Mineshkumar Gamirbhai Pagi vs State Of Gujarat
2021 Latest Caselaw 4303 Guj

              R/CR.MA/3662/2021                           ORDER




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

   R/CRIMINAL MISC.APPLICATION NO. 3662 of 2021
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               MINESHKUMAR GAMIRBHAI PAGI
                          Versus
                    STATE OF GUJARAT
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Appearance:
MR PRUTHVIRAJSINH V SOLANKI(10190) for the Applicant(s) No. 1,2
MS MD MEHTA ADDL. PUBLIC PROSECUTOR(2) for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                  Date : 17/03/2021

                                   ORAL ORDER

1. Heard learned Advocate Shri Pruthvirajsinh V. Solanki for the applicants and learned APP Ms. M.D. Mehta for the respondent State.

2. By way of this application, the applicants pray for being enlarged on regular bail on account of their arrest in connection with FIR No.11187007201263 of 2020 registered with Santrampur Police Station, Dist. Mahisagar, for the offences punishable under Sections 408 and 114 of Indian Penal Code, dated 08.10.2020.

3. Learned Advocate for the applicants submits that the applicants have been wrongly roped in connection with the present complaint and whereas he further submits that since the charge-sheet has already been filed by Investigating Officer, therefore, the regular bail of the applicants may be considered by this Court, more particularly, since there is no apprehension that the applicants may tamper with the evidence and / or try to abscond from attending the trial. Learned Advocate relies upon the decision of this

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Court in the case of co-accused Ajitbhai Ravjibhai Parmar, who has been released on anticipatory bail by this Court vide order dated 18.01.2021 passed in Criminal Misc. Application No.20270 of 2020. Learned Advocate also relies upon the order passed in the case of other co-accused - Pravinbhai Andarbhai Patel, in Criminal Misc. Application No.20077 of 2020 dated 05.02.2021, wherein also, the said co-accused has been released on regular bail by this Court. Learned Advocate has also relied upon the order of the Supreme Court passed in Criminal Appeal No.53 of 2021 in the case of the Dilip Singh Vs. State of Madhya Pradesh and another.

Learned Advocate Shri Solanki further submits that in view of the decisions relied upon by him, and since the trial may take long time, the application of the regular bail of the applicants may be considered by this Court.

4. Learned APP for the respondent strongly opposed this application and whereas she has relied upon the allegations levelled against the applicants in the charge-sheet i.e. present applicant No.1 is stated to have siphoned off of Rs. 9,85,367/- and whereas the applicant No.2 is alleged to have siphoned off Rs.10,00,468/-. She further points out that the allegations against the applicants being that they have taken installments of loan from the customers and whereas they have not deposited the same with the bank concerned. Learned APP had also requested that in view of the apparent involvement of the applicants as can be made out from the documents on record, the applicants may be directed to deposit at least a part of amount allegedly siphoned off. Learned APP also draws the attention of this Court to the order dated 18.01.2021 of this Court passed in Criminal Misc. Application No. 20270 of 2020, where this Court (Coram: Rajendra M. Sareen, J.) has noted that the learned Advocate for the said co-accused before the Court has stated that it was the said co-accused who brought irregularities of accused Nos.1 and 2 on record and whereas the allegations

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against the said applicant being that he was negligent in doing his duty and he did not have monetary benefits out of the said transaction. Learned APP further draws attention of this Court to the order dated 05.02.2021 in case of co-accused - Pravinbhai Andarbhai Patel passed in Criminal Misc. Application No.20077 of 2020, wherein this Court (Coram: A.Y. Kogje, J.) has noted the submission of learned Advocate therein that even from the FIR, the allegations against the said accused was that the said accused was Branch Manager who did not take enough care when his subordinates did not deposit the said amounts in the loan account, after receiving the installment. Learned APP further submits that in both the cases, where co- accused have been released on anticipatory bail and regular bail, allegations against the co-accused are not the same as allegations against the present applicants who are stated to be the main perpetrators of the alleged crime and therefore, according to the learned APP, the applicants cannot claim parity with the accused already released. Furthermore, learned APP has submitted that since prima facie clear involvement of the applicants is coming out to allay an apprehension that trial may not proceed for a long time and the applicants would languish in prison, this Court may remedy the situation by suitably directing the concerned trial Court to complete the trial in a stipulated time.

5. Learned Advocates for the parties, who have not submitted anything further.

6. Having heard the learned Advocate for the parties and having perused the record, at the outset, this Court deems it appropriate to refer to the judgment of the Supreme Court in the case of State Through C.B.I vs Amaramani Tripathi reported in 2005(8) SCC 21, more particularly para 18 thereof, whereby the Supreme Court has laid down the issues to be considered while deciding an application for bail.

"It is well settled that the matters to be considered in an application

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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 charge;

(iii) severity of the punishment in the event of conviction;

(iv) danger of 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 tampered with; and

(viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati vs. NCT, Delhi 2001 (4) SCC 280 and Gurcharan Singh vs. State (Delhi Administration) AIR 1978 SC 179). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.

We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar vs. Rajesh Ranjan, 2004 (7) SCC 528:

"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

a. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

b. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

c. Prima facie satisfaction of the court in support of the charge.

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(See Ram Govind Upadhyay vs. Sudarshan Singh, 2002 (3) SCC 598 and Puran vs. Ram Bilas 2001(6) SCC 338."

7. The principles as stated by the Supreme Court in the case Amarmani Tripathi (Supra) have been reiterated in the case of Sanjay Chandra v. Central Bureau of Investigation reported in [2012] 1 SCC 40. The Supreme Court has held that three main issues to be considered while deciding application for grant of bail are (I) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(ii) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and (iii) Prima facie satisfaction of the court in support of the charge.

8. Considering the facts of the present case, keeping in view the relevant aspects to be considered as laid down by the Supreme Court, the present applicants are accused of having collected total amount of Rs.10 Lakhs each approximately from the persons, who had availed loan from the bank in lieu of monthly installments and not depositing the same in the bank. The applicants have produced a copy of the original complaint and the order passed by the learned Sessions Court rejecting application for bail, the affidavit of Investigating Officer before the Sessions Court opposing the bail and the orders of the Coordinate Benches of this Court, whereby anticipatory bail and regular bail has been granted to co-accused of the alleged offences. Though charge-sheet is stated to have been filed and though present application is a successive bail application after the charge- sheet, neither charge-sheet nor statements of the witnesses, which are part of the charge-sheet have been produced on record. Therefore, this Court is constrained to decide the present application with the papers that have been placed before the Court by the applicants.

9. From the complaint, it is revealed that while total of 4 persons have

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been named as accused in the complaint, but at the same time, the main allegations of having siphoned off the money is made against the present applicants herein and whereas as against other accused, the allegation is that they did not fulfill responsibility as assigned to their office as Branch Manager and Area Manager. It is also revealed from the complaint that the present applicants had submitted a notarized (affidavit) dated 09.06.2019, where they had accepted the fact that they had collected the amount and that they would deposit the same within 30 days with the bank. Thus, from the complaint, it clearly appears that the applicants herein are the main accused, who had siphoned off the money and that they had admitted the crime and had undertaken to repay the said amount. Furthermore, the learned Trial Court clearly notes in its order that the independent witnesses in their statements before the Investigating Officer have stated about the involvement of the present applicants in connection with the alleged crime. Thus, in considered opinion of this Court, from an overall perusal of the record, a clear conclusion can be arrived at that there is prima facie material in support of the charges levelled against the present applicants.

10. As far as the issue with regard to the nature of accusation, severity of punishment in case of conviction and nature in supporting evidence, the allegation against the present application is of having committed an offence punishable under Section 408 of IPC read with Section 114 of IPC, whereas maximum punishment provided for the offence punishable under Section 408 is for 7 years and fine. The accusation against the applicants of having collected installments from the persons, who have taken loan from the bank and not having deposited the same with the bank, is supported by statements of independent witnesses. It would be worthwhile to mention that the persons, who had availed the loan and from whom installment had been collected were women from rural areas who had taken short term loans for self-employment or for cottage industry (as per the complaint)

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11. As far as apprehension of tampering with the witnesses and / or threat to the complainant, the Investigating Officer in his reply to the application for bail before the learned Sessions Court has stated that there is apprehension that the applicants can tamper with the investigation and may issue threat to the complainant / witnesses, but no material in support of such submission have been produced. Thus, this Court is of the considered opinion that while there is reasonable evidence in support of the accusation and therefore, this Court is prima facie convinced about the involvement of the applicants as regards the charges levelled against them in the complaint. Thus, there is reasonable apprehension to support the allegation of influencing witnesses and / or complainant.

12. In so far as the issue of parity is concerned, in order dated 18.01.2021, this Court (Coram: Rajendra M. Sareen, J.) passed in Criminal Misc. Application No.20270 of 2020 has noted the submissions of the learned Advocate for the said co-accused that the allegation against the applicants therein was that as an Area Manager, he was negligent in his duty and whereas he had brought out the irregularities of accused Nos.1 and 2 i.e. present applicants. In case of Pravinbhai Andarbhai Patel, this Court (Coram: A.Y. Kogje, J.) vide order dated 05.02.2021 had noted the submission of the learned Advocate for the applicant that the allegation against the applicants therein was that of Branch Manager, he did not take enough care when his subordinates did not deposit the amount of loan after receiving installments. In both the orders relied upon by the learned Advocate for the applicants claiming parity, the allegation against the applicants therein and the applicants herein are different and whereas this Court also having considered the complaint and other material on record as noted hereinabove is of the considered opinion that the main allegations are against the present applicants of having collected the installments amount from the persons, who had availed loan and not deposited, the same with the bank and whereas as against the accused, the allegation was that being

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Area Manager and Branch Manager and they were negligent in doing their duties. There is a clear distinction in the allegation of involvement in the actual crime in question and in the allegation of being negligent in doing duties and whereas if the allegations against the present application are of having committed the alleged crime, their case cannot be equated with the case of the Area Manager and the Branch Manager against whom the allegations of being negligent in doing their duties.

13. The case of Dilip Singh (Supra) has been relied upon by the learned Advocate for the applicants opposing the submissions made by learned APP that the applicants be directed to deposit some part of the amount allegedly siphoned off by them. As such, it is a settled position of law reiterated by the Supreme Court in various judgments that criminal proceedings are not for the purpose of realization of dues. That in view of the submissions of the learned APP, learned Advocate for the applicants had been asked by this Court whether the applicants would like to deposit any amount and whereas since the applicants had shown their reluctance, the issue was left at that. Moreover, the facts of the case before the Supreme Court and the present case are different inasmuch as learned APP was not appearing for the original complainant and therefore, the request to ask the applicants to deposit some amount was not at all for realization of any dues. Since the applicants had shown their reluctance (to deposit any amount), this Court has appreciated the merits of the case independently.

14. In so far as the submissions of the learned Advocate for the applicants that the trial may take long time to conclude, therefore, in the interregnum, the applicants may be released on bail. This Court is inclined to accept the submissions made by the learned APP that appropriate direction may be issued to ensure that the trial is completed as expeditiously as possible, so as to ensure that the applicants did not have to stay for a long period in custody without the trial progressing.

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15. Thus, from the discussion and observations made hereinabove, this Court is of the opinion that there is prima facie ground to believe that the applicants have committed the offence in question. The nature of the charge is grave, considering from the angle that ultimately along with the Bank scores of persons, more particularly, ladies from rural areas who had taken short term loans for self-employment through household industries (as alleged in the complaint), had been cheated as they were made part with their hard earned money under the guise of depositing the same with the bank as installment of loan. While the punishment, if the applicants are convicted, would be maximum of seven years. Furthermore, as noted hereinabove, there is no material produced in support of allegation that the applicants may intimidate the witnesses and there is no serious apprehension that the applicants may abscond. Thus, weighing all the factors from the perspective of the issues laid down by the Supreme Court in judgment of Amarmani Tripathi (Supra), this Court is of the opinion that in view of the prima facie ground made out against the applicants and in view of the nature of charge, this is not a fit case to grant bail to the applicants. The application therefore, stands rejected. The concerned trial Court is directed to conclude the trial with regard to the present criminal case as expeditiously as possible, but not later than 18 months from today. Rule is discharged.

(NIKHIL S. KARIEL,J) Y.N. VYAS