Gujarat High Court
Dharmeshbhai Manibhai Patel vs State Of Gujarat on 17 March, 2023
Bench: Ilesh J. Vora
R/CR.MA/20995/2019 ORDER DATED: 17/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 20995 of 2019
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DHARMESHBHAI MANIBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR IH SYED, SR. ADVOCATE WITH MR.CHIRAG B UPADHYAY(6735) for
the Applicant(s) No. 1
MRS KRINA CALLA APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 17/03/2023
ORAL ORDER
1. Apprehending his arrest, the applicant Dharmesh Patel herein is
seeking pre-arrest bail, under Section 438 in connection with FIR
being I.CR. No. 15 of 2019 registered with ACB Police Station,
Ahmedabad City.
2. On 05.08.2019, FIR is registered for the commission of offence
under Section 13(2) read with Section 13(1)(b) of the Prevention of
Corruption Act, 1988 and 109 of the Indian Penal Code, against the
7 persons. Accused no. 1 - Chandrakant Pandya is Public Servant,
whereas, accused no. 2 & 3 - Radhika Pandya, Bhumika Pandya are
daughter of accused no. 1. The accused no. 4 - Kamini Aacharya is
the niece of A-1, whereas, Dharmesh Manilal Patel, Chandrakant
Ranchhodlal Patel and Suketu Patel (A-5, 6 and 7) are relative of A-
1.
R/CR.MA/20995/2019 ORDER DATED: 17/03/2023
Gist of the FIR is that, during check period from 01.04.2008 to
19.04.2019, the Accused no. 1 being a Public Servant, while posted
on different assignments, have accumulated assets disproportionate
to his non-source of income by corrupt and illegal means and had
misused of his office as Public Servant. When applicant A-1, was
serving as a Residence District Collector at Surendranagar, the
preliminary inquiry was initiated in the matter and IO had
considered the income of A1 and his family members A2 - A4 and
found in possession of disproportionate assets worth
Rs.6,74,08,213/- which, he was not able to satisfactorily account for.
After scrutiny of the bank accounts of different banks, it was found
that, he was holding independent bank accounts as well as joint
account, with his daughters and niece A-2, 3, 4. During the course of
inquiry, it was revealed that the accused no. 5 Dharmesh Manilal
Patel, the applicant herein, connivance with the A-1, transferred
huge amount either by RTGS or cheque in the bank account of A2 to
A4 and adjust the cash amount of A1 against unsecured loan. The
applicant - A5 and his wife Sonalben extended the facility of
unsecured loan worth Rs.3,46,78,000/- and transferred it in the bank
accounts of two daughters and niece of A1. It is further revealed the
unexplained credits in the form of cash and bank transfer as
unsecured loan, the accused A1 and his family members used it to
purchase movable and immovable properties. It is further revealed
that, during the check period, the total income of the applicant herein
and his wife was Rs.34,55,587/-. However, despite of this, they had
transferred the huge amount worth Rs.3,46,78,000/- in the different
bank accounts of the accused and same had been used in purchasing
R/CR.MA/20995/2019 ORDER DATED: 17/03/2023
movable and immovable properties. The report of the Foreignsic
Science Audit, undertaken by the experts account auditor confirmed
the anomaly of the bank transactions made by the applicant herein.
The applicant herein failed to explain his source of income and also
could not answer the details of unsecured loan, the details of interest
charged or interest received. It is admitted facts that, the accused A2
to A4 have did not repay the outstanding loan advanced by present
applicant accused no. 5. The investigation further revealed that, as
and when amount transferred from the account of applicant herein,
the respective account holders have either withdrawn the said
amount or invested in the FDRs.
3. In the aforesaid facts, the applicant herein impleaded as accused no.
5 in the alleged offence, as he had abetted and conspired with the
principal accused and others in commission of the alleged offence.
4. The anticipatory bail application filed before the Sessions Court
concerned was rejected vide order dated 22.10.2019.
5. Aggrieved and dissatisfied with the order, the applicant herein has
preferred the instant application.
6. This Court has heard learned Senior Counsel Mr. I.H. Syed, assisted
by Mr. Anik Kadri, learned advocate for and on behalf of the
applicant and Mrs. Krina Calla, learned State Counsel for respondent
State.
7. Learned Senior Counsel submitted that, the applicant herein has
R/CR.MA/20995/2019 ORDER DATED: 17/03/2023
been falsely implicated in the alleged offence. The principal accused
and others have been enlarged on regular bail and so far
investigation part is concerned, it is almost over and now nothing
remain further to investigate the case; that, pursuant to the direction
given by this Court, the applicant remained present for so many
times before the Investigating Officer and has fully cooperated with
the investigation and submitted all the necessary documents relevant
to the investigation; that the applicant has nothing to do with the
principal accused Chandrakant Pandya, as he was in contact with the
daughters of the main accused and extended loan facility in the form
of unsecured loan; that, pursuant to the intimation given by the ACB
department, the income tax had issued notice under Section 147 of
the I.T. Act and accordingly, revised income tax return for the A.Y.
2017-18 and 2018-19 have been submitted to the income tax
department and also paid additional outstanding tax to the tune of
Rs.21,130/-; that, the applicant is working as an Estate Manager and
rendered his services to the NRIs for renovation of their properties
and therefore, due to his relation with the NRI people, the amount as
referred in the case papers, transmitted for the investment purpose;
that, nowhere it is alleged that, the applicant herein is involved in the
offence of misconduct allegedly committed by the public servant
A1; that the only charge leveled against the applicant is to abate the
principal accused as provided under Section 109 of the I.P.C.
8. In view of the aforesaid contentions, learned Senior Counsel
submitted that the entire prosecution case is based on the
documentary evidence and now the same is the part of the
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chargesheet and therefore, when applicant has joined the
investigation and considering the peculiar facts and circumstances of
the present case, his custodial interrogation is not necessary, the case
is made out for exercising extra-ordinary powers of this Court.
9. On the other hand, reiterating the contents of the sworn affidavit
filed by the Assistant Director, ACB, Ahmedabad, the State Counsel
Mrs. Krina Calla vehemently opposed the grant of anticipatory bail
and contended that, there is a prima-facie case against the applicant
herein for the commission of the alleged offence. Referring to the
materials, she submitted that, the applicant has conspired with the
principal accused and after obtaining the huge cash amount from
him, which the accused no. 1 acquired by corrupt and illegal means,
the applicant herein under the guise of unsecured loan, transferred it
to the different bank accounts of the daughters of accused no.1 and
the amount comes to Rs.3,46,78,000/- and till date, the loan is
outstanding. The total income of the applicant during the check
period was Rs.34,55,583/-. Thus, it is evident that, the applicant
accused having no sufficient source of income to extend financial
help in the form of unsecured loan and during his interrogation, he
failed to satisfactorily explained his source of income and the
amount transferred in his bank account from the different persons.
10. In the aforesaid contentions, learned State Counsel submitted that,
while considering the prayer for anticipatory bail, balance has to be
struck between two factors namely, no prejudice to be caused to
free, fair and full investigation and there should be prevention of
harassment and unjustified detention of the accused. In the facts of
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present case, the custodial interrogation of the applicant is necessary,
as despite several opportunities given to him, he unable to furnish
necessary information with regard to the source of income and other
particulars, which are necessary for the effective investigation. Thus,
therefore, she urged that, the applicant failed to make out a special
case for exercise of powers to grant anticipatory bail.
11. It is settled position of law that, power under Section 438 of Cr.P.C,
is an extra ordinary powers and same has to be exercised sparingly
in exceptional cases, where the Court is of the prima-facie view that
the applicant has falsely been roped in the crime. The grant of
anticipatory bail to some extent interference in the sphere of
investigation of an offence and hence, the court must be circumspect
while exercising such powers and same is not to be granted as a
matter of rule and granted only when the court is convinced that the
exceptional circumstances exists to resort to that extra-ordinary
remedy.
12. In light of the principle of law enunciated by the Apex Court in its
various judgments and considering the peculiar facts and
circumstances of the present case, this Court is of considered
opinion that, the applicant is failed to make out a special case for
exercising of the power to grant pre-arrest bail. It is not in dispute
that, the principal accused Chandrakant Pandya, being a Public
Servant, had opened several bank accounts jointly with his two
daughters and niece. The case papers indicate that initially, the
applicant herein transferred amount in the bank account of the
principal accused and during the check period, he had transferred the
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huge amount in the bank accounts of the accused nos. 2, 3 and 4.
The applicant herein could not satisfactorily explained the source of
amount of unsecured loan allegedly advanced to the daughters of A-
1 and till date, it remains outstanding. In such circumstances, this
Court of the opinion that custodial interrogation of the applicant is
necessary on three counts, namely, (i) details of unsecured loan, (ii)
details of interest charged and interest received and (iii) source of
unsecured loan, as it is the case of the prosecution that, unexplained
credit in the form of bank transfers as unsecured loan, which were
then used to purchase movable and immovable properties. Thus, for
the fruitful investigation by the authorities, his custodial
interrogation is necessary. In State (CBI) Vs. Anil Sharma (1997
(7) SCC 187), the anticipatory bail was refused to MLA and son of
formal Union Minster for Telecommunications on the ground that in
case of corruption in high places where accused has held high
offices, he may wield, wide influence and the investigation could
suffer. The Apex Court observed "in a case like this, effective
interrogation of suspected person is a tremendous advantage in
disinterring many useful information and also materials which
would have been concealed. Succession of such interrogation would
allude if the suspected person knows that, he is well protected and
insulated by a pre-arrest bail during the time, he interrogated. In the
facts of present case, after getting the interim protection, the
applicant herein remained present before the I.O., however, I.O.
could not successfully elicited the necessary information to
strengthen the prosecution case.
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13. For the foregoing reasons, considering the nature, gravity of the
offence as well as role of the accused, it cannot be said that the
applicant herein has been falsely implicated in the offence. Thus,
without much further discussion on the merits of the case, this Court
finds that, the present case is not fit to exercise judicial discretion to
grant pre-arrest bail. Accordingly, petition stands dismissed. Rule is
discharged. Interim relief granted earlier stands vacated. Needless to
say that, the observations made herein above are only confined for
the adjudication of the instant petition and shall have no bearing
whatsoever on the merits of the case.
(ILESH J. VORA,J)
FURTHER ORDER :
After pronouncement of the order, the learned counsel Mr.
Bhanderi prays to extend the interim protection for 4 weeks so as to
enable the applicant to challenge the order before the Supreme Court. For
the reasons mentioned in the order, the prayer is declined.
(ILESH J. VORA,J)
P.S. JOSHI
