Amarnihal Singh Wadhwa vs State Of Gujarat
2024 Latest Caselaw 377 Guj

Gujarat High Court

Amarnihal Singh Wadhwa vs State Of Gujarat on 16 January, 2024

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     R/CR.MA/20094/2023                           ORDER DATED: 16/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 20094
                           of 2023
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                          AMARNIHAL SINGH WADHWA
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR ASHISHDEEP VERMA WITH MR ARVIND K THAKUR(2322) for the
Applicant(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 : 16/01/2024

                               ORAL ORDER

1. By way of the present petition 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 being C.R.No.11210062230063 of 2023 registered with Cyber Crime Police Station, Surat.

2. Learned advocate for the petitioner submits that the petitioner has not played any role in commission of offence. It is PLC-Ultima company who has exchanged PLC-Ultima coin to PLCU-Classic in which the petitioner has no role to play. The petitioner has conducted seminar and displayed information to the investor to invest in digital currency. He would further submit that though initially RBI has banned digital currency, but Hon'ble Apex Court in the case of Internet and Mobile Association of India v/s. Reserve Bank of India [Writ Petition (Civil) No.528 of 2018] has quashed and set aside Circular of Reserve Bank of India on the issue of lacking proportionality. Thus, there is no ban on purchasing or selling digital currency.

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He would further submit that other accused - Niteshkumar Sorathiya has been granted anticipatory bail by this Court in Criminal Misc.Application No.1158 of 2019 and other accused who have coughed with similar role have been granted regular bail by the learned Sessions Judge. These factors weighs in favour of the petitioner. It is submitted that the petitioner is ready and willing to co-operate in the investigation. The petitioner is having movable and immovable property and therefore, there is no flight risk. The petitioner has not siphoned or duped any amount of investors. The petitioner has also invested in digital currency, and at the most, he can be considered as victim and not accused. On above, submissions, it is requested to allow this petition.

3. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. She submitted that the petitioner is one of the main promoter of PLC-Ultima as per FIR. The petitioner has got financial gain from the alleged transaction. The petitioner was very well knowing that price of PLCU-Classic shall be down, yet the petitioner has transferred the coins from PLC-Ultima to PLCU-Classic and thereby played major role in committing offence and therefore, custodial interrogation is required. The petitioner is on run and not co- operated in investigation and thus, the petitioner may not be enlarged on anticipatory bail.

4. Heard the learned Advocates for the respective parties and perused the papers.

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5. Having heard the learned counsel for the parties and having gone through the judgment of the Hon'ble Apex Court in the case of Internet and Mobile Association of India (supra), it appears that RBI circular is set at naught by Hon'ble Apex Court on the issue of proportionality. There is no other circular on the issue pointed by the learned APP which prohibits transaction of digital currency.

6. General terms and conditions of PLC Ultima are annexed Annexure A-2. Clause 8(D) reads as under :-

8(D) No guarantees / modification, restriction of services of PLC Ultima / transfer to third parties

(1) Your access to the website and the services of PLC Ultima is at your risk.

(2) PLC Ultima is authorized to modify the website and services offered by PLC Ultima free of charge without prior announcement or liability.

(3) PLC Ultima reserves the right to limit the use of services including the ability of contacting other members, through the website if PLC Ultima is of the opinion that such violate contractual or legal obligations or the services are otherwise abused.

(4) PLC Ultima does not guarantee that within the scope of the competent jurisdiction under your national law it is legal for you to use the services of PLC Ultima or to advertise such or to participate in any activities of PLC Ultima; that access to the PLC Ultima website is at any time faultless and interference-free, timely, or secure and that defects are rectified.

(5) PLC Ultima reserves the right to transfer, assign, sublicense or pledge, in whole or in part, its business, individual assets hereof or individual rights and obligations under this User Agreement to third parties without prior notice, provided that the third party also complies with applicable contract and other laws.

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7. Clause 9(1) of the general terms and conditions of PLC Ultima is material, which reads as under :-

(1) PLC Ultima is entitled to change this contract any time. PLC Ultima will announce changes via e-mail with a notice period of six weeks before the change comes into force, specifying the future change of the contract. The User has the right to object to the amendment or to terminate the contract in text form without notice as of the effective date of the amendment. In case of objection, PLC Ultima is entitled to terminate the contract properly. If the User does not terminate the contract or does not object to the change until the change comes into effect, the changes will come into effect from the date stated in the change notice. PLC Ultima is obliged to inform the User about the meaning of his / her silence in the notice of change.

7.1. It appears that there is no embargo on PLC-Ultima to transfer any digital currency. In fact, it was part of general terms and conditions of PLC-Ultima signed by the victim or complainant.

8. On going through the FIR and record, what appears that investors have invested in digital currency on their own and willingness in PLC-Ultima. At that time, they have agreed to transfer the same in other digital currency. Digital currency of PLC-Ultima was transferred to PLCU-Classic. Unfortunately, international price of PLCU-Classic dropped and therefore, FIR is registered. On perusal of page no.34 of the compilation which is filed by the Investigating Officer before the learned Sessions Court, it appears that the petitioner and other persons have been arraigned as accused on the ground that they have conducted seminar putting knowledge before public at large to invest in PLC-Ultima. Apart from this, there is no role alleged in

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the affidavit. Looking to this aspect, case of custodial interrogation is not made out.

9. It is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon'ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided.

10. 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

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Sushila Agarwal v/s. State (NCT of Delhi [(2020) 5 SCC 1].

11. In the result, the present petition is allowed by directing that in the event of applicant herein being arrested pursuant to FIR registered as C.R.No.11210062230063 of 2023 registered with Cyber Crime Police Station, Surat, the petitioner shall be released on bail on furnishing a personal bond of Rs. 10,000/- (Rupees Ten 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 22.01.2024 to 25.01.2024 between 11.00 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;

(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;

12. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand

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of the petitioner. The petitioner shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the petitioner, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.

13. 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.

14. Direct service is permitted.

(J. C. DOSHI,J) SATISH