Point of Law: It would be open for the investigating agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the concerned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the concerned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining the application of the prosecution for police remand.

ORDER :

RULE. Learned Additional Public Prosecutor waives service of notice of rule for and on behalf of respondent – State.

1. Heard the learned advocates for the respective parties by video conferencing.

2. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for anticipatory bail in connection with the F.I.R. being C.R. No.11195050200415 of 2020 registered with Tharad Police Station, District Banaskantha for the offences under Sections 406, 420 and 120B of the Indian Penal Code, 1860.

3. The case of the prosecution in nutshell is that the first informant owns a shop by the name Kishan Corporation in Tharad Agricultural Produce Market (APMC), and he deals in different crops. It is further alleged that on 06.05.2020, the accused persons came to his shop during the auction of crop and they purchased Isabgol worth Rs.3,17,303/-. It is further alleged that on 08.05.2020, the accused persons purchased cumin seeds worth Rs.4,18,727/- from the shop of the first informant in auction. It is further alleged that the first informant demanded payment of the said crops, but the accused persons did not make any payment on one excuse or the other. It is further alleged that the accused persons purchased goods worth Rs.29,35,500/from other traders of the same market and did not pay the said traders. It is further alleged that the accused persons purchased goods totally worth Rs.36,71,530/- from their vendors and did not repay for the same.

4. Mr.Tejas Barot, learned advocate for the applicant has submitted that the alleged dispute among the traders and the applicant is a civil dispute, which has been given a colour of criminality solely. He has submitted that the co-accused viz. Motilal Talsabhai Patel approached this Court by way of Criminal Misc. Application No.10092 of 2020 for regular bail. It is submitted that the first informant appeared before this Court and argued that the first informant would have no objection if the said co-accused Motilal Patel is granted bail, if he deposits Rs.40,00,000/- before the Court. It is submitted that this stance of the first informant is clearly indicative of the fact that the first informant has misused the process of law only with a view to recover money from the accused persons. It is submitted that this Court allowed the aforesaid application vide order dated 27.07.2020 overruling the said argument of the first informant and specifically observed that the proceedings should not be used to recover money from the accused persons. He has also submitted that while granting bail to the co-accused, this Court imposed a condition that the applicant of that application shall furnish a solvent surety of Rs.40,00,000/-and execute a personal bond of the equal amount. In that view of the matter, the interest of the first informant and other traders are already secured and, therefore, the applicant is required to be protected by this Court. He has submitted that the basic ingredients to attract provisions of Sections 406 and 420 of the IPC are missing as there is no entrustment of property by the applicant. It is submitted that there is not a single averment suggesting that the applicant intended to cheat the informant and other traders from the very inception. He has submitted that the nature of allegations are such for which custodial interrogation of the applicant at this stage is not necessary.

4.1. Mr.Barot has submitted that the applicant has already filed an affidavit dated 01.04.2021, wherein, he has categorically made a statement that he is ready and willing to deposit an amount of Rs.10,00,000/- before the concerned trial court and also ready to furnish solvent surety of the equal amount. Learned advocate for the applicant, on instructions, has submitted that the applicant is ready and willing to abide by all the conditions, including imposition of conditions with regard to the powers of investigating agency to file an application be