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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Ashutosh J. Shastri, J.
Manan Hemendrabhai Bhimpuria - Applicant
Versus
State of Gujarat - Respondent
R/Criminal Misc. Application No. 9509 of 2020
Decided On : 13-08-2020
Criminal Procedure Code - Section 438 - Indian Penal Code - Sections 406, 409, 420, 465, 294(b) and 506(1) - Seeking anticipatory bail in connection with FIR for offences punishable - Prosecution basically in a very summarized form is that applicant-accused along with other investors have induced complainant and other persons to invest money in share market and in lieu of investment sizable amount of return is guaranteed and thereby by such inducement secured money from complainant and other persons and utilized same for his private purpose and thereby committed an offence of criminal breach of trust cheating and offences as alleged in complaint - Detailed narration is reflected in FIR but with a view to avoid unnecessary burden entire narration is not incorporated at length in present order - (Para 14 and 16)
Facts of the Case:
Case of the prosecution basically in a very summarized form is that the present applicant-accused along with other investors have induced the complainant and the other persons to invest money in share market and in lieu of such investment, sizable amount of return is guaranteed and thereby, by such inducement, secured money from the complainant and other persons and utilized the same for his private purpose and thereby committed an offence of criminal breach of trust, cheating and the offences, as alleged in the complaint. Detailed narration is reflected in the FIR, but with a view to avoid unnecessary burden, entire narration is not incorporated at length in the present order.
Finding of the Court:
Court is also mindful of that arrest of a citizen leads to many serious consequences not only for accused but for entire family - Court should be careful and meticulous in evaluating factual background and as upon aforesaid careful scrutiny of documents of this peculiar facts and Court is of considered opinion that a case is made out for grant of anticipatory bail to applicant - Court is inclined to exercise discretion particularly when it appears that applicant so far has cooperated with investigation and is ready and willing to abide by any of conditions which this Court would like to impose and further more this order of anticipatory bail is also subject to liberty of seeking remand - Hence Court is inclined to accept this application - Application is allowed by directing that in the event of applicant herein being arrested pursuant to FIR registered as lodged before CID Zone applicant shall be released on bail on furnishing a personal bond.
Result: Appeal allowed
Key Points: - The Court is inclined to grant anticipatory bail to the applicant, subject to conditions and liberty to seek remand (!) (!) . - The Court emphasizes cooperation with investigation, potential remand, and that arrest entails serious consequences; it stresses careful evaluation of peculiar facts and civil/criminal nature considerations (!) (!) . - The order sets specific bail conditions: personal bond, surety, cooperation, no inducement, address proof, no leaving Gujarat without permission, monthly presence at police station, and eligibility for police remand via Magistrate if needed; order is valid for 90 days (!) (!) (!) (!) (!) (!) (!) (!) . - Background facts include MoU between parties, alleged breach, 12% return, and disputes surrounding MoU and civil vs. criminal nature; previous civil decrees and 138 NI Act proceedings referenced (!) (!) (!) (!) (!) (!) . - The Court notes prior investigations and multiple applications, with ongoing civil disputes and lack of civil action for damages, supporting anticipatory bail in this peculiar context (!) (!) (!) (!) . - The decision reserves liberty for remand and notes that the applicant cooperated, including statements and written replies; acknowledges arrest consequences to family (!) (!) (!) (!) (!) .
ORDER :
1. Present Criminal Misc. Application is filed under Section 438 of the Code of Criminal Procedure for seeking anticipatory bail in connection with the FIR, being C.R. No.I-02 of 2020 lodged before CID (Crime) Ahmedabad Zone dated 6.3.2020 for the offences punishable under Sections 406, 409, 420, 465, 294(b) and 506(1) of the Indian Penal Code.
2. The case of the prosecution basically in a very summarized form is that the present applicant-accused along with other investors have induced the complainant and the other persons to invest money in share market and in lieu of such investment, sizable amount of return is guaranteed and thereby, by such inducement, secured money from the complainant and other persons and utilized the same for his private purpose and thereby committed an offence of criminal breach of trust, cheating and the offences, as alleged in the complaint. Detailed narration is reflected in the FIR, but with a view to avoid unnecessary burden, entire narration is not incorporated at length in the present order.
3. In response to this complaint, on apprehension of being arrested, Criminal Misc. Application No.3043 of 2020 was filed before learned City and Sessions Judge, Ahmedabad, which came to be rejected vide order dated 23.6.2020. As a result of this, the applicant-accused has approached this Court by way of the present application.
4. Learned senior counsel Mr. Jal S. Unawala appearing with learned advocate Mr. Jay J. Jani for the applicant has vehemently submitted that the applicant has not committed any offence, but on the contrary, a serious attempt is made to convert the civil dispute into a criminal offence and to substantiate the same, learned senior counsel has submitted that some preface is necessary as the case is having a peculiar background of facts. Mr. Unwala has submitted that the present applicant and the complainant, i.e. Shri Pranav Shah, are knowing to each other since about 30 years. On account of this long standing relation, on 28.3.2017, a Memorandum of Understanding (‘MoU’) is arrived at between the applicant and the complainant with respect to a business deal related to investment in stock market and a commercial decision is taken by the complainant to enter into the MoU, whereby the applicant was supposed to develop and install a trading software (38+ Modules), which was mutually agreed upon and fixed at Rs.2.44 crore, which is the monopoly of the present applicant, and in that respect, complainant Shri Pranav Shah had given a guarantee to give Rs.2.44 crore to the present applicant and in response thereto, 12% return was expected to be achieved by the complainant, which was purely on commercial and business deal. According to Mr. Unwala, after execution of the aforesaid MoU, the complainant gave 5 post-dated cheques, totaling around Rs.2.44 crores, as a part of stipulation of the MoU and one Mr. Milan Shah had also singed the said MoU as a witness. This was a corresponding act, according to Mr. Unwala, to be undertaken by the accused as well as the complainant. But, according to the applicant, when the cheques were presented, the same came to be dis-honoured due to ‘STOP PAYMENT’. This return of cheques on account of ‘STOP PAYMENT’ has resulted into filing of a complaint for the offence punishable under Section 438 of the Negotiable Instruments Act as well as filing of a summary suit, in which, a decree also came to be passed by the competent Court in favour of the applicant. So, according to Mr. Unwala, there is a clear breach on the part of the complainant in not honouring the MoU and not a single penny is given out of the aforesaid Rs.2.44 crore to the applicant. It has been submitted by Mr. Unwala that it has been revealed by the applicant that after execution of the MoU for Rs.2.44 crore, this very complainant has correspondingly entered into another MoU with one Shri Dishit M. Nathwani for a sum of Rs.3 crore and with the same assurance of guaranteed return of 12% by end of
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