name of the first informant and his family members for the purpose of circulation of business in his main company, namely, Earum Pharmaceuticals Ltd. He would further submit that said aspect is also clear from the statement of the Accountant (page 246). He would further submit that the first informant has been used by the petitioner and in name of the first informant, various pharmaceutical companies/partnership firms are created for the purpose of GST evasion. A raid was conducted by the GST department and during the raid, blank cheque book of the Metrix Lifecare was found along with other firms and companies. The Metrix Lifecare is in name of the first informant and his relatives. Subsequently, huge GST liability was imposed upon the petitioner. 6.3 Taking this Court through page 263 onwards, Learned Senior Counsel Mr. IH Syed would submit that the bank account of the first informant and his family members clearly indicates that the first informant or his family members were kept on salary and they are paid Rs.12000/- p.m. and their name has been misused to create circulation of trading and further to create huge GST evasion. 6.4 Taking this Court through page 98 to 106, Learned Senior Counsel Mr. IH Syed would further submit that false Promissory Note has been created and the signature of the first informant has been forged upon the Promissory Note (page 106) and it has been tendered as a list of documents in criminal case filed against the first informant as his relative before the learned CJM, Ahmedabad (Rural). So, it is a clear case that the petitioner is indulged in the activities of forging and fabricating documents. So, it is a clear case that the petitioner is indulged in the activities of forging and fabricating documents. He would further submit that when the petitioner has filed anticipatory bail application before the learned Sessions Court, he has forged the affidavit which was noted by the Coordinate Bench of this Court in order dated 11.10.2023 and therefore, it appears that the petitioner is a habitual offender in forging the documents. 7. Upon such submission, Learned Senior Counsel Mr. IH Syed requests to dismiss this petition. 8. In the affidavit in rejoinder, learned Senior Counsel Mr. SI Nanavati would submit that the Promissory Note is not used by the present petitioner but by his father in the criminal case and his father has been given anticipatory bail by the coordinate bench of this Court. He would further submit that, as far as criminal liability said to have been created on GST raid is concerned, Criminal Case No. 2833 of 2022 was filed against the present petitioner before the concerned ACJM, Vapi. However, learned ACJM, Vapi allowed the application filed by the petitioner under section 245 of the CRPC for discharge by order dated 19.4.2023. Therefore, as far as criminal proceedings are concerned, it is no more surviving against the petitioner at this juncture. In so far as civil liability is concerned, he would submit that a show cause notice of paying Rs.50 lakhs has been issued by the GST department, but that is not a huge amount compare to amount of the cheques given by the first informant and his family members and returned unpaid. He would further submit that though the first informant came to know about the creation of paper firm in his name in the year 2019, he has done nothing till filing of the FIR for collecting those documents or taking back the cheques etc of claiming paper firms. Thus, he submits to allow this petition. 9. Learned APP has adopted the submissions advanced by Learned Senior Counsel Mr. IH Syed. He would further submit that in view of the FSL report, the signature of the first informant is not matching with the natural writing on the Promissory Note. So, prima facie case is made out that forged Promissory Note was produced during the criminal proceedings. Thus, he submits to dismiss the petition. 10. IH Syed. He would further submit that in view of the FSL report, the signature of the first informant is not matching with the natural writing on the Promissory Note. So, prima facie case is made out that forged Promissory Note was produced during the criminal proceedings. Thus, he submits to dismiss the petition. 10. Having heard learned advocates appearing for the respective parties, at the outset, let refer findings and observations given by the Coordinate Bench of this Court in Criminal Misc. Application No.17538 of 2023, by which, co-accused Mr. Narendra Gangaram Patel has been enlarged on anticipatory bail. “6. Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon’ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects. (1) The petitioner is senior citizen 66 years old and suffering from oral cancer and therefore, only on humanitarian ground, bail is required to be granted. (2) So far as allegation of forged documents and promissory note is concerned, it would be open to the complainant to initiate independent proceedings; (3) If the Investigating Officer is filed an application for remand, learned Magistrate shall decide the same on its own merits; (4) If any independent proceedings are initiated by the complainant before any appropriate forum, then the same shall be decided independently without being influenced by the prima facie observations made in this order. 7. 7. Considering the aforesaid aspects and the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. reported in (2011) 1 SCC 6941, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. reported in (1980) 2 SCC 665 and also the decision in the case of Sushila Aggarwal v. State (NCT of Delhi) reported in (2020) 5 SCC 1 , I am inclined to allow the present application.” 11. Now, if we closely scrutinize the FIR, it indicates the allegation that the petitioner has used the documents belonging to the complainant and by making forged signature, the petitioner has obtained the license to start firm, namely, Metrix Lifecare and Unique Pharmaceuticals in name of the complainant and his family members. It also indicates that the bank account was also opened in the Mehsana Urban Bank and ICICI Bank and the cheque book was also taken. However, there is clear statement in the FIR that this cheque book has been signed by Mr. Vijay, brother of the first informant, he said that this signature was taken on blank cheque. Then, what further comes from the statement of the FIR that 14 cheques were bounced with an endorsement unpaid. Present petitioner and his father Narendra Patel have filed Criminal Case Nos.15482 of 2019 to 15500 of 2019 before the concerned Court u/s 138 of the NI Act. So, on prima facie scrutiny, up til now, it appears that the first informant was knowing about opening of pharmaceutical firms in their name and also knowing opening of the bank account and issuance of cheque book. It also appears that the cheques are also signed by the first informant or his family members. It also appears that criminal cases u/s 138 of the NI Act are pending before the concerned Court, which are filed in the year 2019. It is alleged that the Promissory Note was placed as evidence in the criminal case and it is forged Promissory Note, whereby signature of the first informant and his brother are forged. The FIR is silent that in which criminal case, forged and fabricated Promissory Note has been placed. It is alleged that the Promissory Note was placed as evidence in the criminal case and it is forged Promissory Note, whereby signature of the first informant and his brother are forged. The FIR is silent that in which criminal case, forged and fabricated Promissory Note has been placed. At page 126 in compilation, the first informant has produced on record list of documents annexed in criminal case and submitted that forged and fabricated Promissory Note is produced at Sr No.3 in the said document. According to title of page 126, criminal case is filed by Mr. Narendra Patel HUF against the first informant. This Narendra Patel has been given anticipatory bail by the Coordinate Bench of this Court by observing that independent proceedings if are initiated by the complainant before any appropriate forum, then the same shall be decided independently without being influenced by the present observation made herein above. In the wake of it, the first informant failed to point out that in the criminal case, the petitioner has produced forged and fabricated Promissory Note. 12. On going through the documents on record, more particularly, page 154 onwards, it appears that on 10.6.2019, one complaint was filed by Mr. Nidhish Kansara, brother of the first informant addressing to the P.I., Sola High Court Police Station alleging same aspect. However, it was never converted into the FIR, but the allegations levelled therein are identical to the allegations levelled in the present FIR. Some other complaints are also made subsequent thereto. Then the petitioner filed FIR at Annexure D against the first informant and his brother alleging offences punishable under section 406, 420, 409, 294B, 506(2), 120(B) of the IPC. In nutshell, both the parties knew the issue between them at least since 2019. Closely looking to the documents on the record, the first informant was knowing about the allegations made in the FIR are at least since 2019. Still, he has not taken any recourse to discontinue his name from the pharmaceutical company or firms. Even otherwise, if we go by the record, the entire dispute pertains to not only the document evidence, but the evidence produced before the concerned court in the criminal proceedings going on in the offence punishable under section 138 of the NI Act between the parties and their family members. Even otherwise, if we go by the record, the entire dispute pertains to not only the document evidence, but the evidence produced before the concerned court in the criminal proceedings going on in the offence punishable under section 138 of the NI Act between the parties and their family members. Thus, issue of placing forged Promissory Note can be taken care in that proceedings before that court. 13. Another argument canvassed by learned Senior Counsel Mr. IH Syed was that the pharmaceutical companies/firms were started in name of the first informant and his family members for circulation of the business of the petitioner in firms/company and this aspect has been unearthed during the GST raid, in which the statements of the petitioner as well as his accountant were recorded, which reveals that the pharmaceutical firms in name of the first informant and his family members are used in circular trading and as such, the first informant and his family members are cheated and they are kept on salary only and they were salaried person of the first informant. However, they are used for evasion of the tax credit. 14. It is also submitted that the criminal case is registered and civil liability is created under the GST Act against the petitioner. To counter the submission, learned Senior Counsel Mr. SI Nanavati has placed on record discharge order passed by the concerned Additional CJM, Vapi, which indicates that presently the petitioner has been discharged from the criminal liability Under the GST Act. This court does not deal with this issue further as it is not connected with the impugned FIR directly. Those proceedings can be taken care in the appropriate proceedings before appropriate forum. 15. In nutshell, what appears that no case for custodial interrogation is made out. The impugned FIR spells that the first informant and family members have signed the cheques. To be noted that, proceedings qua those cheques are going on before concerned Court. As far as issue of producing forged Promissory Note is concerned, it is procedure in Court proceedings. Allegation of forged Promissory Note shall be taken care by the concerned Court. In nutshell, case is made to exercise discretion. 16. This Court while exercising discretion in favour of the petitioner has taken into consideration law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. Allegation of forged Promissory Note shall be taken care by the concerned Court. In nutshell, case is made to exercise discretion. 16. This Court while exercising discretion in favour of the petitioner has taken into consideration law laid down by the Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. [2011] 1 SCC 694, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitutional Bench in the the case of Shri Gurubaksh Singh Sibbia & Ors. Vs. State of Punjab (1980) 2 SCC 665 . This Court has also taken into consideration law laid down in the case of Sushila Agarwal v/s. State (NCT of Delhi [ (2020) 5 SCC 1 ]. 17. In the result, the present petition is allowed by directing that in the event of petitioner herein being arrested pursuant to FIR registered as C.R.No.11191045230794 registered with Sola High Court Police Station., the petitioner shall be released on bail on furnishing a personal bond of Rs. 10,000/- (Rupees Ten Thousand only) with one surety of like amount on the following conditions that the petitioner : (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at concerned Police Station on 8.2.2024 and 9.2.2024 between 10.00 a.m. and 4.00 p.m.; (c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer; (d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; (e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change residence till the final disposal of the case till further orders; (f) shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial court within a week; 18. If breach of any of the above conditions is committed by the petitioner, the concerned learned Judge will be free to take appropriate action in the matter. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. If breach of any of the above conditions is committed by the petitioner, the concerned learned Judge will be free to take appropriate action in the matter. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the petitioner on bail. 19. Direct service is permitted. Rule is made absolute to the aforesaid extent.