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2025 Supreme(GUJ) 549
HIGH COURT OF GUJARAT
HASMUKH D. SUTHAR, J
LAXMINARAYAN HIMMATRAMJI VAISHNAV – Appellant
Versus
STATE OF GUJARAT – Respondent
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 5066 of 2025
Anticipatory bail granted due to lack of evidence for cheating, emphasizing the importance of judicial discretion and the nature of accusations.
Headnote:
(A) Bharatiya Nyaya Suraksha Sanhita, 2023 - Section 482 - Code of Criminal Procedure, 1973 - Section 438 - Anticipatory bail - Applicant sought bail in connection with FIR for offences under BNSS - Allegations of commercial nature, with no evidence of cheating or criminal breach of trust - Considerations for bail include nature of accusation, applicant's antecedents, and possibility of fleeing - Court found no necessity for custodial interrogation and granted bail. (Paras 2.0, 5.0, 6.0, 7.0)
(B) Principles for granting bail - Factors include gravity of accusation, antecedents, and potential for fleeing justice - Court emphasized that detailed examination of evidence should be avoided at bail stage. (Paras 5.0, 6.0)
Facts of the case:
The applicant is accused of not fully paying for goods worth Rs.38,40,271/- purchased on credit, with a complaint filed belatedly. The transaction is characterized as commercial, and the applicant has been cooperative.
Findings of Court:
The application for anticipatory bail is allowed, with conditions set for the applicant's cooperation and presence at the police station.
Issues: The main issues include the nature of the allegations and the necessity for custodial interrogation.
Ratio Decidendi: The court ruled that no prima facie evidence of cheating exists, and custodial interrogation is unnecessary given the circumstances.
Result: Application is allowed.
ORDER :
1. RULE. Learned APP waives service of rule for the respondent-State.
2. By way of the present application under Section 482 of the of the Bharatiya Nyaya Suraksha Sanhita, 2023 (for short “BNSS”) /438 of the Code of Criminal Procedure, 1973, the applicant accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR being C.R. No. 11210005250077/2025 registered with Athwalines Police Station, Surat, for the offences punishable under Sections 316(5) and 318 of the BNS.
3. Learned advocate for the applicant submits that the applicant has nothing to do with the offence and he is falsely enroped in the offence. The complaint is filed belatedly. The dispute is commercial in nature and the alleged transactions, which took place in the year 2021. Though once complaint is filed. As per the allegations made in the complaint, the applicant has purchased the goods and amount has not been fully paid, therefore, for recovery of the same the present complaint is filed. There is no iota of evidence qua cheating and criminal breach of trust. Now nothing remains to be recovered or discovered from the present applicant and therefore, custodial interrogation at this stage is not necessary. Besides, the applicant is available during the course of investigation and will not flee from justice. In view of the above, the applicant may be granted anticipatory bail.
4. Learned APP appearing for the respondent-State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. He has submitted that the present applicant has purchased the goods worth Rs.38,40,271/- on credit and has closed the shop and has not fully paid the amount and an amount of Rs.24,60,542/- yet to be recovered. In this regard evidence is required to be collected. If the he released on bail, then possibility cannot be ruled out to tamper with the evidence. Hence, as custodial interrogation of the applicant is required, he has requested to dismiss the present application.
5. Having heard the learned advocate for the parties and perusing the investigation papers, it is equally incumbent upon the Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of the Hon’ble Apex Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided. I have considered the following aspects:
(1) Offence is not punishable with life imprisonment or death penalty;
(2) prima facie, it appears that the alleged transaction is business transaction, which took place during the year 2021-2024 and the applicant has received the goods worth Rs.38,40,271/- and out of the said amount, only 13,79,699/- was paid by the applicant. There was no any intention on the part of the applicant since inception of cheating;
(3) no antecedent is reported against the applicant;
(4) nothing is required to be recovered and discovered from the accused;
(5) the alleged transaction is business transaction;
6. Considering the aforesaid aspects and the law laid down by the Hon’ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. reported in (2011) 1 SCC 6941, wherein the Hon’ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Sin
