Exercise of discretion for bail based on recovery of outstanding amount and closed account.

ORDER :

1. This application has been filed under section 439 of the Code of Criminal Procedure for regular bail in connection with FIR being C.R. No.11210055211881 of 2021 registered with Salabatpura Police Station, Dist. Surat for offences punishable under sections 406, 409, 420, 465, 467, 468, 471 and 34 of IPC.

2. The complainant is Assistant Manager of the Tamilnad Mercantile Bank and as per the complaint the erstwhile Bank Manager - Sunder Rajendran Sumbiya along with co-accused, Punit Nanjibhai Vyas and Nileshbhai Natubhai Narigara, who were working as Bank Loan Consultants, with the criminal conspiracy along with accused nos.1 to 17, had produced the documents for machinery term loan and for working capitals. Accused nos.1, 2 and 4 had produced false bills and quotations of machines supplies of Heer Enterprise, and on that basis on the Bank Accounts of the firms, by false bank statements and knowing the quotations and statements to be false, had undertaken bank loan procedures. The bank loan consultant along with the erstwhile Bank Manager had processed the loans for accused nos.1 to 17 and taken bank loan in the name of accused no.5 – Nareshbhai Dhirubhai Thumar and had used the same for their own personal use.

2.1 Total amount including the interest on the bank loan is Rs.16,51,45,000/-, their bank account were declared as NPA and by not repaying the loan, caused large financial loss to the Bank.

2.2 Senior Advocate Mr. I.H. Syed along with Mr. Rafik Lokhandwala and Mo. Azmeer J. Shaikh, learned advocates for the applicant submits that, the present applicant is one of the account holder, who is proprietor of Hanumant Hemro, had taken loan of Rs.1.18 crores and had mortgaged immovable property bearing Plot No.42, Shukan Bungalows, and the value of the mortgaged property is Rs.3.50 crores, admittedly Rs.35 lakhs had already been paid by the applicant and the loan is secured by the immovable property.

2.3 Mr. Syed stated that the possession of the Bungalow is with the Bank and the complainant Bank has arbitrarily sold away the mortgaged property by taking action under SARFAESI Act, 2002. Relying on the affidavit-in-reply of the complainant, Mr. Syed submits that the Bank had sold away the secured assets at a price of Rs.1.73 crores and had appropriated the sale proceeds towards the outstanding amounts of M/s. Hanumant Hemro and the account had been closed, and thus submits that nothing is outstanding in the account of the present applicant; however, whatever amount has been attributed is as being guarantor of M/s. Shree Hari Corporation, which is the proprietorship concern of wife of the applicant; and thus submits that nothing is required to be recovered. It was, therefore, prayed that the present application may be allowed and the applicant herein may be released on regular bail.

3. Mr. Pranav Trivedi, learned Additional Public Prosecutor assisted by Ms. Himani Kini, advocate for the complainant relying on the various statements of the witnesses, which includes Laxminarayan, who is the employee of Nileshbhai Narigra, Mayankkumar Naranbhai Mehta - the office of boy of Punitbhai Vyas, Ayush Dilipbhai Nakhera – a builder, Purshottam Finwiya - the uncle of the applicant, Dipak Vekariya - friend of the applicant, Vinubhai Kanjibhai Hirjibhai Finaviya - father of the applicant and Sanjaybhai Prufulbhai Kothia, who is having a factory and was earlier a partner in Hanumant Hemro, submitted that the present applicant along with both the loan consultants had procured loan in the name of all his family members and friends and even employees of the tax consultants and systematically planned to dupe the bank with huge amount of loans.

3.1 Mr. Trivedi, learned APP, submitted that the whole modus operandi of the present applicant has been described by all the witnesses and accordingly the applicant being friend of the bank loan consultants - Punit Vyas and Nilesh Narigara, had procured loan in the name of various persons with the assistance