Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Guj) 311

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
NISHA M. THAKORE, J.
STATE OF GUJARAT – Appellant
Versus
RAJESHKUMAR JAMNADAS RAMI – Respondent
Criminal Misc. Application No. 17041 of 2022
Decided On : 06-04-2023

Advocates:
Advocate Appeared:
For the Appellant : MONALI BHATT.
For the Respondent: PUNIT B. JUNEJA.

The discretion exercised by the court in granting bail should be judicious and not a matter of course, and the grounds for cancellation of bail should be assessed based on relevant factors and the prima facie view of the evidence on record.

Headnote:
Cancellation of Bail - Embezzlement - Code of Criminal Procedure - Sections 439(2) - Indian Penal Code - Sections 406, 409, 420, 465, 467, 470, 471 - Summary
Fact of the Case:

The State filed an application seeking cancellation of bail granted to the accused, who was charged with embezzlement of government funds. The court analyzed the grounds for cancellation, the discretion exercised by the lower court, and the legal principles governing bail cancellation.
Finding of the Court:

The court found that the lower court had judiciously exercised its discretion in granting bail to the accused, considering the completion of the investigation and the filing of the charge sheet. The court also noted that the grievance of the prosecution regarding the addition of charges was pending adjudication in a revision application.
Issues: The main issue was whether the lower court misdirected itself in exercising judicial discretion in granting bail to the accused.
Ratio Decidendi: The court applied the legal principles outlined in the cases of Sanjay Chandra vs. CBI, Dinesh M.N. (SP) vs. State of Gujarat, Subodh Kumar Yadav vs. State of Bihar, and Mahipal vs. Rajesh Kumar @ Polia to assess the correctness of the bail order and the grounds for cancellation.
Final Decision: The court rejected the application seeking cancellation of bail, as it found that the lower court had not erred in granting bail to the accused.

ORDER :

1. This is an application filed under section 439(2) of Code of Criminal Procedure, by the State seeking quashing of the order dated 13.04.2022 passed by the learned 2nd Additional Sessions Judge, Ahmedabad (Rural) at Viramgam in Criminal Miscellaneous Application No. 67 of 2022. By the said order, the learned Sessions Judge has enlarged the respondent no. 1- original accused no. 1 in connection with the FIR being no. 11192035210250 of 2021 dated 11.6.2021 registered with Mandal Police Station for offences punishable under Sections 406, 409, 420, 467, 470, 471 of Indian Penal Code.

2. The gist of the allegations levelled against the accused no. 1 in aforesaid FIR is that the respondent no. 1 while holding charge as Deputy Accountant at Dholera office had committed criminal breach of trust by misusing his position as government servant, by making bogus cheques and vouchers and using such bogus documents as genuine documents, the accused had dishonestly diverted such amount in his account or in the name of relatives/friends. As per the allegations in the FIR, the total embezzlement of the amount involved was Rs.63,01,733/-.

3. It transpires from the record that before the registration of complaint, the department had conducted inquiry, whereby, the District Accountant Officer, Ahmedabad Panchayat office had by Order No. DP/HSB/MKM/57-59/ 2021 dated 07.06.2021 had directed the Dholera Office to proceed for registration of the FIR against the respondent no. 1. It was stated that the respondent no. 1 while holding charge as Deputy Accountant at Dholera office had committed the offence of embezzlement of such amount. Such a fact emerged during audit of the accounts of the Financial Year of 2017-2018 and 2018-2019. It had come on record during analysis of the account details that though the retired primary teachers have already been extended the benefit of leave encashment, the respondent no. 1 had raised false claims of such teachers by submitting revise duplicate bills and in collusion of the Taluka Developmetn Officer (then in charge) and Taluka Primary Education Officer created false record by misusing his position. It had further transpired that the cheques were issued in the name of the accused’s friends and relatives. The report revealed seven different cheques issued in the name of Mohmad Nadeem Halai, Vikram Vijakumar, Hiren V. Thadeswar, A.G. Jadeja, M.N. Halai and Hasmhukhbhai Rami, on 23.03.2017 and 04.07.2017, total of an amount of Rs. 39,37,780/-. On further scrutiny of the accounts, it had transpired that an amount of Rs.22,94,190/- was diverted for which no bill or voucher was raised by preparing cheques in the name of persons known to him as well as in his own name. The report revealed details of five cheques dated 08.09.2017, 04.10.2017 and 05.10.2017, by which, such amount was diverted by the accused. Also, it was found that the accused had created duplicate revised bills by misusing the office order in case of retired primary teachers, by approving the bills vouchers, embezzled an amount of Rs.69,736/-. Such three vouchers dated 03.10.2017 in the name of retired teachers namely Kalabhai Virabhai Vankar and Jayantilal Gandabhai Patel, were diverted in the SBI Account, Mandal. Thus, having noticed the primary involvement of respondent no. 1, the FIR came to be registered against respondent no. 1 on 11.06.2021.

4. This application seeking cancellation of bail was filed on 09.09.2022. This Court by order dated 07.11.2022 had issued Rule, which was duly served. The matter was fixed for hearing considering the application filed by the respondent no. 1 for early hearing. At one stage, attention of the Court was invited to the order dated 30.09.2022 passed by the Coordinate Bench in Criminal Miscellaneous Application No. 12680 of 2022, whereby the respondent no. 1 had approached this Court for bail in respect of another FIR with similar allegations, registered with Police station and the matter was adjourned on the gr