Prashantbhai Nareshbhai Vandra vs State Of Gujarat

Divyesh A. Joshi, J

The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 for regular bail in connection with the FIR being C.R. No.11193052230217/2023 registered with the Savarkundala Police Station, Amreli for the offence punishable under Sections 406, 420, 120(B), 504 and 506(2) of the Indian Penal Code, under Section 3 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 and under Section 3 of the Gujarat Protection of Interest of Depositors (in Financial Establishments) Act, 2003.

Heard learned advocate, Mr. Pratik Jasani for the applicant and learned APP Mr. L.B. Dabhi for the respondent – State of Gujarat.

Learned advocate for the applicant submitted that the so-called incident has occurred during the period between 01.01.2018 to 30.11.2021, for which, FIR has been lodged on 18.06.2023 and in connection with the same, the applicant has been arrested on 18.06.2023 and since then, he is in judicial custody. Learned advocate submitted that now the investigation is completed and after submission of the chargesheet, the present application is preferred. Learned advocate submitted that there is gross delay of two years in registration of aforesaid FIR, which suggests false implication of the applicant – accused. Learned advocate submitted that the applicant – accused is the real brother of the accused no.1, who has floated one scheme in the name and style of “Surabhi Group Magic Bumper Draw” at Savarkundala, where being a brother of the accused no.1, the applicant – accused used to seat in the office to help the accused no.1 in his business and while seating there, he also used to apprise the customers about the benefits of the scheme and also tell them to invest in the scheme to earn huge profit from it. Learned advocate submitted that in fact, as per the case of the prosecution, the accused no.1 has floated scheme in the year 2013, which continued till 2018 and whatever profit was generated from the said scheme, had already been given back to the investors, however subsequently after 2018, there were some problems occurred in transactions, due to which, shortage of liquidation of fund started and, therefore, money invested in the scheme could not be repaid in time to the investors and, therefore, the aforesaid FIR has been lodged by one of the investors. Learned advocate submitted that admittedly the complainant has invested total Rs.83,000/- in the scheme. Learned advocate submitted that in fact, after coming to know about the malafide intention of the accused no.1, the applicant – accused and his family members have disowned their relationship with the accused no.1 by giving public advertisement in the newspaper. Learned advocate submitted that in fact, the present applicant is the real brother of the accused no.1 but he does know about the intention of the accused no.1 and, therefore at the relevant point of time, the applicant had started to seat in his office when the scheme was floated by the accused no.1 in the year 2013, which was successfully continued for a period of 6-7 years. Learned advocate submitted that the present applicant has stopped attending the office from 2018 onward and as per the case of the prosecution, dispute was arisen during the period between 2018 to 2021, therefore, admittedly the involvement of the present applicant is not found out. Learned advocate submitted that there is no antecedent against the present applicant and the applicant is in jail since last more than seven months and at the end of trial, if the allegations leveled against the present applicant would be proved, in that event, maximum punishment could be imposed upto 7 years.

Learned advocate submitted that at the time of opposing the bail application preferred by the applicant before the concerned trial court, the prosecuting agency has come with specific case that there were number of transactions carried out in the personal account of the present applicant. Learned advocate, under the instruction, makes a statement that not a single penny has been received by him in his personal account from the transaction related to the scheme floated by the accused no.1 and whatever transaction carried out and reflected in his personal account, is related to his own business and not a single penny from the amount of scheme is invested or transferred in the personal account of the present applicant. Learned advocate, therefore, submitted that the present application may be allowed.

Learned advocate further submitted that in fact, the prosecuting agency was of the opinion that the accused no.1 has left the city and then after started his business in Ahmedabad and the accused no.1 has illegally taken entire amount of investors and with the help of said amount, the applicant has purchased shop and flat worth of Rs.90,00,000/- by executing sale deed but now if the Hon’ble Court would cursorily make a glance upon the recital of the sale deed, in that event, it would be found out that the said flat was purchased by the accused no.1 after obtaining loan and, thereafter, the said loan amount has already been repaid by the subsequent purchaser of the said flat. Learned advocate submitted that the account of the firm has already been seized by the IO and the present applicant has not derived any benefit from the said transaction. Learned advocate submitted that there is no antecedent reported against the present applicant. Learned advocate submitted that entire case of the prosecution hinges upon documentary evidence and all the documents have been collected by the IO during the course of investigation. Learned advocate submitted that there are number of witnesses cited in the chargesheet and trial will take considerable time to conclude and, hence, the applicant may not be kept behind the bar for indefinite period. In this regard, learned advocate has put reliance upon decisions of various High Courts including the Hon’ble Supreme Court of India on the aspect of liberty of the accused guaranteed under Article 21 of the Constitution of India. It is, therefore, urged that considering the facts of the present case, the present applicant may be enlarged on bail by imposing suitable conditions.

On the other hand, learned APP for the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence. Learned APP submitted that the name of the present applicant is very much there in the FIR and during the course of investigation, statements of number of witnesses have been recorded by the IO and if we look at the contents of said statements, those witnesses have stated in a very categorical terms that the involvement of the present applicant is there. Learned APP submitted that at the time of receiving the amount from the investors, receipts were issued to the investors, which have been recovered by the IO during the course of investigation and if the Hon’ble Court would cursorily make a glance upon the chart showing investment, in that event, it would be found out that the umpteen of investors have invested more than Rs.2,12,59,795/- in the scheme and said receipts were issued in the year 2018, 2019 and 2020, whereupon mobile number of the administrator of the scheme was written and during the course of investigation, it is found out that the mobile number written in the said receipts belongs to the present applicant and said fact is also substantiated by the documents collected by the IO from the concerned Telecommunications Company, which tallies and supports the case of the prosecution, therefore, the documents annexed with the chargesheet papers clearly goes on to show that the present applicant has actively participated in the business after the year 2018 and his involvement is found out in the police papers. Learned APP submitted that a very systematic and well designed crime was organized by the accused persons, wherein initially they have lured the investors to invest in their scheme by investing amount of small value and within reasonable period of time, they have already repaid the said amount to the investors, thereafter, after certain period of time, once again the accused have floated another scheme by by enhancing marginal amount in the figure of initial investment and then, they have also repaid the said investment along with profit claimed by them and thus in short, by floating the scheme, the accused has tried to lure the investors to invest their amount in the scheme of the present applicant and as soon as number of persons have increased at manifold level and they invested huge volume of amount in the scheme, the present applicant has pocketed entire amount of the investment and the said fact is also reflected from the bank statement of the applicant – accused and during the course of investigation, the concerned IO has collected the documents pertaining to the bank account of the present applicant, which clearly goes on to show that only Rs.11,302/- were lying in the account of the said account, is also seized by the IO but due to act of the present applicant, large number of persons have lost their hard earned money. Learned APP further submitted that so-called scheme was floated by the accused no.1, whereas the present applicant and his family members have published the advertisement in the daily circulating newspaper of North Gujarat Edition stating that they have cut-off the relationship with the accused no.1 as he has disowned them. Learned APP submitted that admittedly huge volume of investments are being made by the investors of Saurastra region, whereas publication was published in daily circulating newspaper of North Gujarat Edition about their relationship, which clearly goes on to show that with an intent to throw sand in the eyes of IO, the said advertisement was published in the newspaper. Learned APP, therefore, submitted that considering the role attributed to the present applicant – accused at the time of commission of crime, the present application may not be entertained.

Learned APP submitted that in recent past, rampant cases are registered considering mass cheating of huge volume of money and because of increase of such cases, the Government has enacted the provision of the Gujarat Protection of Interest of Depositors (in Financial Establishments) Act, 2003 to safeguard the interest of public at large and also established special court for the purpose of conducting trial in such offences. Therefore considering the seriousness of the offence and the role played by the applicant at the time of commission of crime, the present application may not be entertained.

I have heard the learned advocates appearing on behalf of the respective parties and perused the papers of the investigation and considered the allegations levelled against the applicant and the role played by the applicant. I have also considered the reasoning given by the concerned court while rejecting the bail application and the affidavit filed by the IO opposing the said application.

At this stage, it is required to be noted that this is a successive bail application filed by the applicant and, hence, what the Court has to see is the only changed circumstances. It is the settled position of the law that, at this juncture detailed discussion of evidence and canvassing of the allegations contained in FIR as well as affidavit of the concerned Investigating Officer or the merits of the case as well, is not necessary and should be avoided.

It is found out from the record that the applicant in connivance with other accused has committed very serious offence punishable under the provision of the GPID Act, PCMC Act by luring and enticing the investors by giving attractive offers and thereby pocketed huge amount in crores. It is required to be noted that though the accused are well aware about the fact that the scheme, which they have floated, is banned, they have promoted and/or conducted prize chits and money circulation schemes and made enrollment of the members for participation therein, which clearly goes on to show their modus operandi and criminal conspiracy behind the commission of crime. It is also found out that under the guise of several schemes floated by the accused in the name and style of “Surbhi Group”, the accused have received huge investments in crores of rupees, which they have pocketed and did not return back as per the scheme and/or as per the assurance given by them under the said scheme. It is true that in the present case, the complainant has lost Rs.83,000/-, which he has invested but along with the complainant, there are other persons, who have been duped by the accused under the said scheme, which comes to more than Rs.2.00 crores and thus, the accused have not duped the complainant only but also duped large number of innocent and gullible persons. It is required to be noted that initially the accused have floated scheme in the year 2013 by giving attracting offer to the innocent and gullible persons, wherein large number of persons have invested their hard earned money, which the accused have returned along with interest with an intent to win the confidence of innocent persons and after wining confidence of them, the accused have floated one another scheme with an intent to pocket entire amount and, thereafter, fled away from the place after closing their office and thus, the accused have committed criminal breach of trust and cheating, which attracts the

Though the submissions have been made by learned advocate for the applicant that the applicant has nothing to do with the business of the accused no.1 and he only used to seat only in the office of the accused no.1 and thus, he has not committed any offence as alleged, that too, after coming to know about the malafide intention on the part of the accused no.1, the applicant and other family members have disowned the relationship with the accused no.1 by giving notice in the newspaper, the involvement of the present applicant – accused at the time of commission of crime has been found out from the investigation papers collected by the IO during the course of investigation. During the course of investigation, the IO has collected the bank statements of the applicant – accused, which clearly goes on to show that there are several transactions taken place in the account of the present applicant and thus, the applicant has nexus with the alleged commission of crime. Thus in view of the above facts, the submission with regard to non-involvement of the present applicant is misconceived.

The Court has also gone through the decisions relied upon by the learned advocate for the applicant with regard to the aspect of liberty of the accused guaranteed under Article 21 of the Constitution of India. There cannot be any dispute with regard to the ratio laid down in the same.

However, in the facts and circumstances of the case on hand and this being discretionary relief, which requires to be granted judiciously, the said decisions would be of no help to the present applicant at this juncture.

At this stage, I would like to put reliance upon the decision of the Hon’ble Apex Court in the case of Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI Through its Director, reported in (2007) 1 SCC 70, wherein, the Apex Court has laid down that, while considering an application for regular bail, the Courts shall have to take into consideration, the following aspects,

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant;

(c) Prima facie satisfaction of the court in support of the charge;

The Hon’ble Apex Court, further, observed at Paragraphs-10 and 16 thus;

“10. In our opinion none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that because a long period of imprisonment has expired bail must necessarily be granted.

We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society.”

The Hon’ble Apex Court has in a decision in case of Prasanta Kumar Sarkar Vs. Ashis Chatterjee & Anr., reported in (2010) 14 SCC 496 has made observation as under,

"9. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

"(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation; (iii)severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail."

The Hon’ble Apex Court has in a decision in case of Mahipal vs. Rajesh Kumar @ Polia & Anr., reported in (2020) 2 SCC 118, it has been held that:-

"12. The determination of whether a case is fit for the grant of bail involves the balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. No straitjacket formula exists for courts to assess an application for the grant or rejection of bail. At the stage of assessing whether a case is fit for the grant of bail, the court is not required to enter into a detailed analysis of the evidence on record to establish beyond reasonable doubt the commission of the crime by the accused."

From the aforesaid discussion, it appears that as per the prosecution case, the applicant is involved in the serious offence and taking into consideration the complicity of the applicant, there being apprehension of the witnesses being influenced, severity of punishment as drawn from the nature and gravity of the accusations, after taking due consideration of the submissions of the parties and the settled case law in various judgments passed by the Hon'ble Apex Court and various Hon'ble High Courts, without expressing any opinion on the merits of the case, I am of the opinion that it is not a fit case for bail.

Accordingly, the present application is rejected. Notice is discharged.

Needless to say that observations made herein above are confined to decision of the present bail application. However considering the facts of the present case, the concerned trial court is hereby directed to conclude the trial as early as possible preferably within a period of 12 months from the date of receipt of this order.