Akhilesh Mishra vs State Of Gujarat

1. Rule. Learned APP Mr.L.B. Dabhi waives service of Rule on behalf of the respondent State.

2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 for regular bail in connection with FIR being C.R. No.I­193/2019 registered with Sola Police Station for offence under Sections 406, 409, 420, 465, 467, 468, 471, 114 and 120(B) of the Indian Penal Code.

3. Learned Counsel appearing for the applicant submits that out of alleged amount of misappropriation of Rs.15.00 crores, the co­ accused has shown willingness to deposit an amount of Rs.3.00 crores within stipulated time and the applicant is also ready and willing to deposit an amount of Rs.4.00 crores before the concerned Page 1 of 6 Downloaded on : Mon Jan 13 21:56:21 IST 2020 R/CR.MA/22058/2019 ORDER trial court without prejudice to his rights and contentions within seven months from the date of his actual real and out of which, 10% of the amount will be deposited within three weeks from the date of his actual release and remaining will be deposited within seven months. It is contended by learned Counsel for the applicant that the Company has filed Civil Suit before the concerned Civil Court and in the said proceedings, the complainant has also filed an application for attachment before the judgment and the said application still pending. He, therefore, submitted that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions.

4. Learned Counsel appearing for the original complainant has vehemently opposed this application. It is contended that the applicant is the main accused and huge amount is deposited in the account of the applicant and thus, public money is involved as the complainant - Company is a public limited company. It is further submitted that that the applicant has forged the documents and, therefore, he has committed offence punishable under Section 467 of the Indian Penal Code, which is punishable with life imprisonment. It is contended that the applicant has also suppressed material fact and he has not produced copy of counter of chargesheet though the chargesheet is filed. Learned Counsel has further submitted that the applicant has tampered with the evidence and he was not available and remained Page 2 of 6 Downloaded on : Mon Jan 13 21:56:21 IST 2020 R/CR.MA/22058/2019 ORDER absconding for a period of four months. Learned Counsel has also referred to the panchnama dated 23.10.2019 with regard to the telephonic conversation between the applicant and his sister­ in­law. It is submitted that the applicant has placed forged documents before this Court, copy of which is placed on record at Page No.63 of the compilation. From the same, it is submitted that though stamp paper was purchased on 20.04.2017, writing is dated 14.03.2017. He, therefore, submitted that when the applicant has placed on record forged documents before this Court, this Court may not exercise the discretion in favour of the applicant.

5. Learned APP appearing on behalf of the respondent­ State has opposed grant of regular bail looking to the nature and gravity of the offence and also supported the submissions canvassed by learned Senior Counsel, Mr. Raju appearing for the original complainant.

6. 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, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

7. This Court has considered following aspects,

(a) the applicant is in jail since 30.08.2019;

(b) the investigation is concluded and the chargesheet is filed ;

approximately Rs.15.00 crores, the co­accused i.e. the wife of the present applicant has shown willingness to deposit Rs.3.00 crores and, therefore, she has been enlarged onb ail by this Court;

(e) as stated by learned Counsel for the applicant, the applicant is ready and willing to deposit an amount of Rs.4.00 crores without prejudice to his rights and contentions within a period of seven months from the date of his actual release before the concerned trial court and out of said amount, he has shown willingness to deposited 10% of Rs.4.00 crores within a period of three weeks from the date of his release;

(f) as stated above, civil proceedings are pending filed by the Company and the application for attachment before judgment is also pending before the concerned court. In the facts and circumstances of the present case, I am inclined to consider the case of the applicant.

8. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, reported in [2012] 1 SCC 40.

9. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with FIR being C.R. No.I­ Page 4 of 6 Downloaded on : Mon Jan 13 21:56:21 IST 2020 R/CR.MA/22058/2019 ORDER 193/2019 registered with Sola Police Station on executing a personal bond of Rs.10,000/­ (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall; [a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave the State of Gujarat for a period of twelve months without prior permission of the concerned trial court; [e] mark presence before the concerned Police Station between 1st to 10th day of every English calendar month for a period of twelve months between 11:00 a.m. and 2:00 p.m.;

[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the concerned trial court;

[g] shall deposit an amount of Rs.4.00 crores before the concerned trial court without prejudice to his rights and contentions within a period of seven months from the date of his actual release and out of which, 10% of Rs.4.00 crores shall be deposited within three weeks from the date Page 5 of 6 Downloaded on : Mon Jan 13 21:56:21 IST 2020 R/CR.MA/22058/2019 ORDER of his actual release and shall also file an undertaking to that effect within a week from the date of his actual release.

10. The authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.

11. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

12. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(VIPUL M. PANCHOLI, J.) Gautam Page 6 of 6 Downloaded on : Mon Jan 13 21:56:21 IST 2020