B.N. Karia, J
1. The appellant has filed Criminal Misc. Application No.776 of 2019 before the court of learned 4th Additional Sessions Judge, Bhuj u/s 439 of the
Code of Criminal Procedure, 1973 requesting to enlarge the appellant on regular bail on account of offence being registered vide I â€" C.R. No. I-1 of
2019 with Mundra Marine Police Station, Dist-Kutch for the offence punishable under Sections 420, 406, 408, 465, 471, 506(2) and 114 of the I.P.C.
and Sec. 3(1) (r) (s), 3 (2) (5-A) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short “the Atrocities Actâ€),
wherein the learned learned 4th Additional Sessions Judge, Bhuj rejected the said application on 11.09.2019.
Feeling aggrieved by the said order, the appellant preferred said appeal u/s 14A(2) of the Atrocities Act.
2. Heard learned advocate for the appellant, learned advocate for the respondent No.2 and learned APP for the respondent no.1- State.
3. Learned advocate for the appellant has submitted that the present appellant is falsely implicated and he has not committed any offence as alleged in
the complaint. He further submits that investigation is over and charge sheet has been filed as well as the appellant is in jail since date of his arrest. He
further submits that Niki Petroleum was looked after by Kantaben and her husband namely Bhagwanjibhai and appellant was given a salary thereof.
There are two other Managers in the petrol pump, who are also looking after all administrative work. He further submits that repeatedly the appellant
and the mother had informed for making necessary entry in the company about the partners. However the same was not acceded. It is stated that
amount which was withdrawn from the current account was not returned, even threat was administered to file proceedings under the Atrocity Act.
He further submits that entire case is based on documentary evidence. All documents are collected and therefore further detention of the appellant
may not be warranted. Hence, it was requested by learned advocate for the appellant to quash and set aside the impugned judgment and order passed
by the learned 4th Additional Sessions Judge, Bhuj and enlarged the appellant on bail.
4. From the other side, Learned APP for the respondent-State as well as learned advocate for the respondent No.2 have strongly objected the
submissions made by learned advocate for the appellant submitting that appellant was looking after all the activities of the petrol pump since long and
was using online bank services of the petrol pump as well as ATM. That appellant has withdrawn very huge amount from the account from time to
time for his personal use. During the investigation it is found that appellant has misappropriated amount of Rs.2,92,00,000/- of the complainant and the
same amount was transferred in the account of his relatives. Prima facie, offence is committed by the present appellant as per the averments made in
the complaint. Learned advocate for the respondent No.2 has filed an objection which is taken on record. Hence it was requested by learned APP for
the respondent-State as well as learned advocate for the respondent No.2 to dismiss the present appeal.
5. Having considered the facts and submissions made by learned advocates for the respective parties as well as learned APP for the respondent
State, it appears that as per the complaint alleged offence was committed by the present appellant between 1st January 2013 to 25th December 2018
and the complaint was lodged on 12.01.2019 for offence punishable under Sections 420, 406, 408, 465, 471, 506(2) and 114 of the I.P.C. and Sec. 3(1)
(r) (s), 3 (2) (5-A) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989..
6. From the facts narrated in the complaint, there is no specific offence against the present appellant of intimidating the present appellant or speaking
any derogative words against the complainant. It appears from the police papers as well as documents produced on record by the present appellant
that joint account was opened with the bank in the name of present complainant and mother of the present appellant. Loan of Rs.40,00,000/- was
sanctioned by the Bank Authority in the year 2013. This loan was credited in the account of the Niki Petroleum wherein complainant herself and
mother of the present appellant were the partners. Partnership deed of the Niki Petroleum is produced on record. Thereafter from the account of the
Niki Petroleum Pump Rs.40,00,000/- was transferred by the complainant in her personal account. It also appears from the record produced by the
present appellant that after transferring the amount of Rs.40,00,000/- in the account of the present complainant she has purchased one immovable
property. A copy of the deed was produced on record. As per the investigation, forged signature was made by the present appellant in 39 cheques.
From FSL Report produced on record, it is opined that no definite opinion could be expressed on encircled disputed signatures marked D, D1 to D87 in
comparison with encircled specimen signatures marked(i) S36 to S107 and (ii) S108 to S179.
7. Statement of the bank account issued by the Central Bank India was also produced on record wherein the account number of the Niki Petroleum,
as well as amount of Rs.40,00,000/- deposited in the account, amount withdrawn from this accountand credited in the personal account of the
complainant were also shown. It also appears that some amount was also invested by the present appellant in the partnership firm of Niki Petroleum .
As per the statement of Bank Official the loan was sanctioned in the year 2013 and thereafter it was renewed only yearly basis and there was no
dispute till the end of the year 2018. As the installment of the loan amount was not paid by the complainant the dispute was started and thereafter this
complaint was lodged.
8. The Hon'ble Apex Court in a case reported in 2012 (1) G.L.H. 93 in Para 25 has observed as under:
Coming back to the facts of the present case, both the Courts have refused the request for grant of bail on two grounds:- The primary ground is that
offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State
exchequer ; the secondary ground is that the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of
cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment for a
term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to
which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the
charge and the severity of the punishment should be taken into consideration. The grant or refusal to grant bail lies within the discretion of the Court.
The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to
be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the
accused of imprisonment, to relive the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in
the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon
whenever his presence is required. This Court in Gurcharan Singh and Ors. V. State AIR 1978 SC 179o bserved that two paramount considerations,
while considering petition for grant of bail in non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing
from justice and his tampering with the prosecution witnesses. Both of them relate to ensure of the fair trial of the case. Though, this aspect is dealt by
the High Court in its impugned order, in our view, the same is not convicting.
9. Considering the facts of the case and submissions made by learned advocates for the respective parties as well as learned APP for the respondent-
State as well as considering the fact that investigation is over and charge-sheet is filed. this court is of the view the prayer made by the present
appellant requires for consideration and therefore this appeal is allowed.
10. In the result, present Criminal Appeal is allowed and the impugned judgment and order dated 11.09.2019 passed by the learned 4th Additional
Sessions Judge, Bhuj in Criminal Misc. Application No. 776 of 2019 is hereby quashed and set aside. The appellant is ordered to be enlarged on
regular bail on furnishing a bond of Rs. 10,000/- with one surety of like amount to the satisfaction of the trial Court and subject to the conditions that
appellant shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injurious to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave India without prior permission of the concerned Trial Court;
[e] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change
the residence without prior permission of this Court;
11. The authorities will release the appellant only if he is not required in connection with any other offence for the time being. If breach of any of the
above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be
executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the
above conditions, in accordance with law.
12. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.
Notice is discharged. Direct service is permitted.
