Prataprai Laxmandas Awtani vs State Of Gujarat
2021 Latest Caselaw 14756 Guj

     R/CR.MA/6385/2021                           JUDGMENT DATED: 22/09/2021




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/CRIMINAL MISC.APPLICATION NO. 6385 of 2021

              In R/CRIMINAL MISC.APPLICATION NO. 5791 of 2020


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
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1      Whether Reporters of Local Papers may be allowed              No
       to see the judgment ?

2      To be referred to the Reporter or not ?                       No

3      Whether their Lordships wish to see the fair copy             No
       of the judgment ?

4      Whether this case involves a substantial question             No
       of law as to the interpretation of the Constitution
       of India or any order made thereunder ?

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                         PRATAPRAI LAXMANDAS AWTANI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR BN LIMBACHIA(3454) for the Applicant(s) No. 1
MR ROHANKUMAR M AMIN(8851) for the Respondent(s) No. 2
MR NITIN T GANDHI(5620) for the Respondent(s) No. 2
MS MOXA THAKKAR, APP (2) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
                     Date : 22/09/2021
                     ORAL JUDGMENT

1. This application is filed under Section 439(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code" for short) for cancellation of bail granted to present respondent No.2 on the ground that respondent has violated condition No.6[a] imposed by this Court vide order dated 17.06.2020 passed in Criminal Misc. Application No.5791 of 2020.

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2. Rule. Learned Additional Public Prosecutor waives service of notice of Rule for respondent No.1 State and Mr. Rohankumar M. Amin, learned advocate waives service of notice of Rule for respondent No.2. Looking to the issue involved in the present application, the same is taken for final disposal with the consent of the learned advocates appearing for the parties.

3. Heard Mr.B.N. Limbachia, learned advocate for the applicant, Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 - State and Mr.Rohankumar M. Amin, learned advocate for respondent No.2 - accused.

4. Learned advocate for the applicant has referred the documents which are placed on record and, thereafter, contended that the FIR being C.R. No.11191067200018 of 2020 has been lodged against respondent No.2 - accused and others for the offences punishable under Sections 170, 417, 419, 406, 420, 465, 467, 468, 469, 471 and 120(B) of the Indian Penal Code and Sections 66(c) and 66(d) of the Information and Technology Amendment Act, 2008 before the Cyber Crime Police Station, Ahmedabad City, on 24.01.2020. It is further submitted that respondent No.2 - accused was arrested in connection with the said FIR. During the course of investigation, the Investigating Officer has collected material and it was revealed that present respondent No.2 is the

R/CR.MA/6385/2021 JUDGMENT DATED: 22/09/2021

beneficiary of withdrawal of amount of Rs.36,84,000/-. It is submitted that after filing of the charge-sheet, when respondent No.2 has filed an application under Section 439 of the Code being Criminal Misc. Application No.5791 of 2020, this Court, vide order dated 17.06.2020, released respondent No.2 - accused on bail on certain terms and conditions. Condition No.6[a] of the said order provides as under:

"6[a] deposit Rs.36,84,000/- within a period of six months before the learned trial court without prejudice to his rights and contentions. The amount shall be kept in cumulative fixed deposit and shall be subject to final decision of the learned trial court in criminal case. On failure of applicant to deposit the amount, the applicant shall be taken back in judicial custody."

4.1 It is submitted that though the said condition was imposed on 17.06.2020, as on date, respondent No.2 - accused has not complied with the said condition. At this stage, learned advocate for the applicant has pointed out from the record that respondent No.2 - accused filed Criminal Misc. Application No.1 of 2020 in Criminal Misc. Application No.5791 of 2020 before this Court for modification of condition No.6[a] imposed vide order dated 17.06.2020. However, this Court vide order dated 29.01.2021 rejected the said application, a copy of which is placed on record at Page-62 of the compilation. Against which, respondent No.2 - accused filed Special Leave to Appeal (Criminal) No.1755 of

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2021 before the Honourable Supreme Court. It is submitted that respondent No.2 - accused had withdrawn the said Special Leave to Appeal with a liberty to apply for modification before the High Court. It is submitted the said order was passed on 02.03.2021, a copy of which is placed on record at Page-61 of the compilation. It is contended by the learned advocate for the applicant that though the said order was passed by the Honourable Supreme Court on 02.03.2021 granting liberty to respondent No.2 - accused to file an application for modification of condition before this Court, till date, no such application has been filed by him before this Court nor he has complied with the condition imposed by this Court vide order dated 17.06.2020. Thus, respondent No.2 - accused has deliberately and intentionally not complied with the condition imposed by this Court. It is, therefore, urged that the bail granted to respondent No.2 - accused be cancelled.

5. Learned Additional Public Prosecutor has also supported the contention of the learned advocate for the applicant - first informant. Learned Additional Public Prosecutor has, after referring to Paragraph-3 of the order dated 17.06.2020, submitted that the respondent No.2 - accused had in fact, argued before this Court that he may be enlarged on regular bail by imposing suitable conditions. This Court has thereafter imposed conditions looking to the facts of the present case and, therefore, when respondent No.2

- accused has not complied with the condition, this

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application be allowed.

6. On the other hand, Mr.Rohankumar M. Amin, learned advocate for respondent No.2 - accused has opposed this application and referred the affidavit filed by respondent No.2 - accused, a copy of which is placed on record at Page-63 of the compilation. Learned advocate has submitted that the property situated at Village Ghonda, Gujran at Delhi, which is of the ownership of respondent No.2 - accused, has been seized by the Investigating Officer during the course of investigation and, therefore, it is not possible for respondent No.2 - accused to sell the said property and to deposit the amount as directed by this Court in the order dated 17.06.2020. It is further submitted that respondent No.2 - accused is facing certain health issues as he is living only on his single lung. It is further submitted that because of the financial crisis due to pandemic Covid-19, it was difficult for respondent No.2 - accused to file an application for modification before this Court. Learned advocate has referred Certificate dated 12.07.2021 issued by the concerned Hospital, a copy of which is placed on record at Page-68 of the compilation.

6.1 Learned advocate for respondent No.2 - accused has placed reliance upon the order dated 10.06.2015 passed by this Court in Criminal Misc. Application No.3725 of 2015 and allied matters. It is contended that in similar type of case, co-ordinate Bench of

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this Court has dismissed the application for cancellation of bail filed by the concerned appliacnt before this Court. Copy of the said order is placed on record at Page-83 of the compilation. Learned advocate has, therefore, urged that this application be dismissed.

7. This Court has considered the submissions canvassed by the learned advocates appearing for the parties. This Court has also gone through the material placed on record. It would emerge from the record that respondent No.2 - accused filed an application under Section 439 of the Code before this Court after filing of the charge-sheet against him. This Court, vide order dated 17.06.2020, enlarged respondent No.2 - accused on bail on certain terms and conditions. As per Condition No.6[a], as reproduced hereinabove, imposed by this Court vide order dated 17.06.2020, respondent No.2 - accused was required to deposit Rs.36,84,000/- within a period of six months before the concerned trial Court from the date of the said order. Respondent No.2 - accused had not deposited the said amount within the stipulated time before the concerned trial Court and, thereafter, filed an application being Criminal Misc. Application No.1 of 2020 before this Court for modification of condition. The said application was dismissed by this Court vide order dated 29.01.2021. Relevant observations made by this Court in the said order are as under:

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"Having heard learned advocates for the parties and perused the averments made in the application, prima facie, it appears that the present application is totlaly false and frivolous. This Court passed order in Criminal Misc. Application No.5791 of 2020 in the month of June, 2020, and for about last 6 months, the applicant had slept, thereafter he approached before this Court. Hence, no case is made out for modification of condition imposed by this Court. Accordingly, the present application is hereby rejected. Rule is discharged."

8. It is further revealed that respondent No.2 - accused filed Special Leave to Appeal before the Honourable Supreme Court. However, it appears that since the Honourable Supreme Court was not inclined to entertain the said Special Leave to Appeal, respondent No.2 - accused withdrew the same. While permitting the withdrawal, the Honourable Supreme Court granted liberty to respondent No.2 - accused to apply for modification before the High Court. It is pertinent to note that the said order was passed by the Honourable Supreme Court on 02.03.2021 and till date, i.e. upto 22.09.2021, respondent No.2 - accused has not filed any application for modification of condition.

9. It is contended by the learned advocate for respondent No.2 - accused that because of the ill- health of respondent No.2 - accused, he could not file an application for modification of condition. However, the said submission is prima-facie misconceived. It is revealed from the record that

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respondent No.2 - accused has filed an affidavit before this Court on 22.07.2021 itself, though reliance is placed by the learned advocate on the Certificate dated 12.07.2021, a copy of which is placed on record at Page-68. Thus, from the facts of the present case, it is clear that respondent No.2 - accused has intentionally disobeyed the order passed by this Court and intentionally violated the condition imposed by this Court. When respondent No.2

- accused could file reply in this application by engaging an advocate to defend this application, he could have filed an application for modification.

10. With regard to the contention taken by learned advocate for respondent No.2 - accused that his property has been seized by the Investigating Officer and, therefore, he could not deposit the amount as directed by this Court in the order dated 17.06.2021, it is pertinent to note that as per the document, which is placed on record, i.e. panchnama along with the affidavit-in-reply filed by respondent No.2, the said property was sized on 10.02.2020 by the Investigating Officer whereas this Court has passed an order on 17.06.2020 i.e. after a period of four months from the date of seizure of the property of respondent No.2. Respondent No.2 - accused had not pointed out the said aspect before this Court when the order dated 17.06.2020 was passed. Even respondent No.2 - accused has not complied with the condition within a period of six months and after a period of six months, Criminal Misc. Application was

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filed for modification of condition in January, 2021. This Court has dismissed the said application in January, 2021 and as on date, neither respondent No.2

- accused has complied with the said condition imposed by this Court nor he has filed any application for modification of condition. Thus, this Court is of the view that respondent No.2 - accused has intentionally and deliberately not complied with the condition imposed by this Court.

11. Thus, in the facts of the present case, this Court is inclined to consider the case of the applicant - first informant. Bail granted to respondent No.2 - accused is hereby cancelled as per condition No.6[a] imposed by this Court in the order dated 17.06.2020. It is specifically observed by this Court that on failure of the applicant (present respondent No.2) to deposit the amount, he shall be taken back in judicial custody.

12. The application is, therefore, allowed. It is open for the concerned Investigating Officer to take immediate steps. Rule is made absolute accordingly.

13. At this stage, learned advocate for respondent No.2- accused has requested that this judgment be stayed for a couple of weeks. The said request has been opposed by the learned advocate for the applicant.

14. In the facts of the present case, the request

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made by learned advocate for respondent No.2 is acceded to and the present judgment shall not be implemented for a period of two weeks.

(VIPUL M. PANCHOLI, J) piyush