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2024 DIGILAW 745 (GUJ)

Alpaben Jayprakashbhai Sharma v. State Of Gujarat

2024-04-03

J.C.DOSHI

body2024
ORDER : 1. By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioners have prayed for their release on anticipatory bail in case of arrest in connection with the FIR registered as C.R.No.11191020230357 of 2023 registered with Vastrapur Police Station, Ahmedabad City. 2. Learned advocate for the petitioners submits that considering the nature of allegations, role attributed to the petitioners, the petitioners may be enlarged on anticipatory bail by imposing suitable conditions. 3. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. 4. Heard the learned Advocates for the respective parties and perused the papers. 5. 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) What transpires from the record of this petition is that present petitioners, who are accused nos.5 and 6 in the FIR, have introduced the complainant to the main accused viz. Pranjal Sunil Sharma; (2) the allurement was made to the effect that if the complainant executes sale-deed of his immovable property in favour of present petitioners, they would get the loan from the Bank and pursuant to such allurement complainant executed sale-deed in favour of present petitioners. Pranjal Sunil Sharma; (2) the allurement was made to the effect that if the complainant executes sale-deed of his immovable property in favour of present petitioners, they would get the loan from the Bank and pursuant to such allurement complainant executed sale-deed in favour of present petitioners. It was placed before the concerned Bank to obtain the loan. The immovable property was mortgaged and the loan was disbursed which was taken away by the accused no.1 Pranjal Sunil Sharma. (3) In this ring of incident, complainant and the petitioners became the victim. On one hand, complainant’s immovable property is now standing in the name of petitioners and on the other hand, the petitioners, who were not intending to keep their property in their name, could not re-execute the sale- deed in favour of the complainant as the loan is availed. However, the person who is beneficiary of the loan amount i.e. accused no.1 is on the run. With this chequered facts, the settlement is arrived at between the present petitioners and the complainant in a way that present petitioners shall not claim any right, title or interest in the immovable properties i.e. House No.A/6/161, Orchid Greed Field, Applewood Township, Shela, Ahmedabad and House No.903, Nupur Tower, Satellite, Ahmedabad. To give effect to their words, both the petitioners have affidavit which are taken on record which are in verbatim and paras:3, 4 and 5 of affidavits of both the petitioners read as follow: “ Affidavit filed by Alpaben Jayprakashbhai Sharma: 3. I declare that the complainant is paying the loan amount and I further undertake that as soon as the loan amount of the respective bank is cleared, I and the applicant no.02 shall immediately execute reverse sale deed in connection with the aforementioned premises or an agreement for cancellation of sale deed for the aforesaid premises shall be executed, as per the direction of the complainant. 4. I further declare that I and the applicant no.02 herein are not having the possession of the property and the same is with the complainant. I also declare that I shall not claim any right, title or interest over the aforesaid premises, on the basis of the sale deed in our favour. 5. 4. I further declare that I and the applicant no.02 herein are not having the possession of the property and the same is with the complainant. I also declare that I shall not claim any right, title or interest over the aforesaid premises, on the basis of the sale deed in our favour. 5. I further undertake that all possible assistance and complete co-operation shall be provided to the complainant as well as the investigating agency so as to see that the principal accused i.e. Pranjal Sharma is arrested and the amount sihponed off by the principle accused is arrested.” “ Affidavit filed by Jayprakashbhai Kailashchandra Sharma: 3. I declare that the complainant is paying the loan amount and I further undertake that as soon as the loan amount of the respective bank is cleared, I and the applicant no.01 shall immediately execute reverse sale deed in connection with the aforementioned premises or an agreement for cancellation of sale deed for the aforesaid premises shall be executed, as per the direction of the complainant. 4. I further declare that I and the applicant no.01 herein are not having the possession of the property and the same is with the complainant. I also declare that I shall not claim any right, title or interest over the aforesaid premises, on the basis of the sale deed in our favour. 5. I further undertake that all possible assistance and complete co-operation shall be provided to the complainant as well as the investigating agency so as to see that the principal accused i.e. Pranjal Sharma is arrested and the amount sihponed off by the principle accused is arrested.” (4) The complainant has also filed affidavit favouring settlement which is taken on record. Relevant paragraphs of the same i.e. paras:2 to 6 are as under: “2. I have gone through the memo of the present application filed by the present applicants, under Section 438 of the Code of Criminal Procedure, 1973, whereby the applicants herein are seeking anticipatory bail in connection with the above referred FIR. 3. I state that in view of the undertaking dated 03/04/2023 filed by the present applicants, I state that I have no objection if the present application is allowed and the applicants are granted anticipatory bail. 3. I state that in view of the undertaking dated 03/04/2023 filed by the present applicants, I state that I have no objection if the present application is allowed and the applicants are granted anticipatory bail. The applicants herein have approached me and my family and have explained the entire situation, wherein it is quite clear that the applicants herein are similarly situated like me and even they are been defrauded by the principal accused i.e. Pranjal Sharma. The entire amount that had come from the loan was given to the accused no.01 Pranjal Sharma who in turn has fled away with the entire money over and above, in the guise of taking investment. I am today facing serious financial difficulty as I have to pay the loan amount so as to see that my property is saved. 4. It is very unfortunate that to date, the investigating agency is not in a position to trace out the principal accused Pranjal Sharma who has siphoned all monies of the present complainant. The applicants herein have ensured all cooperation from their side and they have also assured that as soon as the amount is recovered from the principal accused, the entire dispute will be cleared and the amount will be returned to the complainant and his family and even the sale deed executed in their name shall be canceled/reversed. It is also assured that all efforts shall be made by the applicants to see that the principal accused Pranjal Sharma is found and arrested by the investigating agency. 5. Therefore, due to the intervention of the family members and the fact that the applicants herein have given an undertaking and are also facing financial difficulties due to the ill acts of the principal accused, I have no objection, if the application of the present applicants is considered and allowed by this Hon’ble Court. 6. I have gone through the present affidavit and I am fully conscious of the same. I state that I have no objection if the present applicants are granted Anticipatory Bail by the Hon’ble Court. 6. I have gone through the present affidavit and I am fully conscious of the same. I state that I have no objection if the present applicants are granted Anticipatory Bail by the Hon’ble Court. I declare that the consent is accorded only limited to the present applicants considering their financial status and the fact that they have given an undertaking that they would not claim any right, title or interest over the property.” (5) In view of above and considering the peculiar facts and circumstances of the case so also the settlement arrived at between the parties, this Court is inclined to grant anticipatory bail to both the petitioners. (6) the petitioners shall continue to abide by declaration produced before this Court. 6. Having heard the learned counsel for the parties and perusing the record of the case and taking into consideration the facts of the case, nature of allegations, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to exercise discretion in favour of the petitioner. 7. 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 ]. 8. In the result, the present petition is allowed by directing that in the event of applicant herein being arrested pursuant to FIR registered as FIR registered as FIR registered as C.R.No.11191020230357 of 2023 registered with Vastrapur Police Station, Ahmedabad City, the petitioners shall be released on bail on furnishing a personal bond of Rs. 8. In the result, the present petition is allowed by directing that in the event of applicant herein being arrested pursuant to FIR registered as FIR registered as FIR registered as C.R.No.11191020230357 of 2023 registered with Vastrapur Police Station, Ahmedabad City, the petitioners shall be released on bail on furnishing a personal bond of Rs. 10,000/- (Rupees Ten Thousand only) each with one surety each of like amount on the following conditions that the petitioners: (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at concerned Police Station on 15.04.2024 and 16.04.2024 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; 9. 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 petitioners on bail. 10. Learned advocate Mr.Bhargav Danger is permitted to file his vakalatnama on behalf of original complainant. Registry is directed to accept the same. Direct service is permitted.