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CR.MA/5145/2009 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
MISC.APPLICATION No. 5145 of 2009
=========================================================
VALLABHBHAI
PARSHOTTAMBHAI BHAYANI & 10 - Applicant(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MR
SP KOTIA for the
Applicants.
Mr. M.R.Mengdey, Addl. PUBLIC PROSECUTOR for the
Respondent.
=========================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 01/05/2009
ORAL
ORDER
Rule.
Mr. M.R.Mengdey, learned Additional Public Prosecutor waives service
of notice of Rule on behalf of the respondent State.
2. This
application under section 438 of the Code of Criminal Procedure, has
been preferred for grant of anticipatory bail, as the applicants
apprehend their arrest in connection with FIR, being CR. No.I-1 of
2009, registered with Sihor Police Station for offences punishable
under
sections 406, 420, 467, 468 and 114, of the Indian Penal Code.
3. The
allegation against the applicants is that they are involved in the
commission of the above-mentioned offences, whereby being members of
Mahada Hira Udyog Sahakari Mandali Ltd.
, a loan of Rs. 2 lacs was taken from the complainant bank
which was not repaid nor any instalment given towards the same.
4. Mr.
S.P.Kotia, learned counsel for the applicants has submitted that
the applicants are farmers who had formed the said Mandali in order
to carry out diamond business collectively and as funds were
required, the loan was taken from the complainant bank. In fact,
machinery for setting up diamond business was also purchased.
However, as heavy losses were suffered, the loans could not be repaid
and now in the year 2009, after a period of about 15 years, a
criminal complaint has been lodged eventhough this dispute was the
subject matter of arbitration proceedings in the year 1999. That the
applicants have not committed offences as alleged and as they are
apprehending their arrest in connection with the above FIR, the
application may be considered.
5. On
the other hand, Mr. M.R.Mengdey, learned Additional Public Prosecutor
has opposed the grant of anticipatory bail to the applicant.
6. I
have heard the learned counsel for the respective parties, perused
the averments made in the application, contents of the FIR and other
documents on record.
7. From
a perusal of the contents of the FIR, it appears that the said loan
was taken in the year 1999 by the applicants, who had formed the
above-mentioned Mandali for the purpose of running diamond business.
It further appears that as the applicants could not repay the said
loan or give the instalments, the loan has now escalated with
interest and a sizeable amount appears to be pending against the
applicants. However, looking to the entirety of the facts and
circumstances of the case, apart from non-payment of loan, the
commission of offences as alleged against the applicants is not
clearly borne out from the record. Looking to the nature and gravity
of the offence and quantum of punishment that can be imposed upon
conviction, and considering the papers on record, interest of justice
would be met if the prayer made in the application is granted.
8. The
application is, accordingly, allowed, and the following order is
passed:
In
the event of the arrest of the applicants in CR.No.I-1 of 2009
lodged with Sihor Police Station,
for offences under Sections
406, 420, 467, 468 and 114, of the Indian Penal Code,
applicants, namely (1) Vallabhbhai Parshottambhai Bhayani (2)
Dilipbhai Thakarshibhai Bhayati (3) Manjibhai Thakarshibhai Bhayani
(4) Hamajibhai Jivabhai Parmar (5) Jahabhai Jethabhai Parmar (6)
Manjibhai Khimjibhai Lathiya (7) Vallabhbhai Parshottambhai Sachapara
(8) Bhupatbhai Mohanbhai (9) Ghanshyambhai Ukabhai Mori (10)
Paljibhai Ugabhai and (11) Raghavbhai Mulabhai, shall be released on
bail, on each of them executing a bond of Rs.10,000/-(Rupees Ten
Thousand only) with one solvent surety of the like amount, to the
satisfaction of the concerned police officer and on conditions that
they shall;
a) remain
present before the Investigating Officer of the concerned Police
Station, on 7.5.2009 between 11:00 am to 5:00 pm.
b) remain
present before the trial Court regularly, as and when directed, on
the dates fixed;
c) make
themselves available for interrogation by the concerned police
officer, whenever and wherever required.
d) not
directly or indirectly make any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade
him/her from disclosing such facts to the Court or to any Police
Officer;
e) not
obstruct or hamper the police investigation and not play mischief
with the evidence collected or yet to be collected by the police;
f) at
the time of execution of bond, furnish their residential address to
the Investigating Officer and the Courts concerned, and shall not
change their residence as far as possible till the final disposal of
the case or till further orders. In case the applicants wish to
change their residential address, prior permission to do so shall be
obtained from the Court and with intimation to the Investigating
Officer concerned;
g) not
leave India without the permission of the Court and, if having
Passports, shall deposit the same before the trial Court within a
week;
9. It
would be open to the Investigating Officer to file an
application for remand if he considers it proper and just; and the
learned Magistrate would decide it on merits.
10.
This order will hold good if the applicants are arrested at any
time within 90 days from today. The order for release on bail will
remain operative only for a period of TEN days from the date of their
arrest. Thereafter it will be open to the applicants to make a fresh
application for being enlarged on bail in usual course which when it
comes before the competent Court, will be disposed of in accordance
with law, having regard to all the attending circumstances and the
materials available at the relevant time, uninfluenced by the fact
that anticipatory bail was granted.
11. It
is made clear that no observation made by this Court be construed as
having any bearing on the merits of the case, at the time of trial.
The trial Court will proceed in accordance with law, unaffected and
uninfluenced by any observation contained in this order.
12.
Rule is made absolute to the above extent. Direct service is
permitted.
(SMT.ABHILASHA
KUMARI, J.)
***darji
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