Umang Jatinbhai Gandhi vs State Of Gujarat

Ashutosh J. Shastri, J

This application is filed seeking anticipatory bail in connection with the FIR, being C.R. No.11210025202440 of 2020 registered with Limbayat

Police Station, Surat for the offences punishable under Sections 406, 420 and 120B of the Indian Penal Code.

Learned senior advocate Mr.Yogesh Lakhani appearing with learned advocate Mr. Nandish H. Chackar for the applicant has contended that this is

a third attempt which has been made to somehow arraign the applicant in commission of the crime and further, the report which was submitted dated

6.9.2017 has also not7 been challenged so far by the complainant and accepting that report in its as it is form, no offence is made out. Mr. Lakhani has

further contended that the applicant is a permanent resident of Surat and specific averment has been made in para (d) on oath, which reads as under:-

(d) The petitioner respectfully submits that the record pertaining to the subject property are produced hereinabove clearly evidences the fact that the

petitioner has nothing to do with the property in question. The petitioner was never the owner or occupier of the property in the question. It is

submitted that the said property was transferred to one M.S. Corporation by way of a registered sale deed. It is further submitted that the petitioner is

neither a signatory nor a party to the registered sale deed. It is submitted that the complainant has alleged that the petitioner is a director of an entity

named Blue Feather Ltd. And the said entity was the developer of the subject property. However, the said entity has never come in existence till date

and therefore, there is no question of the petitioner being a Director of the said entity which is even otherwise non-existent. Therefore, the version of

the complainant is completely baseless and improbable. Thus, the petitioner deserves to be released on Anticipatory bail.

By submitting the aforesaid statement on oath, a request is made that if anticipatory bail is granted, there is no likelihood of prejudice to the case of the

prosecution in any form and further, Mr. Lakhani has also drawn the attention of the Court to the order which has been passed on 28.7.2020, in which

a detailed hearing took place and Mr. Lakhani has adopted the said submissions which have been made on 28.7.2020. Mr. Lakhani in addition to this

has further submitted that the present applicant has filed further affidavit in which, a clear assertion is made in para 3 that the complaints of those 18

persons which were tried to be connected with the present complaint, cannot be relied upon since registration certificate has already been issued, in

which time to complete the project is upto 31.3.2021 and therefore, the present complaint has nothing to do with any such grievance. Mr. Lakhani has

drawn the attention of this Court to para 3. It has further been asserted in the further affidavit in para 4 that even Trial Court though was apprised

about the said fact that the complaints filed by those 18 persons were already disposed of and the applicant has already filed affidavit- cum-

undertaking, yet learned Sessions Judge did not consider the same and proceeded completely on the Lotus Project, whereas the same has no

concerned with the present FIR and therefore, by drawing this assertion of the further affidavit, Mr. Lakhani has requested that since this is a third

attempt on the part of the complainant to somehow drag the applicant in the prosecution, there is a serious apprehension about his arrest, so urgent

protection deserves to be granted. It has further been submitted that the applicant is ready and willing to abide by any of the conditions which this

Court would deem fit to impose and the applicant is ready and willing to see that he will not leave the State of Gujarat without prior permission of the

Court concerned till charge-sheet is filed in the present complaint. Hence, after submitting this, a request is made to grant anticipatory bail to the

applicant.

2.1. Additionally, Mr. Lakhani has submitted that throughout, the applicant has cooperated with the investigating officer and even during the pendency

of the proceedings, on 1.8.2020, Police officer in-charge of Limbayat Police Station, who is the investigating officer, has recorded the statement of the

applicant. Hence, there is a complete cooperation being extended by the present applicant. Accordingly, the request is reiterated.

As against the aforesaid submission, learned advocate Mr. Pratik Barot appearing on behalf of the original complainant has vehemently made an

attempt to oppose this application and has submitted that sizable amount has already been recovered from the original complainant by this very

applicant and the same is very much reflecting on the documents which are part of the record from page 39-D and after drawing attention, it has been

contended that there is a systematic modus operandi executed against the complainant by the present applicant. It has further been submitted that

learned Trial Judge has examined this entry made in the diary and has clearly opined that in such huge transaction, this entry cannot be assumed to be

of Rs.4,000/- only and as such, it is evident from the record that huge amount is already collected by the present applicant. However, Mr. Barot has

candidly and fairly submitted that a petition for quashing the complaint is very much filed by some of the co-accused persons, in which protection is

granted of taking no coercive step and the said quashing petition is yet pending. Further, Mr. Barot has submitted that the report dated 6.9.2017 has

not been challenged nor carried further by the complainant and as such, by this submission, Mr. Barot has submitted that there are several persons

who are demanding money from this applicant. It has been submitted that if this applicant is granted anticipatory bail, then there is likelihood of

tampering and interfering in the investigation since the father of the applicant is an influential person. Hence, a request is made not to grant

anticipatory bail to the applicant.

As against this, learned APP Mr. J.K. Shah has submitted that the submissions which have been made by learned senior counsel Mr. Lakhani for

the applicant are the submissions to be examined during the course of trial of the case, but prima facie, it appears from the record that sizable amount

is already collected by the present applicant and the stand of the applicant is very much examined by the Court below. Hence, Mr. Shah has requested

not to grant anticipatory bail protection to the applicant. However, on the issue of no challenge to the initial report dated 6.9.2017 by the complainant

and pendency of the quashing petition in which protection is continuing and the said petition is pending, Mr. Shah without offering any comment further

has left the matter to the discretion of this Court.

Having heard learned advocates appearing for the parties and having gone through the material on record, without much analyzing the material at

this stage of the proceedings, the Court is inclined to consider the following circumstances which are enough at this stage to be considered by the

Court:-

(1) The petition for quashing the complaint, as stated by learned advocates, is undisputedly pending before this Court in which till date, protection of no

coercive step to be taken is continuing so far, may be at instance of other co-accused.

(2) There is a clear assertion made on oath by the applicant that he is not a party to the registered sale transaction, which took place of the property

and he is said to be a Director in the entity, named as ‘Blue Feather Ltd.’ which has never come into existence at all and therefore, the

applicant being the Director of the said entity is of no consequence.

(3) Undisputedly, the initial report dated 6.9.2017 reflecting on page 109 of the application compilation is not challenged by the complainant, meaning

thereby, same is accepted by the complainant, which clearly indicates that this dispute between the parties is purely of a civil nature and appropriate

remedy is available by way of filing a civil suit.

(4) Additionally, it further appears from the record that the applicant is a permanent resident of Surat and he appears to have cooperated with the

investigating officer since even during pendency of this application, on 1.8.2020, his statement was recorded by the investigating officer of Limbayat

Police Station.

(5) The Court has also substantially considered the specific averment made by the applicant in para (d), as stated above, and further specific

averments made in the further affidavit, which has been filed and as such, in this peculiar background of facts, the Court is of the opinion that a case

appears to have been made out by the applicant for grant of anticipatory bail.

In the result, the present application is allowed by directing that in the event of applicant herein being arrested pursuant to FIR registered as C.R.

No.11210025202440 of 2020 registered with Limbayat Police Station, Surat, the applicant shall be released on bail on furnishing a personal bond of

Rs.25,000/- (Rupees Twenty Five Thousand only) with one surety of like amount on the following conditions that the applicant shall :

(a) cooperate with the investigation and make available for interrogation whenever required;

(b) not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade from

disclosing such facts to the court or to any police officer;

(c) not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;

(d) at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change residence till the final

disposal of the case till further orders;

(e) not leave the State of Gujarat without expression permission of the Court till investigation is over and charge-sheet is filed;

(f) not to leave India without express permission of the Trial Court till the trial is over and if having passport shall deposit the same before the Trial

Court within a week;

(g) mark presence before the concerned Police Station every month for a period of one year between 11:00 a.m. and 2:00 p.m.;

(h) 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;

(i) appear before the concerned police station on 18.8.2020 between 11.00 a.m. and 2.00 p.m.

Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the appellant. The

applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be

directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of

the prosecution for police remand. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court while

enlarging the applicant on bail. The application stands disposed of accordingly. Rule is made absolute to the aforesaid extent.

This order is good for 90 days. The registry is directed to communicate this order to the concerned authority forthwith.