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CR.MA/13962/2009 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 13962 of
2009
=========================================================
MALAY
SUMANCHANDRA PARIKH - Applicant(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=========================================================
Appearance
:
MR
YS LAKHANI, SENIOR ADVOCATE with MR MAUNISH T PATHAK
for
Applicant(s) : 1,
MR HL JANI, APP for Respondent(s) : 1,
MR YN
RAVANI for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 06/04/2010
ORAL ORDER
1. This is an
application preferred under Section 439 of the Code of Criminal
Procedure by the applicant who came to be arrested in connection with
RC 1(s)/2001/CBI/STF/MUMBAI for the offence punishable under
Section 120B read with Sections 409, 420, 467, 468, 471 of the IPC
and Section 13(2) read with Section 13(1)(c) and 13(1)(d) of
Prevention of Corruption Act, 1988.
2. Mr YS Lakhani,
learned Senior Advocate for the applicant submitted that the
applicant is an innocent person and he has not committed the offence
as alleged in the FIR. Even the name of the applicant does not figure
in the FIR. The learned advocate for the applicant submitted that the
investigation is also over and the charge-sheet is already filed on
1.11.2003. Considering the aforesaid aspects and the role attributed
to the applicant, he deserves to be enlarged on bail as main culprits
are already enlarged on bail.
3. Mr HL Jani, learned
APP for the State, while opposing the bail application, submitted
that the applicant is involved in a serious offence punishable under
Section 120B read with Sections 409, 420, 467, 468, 471 of the IPC
and Section 13(2) read with Section 13(1)(c) and 13(1)(d) of
Prevention of Corruption Act, 1988. Considering the role attributed
to the applicant and the manner in which the applicant has committed
the offence along with the other accused by entering into criminal
conspiracy, no discretionary relief be granted to the applicant and
the application deserves to be rejected.
4. I have heard Mr YS
Lakhani, learned Senior Advocate for the applicant and Mr HL Jani,
learned APP for the State at length and in great detail. I have also
considered the averments made in the application and the role
attributed to the applicant as reflected in the FIR. As per the FIR
and the charge-sheet, the case has been registered against four
persons excluding the applicant on 11.9.2001 for the offence
punishable under Section 120B read with Sections 409, 420, 467, 468,
471 of the IPC and Section 13(2) read with Section 13(1)(c) and
13(1)(d) of Prevention of Corruption Act, 1988 with regard to the
fraudulent finance under the housing loan scheme in the State Bank of
Saurashtra, Naroda road branch, Ahmedabad. It is also alleged in the
FIR that the accused Nos. 1 to 4 had entered into criminal conspiracy
with the object to defraud the bank by preparing loan applications in
the name of 122 individuals for sanctioning of the housing finance
loan with the help of false documents and released the loan by
cheques issued in favour of developers Kandarp V. Parikh, Rakeshkumar
Thakkar and Hemendra L. Shah with the help of one Shri B.G.Zala. It
is further alleged that each loan was sanctioned only upto the amount
of Rs.5,00,000/- which was within the financial powers of accused
No.1 and for 22 applicants, the total loan released was to the tune
of Rs.5,68,40,000/-. It is alleged in the charge-sheet that with the
similar modus operandi, the accused No.1 had forged the false
documents and sanctioned finance to 15 more persons to the tune of
Rs.5,00,000/- each. Though the persons in whose favour the loan was
sanctioned were neither eligible to obtain such loan, nor they
intended to purchase any flat or house for which they had applied for
the loan, the present applicant had signed the document, namely,
share certificate of Ashwamegh Anand Mangal Cooperative Society in
the name of Raghvendra K. Rajgor and other as Mr. K.V. Parikh though
he is not Mr. K.V. Parikh and based on such documents, loan was
sanctioned by the accused No.1. On considering the papers of the
case, the present applicant was not available in India and therefore,
the charge-sheet could not be filed against the applicant. The
applicant had gone to USA and after tracing out the applicant, the
Court was constrained to issue proclamation under Section 82 of the
Code of Criminal Procedure dated 21.11.2006 as well as non-bailable
warrant on 21.2.2007 and red corner notice bearing No. A-1122/5/2007
was also issued through interpol. After getting the location of the
applicant in USA through interpol, the prosecution moved a request
for his extradition to India through Indian Government. The applicant
made various attempts even to thwart the aforesaid process. Thus, it
was with great difficulty that the applicant was located in USA and
brought to India. Considering the aforesaid aspects as well as the
role attributed to the applicant, provisions of Section 120B read
with Sections 409, 420, 467, 468, 471 of the IPC and Section 13(2)
read with Section 13(1)(c) and 13(1)(d) of Prevention of Corruption
Act, 1988, quantum of punishment, etc., the applicant in my view is
not entitled to claim the discretionary relief of bail as prayed for
in the application. It has been contended by the learned advocate for
the applicant that since all other accused are released on bail, the
applicant deserves to be enlarged on bail even on the ground of
parity. But I am of the view that considering the manner in which the
applicant fled from India and with great difficulty he could be
nabbed, it would be difficult to procure his presence at the trial
even he is released on bail as prayed for in the application.
5. For the foregoing
reasons, there is no merit in the application preferred by the
applicant and therefore, it is hereby dismissed. Rule is discharged.
[H.B.ANTANI,
J.]
mrpandya
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