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CR.MA/3192/2010 4/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 3192 of 2010
=========================================================
HAJI
AYUB KEVAR - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
EE SAIYED FOR MR. SIKANDER SAIYED
for
Applicant(s) : 1,
MR DEVANG VYAS, ADDL. PUBLIC PROSECUTOR for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.B.ANTANI
Date
: 11/05/2010
ORAL
ORDER
1. This
application is preferred under Section 439 of the Code of Criminal
Procedure, 1973 seeking regular bail by the applicant, who came to be
arrested in connection with FIR registered as M. Case No. 66 of
2007 before learned Judicial Magistrate, First Class, Gandhidham for
the offence punishable under Sections 406, 420 and 506 (2) of the
Indian Penal Code.
2. Learned
advocate Mr. Saiyed submitted that the applicant is an innocent
person and he has been falsely implicated in the commission of the
alleged offence. He further submitted that the applicant is a victim
of circumstances and at best it can be stated that the applicant
failed in fulfilling the promise made by him, but the same has not
been done with any ulterior motive or pre-determination. He submitted
that though the applicant started a scheme, it went beyond his
control for various reasons. Learned advocate for the applicant,
however, submitted that the applicant is willing to repay the entire
amount to the complainant and he will deposit 1/3rd amount
due to the complainant before the trial Court and the remaining
amount will also be deposited before the trial Court within one month
from the date of release and since the accused is willing to deposit
the amount, his case may be considered sympathetically.
3. Learned
Addl. Public Prosecutor Mr. Devang Vyas, while opposing bail
application submitted that the applicant has cheated large number of
persons coming from the lower strata of the Society. He submitted
that considering the role attributed to the applicant and the manner
in which the offence is committed, discretionary relief may not be
exercised in favour of the applicant, and the application deserves to
be dismissed.
4. Heard
learned counsel appearing for the applicant and learned APP at length
and in great detail. I have also perused the averments made in the
application, submissions canvassed by learned advocate before me as
well as the FIR produced on record. I have also considered the
provisions of Sections 406, 420 and 506 (2) of the Indian Penal Code,
gravity of the offence and quantum of punishment which can be imposed
in the event of conviction of the applicant. Though the applicant
has collected huge amount from persons belonging to the lower strata
of the Society with the promise of providing accommodation and later
on did not do so, considering the fact that the applicant has
volunteered and shown willingness to deposit 1/3rd amount
immediately and the remaining amount within one month of his release
on bail, I am of the view that taking into consideration the
interest of the complainant in the peculiar facts and circumstances
of the case and without making it as a precedent, the applicant is
required to be enlarged on regular bail at this stage, without
entering into the merits of the case and without discussing the
evidence in detail.
5. The
parties do not press for further reasoned order.
6. In
the facts and circumstances of the case, the application is allowed.
The applicant is ordered to be enlarged on bail in connection with M.
Case No. 66 of 2007 registered before Gandhidham ‘A’ Division
Police Station, subject also to the conditions that he shall:
[i]. Deposit
1/3rd amount due to the complainant before the learned
JMFC Gandhidham before being enlarged on bail, as volunteered by the
applicant.
[ii]. Before
being enlarged on bail, file an undertaking before this Court in the
present proceedings and produce a copy thereof to the learned JMFC,
Gandhidham to the effect that he volunteers to deposit 1/3rd
amount due to the complainant before being enlarged on bail and the
remaining amount within a period of one month from the date of his
release.
[iii]. Execute
a bond of Rs.5,000/- [Rupees five thousand only] before the trial
Court with one surety of the like amount to the satisfaction of the
trial court.
[iv] Not
take undue advantage of his liberty or abuse his liberty;
[v]. Not
act in a manner injurious to the interest of the prosecution;
[vi]. Surrender
his passport, if any, to the lower court within a week;
[vii]. Not
leave the State of Gujarat without the prior permission of the
Sessions court concerned;
[viii]. Mark
his presence at Gandhidham ‘A’ Division Police Station twice in a
month, i.e. on 1st and 15th of every English
calendar month between 9.00 AM and 2.00 PM. till the trial is over;
[ix]. Furnish
the present address of his residence to the I.O. and also to the
Court at the time of execution of the bond and shall not change his
residence without prior permission of this Court;
[x]. Maintain
law and order.
[xi]. If
1/3rd amount due to the complainant is not deposited as
volunteered, and if undertaking to pay 1/3rd amount
initially and the remaining amount within a month from the date of
his release as volunteered by the applicant is not filed, the
applicant shall not be released.
[xii] If
the remaining amount is not deposited within one month from the date
of his release as per the undertaking, bail granted by this Court
shall stand automatically cancelled.
7. If
breach of any of the above conditions is committed, then also the
learned Judge concerned will be free to issue warrant or to take
appropriate action in the matter.
8. Bail
bond to be executed before the lower Court having jurisdiction to try
the case.
9. At
the trial, the trial Court shall not be influenced by the
observations of preliminary nature, qua the evidence at this stage,
made by this Court while enlarging the applicant on bail.
10. Rule
is made absolute to the aforesaid extent.
11. Direct
Service is permitted.
mathew [H.B.ANTANI,
J.]
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