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2021 Supreme(Guj) 301
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.S. SUPEHIA, J.
Bhaumik Dilipkumar Gandhi - Appellant
Versus
State of Gujarat - Respondent
R/Criminal Misc.Application No. 4421 of 2021
Decided On : 30-04-2021
Advocate Appeared:
For the Appellant :Mr ND Nanavaty, Senior Advocate With Mr Ankit Shah(6371) Mr Hriday Buch(2372)
For the Respondent: Mr JK Shah, APP(2)
Point of law : Grant of Bail - 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 concerned Trial Court will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the Trial Court having jurisdiction to try the case.
Headnote:
Code of Criminal Procedure, 1973 - Section 439 - Prevention of Corruption Act, 1988 - Sections 13(1)(a) and 13(2) - Indian Penal Code, 1860 - Sections 409, 465, 466, 467, 471, 476(A), 120B, 34 - Criminal breach of trust by public servant or banker or broker - Seeking regular bail in connection with an FIR - Alleged Officers and Contractors of GSLDC (Gujarat State Land Development Corporation has without there being any actual work carried out with regard to construction and in connivance of each other with a preplanned conspiracy had with a common intention in abetment of each other during the year 2019 prepared fake and fabricated documents relating to Farm Pond, First and final Bill as well as Measurement Book by showing fake entries, signatures of the Site Engineer, Supervisor and Account Clerk which were placed on these documents, so as to show that the work against said bills has been completed and verified by GSLDC Official posted on the said site - Using entries and vouchers to be genuine, such official usurped an illegal amount misusing the office of public servant of GSLDC and misused their power and position with their conspiracy and eventually causing loss to Government Exchequer and attained unlawful gain without doing the actual work and did not pass the subsidy to poor farmers and thereby committed serious economic offence - Alleged Auditor of Pipara & Co. has also connived in offence committed by Office Bearers & Contractors of GSLDC, wherein, it is alleged that due diligence way not performed by Auditor being an employee of Pipara & Co., doing the Audit work as per standard procedure of GSLDC and breached the rules of Audit and wrongly affixed stamp on the First & Final Bill and Measurement Book - It is further alleged that the present applicant had affixed the stamp of preaudit in various documents owing to which the GSLDC has encashed forged bills and thereby misappropriated the Government Revenue in connivance of other accused.
Finding of the court : learned Senior Advocate appearing with Mr. Hriday Shah, learned advocates for the applicant submitted that the applicant is innocent and has been wrongly implicated in this serious offence has submitted Investigating Agency has grossly misconceived and misinterpreted the concept of PreAudit and Concurrent Audit in the present case - Nowhere Investigating Agency is able to show that only on account of stamping of preaudit seal on First & Final Bill and Measurement Book, by Auditor applicant, the same has resulted into passing on the bills by the concerned Department. Rather the bills were in fact verified by the GSLDC officers posted at site and the officials have placed their signatures together with their designations, indicating their verification of work done at site - applicant is a prima facie witness in the case. He has submitted that there is no connivance of the applicant with other coaccused and even there are no statements to such effects. Even there are no prima facie evidence to the effect present applicant has received any kickback from the Office Bearers or Contractors or any such persons of GSLDC - Applicant has not received any unlawful and unjust gain and he has not procured any bill or invoice and the stamp affixed were genuine in nature. He has further submitted that the applicant has all the way cooperated in the investigation process as and when called for.
Result : Application is allowed
ORDER :
1. Heard the learned advocates for the respective parties through video conferencing.
2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 seeking regular bail in connection with an FIR being C.R.No.I03 of 2019 registered with Valsad and Dang A.C.B. Police Station, Dist. Valsad for the offences punishable under Sections 13(1)(a), 13(2) of the Prevention of Corruption Act, 1988 and under Sections 409, 465, 466, 467, 471, 476(A), 120B, 34 of the Indian Penal Code, 1860.
3. The brief facts of the present case are as under :-
3.1 It is alleged that the Officers and Contractors of GSLDC (Gujarat State Land Development Corporation) has without there being any actual work carried out with regard to construction of Khet Talavadi and in connivance of each other with a preplanned conspiracy had with a common intention in abetment of each other during the year 2019 prepared fake and fabricated documents relating to Farm Pond, First and final Bill as well as Measurement Book by showing fake entries, signatures of the Site Engineer, Supervisor and Account Clerk which were placed on these documents, so as to show that the work against the said bills has been completed and verified by the GSLDC Official posted on the said site. Using those entries and vouchers to be genuine, such official usurped an illegal amount of Rs.6,92,600/by misusing the office of public servant of GSLDC and misused their power and position with their conspiracy and eventually causing loss to the Government Exchequer and attained unlawful gain without doing the actual work and did not pass the subsidy to poor farmers and thereby committed serious economic offence.
3.2 It is further alleged that the Auditor of Pipara & Co. has also connived in the offence committed by the Office Bearers & Contractors of GSLDC, wherein, it is further alleged that due diligence way not performed by the Auditor, Mr.Bhaumik Dilipkumar Gandhi being an employee of Pipara & Co., doing the Audit work as per standard procedure of GSLDC and breached the rules of Audit and wrongly affixed stamp on the First & Final Bill and Measurement Book. It is further alleged that the present applicant had affixed the stamp of preaudit in various documents owing to which the GSLDC has encashed forged bills and thereby misappropriated the Government Revenue of Rs.6,92,600/- in connivance of other accused.
4. Mr.Nanavaty, learned Senior Advocate appearing with Mr.Hriday Buch and Mr.Ankit Shah, learned advocates for the applicant submitted that the applicant is innocent and has been wrongly implicated in this serious offence. Mr.Nanavaty has submitted that the Investigating Agency has grossly misconceived and misinterpreted the concept of PreAudit and Concurrent Audit in the present case. Nowhere the Investigating Agency is able to show that only on account of stamping of preaudit seal on First & Final Bill and Measurement Book, by the Auditor applicant, the same has resulted into passing on the bills by the concerned Department. Rather the bills were in fact verified by the GSLDC officers posted at the site and the officials have placed their signatures together with their designations, indicating their verification of work done at the site. He has submitted that the Auditor's duty was to check if the work done was as per the plan shared by the headoffice (Sanction of work), criteria adopted for measurement.
4.1 Nanavaty, learned Senior Advocate has submitted that the applicant's name did not appear in the FIR when it was registered in the year 2019, which speak volumes on the innocence of the applicant. At the most the applicant is a prima facie witness in the case. He has submitted that there is no connivance of the applicant with the other coaccused and even there are no statements to such effects. Even there are no prima facie evidence to the effect that the present applicant has received any kickback from the Office Bearers or Contractors or any such persons of GSL
