Car Pavillion Pvt. Ltd vs State Of Haryana And Another
2023 Latest Caselaw 14230 P&H

                                  IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                 CHANDIGARH


                                                                               CRM-M-10524-2023
                                                                       Date of Decision: 28.08.2023


                      CAR PAVILLION PVT. LTD.
                                                                                   ...Petitioner

                                                            Versus

                      STATE OF HARYANA AND ANOTHER
                                                                                   ...Respondents

                      CORAM: HON'BLE MR. JUSTICE HARSH BUNGER

                      Present :       Mr. Narender Hooda, Senior Advocate assisted by
                                      Mr. Rishab Raj Jain, Advocate and
                                      Mr. Naveen Sharma, Advocate
                                      for the petitioner.

                                      Mr. Rajiv Goel, D.A.G., Haryana.

                                      Dr. Anmol Rattan Sidhu, Senior Advocate assisted by
                                      Mr. R.C. Tiwari, Advocate
                                      Mr. Anil Kumar Rana, Advocate
                                      and Mr. Subhash Chand, Advocate
                                      for respondent No.2.


                      HARSH BUNGER, J.

Petitioner-Car Pavillion Private Limited has filed this petition

under Section 439(2) of the Code of Criminal Procedure, 1973 (for short

`the Cr.P.C.'), seeking cancellation of regular bail granted to respondent

No.2 (Vipul Natwarlal Dholakia) in case FIR No.27 dated 08.05.2021,

under Sections 66, 66-D of the Information Technology Act, 2008 and

under Section 420 of the Indian Penal Code (for short `the IPC') by learned

Additional Sessions Judge, Gurugram vide order dated 10.02.2023

(Annexure P-2).

2. Briefly, the afore-said case FIR has been registered on the

GURPREET KAUR complaint of Vivek Rathi, authorized representative of Car Pavillion 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

Private Limited (in short `CPPL'); wherein it was stated that the

complainant is a private limited company and is dealing in sale and

purchase of used cars, having its registered Office at 8, Baldev Nagar,

Khuei Khas, Delhi, with its branch at 3rd Floor, Tower-B, Unitech Cyber

Pass, Gurugram. In the complaint, it has been alleged that one of the

accused i.e. M/s Bytie Enterprises, sole proprietorship concern of Mr.

Shivam Singh, has either hacked the bank account of the petitioner-

company or colluded with one or more of the employees of the petitioner-

company (as listed in Annexure `E' of the complaint), who have access to

its E-net Banking facility, which resulted in illegal transfer and

embezzlement of funds of a sum of Rs.4 crores. As per the petitioner-

company, it maintains the Current Bank Account for its business with

ICICI Bank Limited, having its branch at Gurgaon, which is stated to have

been opened on 09.07.2020. As per the petitioner-complainant, it has

availed the facility of E-net Banking Services from the said bank to carry

out transactions over various channels of communication like the internet

including but not limited to the funds transfer facility by giving payment

instructions whether through Electronic Clearing Service or otherwise. It is

stated that the funds transfer facility can be used to transfer funds to third

party i.e. like the primary accused and E-net is a Corporate Internet

Banking Portal, which works on Inputter-Authorizer concept in which an

Inputter initiates the transaction, using his/her login credentials, which is

further approved by an authorizer (approver), using his/her individual login

credentials and Digital Certificate. It is stated that E-net can be accessed

anywhere by the Inputter-Authorizer, irrespective of the

location/time/PC/laptop, having internet link and it requires user's

credentials and digital certificate of authorization, which are both requisite GURPREET KAUR 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

for E-net login and transaction, which is stated to have been provided by

ICICI Bank, to the petitioner-company.

3. As per the petitioner-company, for the business purposes and

banking transactions, the company as per the internal practice, had given

the user ID and password, for the afore-said E-net portal, for both Inputter-

Authorizer to a limited number of employees of the Company, who are

working in the Finance Department of the petitioner-company and certain

other authorized persons. As per the petitioner-complainant, these persons

are not only responsible but also accountable for managing the banking

transactions and transfer of funds, as per the instructions and requirement.

The detail of such persons, having access to the USER ID and Password are

provided in Annexure `E' of the complaint and are referred to as

"Secondary Accused". It is further stated in the complaint that the

Secondary Accused are carrying out the banking transactions on behalf of

the petitioner-company on regular basis, using the E-net facility (either

individually and/or jointly, using USER ID and Password for both Inputter-

Authorizer. As per the petitioner-complainant, the limit of the employees to

use the E-net facility to carry out the transfer of funds to third party was set

to maximum of a sum of Rs.25 lacs, per transaction. It is alleged that on

08.04.2021 (at around 14:47:27 p.m.), either individually or jointly, a few

of the Secondary Accused carried out 16 illegal transactions of Rs.25 lacs,

each by using the afore-said E-net facility and illegally transferred the sum

of Rs.4 crores, to the Bank Account bearing No.348805500316,

maintained with ICICI Bank Limited, in the name of the primary accused

i.e. M/s Bytie Enterprises, sole proprietorship concern of Mr. Shivam

Singh. The copy of the Bank Statement of the petitioner-company along

with supporting E-net Facility Ledger, attached with the complaint as GURPREET KAUR 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

Annexure `C'. As per the petitioner-complainant, it was unable to ascertain

who exactly in the list of the Secondary Accused, have illegally carried out

the afore-mentioned transfer of funds from the CPPL Bank Account to the

bank account of the Primary Accused i.e. M/s Bytie Enterprises, sole

proprietorship concern of Mr. Shivam Singh. It is alleged that the Primary

Accused has conspired with one or more of the Secondary Accused and got

the funds of Rs.4 crores transferred to his account in a well-crafted modus

operandi. As per the petitioner-complainant, its Company does fortnightly

re-conciliation of CPPL Bank Accounts and its balance and during such re-

conciliation carried out by the company officials on 26.04.2021, it

transpired that the said transfer of funds of Rs.4 crores to the Primary

Accused i.e. M/s Bytie Enterprises, is not authorized and has been illegally

carried out. It is stated that the Primary Accused i.e. M/s Bytie Enterprises,

is not the authorized beneficiary of the petitioner-company and the funds

have been illegally transferred by either jointly or individually or severally

by one or more of the Secondary Accused in collusion with the Primary

Accused. It was stated that due to prevalent Covid-19 pandemic, the

persons listed as Secondary Accused were carrying out the work from home

and were not readily available at the office premises of the petitioner-

company, in order to enable the petitioner-company to verify and check

with them. It is stated that when the petitioner-company became aware of

the afore-said fraud on 26.04.2021, then immediately they submitted a letter

dated 27.04.2021 to the ICICI Bank Limited, asking them for reversal of

the transaction and also the details of the beneficiary/primary accused. The

petitioner-complainant further asked ICICI Bank to provide the I.P Address

used for transfer of funds from the bank account of the petitioner-company

in order to locate the persons in the list of Secondary Accused, who used GURPREET KAUR 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

the E-net facility to carry out the said illegal transfer of Rs.4 crores to the

Primary Accused. As per the petitioner-complainant, it has received a copy

of e-mail dated 27.04.2021 from the bank, stating that they shall keep the

police informed. According to the petitioner-complainant, it has been

informed by the ICICI Bank that the beneficiary or the Primary Accused

i.e. M/s Bytie Enterprises, has transferred the entire amount of Rs.4 crores

on 08.04.2021 to two different bank accounts for a sum of Rs.3.9 crores and

Rs.10 lakh, respectively, into Axis Bank Account No.919020092548506

and IDBI Account No.0130102000038641. Accordingly, the petitioner-

complainant stated that the Primary Accused has managed to transfer the

money to various other bank accounts or may be in the process of illegally

withdrawing the same; therefore, the Primary Accused has colluded with

one or more of the Secondary Accused (as listed in Annexure `E') and as

indulged in illegal transfer and embezzlement of funds of Rs.4 crores and

further transferred the funds to various accounts and thereby committing an

offence of criminal breach of trust, misappropriation of funds, cheating,

embezzlement, resulting in un-lawful gain to themselves and an un-lawful

loss to the petitioner-company. Accordingly, the above-said case FIR was

registered.

4. In the status report filed on behalf of State of Haryana, it is

mentioned that during the course of investigation of the afore-said FIR, it

has come forth that an amount of Rs.4 crore was transferred into the

account of firm M/s Bytie Enterprises (firm of accused Shivam Singh). Said

Shivam Singh is stated to have been arrested on 22.05.2021; whereupon,

during interrogation, he suffered a disclosure statement, stating that

co-accused Ankit Singh, had affixed the signatures of Shivam Singh on the

cheque used for opening the account of M/s Bytie Enterprises. Accordingly, GURPREET KAUR 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

Sections 467, 468, 471 and 120-B IPC were added in the case. As per the

status report, accused Ankit Singh was arrested on 29.05.2021, who also

suffered a disclosure statement wherein he named Amarjeet Kumar Gupta

and he got recovered a SIM card of Mobile No.96075-11507 (which was

registered in the bank account of M/s Bytie Enterprises) and he also

demarcated the place where he had withdrawn Rs.1 lac of M/s Bytie

Enterprises from the ATM and further got recovered the amount of Rs.1.5

lacs from the amount of Rs.4 lacs, coming to his share. It is stated in the

status report that Amarjeet Kumar Gupta @ Amar @ Ravi Kumar, was

arrested on 25.06.2021, who also suffered a disclosure statement and

further got recovered an amount of Rs.40,000/- and three cheque books.

The challan against accused Amarjeet Gupta, Shivam Singh and Ankit

Singh, was submitted in the Court on 18.08.2021. As per the status report,

the name of Umesh Gupta @ Ishu came forth during the enquiry conducted

from the employees of the petitioner-company and accordingly, he was

arrested on 12.09.2021; whereupon he got recovered an amount of

Rs.8 lacs, which had come to his share; accordingly, the offence under

Section 408 of the Indian Penal Code, was added in the case on 14.09.2021

as he is the Account Associate of the petitioner-company and he had

provided the Net Banking User ID and Password to co-accused Anshul

Tyagi, Saurabh Sharma, Rahul, Sanjeev and Anant Singh @ Anna and all

of them transferred the amount of Rs.4 crores through net-banking. It is

further mentioned in the status report that Anshul Tyagi, whose name came

forth in the disclosure statement of Umesh Gupta, was arrested on

19.10.2021. Said Anshul Tyagi got recovered the laptop used by him in the

alleged crime. Supplementary challan is stated to have been submitted

against Umesh Gupta and accused Anshul Tyagi, on 09.12.2021 for the GURPREET KAUR 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

offence under Sections 408, 420, 467, 468, 471, 120-B IPC and Sections

66/66-D of the Information and Technology Act. As per the status report,

the raid was conducted to apprehend accused Hameed Abbas Ali Khan and

S. Xavier Susairathinam (beneficiary account holders as the amount of

Rs.20 lakhs has been credited in the account of accused Hameed Abbas Ali

Khan and the amount of Rs.10 lakhs has been credited in the account of

accused S. Xavier Susairathinam). During raid, it came forth that accused S.

Xavier Susairathinam is admitted in De-Addiction Cum Rehabilitation

Centre, District Kancheepuram, Tamil Nadu since 17.09.2022. However,

accused Hameed Abbas Ali Khan could not be found during raid. It is

further mentioned in the status report that accused Amit Jindal was arrested

on 16.12.2022, who suffered a disclosure statement that the amount of

Rs.10 lacs was received in the account of M/s Bytie Enterprises from the

account of the petitioner-company and the said amount was transferred

from M/s Bytie Enterprises to the merchant account of Paymark Payment

Technologies and Service Pvt. Ltd. of accused Amit Jindal. It is further

mentioned in the status report that on the asking of one Sarita Bhatnagar, he

(Amit Jindal) gave the amount of Rs.9,80,000/- to the girl sent by another

accused Anant Singh and he kept Rs.20,000/- as commission at the rate of

.2%. Amit Jindal is stated to have got recovered the mobile phone having

SIM No.8800510819, from where the WhatsApp chat of Amit Jindal and

Sarita Bhatnagar, was extracted and the phone was sent to the DITAC Lab

for retrieval of data and the report is stated to be awaited. It is also

mentioned in the status report that the raid was conducted at Delhi to join

Sarita Bhatnagar in the investigation; however, she could not be found and

is stated to be absconding.

GURPREET KAUR 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

5. As per status report, accused Ravinder Kumar Raichand Bhai

Majethia @ Ravi Thakkar (whose name came forth in the statement of

Vipul Natwarlal Dhokalia), is stated to have been arrested on 28.12.2022,

who also suffered a disclosure statement and he further got recovered an

amount of Rs.32,000/- out of the amount of Rs.72,000/- which came to his

share along with two mobile phones. Aforesaid Ravinder Kumar Raichand

Bhai Majethia @ Ravi Thakkar, is stated to have been granted bail by the

Court of Additional Sessions Judge, Gurugram on 21.01.2023 and on dated

07.02.2022, even his passport was also ordered to be released.

6. It is mentioned in the status report that Ravinder Kumar

Raichand Bhai Majethia @ Ravi Thakkar, had further named one

Goswami Bhagwat Puri, in his disclosure statement, who was also

arrested and he got recovered an amount of Rs.20,000/- out of amount

of Rs.36,000/-, which allegedly came to his share.

Accused-Goswami Bhagwat Puri, is also stated to have been granted bail

by the Additional Sessions Judge, Gurugram on 21.02.2023.

7. As per status report, accused-Vipul Natwarlal Dholakia, was

arrested on 01.01.2023. It is further mentioned that after the arrest of

Ravinder Kumar Raichand Bhai Majethia @ Ravi Thakkar, it transpired

that an amount of Rs.3,59,00,000/- came to accused Vipul Dholakia and he

purchased the gold of the said amount and thereafter, received the cash

amount of Rs.3,59,00,000/- by selling the said gold. It is submitted that

accused Vipul Natwarlal Dholakia received Rs.72,000/- in his share and he

got recovered an amount of Rs.21,500/- out of the afore-said amount of

Rs.72,000/- and two mobile phones. Said Vipul Natwarlal Dholakia is also

stated to have been granted bail by the learned Additional Sessions Judge,

Gurugram on 10.02.2023. Three other accused namely Anant Singh GURPREET KAUR 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

@ Anna, Hameed Abbas Ali Khan and Saurabh Sharma, are yet to be

arrested and raids were conducted to arrest them.

8. As regards Anant Singh @ Anna, it is mentioned in the status

report that as per information provided by the Immigration Department, he

had travelled to U.A.E. on 20.09.2020 and returned to India on 11.10.2020

and thereafter, the Investigating Officer technically examined the e-mail ID

of accused-Anant Singh and the IP logs of the said e-mail were found to be

of Dubai (U.A.E.) as on 12.12.2022. It is mentioned that there are total 14

accused in the present case at this stage. However, the number of accused

may increase as per the investigation being conducted. It is further

mentioned that out of total 14 accused, 09 accused namely; Shivam Singh,

Ankit Singh, Anshul Tyagi, Umesh Gupta, Amarjeet Kumar Gupta, Amit

Jindal, Ravinder Kumar Raichand Bhai Majethia @ Ravi Thakkar,

Goswami BhagwatPuri and Vipul Natwarlal Dholakia, have been arrested

during investigation; whereas arrest warrants of three accused Hameed

Abbas Ali Khan, Anant Singh @ Anna and Saurabh Sharma, have been

issued. Susairathinam, is stated to be admitted in De-Addiction-cum-

Rehabilitation Centre. Accused-Sarita Bhatnagar is stated to be absconding.

9. As regards the role of Vipul Natwarlal Dholakia, it is

mentioned that he is the known of accused Ravinder Kumar Raichand Bhai

Majethia @ Ravi Thakkar. The accused Goswami Bhagwat Puri has asked

for the bank account from the accused Ravinder Kumar Raichand Bhai

Majethia @ Ravi Thakkar. The accused Ravinder Kumar Raichand Bhai

Majethia @ Ravi Thakkar has contacted the accused Vipul Natwarlal

Dholakia for the bank account, who provided his IDBI bank account

No.01301020000384641 to him. The accused Ravinder Kumar Raichand

Bhai Majethia @ Ravi Thakkar shared the bank account details to the GURPREET KAUR 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

accused Goswami Bhagwat Puri who further shared the bank details with

the accused Anant Singh. The accused Anant Singh has transferred the

amount of Rs.3,59,00,000/- to the accused Vipul Natwarlal Dholakia's

IDBI bank account No.0130102000038641 from Bytie Enterprises Bank

Account. The accused Vipul Natwarlal Dholakia has purchased the gold of

the said amount and thereafter he received the cash amount by selling the

gold. The accused Vipul Natwarlal Dholakia had given the said cash

amount to the accused Ravinder Kumar Raichand Bhai Majethia

@ Ravi Thakkar. The accused Ravinder Kumar Raichand Bhai Majethia

@ Ravi Thakkar had given the said amount to the accused Goswami

Bhagwat Puri who further gave the said cash amount to the accused Anant

Singh. The accused Vipul Natwarlal Dholakia has received an amount of

Rs.72,000/- which come to his share out of which Rs.21,500/- and 2 mobile

phones was got recovered during the police remand. The accused Vipul

Natwarlal Dholakia is the account holder of IDBI bank account in which

the beneficiary amount of Rs.3,59,00,000/- is transferred from Bytie

Enterprises. It is stated that the accused Vipul Natwarlal Dholakia has also

produced the fake Bytie Enterprises Bills in order to mislead the police

investigation during his previous statement.

10. By way of this petition, the petitioner herein challenges very

grant of bail to respondent No.2, vide order dated 10.02.2023 (Annexure

P-2) passed by learned Additional Sessions Judge, Gurugram.

11. Before considering the submissions raised by learned senior

counsel for the petitioner, it would be apposite to refer to the

considerations, which have weighed with the learned Additional Sessions

Judge, Gurugram, while granting bail to respondent No.2 in this case. A

GURPREET KAUR 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

perusal of order dated 10.02.2023 would manifest that respondent No.2 has

been granted bail taking into account the following facts/considerations ;

                                      (i)     Respondent no.2 was not named in the FIR;
                                      (ii)    During investigation, respondent No.2 had got recorded

his statement under Section 161 Cr.P.C., wherein he stated that he is running a firm in the name and style of "Vipul Jewellers Anand Chambers" which deals in the sale and purchase of silver and gold, for the last 3-4 years and he has a bank account bearing No.0130102000038641, in IDBI bank, in the name of his firm. He further stated that he came to know from the bank that his aforesaid account has been freezed by the police of Gurugram Cyber Crime and he had been asked to explain the amount received by him in his afore-said account. Respondent no.2 is stated to have explained that one Ravi Thakkar (co-accused) is also dealing in the sale and purchase of silver and gold and said Ravi Thakkar had come to respondent No.2 and told him that there is one party from Delhi, who was interested in purchasing gold of Rs.3-4 crores and respondent No.2 assured said Ravi Thakkar, to supply the gold on receipt of money in his account and thereafter, the amount was transferred into the account of Vipul Jewellers (Account No.0130102000038641) from the account of M/s Bytie Enterprise. Respondent no.2 has explained that he had sold the gold against payment of Rs.3,59,00,000/-. Respondent no.2 further explained that he does not know as to whom said Ravi Thakkar had sold the gold.

(iii) As per the final report under Section 173 Cr.P.C. dated 18.02.2021, respondent No.2 was found innocent.

(iv) The role of respondent No.2 comes into picture only after the commission of offence.

(v) No connection, prior to the commission of offence between respondent No.2 and the perpetrators of crime has been shown on record.

(vi) Respondent no.2 has sold the gold against the payment.

GURPREET KAUR 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

(vii) Co-accused Ankit, who is the main conspirator, has been granted bail by Punjab and Haryana High Court vide order dated 21.11.2022.

(viii) Another co-accused Ravinder Kumar had also been granted bail by the said Court on 21.01.2023.

(ix) Respondent no.2 was in custody since 03.01.2023.

(x) All the offences are triable by the Magistrate;

(xi) Investigation qua the co-accused has already been completed and challan qua them has been filed.

12. Further, learned Additional Sessions Judge, Gurugram has

admitted respondent No.2 to regular bail on the following conditions :-

" furnish bail bonds in the sum of Rs.50,000/- with one surety in the like amount to the satisfaction of Illaqa Magistrate/Duty Magistrate."

13. Learned senior counsel for the petitioner, inter alia, seeks

cancellation of bail to respondent No.2-Vipul Natwarlal Dholakia, by

submitting as under :-

"(i) The learned Court below had failed to appreciate that respondent No.2-Vipul Natwarlal Dholakia, in his initial statement dated 17.05.2021 stated that co-accused Ravi Thakkar had approached him on the pretext that some party from Delhi wanted to purchase gold worth Rs.3-4 crores and money was transferred to his account in the name of VipulJewellers from the account of M/s Bytie Enterprises and he gave the gold to Ravi Thakkar. However, subsequently upon further investigation, it was revealed that accused-Ravi Thakkar had given the bank account no. of respondent No.2 maintained with IDBI bank to another co-accused Goswami BhagwatPuri (@ Baapji) and thereafter, Baapji had deposited Rs.3,59,00,000/- in the bank account of respondent No.2. It is submitted that subsequently, respondent No.2 after converting the said amount to cash by fabricating fake bills in the name of Bytie Enterprises GURPREET KAUR 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

purchased gold from various vendors and then sold the same in the market for cash and the said cash was then transferred by respondent No.2 to the accused-Ravi Thakkar, who in turn, transferred the same to the main accused namely Anant Singh. It is submitted that Anant Singh is yet to be apprehended in this case. Accordingly, it is submitted that the contradiction in the initial statement of respondent No.2 and the subsequent facts which came into light after the arrest of co-accused Ravi Thakkar, are sufficient to cast a shadow of doubt regarding the extent of culpability of respondent No.2 in the afore-said wrongful acts.

(ii) The learned Court below had failed to appreciate that the embezelled/misappropriated amount has not been recovered and respondent No.2 has played a crucial role in disposing the embezelled amount. Hence, granting bail to respondent No.2 would hamper the pending investigation and would also further diminish the probability of recovery of embezzled money.

(iii) That the learned Court below had not appreciated that the role of respondent No.2 has not been fully unearthed and granting bail to him would substantially prejudice the investigation.

(iv) That respondent No.2 is the only link between Ravi Thakkar and Anant Singh as the money was delivered from respondent No.2 to accused Anant Singh by co-accused Ravi Thakkar.

(v) That the learned Court below has failed to appreciate that the bail application of respondent No.2 had earlier been dismissed by the Court of Judicial Magistrate Ist Class, Gurugram vide order dated 30.01.2023 by observing that the police had recovered only a meagre amount till date and respondent No.2 had played an active role in delivering the amount to main accused (Anant Singh). Thus, the grant of bail to GURPREET KAUR respondent No.2 will prejudice the efforts of the 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

Investigating Agency to apprehend Anant Singh since respondent No.2 was the only link between Ravi Thakkar, Goswami Bhagwatpuri and Anant Singh.

(vi) That grant of bail to respondent No.2 will result in respondent No.2 evading himself from the clutches of law.

(vii) That the learned Court below has granted bail to respondent No.2 on the ground of parity by observing that another co-accused Ankit has been granted bail by this Court, whereas Ankit was arrested on 29.05.2021 and he remained in the judicial for a period of about 18 months and thereafter, he was granted bail. On the other hand, respondent No.2 had been arrested on 01.01.2023 and had been granted bail only after 40 days of arrest.

14. On the other hand, learned counsel appearing for respondent

No.2 has opposed the prayer made in this petition by filing its reply. It is

the stand of respondent No.2 that after the registration of the FIR,

respondent No.2 had joined the investigation and all details of the dealings

were verified and found to be genuine. It is stated that the statement of

respondent No.2 was recorded under Section 161 Cr.PC on 17.05.2021 and

he was made as a witness in the charge-sheet filed against co-accused

Shivam Singh. It is stated that the name of respondent No.2 is cited as a

witness at Serial no.13. Learned counsel for respondent No.2 has contended

that respondent No.2 was doing the gold jewellery business in the name and

style of M/s Vipul Jewellers, having GST No.24AGVBD7654E2Z6. It is

stated that respondent No.2 had received the order for purchasing gold and

he requested the buyer to first transfer the money in his account and only

then, he will deliver the gold against the received amount. It is next stated

that the amount for selling of gold was received by respondent No.2 in his

GURPREET KAUR account from the account of Bytie Enterprises on 09.04.2021, 13.04.2021 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

and 15.04.2021 and thereafter, the gold on different dates and time was sold

and invoices were issued on different dates and time, including GST while

delivering the gold to the buyer and after that, GST of Rs.10,45,627/- was

deposited. It is submitted that all the sale and purchase orders were verified

by the concerned Investigating Officer. Learned counsel for respondent

No.2 claims that respondent No.2 was wrongly arrested on 03.01.2023. It is

stated that the bills are the part of charge-sheet and after interrogation of

respondent No.2, he was found innocent. It is contended that the alleged

disclosure statement of the co-accused against respondent No.2 is not

admissible in evidence. It is submitted that the personal liberty of a person

is of a paramount consideration in the eyes of law, which is required to be

considered by the Court while granting bail. It is contended that there is no

illegality or perversity in the order granting bail to respondent No.2,

especially when another co-accused Ankit, has been granted bail by this

Court. It is also contended that respondent No.2 has not misused the

concession of bail extended to him. It is submitted that respondent No.2 is a

businessman and entire transaction was completed through banking

channels only. It is also stated that the investigation qua respondent No.2 is

complete and Respondent no.2 is not a link between Ravi Thakkar and

Anant Singh, as is being contended by the petitioner-complainant. It is also

submitted that respondent No.2 was granted bail after he had remained in

custody for about 40 days. Learned counsel for respondent No.2 submitted

that the order dated 10.02.2023 (Annexure P-2) granting bail is justified and

in accordance with law; hence, no interference is called for. Accordingly, it

is contended that there is no merit in the petition and the same is liable to be

dismissed.

GURPREET KAUR 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

15. Learned counsel for respondent No.2 has further submitted

that in order to ensure the appearance of respondent No.2 during trial before

the trial Court, additional conditions may be imposed and respondent No.2

shall comply with the same.

16. Learned State counsel has supported the contentions of the

petitioner-complainant by submitting that respondent No.2 has committed a

serious fraud and in case, he is allowed to remain on bail then he may

influence the witnesses or may even abscond and thereby delay the trial.

17. I have considered the rival contentions of the parties and also

perused the order dated 10.02.2023 (Annexure P-2) passed by learned

Additional Sessions Judge, Gurugram, while granting regular bail to

respondent No.2.

18. It may be re-iterated that respondent No.2 was not named in

the FIR and his name has figured only during the course of investigation in

tracking the transfer of amount from the account of M/s Bytie Enterprises

to the account of the firm of respondent No.2. The petitioner is stated to

have explained the transactions by providing the bills as well as the GST

details; wherein respondent No.2 is stated to have paid GST on the gold

which he had sold for an amount of Rs.3,59,00,000/-. Although, the

petitioner contended that respondent No.2 has produced fake bills;

however, it is not forthcoming as to on what basis, the bills produced by

Vipin Dholakia are stated to be false. Further the co-accused Ankit has

already been granted bail by the Co-ordinate Bench of this Court vide order

dated 21.11.2022 passed in CRM-M-46478-2022, by observing as under :-

" I have heard learned counsel for the parties and have gone through the record with their able assistance.

While considering the claim of the petitioner for GURPREET KAUR the grant of bail, the only precaution which needs to be 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

taken in whether, in case the prayer of the petitioner for the grant of regular bail is accepted, the same will have effect upon the trial or not i.e. whether the petitioner will influence the trial or not. The investigation qua the allegations being alleged against the petitioner is already over and the challan has been presented. The allegation which the Investigating Agency is putting forward for the consideration of the competent Court of law, to be converted into charges, is that the petitioner helped co-accused Shivam Singh to open the company under the name and style of M/s Bytie Enterprises, wherein, the money siphoned from the account of the petitioner was transferred and later on was disbursed to various other accused. As of now, the company i.e. M/s Bytie Enterprises is registered in the name of co- accused Shivam Singh. It is co-accused Shivam Singh who has disclosed that the said company was opened by the petitioner after forging his signature. These allegations are yet to be proved against the petitioner. Out of the total embezzlement of Rs.4 crores, even after investigation, allegation against the petitioner is that he is beneficiary of Rs.4 lacs out of which, Rs.1.5 already stands recovered during the investigation. That being so, coupled with the fact that the petitioner is already behind the bars for the last 18 months and the charges are yet to be framed and there are 22 witnesses, who have been cited to be examined, in case charges are framed against the petitioner, it is very likely that the trial is going to take some time before it concludes.

Nothing has come on record as of now that in case the benefit of regular bail is extended to the petitioner, he will misuse the same in any manner so as to flee the trial or influence the same or the witnesses to be examined during the trial.

Rather learned counsel for the petitioner has GURPREET KAUR assured this Court that in case the benefit of regular 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

bail is extended to the petitioner, he will behave in a manner required under law and will not influence the witnesses or the trial in any manner. Even in default of the said undertaking, the Investigating Agency or the complainant is also not without any remedy and can approach this Court in case of any violation of the terms and conditions of the bail by the petitioner for the review of this order.

Keeping in view the above, the petitioner has made out the case for the grant of regular bail."

19. The investigation qua respondent No.2 is complete and the

challan already stand presented. Respondent No.2 was granted regular bail

after he remained in custody for about 40 days.

20. As regards the falsity of the stand(s) taken by respondent

No.2-accused (Vipul Dholakia) is concerned; suffice it to say that the same

would be the subject matter of trial. The complicity of respondent No.2 in

the case would ultimately be decided by the trial Court on the basis of the

evidence, to be led by the prosecution as well as the accused parties.

21. As regards the submission of petitioner that the role of

respondent No.2 has not been unearthed and that respondent No.2 is the

only link between Ravi Thakkar and Anant Singh; suffice it to say that

challan/supplementary challan already stand filed and in case, any new

circumstance/evidence comes to the notice of Investigating Agency/officers

then certainly respondent No.2 can be confronted with the new

circumstance. However, only on that account, in my considered view the

order granting bail to respondent No.2 cannot be set aside.

22. As far as the apprehension expressed by learned counsel for

the petitioner that respondent No.2 might abscond or otherwise influence

the witnesses, suffice it to state that in the event of any such conduct, the GURPREET KAUR 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

prosecution can always approach the competent court for cancellation of

bail. Accordingly, it is observed that the State / Prosecuting Agency / State

police shall be at liberty to observe the behaviour of respondent No.2

during bail period, and in case it feels that he is indulging in influencing

any of the witnesses or tampering with the prosecution evidence in any

manner or otherwise causing interference with the progress of trial, it shall

be open for the State / Prosecuting Agency / State police to move the trial

Court for cancellation of bail, which shall be decided by the trial Court on

merits.

23. In view of the above discussion, it cannot be said that order

dated 10.02.2023 (Annexure P-2) passed by learned Additional Sessions

Judge, Gurugram, is an improper or arbitrary exercise of discretion by the

Court below. The order passed by learned Additional Sessions Judge,

Gurugram cannot be said to be suffering from any fundamental error nor

there is any other material factor for which the bail granted by the Court

below to respondent No.2 in this petition is to be annulled.

24. However to ensure the appearance of respondent No.2-

Vipul Natwarlal Dholakia, during the course of trial, I deem it appropriate

to impose additional conditions; accordingly, it is directed that :-

(i) Respondent No.2 shall appear before the trial Court on each and every date of hearing, unless specifically exempted from doing so.

(ii) Respondent No.2 shall not leave the country without seeking permission from the Court.

(iii) Respondent No.2 shall inform the concerned Station House Officer about his address at which he intends to reside during the pendency of the case and any change in the address shall be communicated to the concerned Station House Officer, forthwith.

GURPREET KAUR 2023.09.05 14:12 I attest to the accuracy and authenticity of this order/judgment

(iv) Respondent no.2 would furnish his telephone number to the concerned Station House Officer and would keep his mobile location on.

(v) Respondent no.2 shall appear before the police station concerned once in three months till the conclusion of trial in this case and every time inform in writing that he is not involved in any other crime other than the case(s) mentioned in the present order.

(vi) Respondent no.2 will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him / her from disclosing such facts to the Court.

(vii) Respondent no.2 (or anyone on his behalf) shall prepare an FDR in the sum of Rs.1 lac and deposit the same with the trial Court. The same would be liable to be forfeited as per law, in case of absence of respondent No.2 from trial without sufficient cause.

25. Nothing expressed here-in-above shall be construed to be an

observation on merits of the case and the facts and circumstances recorded

above are only for consideration of the prayer for cancellation of bail at this

stage.

26. The petition is accordingly disposed of.

27. All pending application/s, if any, shall stand closed.

                      August 28th, 2023                                       (HARSH BUNGER)
                      gurpreet                                                    JUDGE

                      Whether speaking/reasoned:                Yes/No
                      Whether reportable:                       Yes/No




GURPREET KAUR
2023.09.05 14:12
I attest to the accuracy and
authenticity of this order/judgment