Ishwarbhai Ashokbhai Khturani ... vs State Of Gujarat
2023 Latest Caselaw 5814 Guj

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     R/CR.RA/978/2023                             JUDGMENT DATED: 09/08/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/CRIMINAL REVISION APPLICATION NO. 978 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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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 ?                     YES

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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                   ISHWARBHAI ASHOKBHAI KHTURANI SINDHI
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR SAMIR AFZAL KHAN(3733) for the Applicant(s) No. 1
MS JIRGA JHAVERI APP for the Respondent(s) No. 1
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                              Date : 09/08/2023

                             ORAL JUDGMENT

1. This is an application filed by the applicant with a prayer inter alia for quashment of condition no.3(vi) imposed in order while releasing him on regular bail

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vide order dated 18.07.2023 passed in Criminal Miscellaneous Application No.5329 of 2023 by the learned Additional Sessions Judge, Surat and the order dated 25.07.2023 passed in Criminal Miscellaneous Application No.5701 of 2023 and thereby to modify / delete the said condition.

2. Heard learned advocate Mr.Samir Afzal Khan for the applicant and learned Additional Public Prosecutor Ms.Jirga Jhaveri for respondent State.

3. Rule. Learned Additional Public Prosecutor Ms.Jhaveri waives service of notice of Rule on behalf of respondent State.

4.1 Learned advocate Mr.Samir Afzal Khan relying upon judgments of Hon'ble Apex Court has submitted that the Hon'ble Supreme Court has often vide various judgments observed and disapproved the pre-condition of payment of money in granting bail, specifically in case of alleged cheating for offence under Sections 406, 420 of the Indian Penal Code which would tantamount to recovery proceedings on behalf the complainant

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which has been deprecated by the Apex Court.

4.2 Learned advocate Mr.Khan submitted that here in this case the applicant is suffering from pre-trial incarceration owing to the condition no.(iv) laid down by the learned 5th Additional Sessions Judge Surat in order dated 18.07.2023 passed in Criminal Miscellaneous Application No.5329 of 2023, whereby though the applicant has been released from jail is subjected to payment of money which due to his non- competency of making payment, would automatically turn into violation of such condition, as vide the said condition applicant would be forced to deposit the total amount as ordered by the bail court.

4.3 Learned advocate Mr.Khan submitted that thereafter an application being Criminal Miscellaneous Application No.5701 of 2023 was moved before the same Court for deletion of the condition (vi) but the Court vide order dated 25.07.2023 modified the condition. The modified condition reads thus:

"(vi) The applicant shall pay an amount of Rs.5 Lacs within a period of 15 days from

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passing of the original order i.e. 18.07.2023 and thereafter, shall continue to pay Rs.5 Lacs, every month on or before 7th Day of each English Calender Month, until the full amount of Rs.46 Lacs is paid to the Complainant. It is made clear that if the applicant / accused makes default in payment of any of the installments as per this order, the bail granted to the applicant / accused shall be deemed to have been canceled."

4.4 Learned advocate Mr.Khan submitted that applicant is still in jail as such condition would not give him the benefit of bail as he is directed to pay Rs.46/- Lacs which as per learned advocate Mr.Khan is in relation to the commercial transaction of cloth since the applicant is cloth merchant.

4.4.1 Learned advocate heavily relied upon the following decisions of the Hon'ble Apex Court reiterating that, the imposition of such condition of deposition of amount would tantamount to recovery proceedings on behalf of the complainant.

(i) Vijaykumar Deshraj Sethi vs. Senior Police Inspector and others reported in 2021 SCC Online Bombay

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13950;

(ii) Ramesh Kumar vs. State of NCT of Delhi reported in 2023 SCC Online SC 766 and

(iii) Order dated 12.12.2022 passed in case of Sanjay Singh vs. State of Bihar in Special Leave Petition (Cri.) Diary No.36115 of 2022.

5. Learned Additional Public Prosecutor Ms.Jhaveri submitted that the order as read in whole would not mean that any onerous condition has been laid down as payment is required to be made only after his release from the jail. She further submitted that condition imposed thus would not prejudice the applicant as he would be entitled to his liberty in view of the bail order.

6. Having heard the learned advocates for both the sides, it would be necessary to refer to the observations made by the Courts in the above referred judgments.

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6.1 In case of Vijaykumar Deshraj Sethi vs. Senior Police Inspector (supra), the FIR was lodged by the person in medical profession who wanted to purchase MRI machine and the applicant represented to him that he was in a position to import an MRI machine and quoted the price and further entered into agreement with the applicant of an amount of Rs.25/- Lakhs, however those machine was not supplied and the informant was deprived of his money and thus FIR came to be lodged. In that case, the Court while considering the bail application had laid down pre- condition of payment of Rs.25 Lakhs. The High Court of Bombay observed that such condition would prejudice the issue without trial.

6.2 In the case of Ramesh Kumar vs. State of NCT of Delhi (supra) in cheating case the pre-condition for grant of anticipatory bail was deposition of Rs.22/- Lakhs wherein the Hon'ble Apex Court observed that Section 438 of Cr.P.C. for grant of anticipatory bail orders are unwittingly being transformed into process for recovery of the quantum of money allegedly

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cheated. The Court should refrain from imposition conditions for deposit / payment as pre-requisite for grant of pre-arrest bail.

6.3 In case of Sanjay Singh vs. State of Bihar (supra) the Hon'ble Supreme Court has observed in initial paragraph as under:

"The present one is yet another case where the High Court, while granting pre-arrest bail in a criminal case involving alleged monetary dealing, has put the accused to the condition of making payment in certain modes/ installments. Time and again, this Court has observed that criminal cases cannot be converted into money recovery proceedings and such conditions, of granting bail on payment, have been disapproved."

6.4 In case of Dataram Singh vs. State of Uttar Pradesh reported in (2018) 3 SCC 22, the Hon'ble Supreme Court has observed that the conditions for the grant of bail ought not be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

6.5 In case of M.D.Dhanapal Vs. State represented

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by the Inspector of Police as reported in (2019) 6 SCC 743, the Hon'ble Supreme Court observed that bail cannot be made conditional upon heavy deposits beyond the financial capacity of an applicant for bail.

6.6 In case of Dilip Singh vs. State of Madhya Pradesh reported in (2021) 2 SCC 779, it was observed by the Hon'ble Supreme Court that Criminal court, exercising jurisdiction to grant bail / anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.

6.7 Here in this case, the dispute arose regarding business transaction between the complainant and present applicant (who was cloth merchant) in respect of payment of money and FIR came to be lodged where the allegation was about the dues of Rs.23,79,169/- as referred in the FIR were of the complainant while the rest of the amount were of other business-men. Hence, in total the amount of Rs.46,66,230/- is alleged to be outstanding amount to be recovered from the applicant.

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6.8 The Court while granting bail has laid down condition of depositing an amount of Rs.46/ Lakhs, even after prayer made for deleting the precondition, the Court granted installments of such amount but made it imperative for him to pay the money laying down the condition by modification in the order that in case if he makes any default in payment of any of installment, the bail granted to him shall deemed to have been cancelled.

6.9 The condition no.(iv) in the order dated 18.07.2023 and the modification of the order dated 25.07.2023 becomes onerous as such condition has put the applicant in precarious condition of his bail being cancelled in failure of payment of money. The Hon'ble Supreme Court has very well observed in case of Ramesh Kumar vs. State of NCT Delhi (supra) that such pre-condition for grant of bail would convert the process as recovery of quantum of money allegedly cheated and, therefore, Court should refrain from imposing condition of deposition of payment / money

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as it would amount to covert the criminal case as of money recovery proceedings.

7. In the result the condition no.3(vi) imposed vide order dated 18.07.2023 passed in Criminal Miscellaneous Application No.5329 of 2023 which has been modified vide order dated 25.07.2023 passed in Criminal Miscellaneous Application No.5701 of 2023 stands deleted. Rule is made absolute to the aforesaid extent.

(GITA GOPI,J) MISHRA AMIT V.