CR.MA/544/2008 1/18 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL MISC.APPLICATION No. 544 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE Z.K.SAIYED ============================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================================================ KISHORBHAI VALLABHBHAI PATEL - Applicant(s) Versus STATE OF GUJARAT - Respondent(s) ===================================================== Appearance : MR YS LAKHANI for Applicant(s) : 1, MR UDAY BHATT Ld. APP for Respondent(s) : 1, MR AD OZA with MR DEPAK DAVE for complainant ===================================================== CORAM : HONOURABLE MR.JUSTICE Z.K.SAIYED Date : 11/02/2008 CAV JUDGMENT 1. Rule. Mr. Uday Bhatt learned APP waives service of rule on behalf of respondent-State. CR.MA/544/2008 2/18 JUDGMENT 2. The petitioner – accused no. 2 of M. Case No. 11/2006 registered with Dholaka Police Station for the offences punishable under section 420, 423, 465, 467, 468, 471, 114 read with sec. 120B & 193, 197, 198, 199 and 200 of IPC, has filed this application under sec. 439 of CrPC for releasing him on regular bail. 3. As per the complaint, Original accused No. 1 – Abbabhai Hatim Gurjar was serving in Bank in past, however, as he has committed irregularity and mismanagement and thereafter he has left the job and certain blank letter-head were also malicely taken away by him, he was arrested. The present petitioner – accused no. 2 is the member of the society. As the petitioner – accused no. 2 required finance, the finance was taken from the society. The petitioner – accused no. 2 is partner of Valabhlaxmi Cotton Industries, Dholka, who is running the business in the name and style which is mortgaged. Civil Suit was also filed before the Board of Nominees being Lavad Suit No. 380 of 2004 for seeking recovery of the amount of the society. In the said suit proceedings, the zerox letter dated 13.4.1999 was submitted before the Court in a form of certificate which shows that no amount of loan is due towards Valabhlaxmi Cotton Industries and there is no mortgage of the society upon the property of Survey No. 292/1. The said complainant - society has not issued any such letter and, in fact, on 12.4.1999 the charge over the property was in existence and loan amount was also CR.MA/544/2008 3/18 JUDGMENT not paid and no such certificate was issued by the society. Therefore, the complainant has filed the complaint before the learned Judicial Magistrate First Class, Dholka, who has passed an order under sec. 156(3) of CrPC and ordered the police to investigate into the matter and submit report within 30 days. During investigation, which was carried out by the I.O., statements were recorded and during the course of investigation it surfaced on the record of the case that the amount of petitioner has been paid by cheque as well as cash to the society and the day on which the certificate was issued on 13.4.1999 there was no due amount of the society and said certificate dated 13.4.1999 was also submitted before the People's Cooperative Bank at Dholka by the present petitioner in pursuance to the loan transaction and after verification of the entries from the books of account, receipt, etc., the report was submitted that no offence was made out. Therefore, complainant being aggrieved by the said report, has filed an application seeking further investigation in the matter. Therefore, this Court has passed an order on 11.1.2007 and ultimately investigation was handed over to the Dy.S.P. who was ordered to make investigation in the matter. During the course of investigation, the accused no. 1 was arrested and thereafter, he was released on bail by this Court (Coram: A.H. Mehta, J.) in Criminal Misc. Application No. 4057 of 2006 vide order dated 19.6.2006. CR.MA/544/2008 4/18 JUDGMENT 4. It is submitted that the petitioner – accused no. 2 has filed Criminal Misc. Application No. 14511 of 2007 prior to the filing of the charge-sheet and during the pendency of the said application, charge- sheet was filed, therefore, the petitioner has withdrawn the said application on 2.1.2008. Thereafter, he moved before the learned District & Sessions Judge by preferring Criminal Misc. Application No. 14 of 2008 for bail which came to be rejected. Therefore, the petitioner has preferred this bail application after filing of the charge- sheet before this Court. 5. Learned advocate Mr. YS Lakhani for the petitioner has submitted that the said complaint was filed by complainant as a private complaint before the learned Judicial Magistrate First Class, Dholka. It is alleged the complainant in the complaint that both the accused has committed an offence and misused the documents and prepared forged certificate and used it as genuine with a knowledge that the same was forged. It is also submitted that the present petitioner is a loanee whose loan is fully paid by him and the signature of the Secretary is genuine and not a forged signature. He is not an abettor with the co-accused. The certificate which was produced before the Court also shows that the loan was repaid. He has also submitted that the ingredients of forgery and the allegations made in the complaint cannot be considered at the stage of hearing of the bail application. He has read the last CR.MA/544/2008 5/18 JUDGMENT column of the charge-sheet and vehemently submitted that the present petitioner is simply shown as an abettor with the co-accused who is already released on bail. Learned advocate for the petitioner has also submitted that on the ground of parity, the petitioner may be released on bail. Learned advocate for the petitioner has relied upon the land mark observations made by the Apex Court in so many decisions as to “bail and not jail.” He has also submitted that just to keep a person behind the bar, is a pre-trial punishment and the statement of the co-accused cannot be considered. 6. Mr. Uday Bhatt learned APP appearing for the State is present with learned Advocate Mr AD Oza. Learned APP Mr. Bhatt has submitted that the ground of parity cannot be made applicable to the present case. The present petitioner has committed serious offence qua the Bank transaction. He has opposed this application. 7. During the submissions of learned APP Mr. Uday Bhatt, Mr. AD Oza learned advocate has requested that he is appearing with prosecution and he may be permitted to high-light the case. With the oral consent of learned advocate Mr. YS Lakhani and on the statement made by learned APP Mr Uday Bhatt, just to maintain a question to provide proper satisfaction to the complainant, Mr. Oza was permitted to put up his say. Mr. Oza orally submitted that investigation is bias because the I.O. has not carried out the CR.MA/544/2008 6/18 JUDGMENT investigation properly and thereafter, the investigation carried out by Dy.S.P. in this case is also not fair and he has not carried out proper investigation in this matter. Mr. Oza has relied upon the judgment in the case of Ram Narayan Poply vs. Central Bureau of Investigation, reported in AIR 2003 SC 2748. He has relied upon the observations made by the Apex Court in paragraphs- 371, 372 and 382, which reads as under: “(D)Penal Code (45 of 1860), S. 463- Forgery- Essentials- Making of false document – With intent to cause damage or injury. Per Arijit Pasayat, J. (for himself and on behalf of B.N. Agarwal, J.): In order to constitute forgery, the first essential is that the accused should have made a false document. The false document must be made with an intent to cause damage or injury to the public or to any class of public or to any community. The expression 'intent to defraud' implies conduct coupled with intention to deceive or thereby to cause injury. In other words, defraud involves two conceptions namely, the deceit and injury to the person deceived that is infringement of some legal right possessed by him but not necessarily deprivation of property. The term 'forgery' as used in the statute is used in its ordinary and popular acceptation. (Paras 371, 372). (E) Constitution of India, Art. 134- Economic Offices – Damage national economy – Entire community is aggrieved – Funds of public bodies utilised as if they are private funds – Transaction not legitimate – Acts of accused have serious repercussions CR.MA/544/2008 7/18 JUDGMENT of economic system of country – Such 'white collar crimes' should be viewed sternly. Per: Ajit Pasayt, J. (for himself and on behalf of B.N. Agarwal, J.): The cause of the community deserves better treatment at the hands of the court in the discharge of its judicial functions. The community of the State is not a persona non grata whose cause may be treated with disdain. The entire community is aggrieved if economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even handed manners which view white collar crimes with a permissive eye, unmindful of the damage; done to the National Economy and National Interest.” 8. Mr. Oza has submitted that the act of the present petitioner to make a false document is with an intent to cause damage and injury to the complainant – Bank and it is an economic offence which can damage national economic system and the entire people at large are aggrieved. Public fund is being utilised as a private fund and the act of the petitioner -accused has damaged economic system of the country and petitioner-accused is a white collar criminal. Mr. Oza has also cited the judgment in the case of Noormohmed Majalbhai Latiwala vs. State of CR.MA/544/2008 8/18 JUDGMENT Gujarat, reported in 2004(2) GLH 355. Mr., Oza has relied upon paras-23 & 25 of the said judgment, which reads as under: “23.Before parting with, it is required to take note of the investigation made by the State agency for such type of alleged white collar crimes. The investigation for the white collar crimes must be conducted by highly trained Investigating Officer, who are well conversant with the system and the field in which the crime has been committed. In the present case, it is the banking in cooperative field. Not only that, but for detection of white collar crime, it is expected for the State to undertake the investigation through ultra modern machineries like lie detector test, narco test, etc. Not only that, but, normally in the matter of investigation of white collar crimes running into crores of rupees, it would be expected for the Investigating Officer to immediately intimate the concerned Airport Authorities, so that the accused may not fly away outside the territory of the country. In the same manner, the I.O. Conducting the investigation for white collar crimes running into crores of rupees has to take immediate steps for intimating the concerned bankers, so that the accused may not withdraw and convert the money in such a manner which makes the things irreversible, even if subsequently found that on the date of the complaint, the money realised out of the white collar crime should be made available to the victims of such crimes as an outcome of the trial.” 25.If offenders of white collar crimes get scot free, it will be for the State to take necessary steps in this regard and, therefore, the Chief Secretary of the State CR.MA/544/2008 9/18 JUDGMENT as well as the Secretary, Home Department of the State are directed to look into the matter and to report to this Court within a period of four months from the date of receipt of the order regarding the steps taken in this regard and the steps to be taken in this regard for proper investigations of “white collar crimes” running into crores of rupees of the public. Office to send the copy of the order to the Chief Secretary as well as to the Secretary, Home Department of the State for necessary compliance. The learned PP shall also communicate this order to the Chief Secretary of the State as well as the Secretary, Home Department of the State for further actions.” 9. Mr. Oza has cited a decision rendered in the case of (The Kheralu Nagarik Sahakari Bank Ltd. Vs. State of Gujarat, reported in 2006(2) GLH 307. The relevant para-9 of the above citation, reads as under: “It is well settled law that the Court before granting bail in cases involving non- bailable offences, particularly, where the trial has not yet commenced should take into consideration various matters such as the nature and seriousness of the offence, the character of the evidence, circumstances, which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial reasonable apprehension of witnesses being tampered with, the larger interests of the public or the State and similar other consideration. It is also a settled law that if a prima facie case is made out against the accused, order granting bail to him pending investigation is not proper. Hence, CR.MA/544/2008 10/18 JUDGMENT it is required to be seen whether the Sessions Court has exercised the discretion properly or not and whether sufficient grounds are available for cancellation or bail or not.” Mr. Oza has also cited a decision in the case of State of Maharashra vs. Captain Buddhikota Subha Rao, reported in AIR 1989 SC 2292. The relevant para-7 of the above decision reads as under: “Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact-situation. And, when we speak of change, we mean a substantial once which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. Between the two orders there was a gap of only two days and it is nobody's that during these two days drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline, propriety and comity demanded that the impugned order should not have been passed reversing all earlier orders including the one rendered by Puranik, J. only a couple of days before, in the absence of any substantial change in the fact-situation. In such cases it is necessary to act with restraint and circumspection so that the process of the Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one judge or selected another to secure an order which had hitherto eluded him. In such a situation the proper course, we think, is to direct that the matter be placed before the same learned Judge who disposed of the earlier applications. Such a practice or convention CR.MA/544/2008 11/18 JUDGMENT would prevent abuse of the process of court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications without change of circumstances.” 9. It is submitted that the date of filing of the charge-sheet and the date of withdrawal of the bail application are cited by prosecution and tried to establish that only to get out from the custody, the present petitioner has withdrawn that application and not at the event of filing of the charge-sheet but he has withdrawn it later on. It is true that this Court has observed in the case of Kheralu Nagarik Sahakari Bank (supra) that when the question of transaction of bank is supposed to disturb by act of the accused in which manner he has obtained money as a loan and not to repay that amount and when the whole transaction of the Bank which may be suffered and the question of large account holders are concerned, that issue is required to be considered but this is not the Forum to recover that amount by way of such demand and whole evidence produced before the Court is required to be verified and if there may be some reason to say that petitioner – accused is entitled to get bail then that issue can be considered in light of said evidence. 10. Mr. Oza has also submitted that the I.O. has not CR.MA/544/2008 12/18 JUDGMENT obtained any hand-writing and signature of the present petitioner – accused and also not obtained any Hand-writing Expert's pinion. Mr. Oza has submitted that this bail application cannot be entertained and it is a fit case for rejection of bail application. 11. It is true that the prosecution has opposed this bail application on the ground that the first bail application was rejected by this Court, therefore, this bail application is not maintainable. However, it appears that the petitioner has filed first bail application prior to present bail application which was also filed before filing of the charge-sheet so the same was was withdrawn by the petitioner on filing of the charge-sheet. Thereafter, on filing of charge-sheet, the petitioner has filed a fresh bail application before the learned District & Sessions Judge, and when the said bail application came to be rejected by the learned District & Sessions Court, present bail application is filed before this Court. In my view, therefore, the present bail application is maintainable. 12. Heard the learned advocate Mr. YS Lakhani appearing for the petitioner and Mr. Uday Bhatt learned APP appearing for the State and Mr. AD Oza learned advocate appearing for the complainant with prosecution. Perused the papers and read the impugned order. CR.MA/544/2008 13/18 JUDGMENT 13. During the hearing of the bail application, merits is not required to be discussed but when the learned advocates for the parties have submitted that they want reasoned order, therefore, it is required to be discussed with reasons. It is true that the prosecution has tried to establish that the ingredients of the offence are totally high-lighted in the charge-sheet. I.O. was also present and through I.O.'s statement has high-lighted before this court that the statement of the co-accused was recorded by him during the course of investigation and he has relied upon the said statement, therefore, signatures were not obtained for obtaining hand- writing expert's opinion. Learned advocate Mr. Oza and learned APP Mr. Bhatt has vehemently argued that I.O. is negligent and has carried out bias investigation and he has not sent hand-writings to the hand-writing expert and not obtained any opinion. 14. In view of the aforesaid submissions, provisions of sec. 73 of the Indian Evidence Act, 1872 is required to be high-lighted here, which reads as under: “73. Comparison of signature, writing or seal with others admitted or proved.- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing, or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that CR.MA/544/2008 14/18 JUDGMENT signature, writing, or seal has not been produced or proved for any other purpose.” 15. From the said provision, it is established by law that Court itself can record satisfaction and for that it can compare disputed signatures and the same can be verified during the trial and the said issue can be decided by the trial court during the trial. It is true that the I.O. Has not obtained any hand- writing qua disputed certificate, but whether it is fatal or not to the prosecution case is to be considered at the time of trial and not at the bail stage. In the case of State of Andhra Pradesh vs. P.V. Naryanan, reported in AIR 1971 SC p. 811, the Apex Court has observed that illegal investigation does not vitiate the trial unless miscarriage of justice has resulted and the accused has been prejudiced. From the consideration of the provisions of Sec. 73 of the Indian Evidence Act, in the present case, it will not be a question which can be arisen for the miscarriage of justice resulted into prejudice to the accused. The act of the I.O. is not at any rate, can be said to be such an omission, on the part of the Investigating Agency, which can be said to be a flaw of that type to invite consequences of jettisoning his testimony. It is settled law by the Apex Court in the case of Leela Ram (D) through Duli Chandi vs. State of Haryana, reported in AIR 1999 SC 3717, wherein, it is ruled out by the Apex Court that now well settled principle that any irregularity or even an illegality during CR.MA/544/2008 15/18 JUDGMENT investigation ought not to be treated as a ground to reject the prosecution case. It is true that the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstance suggestive of fleeing from justice or thwarting the course of justice, or creating other troubles in the shape of repeating offences, or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the Court. No doubt, the gravity of offence involved is likely to induce the petitioner to avoid the course of justice, and must weigh with Court when considering the question of bail is concerned, but looking to the case of the prosecution, prosecution is totally relying upon the documentary evidence. Bail is not to be withheld as a punishment. The requirements as to bail are merely to secure the attendance of the prisoner at the trial. Bail or jail at a pre-trial or post conviction stage belongs to the blurred area of the criminal justice system. The legal principle and practice validate the Court considering the likelihood of the applicant influecing with witnesses for the prosecution or otherwise polluting the process of justice or interfering with administration of justice. Event of considering the bail by giving reasons for granting bail is different from discussing merits or de- merits. At the stage of granting bail a detailed examination of the evidence and elaborate documentation of the merits of the case has not to be undertaken and it is a basic principle. The Apex Court has observed many times that the trend towards CR.MA/544/2008 16/18 JUDGMENT granting bail is now well settled by catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. It is the duty of the Court to verify and look to the salutary principle in granting bail viz. the Court should be satisfied that the accused being enlarged on bail will not be in a position to temper with the evidence. 16. Direction given in the case of Prahlad Singh Bhati vs. N.C.T. Delhi, reported in AIR 2001 SC p. 1444 is kept in my mind and I have considered the submissions made by both the parties. It appears from the said observation and in view of the aforesaid submissions, this is a case of documentary evidence and looking to the submissions made by the present petitioner, his presence can be secured by way of imposing suitable stringent conditions and so far as the