Hareshbhai Vitthalbhai Vaishnav vs State Of Gujarat
2021 Latest Caselaw 5693 Guj

   R/CR.MA/1174/2021                               ORDER DATED: 09/06/2021[8]



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL MISC.APPLICATION NO. 1174 of 2021
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                       HARESHBHAI VITTHALBHAI VAISHNAV
                                    Versus
                             STATE OF GUJARAT
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Appearance:
MR MAULIK NANAVATI, ADVOCATE WITH TARUNA R MAKWANA(7255)
for the Applicant(s) No. 1
MR ND NANAVATY, SENIOR COUNSEL WITH MR DAIFRAZ
HAVEWALLA(3982) for the Respondent(s) No. 1
MR PREM D DAVE(10958) for the Respondent(s) No. 1
MR H.K. PATEL, APP(2) for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 09/06/2021
                   ORAL ORDER

[1] Heard the learned advocates for the respective parties by video conferencing.

[2] By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for bail in connection with FIR being C.R. No.I- 11210008202132 of 2020 registered with Sarthana Police Station, Surat City for the offences under Sections 406, 408, 467, 468, 471 and 120B of the Indian Penal Code, 1860.

[3] Learned advocate for the applicant submits that the nature of allegations are such for which custodial interrogation of the applicant at this stage is not necessary. He further submits that the applicant will keep himself available during the course of investigation, as well as trial also and will not flee from justice.

R/CR.MA/1174/2021 ORDER DATED: 09/06/2021[8]

[4] It is alleged in the FIR that around the month of October 2020, the complainant was informed by one of his partners that the applicant has transferred a sum of Rs.1,65,40,000/- by way of a cheque in the account of one - Dineshbhai Rakholiya on 16.07.2020 and thereafter a sum of Rs1,55,40,000/- in the account of company on 05.09.2020. Upon inquiry the applicant was found guilty. Thereafter the company has found other transactions also, done by the applicant with other co - accused.

[5] At the outset, learned advocate Mr.Maulik Nanavaty appearing for the applicant, upon instructions, has submitted that the applicant is ready and willing to deposit an amount of Rs.80,00,000/- before the trial Court. However, some time may be given to deposit the amount by way of installments. It is stated that the applicant is ready to deposit Rs.1,00,000/- within a period of 01 week, Rs.1,50,000/- in 2 nd week, thereafter within two weeks Rs.2,50,000/-, in 2 nd, 3rd and 4th month, the applicant will deposit Rs.5,00,000/- (i.e total Rs.15,00,000/-) and from 5 th month onwards, he will deposit Rs.7,50,000/- every month (i.e. total Rs.60,00,000/-), thereby, the applicant will pay full amount in the aforesaid period of 12 months.

[6] Learned advocate for the applicant, on instructions, states that the applicant is ready and willing to abide by all the conditions, including imposition of conditions with regard to powers of investigating agency to file an application before the competent Court for his remand. He further submits that upon filing of such application by the investigating agency, the right of the applicant accused to oppose such application

R/CR.MA/1174/2021 ORDER DATED: 09/06/2021[8]

on merits may be kept open. Learned advocate, therefore, submits that considering the above facts, the applicant may be granted anticipatory bail.

[7] On the other hand, the 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.

[8] Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant.

[9] This Court has considered following aspects;

(a) The role attributed to the applicant;

(b) The applicant is ready and willing to deposit the amount as per the scheduled mentioned hereinabove and hence, his custodial interrogation is not required;

[10] This Court has also taken into consideration the law laid down by the Apex Court in the case of Sushila Aggarwal vs. State (Nct of Delhi), AIR 2020 SC 831.

[11] In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with FIR being C.R. No.I- 11210008202132 of 2020 registered with Sarthana

R/CR.MA/1174/2021 ORDER DATED: 09/06/2021[8]

Police Station, Surat City on his executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions that he :

(a) shall cooperate with the investigation and make himself available for interrogation whenever required;

(b) shall remain present at the concerned Police Station on 17.06.2021 between 11.00 a.m. and 2.00 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 his 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; and

(g) It is directed that the applicant shall file an undertaking before the Trial Court stating that he has shall deposit the amount as per the schedule stated herein under:

The applicant shall deposit Rs.1,00,000/- within a period of 01 week, Rs.1,50,000/- in 2 nd week, thereafter within two weeks Rs.2,50,000/-, in 2 nd, 3rd and 4th month, the applicant will deposit Rs.5,00,000/- (i.e total Rs.15,00,000/- in three months) and from 5 th month onwards, he will deposit Rs.7,50,000/- every month (i.e.

R/CR.MA/1174/2021 ORDER DATED: 09/06/2021[8]

total Rs.60,00,000/- in eight months), thereby, the applicant shall deposit total amount of Rs.80,00,000/- in the aforesaid period of 12 months.

It is further directed that an undertaking to the above effect shall be filed by the applicant within a week before the trial Court from the date of the receipt of this order. The trial Court shall invest the amount in an FDR, as and when it is deposited by the applicant. On completion of the trial, the aforesaid amount shall be disbursed as per the final judgment and order.

It goes clarified that, if the applicant fails to deposit the amount as recorded herein above, the same would entail cancellation of anticipatory bail.

[12] Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicant, if he considers it proper and just and the Magistrate would decide it on merits. The applicant shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the concerned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such

R/CR.MA/1174/2021 ORDER DATED: 09/06/2021[8]

period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.

[13] At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.

[14] The application is allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Registry is directed to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.

[15] Learned advocate for the applicant is also permitted to send a copy of this order to the concerned authority/court through Fax message, email and/or any other suitable electronic mode.

                                                           Sd/-     .
                                                   (A. S. SUPEHIA, J)
DRASHTI K. SHUKLA