IMPORTANT POINT
The court established that anticipatory bail can be granted when there is no direct evidence of wrongdoing, and arrest should not be a tool for recovery.

ORDER :

1. The present application for anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) has been filed by the applicant apprehending his arrest in connection with FIR No. 344/2023 registered at Police Station Kotwali, District Banswara, for the offences under Sections 420, 408, 409 and 120-B of the Indian Penal Code, 1860.

2. Mr. M.S. Singhvi, learned Senior Counsel appearing for the applicant narrated the requisite facts by stating that an FIR came to be registered by the trustees of the Trust – ‘Fakir Karzan Hasna Trust, Saifi Mohalla, Banswara’ that Key Watchmen of the trust, namely Hakimuddin and Burhan Bahrinwala have misappropriated the gold, which was handed over by the members as security, to whom interest free loan was advanced. It was informed that the said Key Watchmen in turn handed over or sold the gold jewellery (belonging to various members of the trust) to one Nikhil Damadiya, who was Goldsmith by profession.

3. During the course of investigation, it has come on record that those principal accused had either sold the gold or taken loan from Nikhil Damadiya. A diary has been recovered from Nikhil Damadiya and as per entries therein and the statement which he gave under section 27 of the Indian Evidence Act, 3210.850 grams of gold was handed over to the applicant against money that was advanced to him.

4. Learned Senior Counsel submitted that even if the case set up by the prosecution and investigation made so far is taken to be correct, then also the applicant cannot be apprehended, particularly when there is no direct allegation of cheating or misappropriating the properties of the trust or its members and no case of breach of trust is made out against him.

5. He submitted that during the course of proceedings, the applicant has bona-fidely handed over 1367 grams of gold, which was lying with him as a mortgage or security and in spite of the same, the investigating officer is not satisfied and he is coercing the applicant to further hand over 1800 grams of gold. He added that no more gold is in applicant’s possession and there is clear discrepancy, if the entries in the diary of said Nikhil Damadiya are considered vis-à-vis the material on record. He placed chart showing the calculation of gold in order to substantiate his stand.

6. Learned Senior Counsel argued that the applicant cannot be arrested simply for the purpose of and as a tool for recovery, while highlighting that most of the gold has been recovered from other persons to whom said Nikhil Damadiya had sold/mortgaged the gold.

7. Learned Public Prosecutor opposed the bail application.

8. Mr. Vikas Balia, learned Senior Counsel and Mr. Naman Mohnot appearing for the complainant vehemently opposed the application for pre-arrest bail by contending that if the diary entries are perused, names of 12 persons were found and from each of them (except applicant), the gold as mentioned in the diary has been recovered. He added that diary entries of said Nikhil Damadiya cannot be untrue only in the case of the present applicant, when other 11 persons have returned the gold jewellery. While emphasizing that the applicant has handed over about 1367 grams of gold jewellery, learned counsel argued that said jewellery has been identified by the members to be theirs and hence, it is easier said than believed that the applicant is not having remaining gold (1800 grams).

9. Learned counsel further submitted that maybe the applicant has no direct relationship with the Key Watchmen, but the fact that the applicant, who is a retired bank employee, has purchased/received such a huge quantity of gold against money given to Nikhil Damadiya clearly points towards his nexus with said Nikhil Damadiya. It was further submitted that no common man would buy such a huge quantity of gold from one person in such a short span of time, that too, after retirement.

10. It was argued that the applicant is definitely guilty of offence