Point of Law: Cancellation application is required to find whether irrelevant material of substantial nature was taken into account or relevant material omitted from consideration while granting bail. If so, order granting bail would be perverse, justifying cancellation, in that context, stand of no supervening circumstances has no relevance in such a case.

JUDGMENT :

GITA GOPI, J.

1. Rule. Learned APP and Mr. Himanshu C.Desai, learned advocate waive service of notice of rule on behalf of respective parties. The learned advocates on both the sides were heard at length on different dates and the matter was listed “for pronouncement of judgment” today.

2. This application has been preferred under Section 439(2) of the Cr.P.C. for quashing and setting aside the order dated 12.06.2020 passed by the 14th Sessions Judge, Vadodara in Criminal Misc. Application No.976/2020, whereby the learned 14th Sessions Judge, Vadodara has granted regular bail to the respondent no.2 in connection with FIR being C.R. No.-I-146/2019 dated 16.10.2019. The applicant has further sought to commit the respondent no.2 to custody.

3. The complaint has been filed by Hiteshkumar Vallabhdas Shah, the Power of Attorney Holder of Pankaj Indravadan Sheth, before the Gotri Police Station, Vadodara on 16.10.2019. The present applicant, as a Power of Attorney Holder of Pankaj Indravadan Sheth, stated that the accused named in the FIR in connivance with each other, has induced Pankaj Indravadan Sheth to buy a property namely ‘Abhilasha Complex’ situated at Jetalpur, Vadodara.

3.1 It has been stated in the application that the present respondent no.2 in connivance with the co-accused Balvindersingh Sandhu has created forged and fabricated documents in the name of ‘Abhilasha Constructions', pretended as if it is the original Abhilasha Constructions Firm with the ownership right over the ‘Abhilasha Complex’, executed the same with Pankaj Indravadan Sheth and thereby both of them had cheated and defrauded him to the tune of Rs.8,91,57,249/-. Therefore, the FIR came to be lodged.

3.2 The present respondent no.2 has been arrested on 24.05.2020 and thereafter by filing Criminal Misc. Application 976 of 2020, sought regular bail before charge-sheet. It is stated by the present applicant that he had filed affidavit before the Sessions Court and the I.O. had presented an affidavit, opposing the bail application. The bail application was allowed and thus being aggrieved and dissatisfied the applicant has preferred the present application for cancellation of bail.

4. Mr. Sudhir Nanavaty, learned senior advocate with Mr. Vaibhav B.Shukla, learned advocate for the applicant relying on the grounds raised in the application memo submitted that, the order of the Sessions Judge is without appreciation of relevant material evidence. It was under the wrong impression of the accused, presuming the present respondent no.2 as some other accused and thereby the Sessions Judge has committed grave error in enlarging the respondent no.2 in regular bail. Mr. Nanavaty, learned senior advocate, stated that respondent no.2 himself has admitted in the Bail Application that he is partner in ‘Abhilasha Constructions’ with co-accused Balvinder Singh Sandhu, and the Sessions Judge has committed an error by presuming the present respondent no.2 as accused no.8 of the FIR, who is named as one short and fat person projecting himself as Vihang Bipinchandra Trivedi. Mr. Nanavaty, thus stated that it becomes apparently clear that respondent no.2 is a partner of ‘Abhilasha construction’ as well as he was the person who presented himself as Rajubhai. Mr. Nanavaty stated that without entering into the entire version of the FIR, considering the modus operandi of the accused persons, more particularly, the role of the present respondent no.2 of usurping the amount of Rs.8,91,57,249/-, the bail ought not to have been granted by the Sessions Judge.

4.1 Mr. Sudhir Nanavaty, learned senior advocate, contended that respondent no.2 is specifically named in the FIR as accused no.6 - Vihang Bipinbhai Trivedi @ Rajubhai; accused no.8 in the FIR is one fat and short person, who was called as Vihang as stated, clearly shows that both the accused persons are different and both have played specific role in the crime. Therefore, in consideration to the role played by both the accused, M