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Gujarat High Court
Kalpesh vs State on 18 October, 2011
Author: Z.K.Saiyed,
  
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CR.MA/12487/2011	 11/ 11	ORDER 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

CRIMINAL
MISC.APPLICATION No. 12487 of 2011
 

 
 
For
Approval and Signature:  
 
HONOURABLE
MR.JUSTICE Z.K.SAIYED
 
=========================================


 

KALPESH
N DAFTARY - Applicant(s)
 

Versus
 

STATE
OF GUJARAT - Respondent(s)
 

=========================================
 
Appearance : 
MR
PM THAKKAR WITH MR HARSHIT S TOLIA
for Applicant(s) : 1, 
MR
KL PANDYA, LD. ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1,
 

MR
BB NAIK for Original
Complainant 
=========================================


 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE Z.K.SAIYED
		
	

 

Date
: 18/10/2011
 

CAV
ORDER

By
way of present application, filed under Section 439 of the Code of
Criminal Procedure, 1973, the applicant has prayed to release him on
regular bail in connection with CR No.I-77 of 2010 registered with
Dahej Police Station, District Bharuch, for the offence punishable
under Sections 406, 420, 465, 466, 467, 468, 471, 472, 474, 499, 500
and 120(B) of the Indian Penal Code.

As
per the say of the complainant, he is Manager (Commerce) in one
M/s.Hindalco Industries Limited. On 18th December, 2010
the complainant had filed complaint against Padmavati Agencies
Private Limited and its six Directors and accountant of Padmavati
Agencies Private Limited at Dahej Police Station. As per the case
of the complainant, the Hindalco Industries was importing various
materials for manufacturing activities of the industry. For paying
Custom Duty, M/s.Hindalco Industries used to purchase duty free
licenses from market, which are freely saleble / transferable,
granted by Director General of Foreign Trade to various exporters as
incentives. In the market, such duty free licenses namely Duty
Entitlement Pass Book (DEPB) and Vises Krisi Upaj Yojna (VKUY) are
available on sale. The complainant has stated that they had
purchased various duty free licenses from one Padmavati Agency Pvt.
Ltd. On various dates and for various amounts. There was bond
executed by Padmavati Pvt. Ltd. to compensate, in case licenses are
not permitted to be utilised. On 19th November, 2010,
officers of DRI called the complainant and his colleague Mr.Mathur.
During inquiry, the officers of DRI had shown certain duty free
licenses to the complainant and it was shown that eight licenses are
forged documents, pursuant to which the complainant had approached
Padmavati Agencies Pvt. Ltd. and its Directors by writing letters
seeking explanation about forged licenses. However, neither response
was given by accused No.1, nor from its Directors / office bearers.
Pursuant to which the present complaint was registered by the
complainant being officers of M/s.Hindalco Industries against
Padmavati Agencies and its Directors and accountant.

Heard
Mr.Prakash Thakkar, learned senior counsel with Mr.Parth Tolia,
learned counsel for the applicant, Mr.K.L. Pandya, learned
Additional Public Prosecutor appearing for respondent-State and
Mr.B.B. Naik, learned senior counsel for original complainant.

Mr.Thakkar
has read the contention of Section 405 and 415 of the Indian Penal
Code and vehemently contended that from the ingredient of Section
405 of the Indian Penal Code, entrustment and dominion over the
property is required to be established beyond reasonable doubt.
Mr.Thakkar has further contended that from the contents of
complaint, main ingredient of Section 405 and 415 of the Indian
Penal Code is not established and it is also not established from
the charge-sheet papers to show that present complainant is a person
through whom entrustment and dominion over the property is made to
the present applicant. He has also contended that as per the
complaint, the name of Padmavati Agencies Pvt. Ltd. is shown, but,
prima-facie, no evidence is produced on the record to connect the
present applicant with Padmavati Agencies Pvt. Ltd. He has also
contended that the applicant is not the Director or office bearers
of the said Padmavati Agencies Pvt. Ltd. He has also further
contended that the present proceedings is, in fact, successive
prosecution of the prosecution of DRI. He has also further contended
that through DRI, certain statements were recorded and even from the
charge-sheet papers, that statements are not part of the
investigation or case of the prosecution. Mr.Thakkar has also read
the charge-sheet papers and contended that prosecution has no
evidence to say that whether that licenses are forged or bogus and
in support thereof, prosecution has not produced any expert opinion
to say as to whether that licenses are prepared or made by present
applicant or not. He has further contended that when, prima-facie,
it is established that applicant has no connection whatsoever with
Padmavati Agencies Pvt. Ltd. He has further contended that
co-accused Mr.Piyush Surendrabhai Viramgama is released on bail by
this Court vide order dated 23rd September, 2011. He has
further contended that investigation is over and charge-sheet is
already filed. He has read the contents of the FIR and vehemently
contended that applicant is not named in the FIR. He has further
read the contents of FIR and contended that name of Padmavati
Agencies Pvt. Ltd. and its office bearers is shown, but none of
them are arrested till date. He has further contended that
prima-facie it is established that the applicant has no connection
with Padmavati Agencies Pvt. Ltd. He has further contended that the
entire prosecution case is based on the investigation of DRI only
and the fact is undisputed and admitted and DRI is not in a position
to file charge-sheet till date. He has further contended that there
is no iota of evidence in the entire charge-sheet, except statements
of the complainant, such other persons including DRI officers, which
itself is not sufficient to detain the present applicant as it fails
to make out any prima-facie case. Mr.Thakkar has also contended that
when there is no evidence to connect the present applicant with
Padmavati Agencies Pvt. Ltd. and when the prosecution has failed to
produced on record any expert opinion of FSL to show that the
present applicant has prepared or made the said licenses, present
applicant may kindly be released on bail. He has further contended
that role of the present applicant is not established, beyond
reasonable doubt, to say that main ingredient of Section 415 of the
Indian Penal Code is established against the present applicant. He
has also read Sections 463 and 464 of the Indian Penal Code and also
further contended that prosecution failed to establish from the
charge-sheet papers to say that main ingredient of both the
provisions of law is established against the present applicant. He
has also contended that Section 471 of the Indian Penal Code “used
forged documents as genuine” is a bailable offence. He has
further contended that in Criminal Miscellaneous Application No.7483
of 2011 the co-ordinate Bench of this Court has considered the case
of the co-accused and even this Court has also considered the case
of co-accused in Criminal Miscellaneous Application No.12793 of
2011. Mr.Thakkar has further contended that M/s.Hindalco Industries
has filed Civil Suits before the City Civil Court, and from that
Civil Suits also, it appears that the transaction was not with the
present applicant and even there is no previty of contract between
the applicant and the complainant. Mr.Thakkar has also contended
that from the statement dated 18th December, 2010 of
Mr.B.K. Pilaniwala, it appears that there are allegations only
against the officers of Padmavati Agencies Pvt. Ltd. and not against
the present applicant. The statement of Mr.Piliniwala do not
implicate, in any manner, the present applicant with the alleged
offence in question. He has further contended that in the said
factual background of this application, the present proceedings is
in fact successive prosecution of the prosecution of DRI. In fact it
had been revealed from the DRI proceedings and the Civil Suit
No.2525 of 2010 filed by M/s.Hindalco Industries that one Shivangi
Enterprise, which is a proprietorship company of Mr.Vijay Gadia (who
is working with Mr.Piyush Viramgama), sold various licenses to one
Vani Exports, proprietorship of Mr.Girish Ghelani, who in turn sold
the said licenses to M/s.Padmavati Agencies Private Limited, which
has further sold to M/s.Hindalco Industries. The applicant and his
company viz. Sankalp Creation P. Ltd. has no role in selling /
transferring of such free licenses. The applicant has no transaction
at all with the complainant company in whatsoever manner. He has
further contended that even during the interrogation of DRI and
during search, nothing incriminating is found from the applicant.
The fake seals and other materials found from the place of Mr.Piyush
Viramgama and Mr.Vijay Gadia of Shivangi Enterprise. With a view to
wriggle out severe criminal and civil responsibility of the office
bearers of M/s.Padmavati Agencies Pvt. Ltd., implicated the present
applicant by filing the complaint against him. In fact, there was no
transaction of complainant or M/s.Padmavati Agencies Pvt. Ltd. with
the applicant. Mr.Thakkar has further contended that the co-accused
has already been released on bail by this Court and therefore, on
the ground of parity, present applicant may also be released on
bail. He has further contended that it is the duty of the
Investigating Officer to collect documents from DRI. He has further
contended that even from the filing of charge-sheet, it shows that
the present Investigating Officer is negligent and even from the
charge-sheet papers, prima-facie, no case is made out against the
present applicant. He has further contended that certain other
companies are also involved, but they are not cited as accused in
the charge-sheet. He has also contended that the investigation is
biased. Just to protect skin of real culprits, present applicant is
wrongly booked by the Investigating Agency. He, therefore, contended
that looking to the facts of the case and overall circumstances,
applicant may kindly be released on bail.

As
against this, Mr.K.L. Pandya, learned Additional Public Prosecutor,
has vehemently opposed the present application and contended that
the applicant is involved in a serious offence of fraud and forgery.
Because of the act of the applicant, Government has suffered a huge
loss. Prima-facie case and role of the applicant is proved beyond
reasonable doubt and therefore, no leniency can be awarded to the
applicant. He, therefore, contended that the present application may
kindly be rejected.

Mr.B.B.

Naik, learned senior counsel for the original complainant, has
supported the case of the prosecution. He has contended that
co-ordinate Bench of this Court has rejected the application of the
present applicant in different Crime Register Number vide order
dated 23rd September, 2011. The co-ordinate Bench has in
its order observed that 85 licenses were forged. He has contended
that present applicant is a creator of bogus, fraud and forged
licenses and from Khanpur, the said licenses were distributed. He
has further contended that the present applicant is one of the
conspirators. He has also contended that looking to the charge-sheet
papers, when prima-facie case is made out against the applicant,
present application cannot be entertained. Mr.Naik has also read the
letter dated 22nd January, 2011 of DRI addressed to the
Investigating Officer and contended that present applicant is a key
planner. He has further contended that due to negligency on the part
of the Investigating Officer, applicant-accused cannot be released
easily. He has further contended that DRI has arrested the accused
and they are released due to default bail. He has further contended
that, prima-facie, it is established that forged licenses are
circulated. He, therefore, contended that the present application is
required to be rejected.

Heard
learned counsel for the respective parties and also perused papers
produced before me. In this case, charge-sheet is already filed. It
is the duty of the prosecution to establish main ingredient of
Sections 405 and 415 of the Indian Penal Code. So far as question
regarding entrustment and dominion over the property is concerned, I
have not found any substance from the charge-sheet papers to say
that, prima-facie, case is established against the present
applicant. It also appears from the papers that till date DRI has
not filed the charge-sheet or not issued any show cause notice to
connect the applicant in the offence alleged against him. It appears
that the Investigating Officer has never bothered to obtain any
evidence from DRI. The Investigating Officer has failed to produce
any documentary evidence to connect the present applicant with
M/s.Padmavati Agencies Pvt. Ltd. Court is not entering into the
merits of the case, but it is the duty of the Court to see that as
to whether prima-facie case is made out or not. It is the duty of
the prosecution to prove that from whom the forged licenses in
question is recovered and who has prepared or made the said forged
and bogus licenses. In the present case, the prosecution has failed
to prove beyond reasonable doubt that the said forged and bogus
licenses are prepared or made by the applicant. Even the
Investigating Officer has not produced any evidence from FSL to show
that the present applicant has prepared or made the said bogus
licenses. The offences alleged against the applicant are triable by
the Court of Magistrate. In the present case, charge-sheet is filed
and it is not the case of the prosecution that there are chances
that applicant may absconding or the applicant may tamper with the
evidence. The case is rest upon the documentary evidence.

I
have also perused the order passed by the Court below as also the
order passed by this Court. Looking to the papers, I have not found
direct involvement of the present applicant in the offence in
question. The order passed by the co-ordinate Bench of this Court
releasing the co-accused on bail has made observations that, (I) the
financial loss caused to the Department appears to have been made
good by M/s.Hindalco Industries Ltd., Dahej; (ii) all the offences
are magistrate triable offences; (iii) investigation is over and
charge-sheet is filed; (iv) applicant is a permanent resident of
Rajkot and is residing with his family at Rajkot; (v) the entire case
of the prosecution is based on documentary evidence.

In
the facts and circumstances of the case and considering the nature
of allegations and role attributed to the applicant and now the
charge-sheet is filed, without entering into the merits of the case,
prima facie, this Court is of the opinion that this is a fit case to
exercise the discretion to enlarge the applicant on bail.

Hence,
the applicant is ordered to be released on bail in connection with
CR No.I-77 of 2010 registered with Dahej Police Station, District
Bharuch, for the offence alleged against him in this application on
his executing a personal bond of Rs.50,000/- (Rupees Fifty Thousand
Only) with one solvent surety of the like amount to the satisfaction
of the trial Court and subject to the conditions that he shall –

a) not
take undue advantage of his liberty or abuse his liberty;

b) not
to try to tamper or pressurise the prosecution witnesses or
complainant in any manner;

c) maintain
law and order and should cooperate the Investigating Officer;

d) not
act in a manner injurious to the interest of the prosecution;

e) mark
his presence before the Investigating Officer on every 15th
day of each English calendar month between 09.00 hours and 14.00
hours;

f) not
leave the State of Gujarat without prior permission of the Sessions
Judge concerned;

g) furnish
the address of his residence to the Investigating Officer and also to
the Court at the time of execution of the bond and shall not change
the residence without prior permission of this Court;

h) surrender
his passport, if any, to the lower Court within a week.

If
the breach of any of the above conditions is committed, the
concerned Court will be free to issue warrant or take appropriate
action in the matter.

Bail
before the lower Court having jurisdiction to try the case. It would
be open to the trial Court concerned to give time to furnish the
solvency certificate if prayed for. Rule is made absolute.

Direct
service is permitted.

(Z.

K. Saiyed, J)

Anup

   

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