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CR.MA/10669/2010 10/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 10669 of 2010
For
Approval and Signature:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
=====================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=====================================================
AJAYKUMAR
SACHIDANAND MISHRA - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=====================================================
Appearance :
Mr.S.V.Raju,
learned Senior Advocate with MR
ASHISH D OZA for Applicant
Mr.L.R.Pujari,learned ADDL.PUBLIC
PROSECUTOR for
Respondent
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 27/10/2010
ORAL
JUDGMENT
1. Rule.
Mr.L.R.Pujari, learned Additional Public Prosecutor, waives service
of notice of Rule on behalf of the respondent. On the facts and in
the circumstances of the case, and with the consent of the learned
counsel for the respective parties, the application is being heard
and finally decided today.
2. This
application has been filed under Section 439 of the Code of Criminal
Procedure for grant of bail in connection with FIR, being C.R.No.I-18
of 2009, registered with Vapi Udyognagar Police Station, Vapi Town,
for offences punishable under Sections 406, 420, 465, 466, 467, 468,
471, 474, 484, 485 and 114 of the Indian Penal Code.
3. Briefly
stated, the case of the prosecution is that the applicant and other
accused persons (five in number), are involved in the commission of
the above-mentioned offences involving hatching and executing a
conspiracy, whereby the complainant was induced to part with a huge
sum of money, to the tune of about 8,73,40,000/-, in cash, cheques
and Demand Drafts, a substantial part of which ultimately came to be
deposited in the Bank account of accused No.1, who transferred it to
the account of accused No.2. The allegation against the applicant is
that two Drafts received by Dena Bank,Vapi Branch, where the
applicant was working as Manager have been transferred and credited
to the Bank account of accused No.1 at Zampa Bazar Branch, Surat,
instead of putting them into the Suspense Account of the Bank. It is
further the case of the prosecution that the applicant is involved in
hatching a conspiracy with the other accused persons, whereby the
complainant was assured that Dena Bank has charge over certain
property which is to be auctioned by an order of the High Court of
Gujarat. The investigation revealed that the said order of the High
Court of Gujarat is a forged and fabricated one, on which even the
signatures of the Hon’ble Judge, who is purported to have passed the
order, as well as the Assistant Registrar of the High Court, have
been forged. According to the prosecution, it is on the basis of the
above order that the complainant and two others were assured by the
accused persons that they would be given charge of the property
after making payment. In this manner the complainant was made to part
with an amount of about Rs.8,73,40,000/- in cash, Demand Drafts and
cheques, which came to be deposited in the account of accused No.1.
4. Mr.S.V.Raju,learned
Senior Advocate for the applicant has made the following submissions:
(a) That
the applicant is not even named in the FIR and no role has been
attributed to him. There is no allegation that the applicant had
received or pocketed any sum of money. The allegations against Bank
Officials in the FIR are general in nature and nowhere is the
applicant connected with the commission of the above-mentioned
offences.
(b) That
the Bank has initiated a Departmental Inquiry in which five officers
and three staff members have been charge-sheeted, but the applicant
is not one of them.
(c) That
the allegations against the applicant to the effect that it is at his
behest that the money has been credited into the account of accused
No.1 and his involvement in the other offences and forgery of the
order of the High Court, are not substantiated by any evidence on
record.
(d) That
the computer print out and the FSL report regarding the computer
print out of the purportedly forged order of the High Court show that
it has been modified on 1-4-2009, which is after the arrest of the
applicant.
(e) That
the applicant has been in custody since 8-3-2009 but other persons,
who are involved in crediting the Demand Drafts into the account of
accused No.1 have not been arrested. In any case, most of the money
has been returned by accused No.1 to the complainant.
(f) That
the applicant is not likely to abscond or tamper with evidence, which
is of a documentary nature, and in the possession of the
investigating agency, therefore, no useful purpose would be served by
keeping him in jail.
(g) That
there is a change in circumstances since filing of the last bail
application as the Departmental Inquiry initiated by the Bank does
not name the applicant, who has been informed by the Bank that there
is no complaint against him.
(h) On
the basis of the above submissions, it is urged by the learned Senior
Advocate for the applicant that the application be allowed and bail
may be granted to the applicant.
5. The
bail application has been strongly opposed by Mr.L.R.Pujari, learned
Additional Public Prosecutor, who has made the following submissions:
(a)
There is ample evidence on record to show that the applicant is very
much a part of the conspiracy hatched by the accused persons to dupe
the complainant for parting with huge sums of money, in cash, Demand
Drafts and cheques.
(b) There
is cogent material indicating that it is at the behest of the
applicant that the Demand Drafts were credited to the account of
accused No1, instead of going into the Suspense Account of the Bank.
The Demand Drafts were received at Vapi Branch of Dena Bank where the
applicant was working as Manager, and were transferred to the Account
of accused No.1 at Zampa Branch, Surat at the instance of the
applicant, as is revealed by the material on record.
(c) There
is also evidence on record to indicate that the applicant is involved
in the conspiracy to forge the order of the High Court of Gujarat.
Further, the report of the FSL is also against the applicant.
(d) A
strong prima facie case is made out against the applicant and
in view of the material on record, this is not a fit case wherein
the Court may exercise discretion by granting bail.
6. Having
heard learned counsel for the respective parties and after perusal
of the material on record, including papers of the charge-sheet,
evidence and report of the F.S.L., the following aspects emerge for
consideration, and have been duly considered:
(i) The
material on record, prima facie, indicates that the
allegations against the applicant to the effect that he is involved
in the conspiracy with other accused persons, to dupe the
complainant on the pretext that Dena Bank had charge over certain
properties which were purportedly to be put to auction, on the basis
of a forged and fabricated order of the High Court of Gujarat,
appears to be well founded.
(ii) The
report of the Forensic Science Laboratory also indicates, prima
facie, the involvement of the applicant in the commission of the
alleged offences.
(iii)The
material on record further leads to the prima facie view that
the applicant is involved in crediting of the Bank Drafts in question
in the account of accused No.1 at Dena Bank, Surat, while he was
working in the said Bank at Vapi.
(iv) The
applicant had made an application for bail before filing of the
charge-sheet, being Criminal Misc. Application No.4118 of 2009, which
was permitted to be withdrawn, by order dated 9-4-2009 of this Court.
Further, the applicant had once again approached this Court after
filing of the charge-sheet by making Criminal Misc. Application
No.7930 of 2009, which was permitted to be withdrawn by order dated
4-9-2009. The applicant then filed Criminal Misc. Application No.2245
of 2010, which was permitted to be withdrawn by order dated
23-6-2010, with liberty to approach the Sessions Court, on filing of
the supplementary charge-sheet. The present application has been
filed after rejection of the bail application by the Sessions Court
by order dated 30-7-2010. There is no change in circumstances after
filing of the supplementary charge-sheet and the ground urged by the
learned counsel for the applicant, to the effect that the applicant
is not named in the Departmental Inquiry initiated by the Bank cannot
be considered to be a change in circumstances, for grant of bail.
Moreover, the standard of proof in a Departmental Inquiry and in a
Criminal Trial are different, and the Trial Court is bound to
appreciate and evaluate the evidence on record, according to settled
principles of criminal law.
(v) The
length of incarceration of the applicant would not be relevant in
view of the fact that, his prima facie involvement in the
commission of the alleged offences appears to be borne out from the
record.
7. Having
taken into consideration the above aspects emerging from the
material on record, and for reasons stated herein-above, in the
considered view of this Court, the present is not a fit case wherein
discretion can be exercised in favour of the applicant. The offences
alleged against the applicant are grave and serious in nature. It
cannot be lost sight of, that an order of the High Court is alleged
to have been forged, which forms the basis of the conspiracy
allegedly hatched by the applicant and other accused persons.
8. In
view of the totality of the facts and circumstances mentioned
herein-above, the application is rejected. Rule is discharged.
9. It
is made clear that the Court has considered the matter only from the
perspective of bail and no observations made in this order may be
taken to have any bearing on the merits of the case. The Trial Court
shall proceed in accordance with law, without being influenced by any
observation made in this order.
(Smt.Abhilasha Kumari,J)
arg
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