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CR.MA/10818/2007 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10818 of 2007
=========================================================
KULINBHAI
GIRISHCHANDRA PATHAK - Applicant(s)
Versus
STATE
OF GUJARAT THROUGH & 1 - Respondent(s)
=========================================================
Appearance
:
MR
KB ANANDJIWALA for
Applicant(s) : 1,
MR PD BHATE, ADDL PUBLIC PROSECUTOR for
Respondent(s) : 1,
NOTICE NOT RECD BACK for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 04/10/2007
ORAL
ORDER
1. The
applicant who has been arrested in connection with Crime Register No.
I-316 of 2006 registered with Bhavnagar ‘C’ Division Police Station
for the alleged commission of offences punishable under sections 406,
409, 420, 465, 467, 468, 471 and 120B of the Indian Penal Code has
approached this Court under Section 439 of the Code of Criminal
Procedure for enlarging him on bail pending trial.
2. The
applicant had approached this Court earlier by preferring Criminal
Misc. Application No. 3277/07 but the same was sought to be withdrawn
on the ground that as the investigation was still going on there was
likelihood of more material coming on record which could help the
applicant. Therefore, the permission as sought for was granted and
the matter was allowed to be withdrawn by this Court vide order dated
01.05.07. Now, the supplementary charge-sheet has been filed whereof
the Choksi committee report is forming part and therefore relying
upon this report, this successive bail application is filed.
2.1 It
deserves to be noted that before filing of this application, the
applicant appears to have approached the concerned Sessions Court by
preferring Criminal Misc. Application No. 798/07 but the same was
rejected by the concerned court vide order dated 10.09.07.
3. Mr
K.B Anandjiwala, learned counsel appearing for the applicant has
submitted that the applicant was the Loan Manager of the Bank. The
loan papers were brought to the applicant and he used to sign those
papers in his capacity as such. Mr Anandjiwala has sought to rely
upon the FIR filed by a co-accused Shri Jayant Merajbhai Shah wherein
it is stated that he was interested in betting and therefore he had
borrowed money. By this FIR, Mr Anandjiwala has submitted that the
said Jayantbhai could be said to be the main accused and the only one
who is responsible for the fraud alleged in the present FIR.
3.1 Mr
Anandjiwala has invited this Court’s attention to the fact that the
present applicant is not named in the FIR and therefore even
otherwise also the applicant deserves to be enlarged on bail. He has
further invited this Court’s attention to the Choksi committee’s
report and submitted that the Choksi committee’s report has also made
certain surmises and inferences which cannot be said to be germane
for declining the bail to the applicant. He has submitted that
though he cannot claim that the applicant is on a better footing than
those who are enlarged on bail, however, on the ground of parity the
applicant deserves to be enlarged on bail.
4. Mr
P.D Bhate, learned APP has appearing for the respondent State has
submitted that the fraud is in respect of about 2405 fictitious
accounts out of which the present applicant has signed loan documents
in respect of 2129 accounts which clearly goes to show that the
present applicant cannot escape from his liability and involvement in
the entire fraudulent activity which had been going on in the
particular branch of the Bank. Mr Bhate has further submitted that
the Choksi committee has also made specific observations which is
forming part of the charge-sheet that the present applicant and the
co-accused Jayantbhai Shah were infact sitting on the same floor and
having cabins adjacent to each other with only a glass partition in
between and therefore it cannot be said that the present applicant
was unaware about the fictitious loan accounts being operated.
4.1 Mr
Bhate has also invited the attention of this Court to the Choksi
committee’s report at page 135-136 wherein the present applicant’s
name does figure at serial no. 46 out of the total 56 persons who are
alleged to be responsible for the said fraud. Mr Bhate has submitted
that the applicant cannot seek parity as the applicant is a
responsible person, more particularly, holding the post of Loan
Manager and without whose signature no loan amount could have been
disbursed and that therefore the applicant’s role cannot be brushed
aside by saying that he had merely signed the documents without
knowledge.
5. Heard
learned counsel for the parties and perused the materials placed on
record. As a result of the said exercise this Court is not inclined
to exercise it jurisdiction in favour of the applicant for the
following reasons:
The
Choksi committee’s report which is sought to be relied upon by Mr
Anandjiwala, learned advocate for the applicant is in no way helping
the case of the applicant for enlarging him on bail as the Choksi
report is unequivocal in its terms indicating that the applicant has
played a role in the entire fraud and therefore this fact militates
against the applicant for enlarging him on bail.
Except
this document no other document is pressed into service for
enlarging the applicant on bail.
The
first charge-sheet which was infact filed on 27.12.06 indicated that
in the year 2001-03 the present applicant alongwith others have been
involved in misappropriation against the gold securities. In the
year 2001 the applicant is said to have been involved in a fraud
amounting to Rs. 10,50,000/-. In the year 2003 the applicant is
shown to having been involved in around 52 loan cases amounting to
Rs. 19,23,500 and temporary misappropriation to the tune of Rs.
1,40,500/-. Thereafter in the year 2004, the applicant appears to
have been involved in 749 accounts amounting to Rs. 4,33,00,000/-
and temporary misappropriation to the tune of Rs. 24,94,000/-. In
the year 2005, the applicant is said to having been involved in
around 692 cases amounting to Rs. 4,42,61,500/-. Again in the year
2006, the involvement of the applicant is clearly mentioned in 817
cases amounting to Rs. 5,84,00,000/-.
The
applicant cannot seek parity with other accused as in their cases
either the directors have been released or the officers whose names
have not been figuring in the list of responsible persons as per the
Choksi committee’s report are released. It is not the case with the
present applicant who is a loan manager of the bank and figuring in
the list of the responsible persons as per the aforesaid report.
This
Court has enlarged the valuers on temporary bail as they had shown
willingness to deposit Rs. 50 lakhs in installments. The valuers
were enlarged on temporary bail as the complainant bank has
consented and submitted that there was no objection to the valuers
being enlarged on temporary bail as they were willing and ready to
deposit Rs. 50 lakhs in installments with the Court and the Bank.
The valuers were enlarged on temporary bail keeping in view their
contract with the bank and the fact that the valuers were not the
employees of the bank and their case cannot be equated with that of
the present applicant who was actually the manager and without whose
signatures the loan amount could not have been disbursed at all. In
view of this the enlarging of the valuers on temporary bail would be
of no avail to the present applicant.
It
also deserves to be noted that the applicant is a signatory in
almost all the fictitious loan accounts and the details which are
required to be filled in by the loan account holder against loan
indicate that the details like the address of the business, the
address of the applicant and other details were required to be
filled in. One specimen copy of such papers was shown to the court
wherein the fictitious loan account holder had not bothered to fill
in the form which on the face of it appears to be a document not
capable of inspiring any confidence at all. Now such kind of
documents have been signed by the applicant as per the case of the
prosecutor and therefore prima facie it can be said that his
involvement cannot be ruled out.
Thus
in view of the over all facts and circumstances and prima facie case
and nature of evidence as well as the prosecution’s apprehension
that the applicant being a responsible officer of the bank, his
likelihood of influencing the witnesses during trial militate
against the applicant being enlarged on bail.
6. In
view of the aforesaid discussion, this Court is not inclined to
exercise extraordinary jurisdiction for enlarging the applicant on
regular bail and therefore this application deserves to be rejected.
Accordingly, application is rejected. Notice is discharged.
(S.R.BRAHMBHATT,
J.)
Divya//
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