Ashish Shah vs The State Of Chhattisgarh
2022 Latest Caselaw 3438 Chatt

                                     1

                                                                       NAFR

                HIGH COURT OF CHHATTISGARH, BILASPUR

                          MCRCA No. 370 of 2022

   • Ashish Shah S/o Surendra Shah, Aged About 36 Years R/o. C-1301,
     Rizvi Oak, Raheja Complex, Malad (East), Near Times Of India,
     Mumbai (Maharashtra) 400097,

                                                               ---- Applicant

                                  Versus

   • The State Of Chhattisgarh Through The Station House Officer, Police
     Station City Kotwali, Raipur, District Raipur Chhattisgarh,

                                                          ---- Non-Applicant



For Applicant    : Smt. Fouzia Mirza, Sr. Advocate with Shri Shobhit
                   Mishra and Shri Rahim Ubwani, Advocates.
For Non-Applicant : Shri Animesh Tiwari, Deputy Advocate General.
For Objector     : Shri KK Rai, Sr. Advocate with Shri Harshwardhan
                   Parganiha, Shri Anshul Rai and Ms. Saloni Verma,
                   Advocates.



                    Hon'ble Shri Deepak Kumar Tiwari, J

                             Order On Board

11/05/2022 :

   1.

The applicant has preferred this bail application for grant of

anticipatory bail as he apprehends his arrest in connection with Crime

No.258/2021, registered at Police Station City Kotwali District Raipur

for offences punishable under Sections 409, 420, 467, 468, 471 and

120-B of the IPC.

2. Case of the prosecution is that the applicant is a Chartered

Accountant and Company Secretary engaged in the profession of

teaching students who aspire to become Chartered Accountant. The

complainant is the Managing Director of a Coaching Institute for CA

and CS titled as J.K. Shah Education Private Limited. The said

company opened a Branch for imparting coaching for CA and CS at

Raipur in the year 2019. Mr. Abhinandan Bafna was appointed as the

Branch In-charge at Raipur, who was responsible for managing the

affairs of the said Institute like admission, fee collection etc. Allegation

against the present applicant is that several students opted for

coaching in the complainant's Institute for which the fee collection was

done by said Abhinandan Bafna. The company raised a doubt in the

accounts in the month of November, 2020 and sought for collection

report and other details of the account from said Abhinandan Bafna.

The said Abhinandan Bafna replied vide his e-mail dated 12.12.2020

stating that a sum of Rs.1,11,93,911/- has been received from the

students through various modes, which was doubted by the Company.

It is alleged that many students have directly deposited the fee in the

personal account of said Abhinandan Bafna and thereby it is further

alleged that the said Abhinandan Bafna committed financial

irregularities and also prepared various forged bills for merchants'

payment and embezzled huge amount of money by getting the same

deposited in his personal account and forged receipts in the name of

Company were issued. Alleging aforesaid irregularities, the Managing

Director of the company namely, Mr. Jitendra Shah (complainant)

lodged an FIR against the said Abhinandan Bafna.

3. Learned Senior counsel appearing on behalf of the applicant would

submit that the present applicant has neither been named nor

anything has been alleged against him in the FIR. The first notice

against the applicant was issued on 22 nd December, 2021 under

Section 91 CrPC. The notices issued were challenged by filing WP

(Cr) No.15/2022 on 3.1.2022 and WP(Cr) No.135/2022 on 27.1.2022

for quashing the said notices. The complainant has a long history of

filing vexatious and frivolous litigation against the ex-employees and

former lecturers of the complainant's company for harassing them.

The applicant was working with the complainant from the year 2009 to

2020, initially in the capacity of Chief Operating Officer and thereafter

as CEO from April, 2020. However, the role of the applicant was very

limited. Form DIR-12 and Form MGT-14 are the mandatory

documents to be filed before the company for appointment as CEO,

however, the said requirement was not complied with. The applicant

never signed any agreement with the Company and was always

entitled to start his new business. In the end of October, 2020, the

applicant and his wife founded a company viz. EDNOVATE Education

Private Limited with an intention to provide quality education to the

students aspiring to become CA. So the applicant resigned from the

complainant's company from 4th October, 2020. After formation of

new concern by the applicant, some of the lecturers voluntarily

inclined to join the applicant's company. So the complainant with a

view to restrain the applicant's business filed a Commercial IP Suit

No.25/2021 before the Hon'ble High Court of Bombay and also lodged

the FIR against the applicant under Section 408 of the IPC at Andheri

Police Station, Mumbai vide FIR No.872/2020. A separate suit was

also filed by the complainant against Dhawal Purohit for recovery of

Rs.49,54,000/- before the Bombay City Civil Court bearing Suit

No.4234/2020 and also lodged FIR against Dhawal Purohit under

Section 408 of the IPC. The complainant had threatened to initiate

multiple proceeding against the applicant and Mr. Dhawal Purohit

before the various Courts and also in different Police Stations all over

India.

4. The complainant has also sent a vexatious notice for recovery of

Rs.22,76,593/- to one Mr. Himanshu Patel, who is one of the senior

most lecturer of the company. Similar legal notices were also sent to

different lecturers. As the entire career and future of the applicant and

other lecturers was at stake, a consent terms has been signed which

was drafted by the complainant's advocate and the said consent terms

was filed before the Hon'ble Bombay High Court. The said terms are

void, as the applicant and other lecturers could not obtain proper legal

advise and they could not understand the ill-motive and malafide

intention of the complainant. Thereafter the complainant filed a

Contempt Petition before the Bombay High Court bearing Contempt

Petition (L) No.3533/2021. The said petition was dismissed on

16.2.2021 and cost of Rs.1.5 lakhs was imposed on the complainant

and in favour of the applicant's new concern. The complainant

preferred a Commercial Appeal before the High Court of Bombay,

which was also dismissed on 16.2.2021. Assailing the order of

learned Single Judge of the High Court, the Division Bench also

dismissed a petition vide order dated 17.3.2021.

5. Learned counsel for the applicant submits that FIR was also lodged

against Abhinandan Bafna for siphoning of funds because he did not

repay the amount and said Abhinandan Bafna and Dhawal Purohit

were enlarged on bail by the coordinate Bench in MCRC

No.9490/2021 and 236/2022 respectively on 25.3.2022. The

complainant has challenged the said bail orders before the Hon'ble

Supreme Court by way of filing SLP and the said SLP was dismissed

vide SLP (Cr) Diary No.12216/2022 on 29.4.2022, as statement was

given on behalf of Abhinandan Bafna that he was ready to deposit an

amount of Rs.16,39,600/-, which is lying with him. Therefore, the

Hon'ble Supreme Court has observed in the said order that

Abhinandan Bafna shall deposit the said amount within 3 weeks,

failing which, liberty was granted to the petitioner to apply before the

High Court for cancellation of bail.

6. Learned counsel further submits that in order to stop the EDNOVATE

Education Private Limited to conduct their business, a false FIR

No.50/2022 was filed at Jaipur on 27.1.2022. Learned counsel

emphasizes that main allegations are against Abhinandan Bafna and

he has forged certain documents under the instructions of Dhawal

Purohit for which Dhawal Purohit has received Rs.3 lakhs. Dhawal

Purohit in his statement has clearly stated that the present applicant is

not aware about the affairs of the business in relation to the Raipur

Branch. Considering all the aspecrts of the matter, the applicant may

be released on anticipatory bail.

7. Per contra, learned State Counsel and learned Senior Counsel for the

Objector oppose the bail application and filed a status report by the

IO. Learned Senior Counsel submitted that at the time of

consideration of bail, only prima facie case is to be seen and minute

details of the evidence is not required. The applicant being the CEO

has accessed the ERP (Enterprise Resource Planning) system, which

is the central point through which all the data relating to the students

of all the Branches of complainant are regulated. The applicant

manipulated the data relating to fee collected through students at

Raipur Branch by directing the co-accused to issue receipts for all

those students whose part remaining was collected and not deposited

by the co-accused in the company's account. Abhinandan Bafna has

also prepared various fake bills showing bogus/inflated expenses in

the name of electrical and painting workers, which was approved by

the co-accused Dhawal Purohit. The applicant along with other co-

accused were siphoning funds from the Raipur and Jaipur Branch.

8. Learned counsel also submits that filing various writ petitions

challenging the notices, though later on the same were withdrawn,

shows the intention of the applicant as the Forum Shopping. He

refers the judgment in the matter of Kamini Jaiswal Vs. Union of India

& Anoher {(2018) 1 SCC 156}, para-153 in which it has been observed

that another category of forum shopping; is approaching different

Courts for the same relief by making the minor change in the prayer

clause of the petition. He also refers the judgment in the matter of

Hema Mishra Vs. State of UP {(2014) 4 SCC 453} and has drawn

attention of the Court towards para-20 to submit that when notice

issued under Section 41-A of the CrPC was not responded, it could be

a ground for arrest. He would also place reliance on the judgment in

the matter of Satender Kumar Antil Vs. CBI {SLP(CR) No.5191/2021,

decided on 7.10.2021} to submit that when the accused does not

cooperate with the investigation nor appears before the IO nor

answers the summons and the Court feels judicial custody of the

accused is necessary for completion of trial, then benefit of bail cannot

be granted. So learned counsel prays to dismiss the bail application.

9. Countering the submissions, learned Senior Counsel for the applicant

would submit that challenging the notice, the applicant has filed two

Writ Petitions and the said fact was duly mentioned in the bail

application at para-6.2 and nothing has been suppressed. She further

submits that the notices were properly responded and the applicant is

always willing to cooperate with the investigation. She emphasizes

that the prosecution and the Objector failed to show any document

which would show that the applicant was involved in any manner in

the present case. She would submit that in the statutory audit for the

year 2019-20 & 2020-21, no fraud was reported by any employees of

the company.

10. I have heard learned counsel for the parties at length and perused the

record. It is settled law hat while deciding the bail application, the

Court should refrain from assessing the evidence and the same is not

relevant consideration at the threshold stage. While the Court

examining the issue including any reasonable ground extensive

consideration of merits which has the potential to prejudice either the

case of the prosecution or defence, is undesirable. Perusal of the FIR

would reveal that the allegations were mainly against Abhinandan

Bafna for the period 22.1.2019 to 30.11.2020 and even the forensic

audit was done on 6th April, 2021 in which it was reported that

Rs.1,00,93,251/- was misappropriated. The FIR was lodged by the

complainant on 22.10.2021 belatedly vide FIR No.258/2021 and in

column 8, reason for delay is not mentioned. Abhinandan Bafna was

enlarged on regular bail by the coordinate Bench and the Hon'ble

Supreme Court while dismissing the SLP has observed that

Abhinandan Bafna shall deposit Rs.16,39,600/- within 3 weeks.

Memorandum statement of Dhawal Purohit was recorded on 3 rd April,

2021 wherein he has specifically stated that the present applicant was

not aware about the affairs of Raipur Branch. Dhawal Purohit was

also enlarged on regular bail.

11. From perusal of record, it appears that the applicant has responded

properly to the notices of the IO and sent an e-mail on 21.1.2022

stating that he has no relations with the Raipur Branch and seeks time

for personal appearance. Thereafter the Bombay High Court has

granted transit anticipatory bail vide order dated 8.2.2022. The

applicant appeared before the Investigating Agency on 16.2.2022 and

his statement was also recorded. In the statutory audit report for the

period ending 31.3.2020 & 31.3.2021, no fraud was reported by the

employees or officers of the company. The applicant has started new

concern. Thereafter such dispute arose and various cases have been

filed.

12. The present case is based on documentary evidence as sufficient

evidence was collected by the complainant himself through forensic

audit, though there is conflict of the amount mentioned and the

Coordinate Bench has also observed while granting bail in para-11

that the embezzled amount is highly disputed question of fact. After

granting interim bail by this Court on 14.3.2022, the IO never issued

any notice or supplied any questionnaire to the applicant, as admitted

by learned State Counsel during the course of arguments.

13. Moreover, in Siddharam Satlingappa Mhetre v. State of Maharashtra,

(2011) 1 SCC 694 the following was observed while considering the

grant of anticipatory bail :

"90. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.

112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused's likelihood to repeat similar or other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by

arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.

113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.

14. Considering the aforesaid principle and the nature of accusation,

charge sheet was filed against Abhinandan Bafna and Dhawal Purohit

and permission was also sought to file supplementary charge sheet

against co-accused Dhawal Purohuit wherein specific name of the

applicant was not mentioned and further considering all the aspects of

the matter, this Court is of the considered view that the applicant

deserves to be enlarged on anticipatory bail.

15. Accordingly, the application is allowed and it is directed that in the

event of arrest of the applicant, he shall be released on anticipatory

bail on his executing a personal bond for a sum of Rs.25,000/- with

one surety in the like sum to the satisfaction of the arresting officer

with the following conditions:-

(i) he shall make himself available for interrogation by a police officer as and when required;

(ii) he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.

(iii) he shall not act in any manner which will be prejudicial to fair and expeditious trial.

(iv) he shall appear before the trial Court on each and every date given to him by the said Court till disposal of the trial.

(v) The applicant shall produce all the necessary documents and shall respond to the notice/questionnaire, if issued to him during investigation, failing which the State shall be at liberty to move application for cancellation of anticipatory bail.

Sd/-

(Deepak Kumar Tiwari) Judge Barve