Gujarat High Court
Dineshbhai Jethalal Patel vs State Of Gujarat on 2 November, 2023
Bench: Divyesh A. Joshi
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R/CR.MA/12320/2023 CAV JUDGMENT DATED: 02/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 12320 of 2023
(FOR REGULAR BAIL - AFTER CHARGESHEET)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI : Sd/-
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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DINESHBHAI JETHALAL PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR RR MARSHAL, Sr. Adv. with MR DAIFRAZ HAVEWALLA(3982)
MR HRIDAY BUCH with MR PREM D DAVE(10958) for the
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CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 02/11/2023
CAV JUDGMENT
1. The present application is filed under Section 439
of the Code of Criminal Procedure, 1973, for
regular bail in connection with the FIR being C.R.
No.11210023230223/2023 registered with the
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Khatodara Police Station, Surat for the offence
punishable under Sections 409, 420, 504, 506(2)
and 120(B) of the Indian Penal Code.
2. Heard learned Senior Counsel, Mr. R.R. Marshal
assisted by learned advocate, Mr. Daifraz Havewall
for the applicant, learned APP Mr. Soaham Joshi
for the respondent - State of Gujarat and learned
advocate, Mr. Hriday Buch assisted by learned
advocate, Mr. Prem Dave for the original
complainant.
3. Learned Senior Counsel, Mr. Marshal submitted that
FIR has been registered on 13.03.2023 and on the
very same day i.e. on 13.03.2023, the applicant -
accused has been arrested and since then, he is in
judicial custody i.e. since last 7 months. It is
submitted that the investigation is already
completed and after submission of the chargesheet,
the present application is preferred. It is
submitted that entire case of the prosecution is
based upon documentary evidence, which are already
collected by the IO and those documents are part
and parcel of chargesheet papers and all the
offences are exclusively triable by the Court of
Magistrate. It is submitted that the present
applicant - accused is sufficiently punished as
the trial has not yet commenced and, hence, the
present applicant may be granted regular bail by
imposing suitable terms and conditions.
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4. Learned Senior Counsel further submitted that the
present applicant - accused is the proprietary
concerned of Shyam Fashion and as per the case of
the prosecution, the applicant has purchased total
goods worth of Rs.5,18,16,600/-, out of which, an
amount of Rs.2,57,21,616/- has already been paid
and outstanding dues is of Rs.2,60,94,984/-. It is
submitted that the applicant is also Partner of
Chitrakut Impex and as per the case of the
prosecution, total goods worth of Rs.2,81,32,421/-
were delivered by the Company to the applicant -
accused, out of which, an amount of
Rs.1,15,28,439/- has already been paid and
outstanding dues as on day is of Rs.1,66,03,982/-,
however, it is not the case of the complainant
that the present applicant has pocketed entire
amount of goods. It is further submitted that as
per the case of the prosecution, complaint is
registered against 8 persons, out of which, 2
accused persons have been shown as absconding
accused, who are not yet arrested and those
accused are the partners of the applicant -
accused and are equally liable to pay the
outstanding dues to the complainant and except the
present applicant, rest of the accused persons
have already been enlarged on bail by the
Coordinate Bench of this Court as well as the
concerned Sessions Court. It is submitted that in
the present case, the applicant himself has
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surrendered before the concerned Police Officer
and he has shown his bonafide and now the
investigation is already completed and, hence,
keeping the applicant behind the bars, no fruitful
purpose would be served.
5. Learned Senior Counsel has submitted that the bail
application preferred by the applicant - accused
before the concerned Sessions Court has not been
entertained by the concerned Sessions Court solely
on the count that there are antecedents of the
present applicant. Learned Senior Counsel has read
the affidavit filed by the IO before the concerned
Sessions Court and submitted that as per the case
of the prosecution, total 5 complaints have been
registered against the present applicant - accused
and out of those 5 FIRs, in 3 FIRs, the applicant
has been enlarged on bail, whereas 2 FIRs have
been quashed by the Coordinate Bench of this Court
on the basis of the settlement arrived at between
the parties. Learned Senior Counsel further
submitted that FIR cannot be used as a tool of
recovery of the amount and as the applicant is in
jail since 7 months, he is unable to repay the
said amount at this juncture as he is out of
business since last 7 months. It is, however
submitted under the instructions that the
applicant - accused is ready and willing to
deposit an amount of Rs.30,00,000/- before the
concerned trial court without prejudice to his
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rights and contentions. It is further submitted
that all are business transactions between the
complainant and the accused, however as a
pressurize tactics, civil dispute is given
criminal colour by lodging the aforesaid FIR.
6. At this stage, learned Senior Counsel has put
reliance upon the decisions of the Hon'ble Supreme
Court in case of Suresh Kukreja Vs. State of M.P.,
reported in AIR 2021 SC 2690 as well as in case of
Dilip Singh Vs. State of Madhya Pradesh & Anr.,
reported in (2021) 2 SCC 779. Learned Senior
Counsel, after referring to the observations made
by the Hon'ble Supreme Court in the aforesaid
decisions, submitted that the ratio enunciated by
the Hon'ble Supreme Court is squarely applicable
to the facts of the present case. It is,
therefore, urged that the present application may
be allowed.
7. Learned APP Mr. Joshi for the respondent-State has
opposed grant of regular bail looking to the
nature and gravity of the offence. It is submitted
that the role of the present applicant - accused
is clearly spelt-out from the chargesheet papers
and the applicant is the king ping in the alleged
commission of offence and by adopting same tactics
and modus operandi, the applicant has duped number
of persons and the said fact is clearly revealed
from the statements of number of witnesses and
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those witnesses have come with the case that the
present applicant - accused has received huge
amount of goods from them and had not repaid the
said amount. It is, therefore, urged that
considering the role attributed to the present
applicant - accused at the time of commission of
crime, the present application may not be
entertained.
8. Learned advocate, Mr. Buch submitted that the
present applicant is the main accused and he has
adopted systematic designed plan to dupe the
innocent persons. It is submitted that number of
FIRs have been registered against the present
applicant and if this Hon'ble Court would go
through the contents of the allegations leveled
against the present applicant - accused in those
complaints (FIRs), in that event, it would be
found out that the modus operandi adopted by the
applicant to dupe persons is identical in nature,
therefore, it cannot be said that present
transactions are simply business transactions and
due to non repayment of the amount, complaint has
been registered.
9. Learned advocate further submitted that present
FIR has been registered against the applicant -
accused as well as other accused persons, who are
relatives and closely related and associated with
each other as some of them are partners, real
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brothers and nephew of the present applicant -
accused. Learned advocate submits that to oppose
the present application, the original complainant
has filed an affidavit, wherein it is stated in
clear terms by the complainant that total 19
private complaints have been registered against
the applicant - accused under Section 138 of the
Negotiable Instrument Act. It is further submitted
that there are number of FIRs registered against
the present applicant - accused and out of which,
one is registered at Ahmedabad, one is registered
at Surat and Maharashtra and other FIRs are
registered in different police stations and thus
in short, these is the modus on the part of the
applicant - accused that he used to pursue the
persons to provide goods to him on credit and,
thereafter, he used to sale the goods in open
market without paying total consideration of
goods. It is submitted that a well designed
systematic organize modus is adopted by the
applicant - accused to dupe the innocent people by
luring them that they are having big business
connections in the market in a particular
territory of area and if they will start to do
business with them, in that event, they would be
in a position to earn huge amount as profit and by
adopting the same pattern, mode, manner and modus
operandi, they have duped number of persons in
different cities and complaints have been
registered against them at those different places.
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Learned advocate has further submitted that during
the pendency of the present bail application, one
another FIR is registered against the present
applicant - accused by third party, wherein the
allegations are also of similar nature, therefore,
it can safely be said that the present applicant -
accused is in habit of indulging into similar type
of offences continuously.
10. Learned advocate submitted that out of those
pending FIRs, two FIRs have been quashed by the
Coordinate Bench of this Court solely on the count
that the matter has been settled between the
parties out of the Court and the present applicant
has repaid entire sum of amount of consideration
to the original complainant, therefore, the said
complaints have been quashed on the basis of the
settlement arrived at between the parties without
touching to the merits and demerits of the case.
11. Learned advocate submitted that at the time of
considering the bail application, the gravity of
the offence, the role attributed to the present
applicant - accused at the time of commission of
crime and propensity of the intention of the
applicant - accused at the time of commission of
crime is required to be seen and recently the
Hon'ble Apex Court has rejected the bail
application of the accused considering the
propensity of crime and charges leveled against
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the accused.
12. I have heard the learned advocates appearing on
behalf of the respective parties and perused the
papers of the investigation and considered the
allegations levelled against the applicant and the
role played by the applicant.
13. It is found out from the papers of the chargesheet
that the applicant - accused is dealing in the
textile business in the name and style of Shyam
Fashion and Chitrakut Impex and it is the modus
operandi of the applicant - accused to purchase
the goods in lakhs of rupees after luring the
people and after winning over the trust of said
persons, the accused used to cheat them by not
making payment of those goods and it is not that
the applicant has committed the offence for the
first time but along with the present offence,
there are other offences registered against him,
wherein also, charge of accusation and allegations
are similar in nature and similar type of modus
operandi has been adopted by the applicant -
accused, which is also found out from the
investigation papers.
14. It is also found out from the papers of the
chargesheet as well as from the submissions made
by learned advocate, Mr. Buch appearing for the
original complainant that there are antecedents
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against the present applicants in similar type of
offence. It is required to be noted that though it
is contended by learned advocate for the applicant
that out of those 5 offences, in 3 FIRs, the
applicant has been enlarged on bail, whereas 2
FIRs have been quashed by the Coordinate Bench of
this Court on the basis of the settlement arrived
at between the parties. It is required to be noted
that 2 FIRs have been quashed by the Coordinate
Bench of this Court on the ground of settlement
arrived at by and between the parties, wherein the
applicant has made the payment of the outstanding
dues, for which, FIRs were registered, therefore
merely because of quashment of those FIRs, the
case of the applicant for the grant of bail cannot
be considered. The record indicates that the
applicant is habitual offender and his involvement
is found in number of FIRs registered against him
at different police stations in different States,
wherein the mode, manner and modus operandi
adopted by the present applicant is identically
similar. Over and above that, the applicant -
accused is equally liable for the alleged offence
compared to other offences, who are also involved
and who are also yet to be arrested.
15. It is found out that other co-accused has already
been enlarged on bail by the Coordinate Bench of
this Court and, therefore at the time of making
submission in this application, learned Senior
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Counsel has put reliance upon the principle of law
of parity. I have perused the police papers as
well as other documents produced by the applicant
along with memo of application and it is found out
that as per the case of the prosecution, role of
other accused are quite dissimilar to the role of
the present applicant as the applicant is the main
accused and he has given assurance to the
complainant to enter into the business of the
Company for the purpose of getting huge profit
from the transaction of business and he has lured
the complainant and other witnesses to enter into
the business of the applicant's company and thus,
the role of the present applicant is of main
accused and he has actively participated in the
commission of crime by receiving huge chunk of
goods from the complainant and not repaying the
outstanding dues as per the assurance given to the
complainant within the time framed scheduled.
16. I have also considered the affidavit filed by the
IO before the concerned Court opposing the bail
application filed by the applicant and found that
the concerned IO has specifically narrated the
role played by the applicant - accused in the
commission of crime and the modus operandi of the
applicant accused. I have also gone through the
order passed by the concerned Court rejecting the
bail application of the applicant - accused as
also considered the findings given and conclusion
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arrived at and I am of the opinion that the said
order does not require any interference from this
Hon'ble Court. I have also gone through the ratio
decided and principle enunciated by the Hon'ble
Supreme Court in the decisions upon which reliance
has been put by learned advocate for the applicant
and I am of the opinion that the facts of those
cases are quite dissimilar to the facts of present
case and are not applicable to the facts of the
present case.
17. Therefore considering the gravity of offence, role
attributed to the present applicant, antecedents
of the applicant, I am of the opinion that this is
not a fit case, wherein discretion can be exercise
in favour of the present applicant - accused.
Hence, this application is rejected. Rule is
discharged.
Sd/-
(DIVYESH A. JOSHI, J.)
Gautam
