Gujarat High Court
Manish Mahendrabhai Patel vs State Of Gujarat on 14 February, 2024
NEUTRAL CITATION
R/CR.MA/21934/2023 ORDER DATED: 14/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 21934
of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 21940 of 2023
With
R/CRIMINAL MISC.APPLICATION NO. 21942 of 2023
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MANISH MAHENDRABHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR JAL UNWALLA, SR. ADVOCATE WITH MS KHYATI A CHUGH(10132)
for the Applicant(s) No. 1
MR. PARTH H BHATT(6381) for the Applicant(s) No. 1
MR MANTHAN K BHATT(6549) for the Respondent(s) No. 1
MS ASMITA PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 14/02/2024
COMMON ORAL ORDER
1. As all these pre-arrest bail applications arise from selfsame
facts, with consent of learned advocates for both the sides, they
are decided analogously by this common order.
2. By way of the present petitions under Section 438 of the
Code of Criminal Procedure, 1973, the petitioner has prayed to
release him on anticipatory bail in case of his arrest in
connection with the FIR registered as C.R.No.11196016230784
of 2023 registered with Makarpura Police Station, Vadodara,
C.R.No.11196002230508 of 2023 registered with Bapod Police
Station, Vadodara and C.R.No.11196004230628 of 2023
registered with Gotri Police Station, Vadodara.
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3. Facts of the case in Criminal Misc. Application No.21934 of
2023 are as under :-
3.1. The complainant has alleged that as he was desirous to
purchase residential bungalows, he approach the present
applicant being owner of 'Keya Reality and the scheme namely
'Dev Darshan Bungalow'. It is alleged that applicant has initiated
residential scheme namely 'Dev Darshan Bungalow'. The
complainant has booked units in the said scheme in the year
2011. It is alleged that present applicant cheated all the
members by accepting consideration but failed to hand over the
possession of unit and execute sale deed till now. It is alleged
that in the year 2016, on inquiry, the applicant informed that
the construction work is stopped due to difficulties faced. The
construction activities will resume shortly and will handover
possession of units as early as possible. The applicant in
connivance with other accused persons played fraud on the
complainant by accepting the amount and not delivering the
possession of property and not executing sale deeds. Therefore,
impugned FIR came to be registered.
4. Facts of case in Criminal Misc. Application No.21940 of
2023 are as under :-
4.1. It is alleged that applicant and accused no.2 are partners
in the firm namely 'Keya Buildtech LLP'. It is alleged that
accused persons have initiated commercial scheme namely
'Crystal Pramukh Commercial Hub'. The complainant booked
individual units in the said scheme in the year 2015. It is alleged
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R/CR.MA/21934/2023 ORDER DATED: 14/02/2024
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that applicant and other accused have cheated all the members
by accepting the consideration but failed to hand over the
possession of the unit and execute registered sale deed till now.
It is alleged that in the year 2020, construction of the project
was stopped during Covid-19 pandemic. On inquiring, the
applicant informed the booking holders that construction work is
stopped due to difficulties facts due to Covid-19. The
construction activities will resume shortly and will handover
possession of units as early as possible. The applicant in
connivance with other accused persons played fraud on the
complainant by accepting the amount and not delivering the
possession of property and not executing sale deeds. Therefore,
impugned FIR came to be registered.
5. Facts of the case in Criminal Misc. Application No.21942 of
2023 are as under :-
5.1. It is alleged that complainant in the year 2015 by
newspaper advertise got to know about the scheme namely
'Crystal Yagnapursh Commercial and Residential' which was
floated by the present applicant. It is alleged that complainant
booked flat in the said scheme in the year 2015. It is alleged that
the present applicant had cheated all the members by accepting
the consideration but failed to hand over the possession of unit
and execute sale deed till now. It is alleged that in the year 2016,
on inquiry, the applicant informed that the construction work is
stopped due to difficulties faced. The construction activities will
resume shortly and will handover possession of units as early as
possible. The applicant in connivance with other accused
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persons played fraud on the complainant by accepting the
amount and not delivering the possession of property and not
executing sale deeds and thereby committed offence. Therefore,
impugned FIR came to be registered.
6. Heard learned Senior Advocate Mr.Jal Unwalla assisted by
learned advocate Mr.Parth Bhatt, learned advocate Mr.Manthan
Bhatt for first informant in Criminal Misc. Application No.21934
of 2023 and Criminal Misc. Application No.21942 of 2023 and
learned APP for the State.
7. Learned Sr. Advocate Mr.Jal Unwalla for the petitioner
submits that in order to prove offence under section 406 and
420 of IPC, the prosecution is required to prove that intention of
the accused was to cheat or defraud victims since inception. It is
submitted that in the present case, the accused who was
reputed builder in Vadodara has floated various residential and
commercial scheme in Vadodara City. It is submitted that
unfortunately, Covid pandemic has played role of villain and
taken away his business and ruined his business activities and
because of that he could not complete his projects and could not
construct or complete the scheme which he has floated and
could not give possession of houses or shops which could be
given on completion of schemes to the purchasers. It is further
submitted that purchasers have invested the money but because
of circumstances, the petitioner could not give possession of
houses or shops to the purchasers who have purchased. The
petitioner has regret of it, but for such failure he could not be
inculpated into the offence.
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7.1. Apart from above submission, it is submitted that
maximum punishment which can be entailed in the offence is
upto 7 years. It is further submitted that time period of offence is
between 11.07.2011 to 02.09.2023. It is submitted that victim
and first informant having not received possession of house or
shop moved RERA authority under the RERA Act on 04.03.2020.
RERA Court ruled in favour of the victim and first informant and
subsequently also issued recovery certificate and directed
Collector to recover amount of compensation as arrears of land
revenue. It is submitted that the Collector sealed house of the
petitioner, pursuant to which the petitioner filed Special Civil
Application No.15491 of 2023 before this Court whereby, Co-
ordinate Bench on 05.09.2023 directed to file Undertaking before
the RERA authority to deposit 30% of the principal amount of
the order passed by the RERA authority within a period of 4
weeks from the date of order. It is further submitted that
subsequent thereto, following the order, the petitioner has not
only filed Undertaking, but also deposited sum of
Rs.44,46,600/- being 30% of principal amount, to be recovered
as per recovery certificate issued by RERA authority. Learned
Senior Advocate for the petitioner has placed on record
certificate to that effect issued by Nazir, RERA. It is also
submitted that for each FIR, the petitioner is ready and willing to
pay principal amount involved to the first informant. It is
submitted that to give effect of his submission, the petitioner has
filed Undertaking in respective bail application.
7.2. Upon above submissions, it is submitted by learned Senior
Advocate Mr.Unwalla for the petitioner that the petitioner is
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ready and willing to co-operate in investigation. There is no
flight-risk and the petitioner shall abide by any conditions which
may be imposed by this Court. Qua other offences registered
against the petitioner, it is submitted that all the offences are
registered against the petitioner inter-alia on the ground that
schemes floated by the petitioner in the same era could be not
completed because of pandemic and that could not said that the
petitioner has long history of having done crime or any
antecedent. Therefore, it is submitted to grant anticipatory bail
to the petitioner.
8. On the other hand, learned advocate Mr.Manthan Bhatt for
the first informant taking this Court through FIR submitted that
if the petitioner is ready and willing to extend Undertaking to all
the victims, then the petition may be considered. Alternatively,
it is submitted that the petitioner has siphoned money of
innocent investors / purchasers. The petitioner has taken money
from the victim and first informant in the year 2010 / 2011 and
yet has neither given possession of immovable property they
have purchased, nor has given possession of the property which
indicate cheating and criminal breach of trust at instance. It is
submitted that accused and his family are not extending co-
operation in investigation and brawling with the police officer. It
is submitted that accused is not responding to the RERA
authority and other officials and therefore, there is non co-
operation on the part of the petitioner who siphoned money of
investors or purchasers. It is submitted that the petitioner who
has huge financial liability may not be granted anticipatory bail.
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9. Learned APP joined the submission of learned advocate
Mr.Bhatt for the first informant and submitted that in view of
huge financial liability created against the petitioner, he may not
be granted anticipatory bail.
10. Having heard learned advocates for the parties, at the
outset what appears that various schemes were floated by the
petitioner in the year 2010. He has promised that he shall hand
over house or shops in the year 2013. It is admitted position that
in the year 2013, first informant did not get house or shop, yet
he remained silent for years together. First complaint which
came to be registered for such inaction was in the year 2020
before the RERA authority and RERA authority passed judgment
not only in favour of first informant but in favour of other victims
and directed to pay compensation and also issued recovery
certificate and thereafter, it was to be executed by the Collector
concerned as recovery amount as arrears of land revenue. What
further can be noticed that Co-ordinate Bench in Special Civil
Application No.15491 of 2023 directed petitioner - Rupal Manish
Patel who is wife of the petitioner to file Undertaking before the
RERA authority and deposit 30% of the principal amount of the
order passed by the RERA authority within period of 4 weeks
from the receipt of order. Certificate placed on record by learned
Senior Advocate Mr.Unwalla issued by Nazir indicates that
Rs.44,46,600/- has been deposited by the petitioner pursuant to
the order passed by RERA authority. What further appears that
the petitioner has filed Undertaking before this Court and
shown ready and willingness to deposit amount of
Rs.77,12,500/-, Rs.11,30,000/- and Rs.16,13,000/-
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respectively. These are the amount stated in the FIR.
11. Maximum punishment which can be entailed on successful
conviction is upto 7 years. On going through FIR, no case of
offence under section 503 of IPC i.e. intimidation is prima facie
visible. Rest of the offences relate to documentary evidence.
Directions issued in the case of Arnesh Kumar v/s. State of
Bihar [(2003 (8) SCC 273] reiterated in the case of Md. Asfak
Alam Vs. The State of Jharkhand and another reported in 2023
INSC 660 and pursuant to which, Circular No.C.2703/81 issued
by this Court is squarely applicable in the facts of the present
case.
12. Coupled with above reasons, if we go by the Undertaking
which is placed by the petitioner before this Court and as he is
ready and willing to pay amount to the first informant, the
petition deserves to be considered.
13. Learned Senior Advocate Mr.Unwalla submits that even if
first informant is not ready and willing to accept the amount
stated in the Undertaking, the petitioner would deposit the said
10 % amount before the RERA authority within 2 days from
today and 90% of the amount will be paid in equal installments
within a period of 11 months.
14. Taking into consideration the facts of the case, nature of
allegations, role attributed to the accused, without discussing
the evidence in detail, at this stage, I am inclined to exercise
discretion in favour of the petitioner.
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15. This Court while exercising discretion in favour of the
petitioner has taken into consideration law laid down by the
Apex Court in the case of Siddharam Satlingappa Mhetre vs.
State of Maharashtra and Ors. [2011] 1 SCC 694, wherein the
Hon'ble Apex Court reiterated the law laid down by the
Constitutional Bench in the the case of Shri Gurubaksh Singh
Sibbia & Ors. Vs. State of Punjab (1980) 2 SCC 665. This Court
has also taken into consideration law laid down in the case of
Sushila Agarwal v/s. State (NCT of Delhi [(2020) 5 SCC 1].
16. In the result, the present petitions are allowed by directing
that in the event of petitioner herein being arrested pursuant to
FIRs registered as C.R.No.11196016230784 of 2023 registered
with Makarpura Police Station, Vadodara,
C.R.No.11196002230508 of 2023 registered with Bapod Police
Station, Vadodara and C.R.No.11196004230628 of 2023
registered with Gotri Police Station, Vadodara, the petitioner
shall be released on bail on furnishing a personal bond of Rs.
25,000/- (Rupees Twenty Five Thousand only) with one surety of
like amount on the following conditions that the petitioner :
(a) shall cooperate with the investigation and make
himself available for interrogation whenever required;
(b) shall remain present at concerned Police Station on
11.03.2024 and 12.03.2024 between 10.00 a.m. and
4.00 p.m.;
(c) shall not directly or indirectly make any inducement,
threat or promise to any person acquainted with the
fact of the case so as to dissuade him from disclosing
such facts to the court or to any police officer;
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(d) shall not obstruct or hamper the police investigation
and not to play mischief with the evidence collected
or yet to be collected by the police;
(e) shall at the time of execution of bond, furnish the
address to the investigating officer and the court
concerned and shall not change residence till the
final disposal of the case till further orders;
(f) shall not leave India without the permission of the
concerned trial court and if having passport shall
deposit the same before the concerned trial court
within a week;
(g) shall deposit 10% of amount before the RERA
authority as per Undertaking filed before this Court
within 2 days and 90% of the amount will be paid in
equal installments within a period of 11 months.
RERA authority shall accept the said amount and
treat the same towards outstanding of total recovery
ordered by the RERA authority and it is needless to
say that it would be subject to outcome of RERA
proceedings.
17. If breach of any of the above conditions is committed by
the petitioner, the concerned learned Judge will be free to take
appropriate action in the matter. It will be open for the
concerned Court to delete, modify and/or relax any of the above
conditions in accordance with law. At the trial, the Trial Court
shall not be influenced by the prima facie observations made by
this Court while enlarging the petitioner on bail.
Direct service is permitted.
(J. C. DOSHI,J)
SATISH
