Partly allowed

Rajnibhai Khodabhai Patel v. State of Gujarat

Gujarat HC10 Aug 2018CR.MA/12764/2018

Case brief

AI extract

What is this about?

The High Court of Gujarat granted anticipatory bail to three accused-applicants in a charging proceeding for cheating and forgery. The court held that since the principal amount was recovered through auction, no intent to cheat existed and custodial interrogation was unnecessary. Applicants must return to India for trial.

What did the court decide?

Application allowed; granted anticipatory bail conditional upon a personal bond with a surety, maintaining presence, depositing passport, and complying with investigation while ensuring right to oppos

Rajnibhai Khodabhai Patel Vs State of Gujarat — Cheating and Forgery | Gujarat HC (2018)

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R/CR.MA/12764/2018 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CRIMINAL MISC.APPLICATION NO. 12764 of 2018

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RAJNIBHAI KHODABHAI PATEL

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Versus

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STATE OF GUJARAT

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Appearance:

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MR YN OZA, SR. ADVOCATE with MR SANAT B PANDYA(6976) for the PETITIONER(s) No. 1,2,3

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MR RAKESH PATEL, APP (2) for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

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Date : 10/08/2018

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ORAL ORDER

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Rule returnable forthwith. The learned APP waives service of notice of rule for and on behalf of the respondent-State.

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By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicants-original accused have prayed to release them on anticipatory bail in the event of their arrest in connection with M.Case No.1 of 2003 registered with the Vidhyanagar Police Station, District Anand, for the offences punishable under Sections 409, 420, 465, 467, 468 and 120B of the Indian Penal Code.

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The learned advocate appearing on behalf of the applicants would submit that considering the nature of the offence, the applicants may be enlarged on anticipatory bail by imposing suitable conditions.

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Page 1 of 6

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R/CR.MA/12764/2018 ORDER

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On the other hand, the learned APP appearing on behalf of the respondent-State has opposed this application for grant of anticipatory bail to the applicants looking to the nature and gravity of the offence.

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I have heard the learned advocates appearing for the respective parties, perused the investigation papers and have also taken into consideration the facts of the case, nature of the allegations, role attributed to the applicants-accused, and without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicants.

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I have also taken into consideration the following aspects :

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(1) The case against the three applicants herein is that they had availed of the loan of Rs.4 crore and odd from the Karamsad Urban Bank Limited, District Anand.

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(2) At the time when the loan was availed of, few properties were offered as security.

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(3) The Bank created its charge over two bungalows and a showroom.

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(4) The three applicants were not able to repay the loan amount. In such circumstances, the Bank attached all the three properties and put them to auction.

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(5) An amount of Rs.4 crore and odd came to be recovered by the Bank from the auction proceedings.

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Page 2 of 6

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R/CR.MA/12764/2018 ORDER

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The Investigating Officer is present in the court today. He makes a statement that at the time when the loan was availed of no false documents were produced or any false representation was made. The only allegations against the applicants herein are that they were able to avail of the loan facility because of good relations with the Chairman of the Bank.

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Prima facie, I do not find any case of forgery. I am also informed that the Bank has instituted a civil suit for recovery of the dues payable. As on date, what is due and payable is the interest component, as it appears that the Bank has been able to recover the principal amount from the auction proceedings. Prima facie, there is nothing to indicate that the intention of the applicants right from the inception was to cheat with the Bank.

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In the overall view of the matter, I am of the view that no custodial interrogation is required in this matter.

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This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others, reported in [2011] 1 SCC 694, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia & Others, reported in (1980) 2 SCC 665.

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The learned advocate for the applicants, on instructions, states that the applicants are ready and willing to abide by all the conditions, including impositions of conditions with regard to the powers of the Investigating Agency to file an application

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Page 3 of 6

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R/CR.MA/12764/2018 ORDER

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before the competent court for their remand. He would further submit that upon filing of such application by the Investigating Agency, the right of the applicants-accused to oppose such application on merits may be kept open.

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I am told that the three applicants at present are in the United States of America. They are accused and the investigation is now almost over. If, ultimately charge-sheet is filed, then the accused applicants will have to face the trial. In such circumstances, they must come back to India for compliance of the conditions imposed in this order.

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In the result, the present application is allowed by directing that in the event of arrest of the applicants herein in connection with M.Case No.1 of 2003 registered with the Vidhyanagar Police Station, District Anand, the applicants shall be released on bail on each of them furnishing a personal bond of Rs.10,000/(Rupees Ten Thousand only) with one surety of the like amount on the following conditions that they shall:

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(a) cooperate with the investigation and make themselves available for interrogation whenever required;

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(b) remain present at the concerned Police Station on 20th October 2018 between 11:00 a.m. and 2:00 p.m.;

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(c) not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/them from disclosing such facts to the court or to any police officer;

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(d) not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

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Page 4 of 6

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R/CR.MA/12764/2018 ORDER

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(e) at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall not change their residence till the final disposal of the case till further orders;

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(f) not leave India without the permission of the Court, and if having passport, shall deposit the same before the trial Court within a week; and

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(g) it would be open to the Investigating Officer to file an application for remand if he considers it just and proper and the learned Magistrate would decide the same on merits;

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Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate for police remand of the applicants. The applicants 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 rights of the accused to seek stay against an order of remand if, ultimately, granted, and the powers of the learned Magistrate to consider such a request in accordance with law.

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It is clarified that the applicants, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to the other conditions of this anticipatory bail order.

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At the trial, the trial Court shall not be influenced by the prima facie observations made by this Court while enlarging the

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R/CR.MA/12764/2018 ORDER

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applicants on bail. Rule is made absolute. Direct service is permitted.

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(J.B.PARDIWALA, J.)

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/MOINUDDIN