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CR.MA/11211/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 11211 of 2010
=========================================================
RAJNIKANT
JASWANTLAL THAKKAR - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
HARDIK A DAVE for
Applicant(s) : 1,
MR SJ SHUKLA, APP, for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 01/10/2010
ORAL
ORDER
The
present application has been filed for grant of anticipatory bail
under sec. 438 of the Code of Criminal Procedure in connection with
C.R. No. I-21/2010 registered with
Sarkhej Police Station for the alleged offences under sec.
406, 420, 120B of IPC.
2. Learned
advocate Mr. Hardik Dave referred to the FIR and other papers and
submitted that the applicant is having properties at Sarkhej
including shops at Shreeji Complex, godown and plot as stated in the
application and he is also doing different businesses.
3. Learned
advocate Mr. Dave submitted that in February, 2009 he was approached
by one Hakambhai Rathod for purchase of aforesaid property/shop of
the applicant for which Banakhat was also entered into. He submitted
that part payment was made by cheque and power-of-attorney was
executed by the applicant in
favour of Hakambhai, which led to filing of the present complaint as
the said Hakambhai abused and misused the power-of-attorney.
4. Learned
advocate Mr. Dave submitted that the ingredients for the alleged
offences are not attracted as there is no entrustment and there is no
false promise made by the applicant. He submitted that the witnesses
have also not stated about any involvement of the applicant. Learned
advocate Mr. Dave submitted that the transactions have been made by
the applicant with the said Hakambhai prior to the scam of Ashok
Jadeja was revealed and he is not concerned. He therefore submitted
that the present application may be entertained.
5. Learned
APP Mr. Shukla submitted that a scam of duping large number of people
and huge amount was made by one Ashok Jadeja and the modus operandi
was that he would enter into transaction through agents and a
widespread network for such offences was made. He submitted that
allegations are for the conspiracy also and the applicant is involved
as it is revealed from the prima facie evidence. He submitted that
the investigation qua the applicant is at the initial stage.
Custodial interrogation may be necessary and therefore the present
application may not be entertained.
6. In
view of rival submissions, it is required to be considered whether
the present application can be entertained or not.
7. It
is well settled by catena of judicial pronouncements that discretion
under sec. 438 of CrPC is required to be exercise with care and
circumspection. Therefore, considering the guidelines for exercise
of discretion under sec. 438 of CrPC in background of the facts
revealed with regard to the transactions made by the applicant, which
prima facie suggest that he has entered into such transactions and
has also made further transactions, which prima facie suggest his
involvement, the present application cannot be entertained.
8. As
the court is not required to discuss in detail, considering the
nature of allegations with regard to the scam and the role
attributed, the discretion cannot be exercised in favour of the
applicant-accused.
9. The
present application, therefore, deserves to be rejected and
accordingly stands rejected. Rule is discharged.
(Rajesh
H. Shukla, J.)
(hn)
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