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Judgment
A.S. Supehia, J
[1]. Pursuant to the order dated 04.05.2021, learned Additional Public Prosecutor has supplied a report of the Investigating Officer, which is ordered to be taken on record. It also appears from the report of the Investigating Officer that the applicants have already paid an amount of Rs.23,00,000/‐
to the co accused Ronak Madhiwala, who appears not to have further disbursed it to the consumers.
[2]. Heard the learned advocates for the respective parties by video conferencing.
[3]. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicants have prayed for anticipatory bail in connection with the F.I.R. being C.R. No.I-2 of 2019 registered with Vaghai Police Station, District Dang for the offences under Sections 406, 409,
420, 34 and 120(B) of the Indian Penal Code, 1860 and Sections 4, 5 and 6 of the Prize Chit and Money Circulation Schemes. (Banning). Act,. 1978.
and. Section. 3. of. the Gujarat Protection of Interest of Depositors (in financial establishment) Act, 2003.
[4]. The case of the prosecution in nutshell is that the present F.I.R. has been lodged by one Vipulbhai Bachubhai Patel (“the first informant”),
inter alia, alleging that the applicants, in connivance with other, hatched a criminal conspiracy and assured the investors that they will get more interest than other bank or financial institutions. It is also alleged in the F.I.R. that accused No.4 has taken money from the accused Nos.1 to 3 to return it to the investors but the same has not been returned by the accused No.4.
[5]. Learned advocate for the applicants has submitted that applicants are the directors of Kalkaam Real Infra (India) Ltd., which is registered with the Registrar of Companies (RoC), Maharashtra on 19.04.2013. He has further submitted that accused No.4 and accused No.1 were arrested by the police and while enlarging on regular bail by Sessions Court, Surat, the accused persons were directed to deposit the amount and pursuant thereto, the accused No.3 has deposited the said amount on behalf of the accused Nos.1 and 2 commonly through Kaalkam Real Infra(India) Ltd.
[5.1] It is submitted that the applicants have already deposited the amount of Res.21,00,000/ before the Sessions Court. It is deposited by the Sunil
Ragunath Vandre, who is one of the Director of the said Company being Kalkaam Real Infra (India) Ltd. He has further submitted that amount of
Rs.2,00,000/ has been deposited in the account of Rijwana Banu Hamidkhan Makrani on 03.11.2017 and Rs.1,00,000/ has been deposited in the account of Shiplaben on 18.10.2017, and thereafter, in the account of Vijay Kumar Prajapati, approximately amount of Rs.7,48,000/. It is further submitted that the report of the Investigating Officer with regard to bouncing of cheque to the tune of Rs.6,00,000/ is concerned is correct, however as stated above the amount has been transferred through NEFT.
[5.2] Learned advocate for the applicants submitted that the nature of allegations are such for which custodial interrogation of the applicants at this stage is not necessary. He has further submitted that the applicants will keep themselves available during the course of investigation, as well as trial also and will not flee from justice. He further submits that the other co-accused have already been enlarged on bail by the Sessions Court concerned.
[5.3] Learned advocate for the applicants, on instructions, has submitted that the applicants are ready and willing to abide by all the conditions,
including imposition of conditions with regard to powers of investigating agency to file an application before the competent Court for his remand. He further has submitted that upon filing of such application by the investigating agency, the right of the applicants accused to oppose such application on merits may be kept open. Learned advocate, therefore, has submitted that considering the above facts, the applicants may be granted anticipatory bail.
[6]. On the other hand, the learned Additional Public Prosecutor appearing on behalf of the respondent— State has opposed grant of anticipatory bail looking to the nature and gravity of the offence.
[7]. Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case,
nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicants.
[8]. This Court has considered following aspects;
(i). The role of the applicants;
(ii). Prima facie, as per the materials on record it is evident that the company has already paid the due amount to its depositors;
(iii). Prima facie it appears that the co-accused has already deposited the amount of more than Rs.21,00,000/ on behalf of applicant No.1 and applicant No.2 on behalf of Kaalkam Real Infra (India) Limited before the Sessions Court, Surat.
(v). As per the order dated 04.05.2021 of this court, learned APP has supplied a report of the Investigating Officer, whereby it appears that the applicants have already paid an amount of Rs.23,00,000/ to the co-accused Ronak Madhiwala, who appears not to have further disbursed it to
the consumers;
(vi). Co-accused have been released on bail by the Sessions Court, Surat.
[9]. This Court has also taken into consideration the law laid down by the Apex Court in the case of Sushila Aggarwal vs. State (Nct of Delhi), AIR
2020 SC 831.
[10]. In the result, the present application is allowed on condition that the applicants shall deposit Rs.75,000/ each and that shall be subject to final outcome of the trial. The applicants are ordered to be released on bail in the event of their arrest in connection with F.I.R. being C.R. No.I-2 of 2019
registered with Vaghai Police Station, District Dang on their executing a personal bond of Rs.10,000/ (Rupees Ten Thousand Only) EACH with one surety EACH of like amount on the following conditions that they :
(a). shall cooperate with the investigation and make themselves available for interrogation whenever required;
(b). shall remain present at the concerned Police Station on 15.05.2021 between 11.00 a.m. and 2.00 p.m.;
(c). shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer;
(d). shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police;
(e). shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders;
(f). shall not leave India without the permission of the concerned trial court and if having passport shall deposit the same before the concerned trial
court within a week; and
(g). 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;
[11]. Despite this order, it would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicants. The applicants shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of
remand, if, ultimately, granted, and the power of the concerned Magistrate to consider such a request in accordance with law. It is clarified that the
applicants, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order.
[12]. At the trial, the concerned trial court shall not be influenced by the prima facie observations made by this Court in the present order.
[13]. The application is allowed in the aforesaid terms. RULE is made absolute to the aforesaid extent.
[14]. Registry is directed to intimate the concerned jail authority and the concerned Sessions Court about the present order by sending a copy of this order through Fax message, email and/or any other suitable electronic mode.
[15]. Learned advocate for the applicants are also permitted to send a copy of this order to the concerned jail authority and the concerned Sessions
Court through Fax message, email and/or any other suitable electronic mode. Direct service is permitted.