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CR.MA/9688/2009 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 9688 of 2009
=========================================================
ANIL
RAMNIKLAL THAKKAR @ ANIL SHARMA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
ASHISH M DAGLI for Applicant.
MS ML SHAH, ADDL. PUBLIC PROSECUTOR
for Respondent.
MR ZUBIN F BHARDA for original
complainant.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 27/01/2010
ORAL
ORDER
This
application for bail is filed under section 439 of the Code of
Criminal Procedure in connection with First Information Report
registered as C.R. No. I-44 of 2008 filed before Manavdar Police
Station, Dist. Junagadh for offence punishable under sections 407,
420, 465, 467, 468, 471, 472, 474, 114 and 120.B of the Indian Penal
Code.
A
complaint was given by Premji Nathabhai Manvar alleging therein that
he is residing at Manavdar and running a factory in the name of
Ashish Cotton Company and used to supply cotton bundles through
brokers. It is alleged in the complaint that goods were sold through
Anil, the present applicant, and one Satish and the goods were
transported through National Roadways and Amin Roadways. As per the
complaint, on instructions of the applicant, 7500 bundles of cotton
were sent by the complainant but he has received payment of 5600
bundles only. It is further alleged in the complaint that the cheque
which was given to the present was also forged by the applicant. As
per the complaint, the goods were never delivered to the parties for
whom it was dispatched and were sold off to some other parties and
the amount in question was not paid to the complainant. The
complainant therefore lodged the present complaint.
Mr.
Ashish Dagli, learned advocate for the applicant submitted that the
applicant has been falsely implicated in the commission of the
alleged offence and a false case is foisted on him. He further
submitted that charge sheet is already filed and the entire
investigation is over and since the present applicant is in jail
since his arrest, he be released on bail. Learned advocate submitted
that the dispute which is involved between the parties is of a civil
nature but a criminal complaint is filed with a view to exert
pressure on the applicant and other accused persons. Learned
advocate, placing reliance on the complaint, submitted that the
present case is triable by JMFC Court and looking to the backlog of
cases pending before JMFC court, the trial will take a long time and
the applicant would remain behind the bars for a long time from the
date of his arrest. In view of the aforesaid facts and circumstances,
learned advocate submitted that this is a fit case to enlarge the
applicant on regular bail. Learned advocate also placed reliance on
the documents which are produced along with the application in
support of the contention that it is a fit case to release the
applicant on regular bail. He further submitted that in the charge
sheet there is not an iota of evidence connecting the applicant with
the commission of offence and even nothing is recovered from the
applicant, and, therefore, the prayer as set out in the application
to release him on regular bail be granted. Learned advocate further
placed reliance on the order dated 17.04.2009 passed by this Court
[Coram: Z.K. Zaiyed, J.] in Criminal Misc. Application No. 2006 of
2009 and submitted that even on the ground of parity, the application
deserves to be granted.
On
the other hand, learned APP, Ms. M.L. Shah submitted that the
applicant is involved in serious offences punishable under sections
407, 420, 465, 467, 468, 471, 472, 474, 114 and 120.B of the Indian
Penal Code. Taking into account the role attributed to the applicant
and the huge amount which is involved, the prayer for bail may not
be granted to the applicant . She further submitted that the
application sold away the goods and pocketed huge amount of money and
has not paid the money to the complainant. Learned APP has placed
reliance on the various statement of witnesses and other documents as
well as the order of further investigation which is passed by Chief
Judicial Magistrate, Junagadh on 02.01.2010 and submitted that on
further investigation, the inextricable involvement is prima facie
established. She further submitted that the applicant is in the
habit of committing such offences and various complaints have been
filed against him, and even looking to the antecedents of the
applicant, he cannot be granted regular bail. She, therefore,
submitted that the applicant may not be granted discretionary relief
as prayed for in the application, and the application deserves to be
dismissed.
On
behalf of the original complaint, Mr. Zubin Bharda appeared and
opposed grant of regular bail, by filing a detailed affidavit. It is
contended in the affidavit that the applicant purchased large
quantity of cotton bales of a huge amount by misrepresenting that the
said goods were purchased for and on behalf of Gujarat Ambuja
Exports, Nitin Spinners and Alalps Industries which are situated in
Rajasthan but the applicant offloaded the goods at Ahmedabad and sold
it off in the local market and misappropriated the sale proceeds. It
is also averred in the affidavit that the applicant has forged letter
heads and rubber stamps in the name of spinning mills in Rajasthan
and by putting signatures on the false letterheads of the Companies
in Rajasthan, enticed the complainant to supply goods. It is further
contended in the affidavit that during the investigation it has been
revealed that the the applicant has destroyed the forged letter heads
as well as rubber stamps made and used for the purpose of placing
orders. It is further contended in the affidavit that the applicant
is the mastermind behind the entire conspiracy hatched with other
co-accused and the total amount of misappropriation in all comes to
the tune of more than Rs.4 Crores. It is also contended in the
affidavit that the applicant is a habitual offender who has not
stopped despite on earlier occasions discretion was exercised by the
Courts having competent jurisdiction. It is contended that the
applicant is having criminal antecedents and has misused the liberty
exercised in his favour. Learned advocate therefore submitted that
the applicant may not be granted discretionary relief as prayed for
in the application, and the application deserves to be dismissed.
Heard
learned advocate Mr. Dagli for the applicant and Ms. M.L. Shah,
learned APP at length and in great detail. I have also heard Mr.
Bharda, learned advocate appearing for the original complainant and
considered the detailed affidavit filed by the original complainant
in this matter. Learned APP placed before me for my perusal the
entire investigation papers and I have also considered the same.
The
investigating papers primafacie reveal offence against the applicant
as alleged. In view of the complexity of investigation in the matter,
a re-investigation was also ordered and there are various
incriminating evidence against the applicant. Letter heads and rubber
stamps were forged to dupe the complainant. Goods are sold off and
the proceeds are misappropriated. Hence there is no merit in the
contention that nothing is recovered from the applicant. It appears
to me from the reading of the case papers that the applicant is the
mastermind behind the entire conspiracy. For this reason alone, he
cannot claim parity with the co-accused released on regular bail by a
co-ordinate Bench of this Court. Even otherwise, relief under
section 439 is a discretionary relief, where the ground of parity
carries less weight because the role attributed to each applicant
differs. Forging of Bank accounts and issuing bogus cheques also
appear to have come to light in the present case. I have also
considered the antecedents of the applicant. Various complaints of
similar nature are filed against the applicant. Even before me today,
there are four applications for regular bail [Misc. Criminal
Applications No. 9670/09, 9667/09. 9686/09 and 9688/09] filed by the
present applicant which indicates the conduct of the applicant.
Looking to the mode and manner in which the offence is committed and
the quantum of money involved, this Court is also not convinced by
the argument that in the present and similar transactions only
disputes of civil nature is involved and for that reason the
applicant is required to be released on regular bail. On the
contrary, I am of the considered view that releasing such persons on
regular bail will have deleterious effect on the Society as a whole
since large amount is alleged to have been misappropriated by the
applicant along with co-accused and the record indicates that the
applicant is the mastermind behind it.
For
the reasons aforesaid, and having heard the learned advocates and
having considered the role attributed to the applicant and reflected
in the FIR at Annexure ‘A’, antecedents of the applicant and the
police papers produced by learned APP, statement of witnesses and
other documents, I am of the view that this is not a fit case where
this Court, by exercising its discretionary jurisdiction, is required
to enlarge the applicant on regular bail. The application is liable
to be rejected, and is hereby rejected.
Rule
is discharged.
mathew [H.B.ANTANI,
J.]
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