{"id":68711,"date":"2011-10-18T00:00:00","date_gmt":"2011-10-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kalpesh-vs-state-on-18-october-2011"},"modified":"2018-10-22T13:04:53","modified_gmt":"2018-10-22T07:34:53","slug":"kalpesh-vs-state-on-18-october-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kalpesh-vs-state-on-18-october-2011","title":{"rendered":"Kalpesh vs State on 18 October, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Kalpesh vs State on 18 October, 2011<\/div>\n
Author: Z.K.Saiyed,<\/div>\n
  \n Gujarat High Court Case Information System \n    \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nCR.MA\/12487\/2011\t 11\/ 11\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nCRIMINAL\nMISC.APPLICATION No. 12487 of 2011\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE Z.K.SAIYED\n \n=========================================\n\n\n \n\nKALPESH\nN DAFTARY - Applicant(s)\n \n\nVersus\n \n\nSTATE\nOF GUJARAT - Respondent(s)\n \n\n=========================================\n \nAppearance : \nMR\nPM THAKKAR WITH MR HARSHIT S TOLIA\nfor Applicant(s) : 1, \nMR\nKL PANDYA, LD. ADDL. PUBLIC PROSECUTOR for Respondent(s) : 1,\n \n\nMR\nBB NAIK for Original\nComplainant \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE Z.K.SAIYED\n\t\t\n\t\n\n \n\nDate\n: 18\/10\/2011\n \n\nCAV\nORDER\n<\/pre>\n
By
\n\tway of present application, filed under Section 439 of the Code of
\n\tCriminal Procedure, 1973, the applicant has prayed to release him on
\n\tregular bail in connection with CR No.I-77 of 2010 registered with
\n\tDahej Police Station, District Bharuch, for the offence punishable
\n\tunder Sections 406, 420, 465, 466, 467, 468, 471, 472, 474, 499, 500
\n\tand 120(B) of the Indian Penal Code.\n<\/p>\n
As
\n\tper the say of the complainant, he is Manager (Commerce) in one
\n\tM\/s.Hindalco Industries Limited. On 18th December, 2010
\n\tthe complainant had filed complaint against Padmavati Agencies
\n\tPrivate Limited and its six Directors and accountant of  Padmavati
\n\tAgencies Private Limited at Dahej Police Station.  As per the case
\n\tof the complainant, the Hindalco Industries was importing various
\n\tmaterials for manufacturing activities of the industry.  For paying
\n\tCustom Duty, M\/s.Hindalco Industries used to purchase duty free
\n\tlicenses from market, which are freely saleble \/ transferable,
\n\tgranted by Director General of Foreign Trade to various exporters as
\n\tincentives.  In the market, such duty free licenses namely Duty
\n\tEntitlement Pass Book (DEPB) and Vises Krisi Upaj Yojna (VKUY) are
\n\tavailable on sale. The complainant has stated that they had
\n\tpurchased various duty free licenses from one Padmavati Agency Pvt.
\n\tLtd. On various dates and for various amounts. There was bond
\n\texecuted by Padmavati Pvt. Ltd. to compensate, in case licenses are
\n\tnot permitted to be utilised. On 19th November, 2010,
\n\tofficers of DRI called the complainant and his colleague Mr.Mathur.
\n\tDuring inquiry, the officers of DRI had shown certain duty free
\n\tlicenses to the complainant and it was shown that eight licenses are
\n\tforged documents, pursuant to which the complainant had approached
\n\tPadmavati Agencies Pvt. Ltd. and its Directors by writing letters
\n\tseeking explanation about forged licenses. However, neither response
\n\twas given by accused No.1, nor from its Directors \/ office bearers.
\n\tPursuant to which the present complaint was registered by the
\n\tcomplainant being officers of M\/s.Hindalco Industries against
\n\tPadmavati Agencies and its Directors and accountant.\n<\/p>\n
Heard
\n\tMr.Prakash Thakkar, learned senior counsel with Mr.Parth Tolia,
\n\tlearned counsel for the applicant, Mr.K.L. Pandya, learned
\n\tAdditional Public Prosecutor appearing for respondent-State and
\n\tMr.B.B. Naik, learned senior counsel for original complainant.\n<\/p>\n
Mr.Thakkar
\n\thas read the contention of Section 405 and 415 of the Indian Penal
\n\tCode and vehemently contended that from the ingredient of Section
\n\t405 of the Indian Penal Code, entrustment and dominion over the
\n\tproperty is required to be established beyond reasonable doubt.
\n\tMr.Thakkar has further contended that from the contents of
\n\tcomplaint, main ingredient of Section 405 and 415 of the Indian
\n\tPenal Code is not established and it is also not established from
\n\tthe charge-sheet papers to show that present complainant is a person
\n\tthrough whom entrustment and dominion over the property is made to
\n\tthe present applicant. He has also contended that as per the
\n\tcomplaint, the name of Padmavati Agencies Pvt. Ltd. is shown, but,
\n\tprima-facie, no evidence is produced on the record to connect the
\n\tpresent applicant with Padmavati Agencies Pvt. Ltd. He has also
\n\tcontended that the applicant is not the Director or office bearers
\n\tof the said Padmavati Agencies Pvt. Ltd. He has also further
\n\tcontended that the present proceedings is, in fact, successive
\n\tprosecution of the prosecution of DRI. He has also further contended
\n\tthat through DRI, certain statements were recorded and even from the
\n\tcharge-sheet papers, that statements are not part of the
\n\tinvestigation or case of the prosecution. Mr.Thakkar has also read
\n\tthe charge-sheet papers and contended that prosecution has no
\n\tevidence to say that whether that licenses are forged or bogus and
\n\tin support thereof, prosecution has not produced any expert opinion
\n\tto say as to whether that licenses are prepared  or made by present
\n\tapplicant or not. He has further contended that when, prima-facie,
\n\tit is established that applicant has no connection whatsoever with
\n\tPadmavati Agencies Pvt. Ltd. He has further contended that
\n\tco-accused Mr.Piyush Surendrabhai Viramgama is released on bail by
\n\tthis Court vide order dated 23rd September, 2011. He has
\n\tfurther contended that investigation is over and charge-sheet is
\n\talready filed. He has read the contents of the FIR and vehemently
\n\tcontended that applicant is not named in the FIR. He has further
\n\tread the contents of FIR and contended that name of Padmavati
\n\tAgencies Pvt. Ltd. and its office bearers is shown, but  none of
\n\tthem are arrested till date. He has further contended that
\n\tprima-facie it is established that the applicant has no connection
\n\twith Padmavati Agencies Pvt. Ltd. He has further contended that the
\n\tentire prosecution case is based on the investigation of DRI only
\n\tand the fact is undisputed and admitted and DRI is not in a position
\n\tto file charge-sheet till date. He has further contended that there
\n\tis no iota of evidence in the entire charge-sheet, except statements
\n\tof the complainant, such other persons including DRI officers, which
\n\titself is not sufficient to detain the present applicant as it fails
\n\tto make out any prima-facie case. Mr.Thakkar has also contended that
\n\twhen there is no evidence to connect the present applicant with
\n\tPadmavati Agencies Pvt. Ltd. and when the prosecution has failed to
\n\tproduced on record any expert opinion of FSL to show that the
\n\tpresent applicant has prepared or made the said licenses, present
\n\tapplicant may kindly be released on bail. He has further contended
\n\tthat role of the present applicant is not established, beyond
\n\treasonable doubt, to say that main ingredient of Section 415 of the
\n\tIndian Penal Code is established against the present applicant. He
\n\thas also read Sections 463 and 464 of the Indian Penal Code and also
\n\tfurther contended that prosecution failed to establish from the
\n\tcharge-sheet papers to say that main ingredient of both the
\n\tprovisions of law is established against the present applicant. He
\n\thas also contended that Section 471 of the Indian Penal Code “used
\n\tforged documents as genuine” is a bailable offence. He has
\n\tfurther contended that in Criminal Miscellaneous Application No.7483
\n\tof 2011 the co-ordinate Bench of this Court has considered the case
\n\tof the co-accused and even this Court has also considered the case
\n\tof co-accused in Criminal Miscellaneous Application No.12793 of
\n\t2011. Mr.Thakkar has further contended that M\/s.Hindalco Industries
\n\thas filed Civil Suits before the City Civil Court, and from that
\n\tCivil Suits also, it appears that the transaction was not with the
\n\tpresent applicant and even there is no previty of contract between
\n\tthe applicant and the complainant. Mr.Thakkar has also contended
\n\tthat from the statement dated 18th December, 2010 of
\n\tMr.B.K. Pilaniwala, it appears that there are allegations only
\n\tagainst the officers of Padmavati Agencies Pvt. Ltd. and not against
\n\tthe present applicant. The statement of Mr.Piliniwala do not
\n\timplicate, in any manner, the present applicant with the alleged
\n\toffence in question. He has further contended that in the said
\n\tfactual background of this application, the present proceedings is
\n\tin fact successive prosecution of the prosecution of DRI. In fact it
\n\thad been revealed from the DRI proceedings and the Civil Suit
\n\tNo.2525 of 2010 filed by M\/s.Hindalco Industries that one Shivangi
\n\tEnterprise, which is a proprietorship company of Mr.Vijay Gadia (who
\n\tis working with Mr.Piyush Viramgama), sold various licenses to one
\n\tVani Exports, proprietorship of Mr.Girish Ghelani, who in turn sold
\n\tthe said licenses to M\/s.Padmavati Agencies Private Limited, which
\n\thas further sold to M\/s.Hindalco Industries. The applicant and his
\n\tcompany viz. Sankalp Creation P. Ltd. has no role in selling \/
\n\ttransferring of such free licenses. The applicant has no transaction
\n\tat all with the complainant company in whatsoever manner. He has
\n\tfurther contended that even during the interrogation of DRI and
\n\tduring search, nothing incriminating is found from the applicant.
\n\tThe fake seals and other materials found from the place of Mr.Piyush
\n\tViramgama and Mr.Vijay Gadia of Shivangi Enterprise. With a view to
\n\twriggle out severe criminal and civil responsibility of the office
\n\tbearers of M\/s.Padmavati Agencies Pvt. Ltd., implicated the present
\n\tapplicant by filing the complaint against him. In fact, there was no
\n\ttransaction of complainant or M\/s.Padmavati Agencies Pvt. Ltd. with
\n\tthe applicant. Mr.Thakkar has further contended that the co-accused
\n\thas already been released on bail by this Court and therefore, on
\n\tthe ground of parity, present applicant may also be released on
\n\tbail. He has further contended that it is the duty of the
\n\tInvestigating Officer to collect documents from DRI. He has further
\n\tcontended that even from the filing of charge-sheet, it shows that
\n\tthe present Investigating Officer is negligent and even from the
\n\tcharge-sheet papers, prima-facie, no case is made out against the
\n\tpresent applicant. He has further contended that certain other
\n\tcompanies are also involved, but they are not cited as accused in
\n\tthe charge-sheet. He has also contended that the investigation is
\n\tbiased. Just to protect skin of real culprits, present applicant is
\n\twrongly booked by the Investigating Agency. He, therefore, contended
\n\tthat looking to the facts of the case and overall circumstances,
\n\tapplicant may kindly be released on bail.\n<\/p>\n
As
\n\tagainst this, Mr.K.L. Pandya, learned Additional Public Prosecutor,
\n\thas vehemently opposed the present application and contended that
\n\tthe applicant is involved in a serious offence of fraud and forgery.
\n\tBecause of the act of the applicant, Government has suffered a huge
\n\tloss. Prima-facie case and role of the applicant is proved beyond
\n\treasonable doubt and therefore, no leniency can be awarded to the
\n\tapplicant. He, therefore, contended that the present application may
\n\tkindly be rejected.\n<\/p>\n
Mr.B.B.\n<\/p>\n
\tNaik, learned senior counsel for the original complainant, has
\n\tsupported the case of the prosecution. He has contended that
\n\tco-ordinate Bench of this Court has rejected the application of the
\n\tpresent applicant in different Crime Register Number vide order
\n\tdated 23rd September, 2011. The co-ordinate Bench has in
\n\tits order observed that 85 licenses were forged. He has contended
\n\tthat present applicant is a creator of bogus, fraud and forged
\n\tlicenses and from Khanpur, the said licenses were distributed. He
\n\thas further contended that the present applicant is one of the
\n\tconspirators. He has also contended that looking to the charge-sheet
\n\tpapers, when prima-facie case is made out against the applicant,
\n\tpresent application cannot be entertained. Mr.Naik has also read the
\n\tletter dated 22nd January, 2011 of DRI addressed to the
\n\tInvestigating Officer and contended that present applicant is a key
\n\tplanner. He has further contended that due to negligency on the part
\n\tof the Investigating Officer, applicant-accused cannot be released
\n\teasily. He has further contended that DRI has arrested the accused
\n\tand they are released due to default bail. He has further contended
\n\tthat, prima-facie, it is established that forged licenses are
\n\tcirculated. He, therefore, contended that the present application is
\n\trequired to be rejected.\n<\/p>\n
Heard
\n\tlearned counsel for the respective parties and also perused papers
\n\tproduced before me. In  this case, charge-sheet is already filed. It
\n\tis the duty of the prosecution to establish main ingredient of
\n\tSections 405 and 415 of the Indian Penal Code. So far as question
\n\tregarding entrustment and dominion over the property is concerned, I
\n\thave not found any substance from the charge-sheet papers to say
\n\tthat, prima-facie, case is established against the present
\n\tapplicant. It also appears from the papers that till date DRI has
\n\tnot filed the charge-sheet or not issued any show cause notice to
\n\tconnect the applicant in the offence alleged against him. It appears
\n\tthat the Investigating Officer has never bothered to obtain any
\n\tevidence from DRI. The Investigating Officer has failed to produce
\n\tany documentary evidence to connect the present applicant with
\n\tM\/s.Padmavati Agencies Pvt. Ltd. Court is not entering into the
\n\tmerits of the case, but it is the duty of the Court to see that as
\n\tto whether prima-facie case is made out or not. It is the duty of
\n\tthe prosecution to prove that from whom the forged licenses in
\n\tquestion is recovered and who has prepared or made the said forged
\n\tand bogus licenses. In the present case, the prosecution has failed
\n\tto prove beyond reasonable doubt that the said forged and bogus
\n\tlicenses are prepared or made by the applicant.  Even the
\n\tInvestigating Officer has not produced any evidence from FSL to show
\n\tthat the present applicant has prepared or made the said bogus
\n\tlicenses. The offences alleged against the applicant are triable by
\n\tthe Court of Magistrate. In the present case, charge-sheet is filed
\n\tand it is not the case of the prosecution that there are chances
\n\tthat applicant may absconding or the applicant may tamper with the
\n\tevidence. The case is rest upon the documentary evidence.\n<\/p>\n
 \tI
\nhave also perused the order passed by the Court below as also the
\norder passed by this Court. Looking to the papers, I have not found
\ndirect involvement of the present applicant in the offence in
\nquestion. The order passed by the co-ordinate Bench of this Court
\nreleasing the co-accused on bail has made observations that, (I) the
\nfinancial loss caused to the Department appears to have been made
\ngood by M\/s.Hindalco Industries Ltd., Dahej; (ii) all the offences
\nare magistrate triable offences; (iii) investigation is over and
\ncharge-sheet is filed; (iv) applicant is a permanent resident of
\nRajkot and is residing with his family at Rajkot; (v) the entire case
\nof the prosecution is based on documentary evidence.\n<\/p>\n
In
\n\tthe facts and circumstances of the case and considering the nature
\n\tof allegations and role attributed to the applicant and now the
\n\tcharge-sheet is filed, without entering into the merits of the case,
\n\tprima facie, this Court is of the opinion that this is a fit case to
\n\texercise the discretion to enlarge the applicant on bail.\n<\/p>\n
Hence,
\n\tthe applicant is ordered to be released on bail in connection with
\n\tCR No.I-77 of 2010 registered with Dahej Police Station, District
\n\tBharuch, for the offence alleged against him in this application on
\n\this executing a personal bond of Rs.50,000\/- (Rupees Fifty Thousand
\n\tOnly) with one solvent surety of the like amount to the satisfaction
\n\tof the trial Court and subject to the conditions that he shall –\n<\/p>\n
a)\tnot
\ntake undue advantage of his liberty or\tabuse \this liberty;\n<\/p>\n
b)\tnot
\nto try to tamper or pressurise the prosecution \twitnesses or
\ncomplainant in any manner;\n<\/p>\n
c)\tmaintain
\nlaw and order and should cooperate the \tInvestigating Officer;\n<\/p>\n
d)\tnot
\nact in a manner injurious to the interest of\tthe prosecution;\n<\/p>\n
e)\tmark
\nhis presence before the Investigating\tOfficer on every 15th
\nday of each English calendar \tmonth between 09.00 hours and 14.00
\nhours;\n<\/p>\n
f)\tnot
\nleave the State of Gujarat without prior\tpermission of the Sessions
\nJudge concerned;\n<\/p>\n
g)\tfurnish
\nthe address of his residence to the\tInvestigating Officer\tand also to
\nthe Court at the \ttime of execution of \tthe bond and shall not\tchange
\nthe residence without prior permission of\tthis Court;\n<\/p>\n
h)\tsurrender
\n\this passport, if any, to the lower Court\twithin a week.\n<\/p>\n
If
\n\tthe breach of any of the above conditions is committed, the
\n\tconcerned Court will be free to issue warrant or take appropriate
\n\taction in the matter.\n<\/p>\n
Bail
\n\tbefore the lower Court having jurisdiction to try the case. It would
\n\tbe open to the trial Court concerned to give time to furnish the
\n\tsolvency certificate if prayed for. Rule is made absolute.\n<\/p>\n
Direct
\n\t\t\tservice is permitted.\n<\/p>\n
(Z.\n<\/p>\n
\tK. Saiyed, J)<\/p>\n
Anup<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Kalpesh vs State on 18 October, 2011 Author: Z.K.Saiyed, Gujarat High Court Case Information System Print 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 – […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-68711","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nKalpesh vs State on 18 October, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kalpesh-vs-state-on-18-october-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kalpesh vs State on 18 October, 2011 - 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