Gujarat High Court
Sanjaykumar Inderchand Agrawal vs State Of Gujarat on 27 June, 2025
NEUTRAL CITATION
R/CR.MA/5305/2025 CAV JUDGMENT DATED: 27/06/2025
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Reserved On : 17/06/2025
Pronounced On : 27/06/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL) NO. 5305
of 2025
With
R/CRIMINAL MISC.APPLICATION NO. 10055 of 2025
With
R/CRIMINAL MISC.APPLICATION NO. 6701 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
==========================================================
Approved for Reporting Yes No
No
==========================================================
SANJAYKUMAR INDERCHAND AGRAWAL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR VIRAT G POPAT(3710) for the Applicant(s) No. 1
MR. ANSHIN DESAI, LD. SR. ADV. WITH MR P P MAJMUDAR(5284) for the
Respondent(s) No. 1
MR. JAY MEHTA, LD. ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
==========================================================CORAM:HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
COMMON CAV JUDGMENT
1. Since the issue involved in all the captioned applications
arises out of the very selfsame FIR, those were heard analogously
and are being disposed of by this common judgment.
2. Rule returnable forthwith. Learned APP waives service of
notice of rule for and on behalf of the respondent – State of
Gujarat and learned advocate Mr. P.P. Majmudar waives service
of notice of rule for and on behalf of the original complainant.
3. For the sake of convenience, Criminal Misc. Application
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No.5305 is treated as the lead matter.
4. By way of the present application under Section 482 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (for short “BNSS”), the
applicant has prayed for anticipatory bail in the event of arrest in
connection with the FIR being C.R. No.11993007250131 of 2025
registered with Gandhidham ‘B’ Division Police Station, Kachchh
for the alleged offences as mentioned in the FIR.
5. The glimpse of the case of the prosecution is that the First
Information Report (henceforth ‘FIR’) has been lodged by the
second respondent-original complainant on 08.02.2025 against
the applicant alleging therein that he is having a Company in the
name and style as ‘Canon Trade Com. Pvt. Ltd.’ being jointly
run and managed by himself and his wife Santosh, which indulges
in doing the work of Import/Export. It is stated in the FIR that the
complainant is the Director in the said Company. It is further
alleged that the Company of the complainant entered into an
agreement with the Company of the applicant, namely, Vimla
Resources F.Z.E., situated at Sharjah, U.A.E. being Sale-Purchase
Contract No.Canon/24-25/02 dated 24.12.2024 as also
Amendment No.1 was also done for export of coking coal which
was imported by the complainant from the foreign country. It is
alleged that it was agreed upon by both the sides in the said
contract that as soon as the applicant would sell the product to
any third party and receive any amount in his Bank Account at
Dubai from the said third party purchaser, on the same day, the
applicant will have to make the payment to the complainant in
his H.D.F.C. Bank Account at Gandhidham. It is further alleged
that as per the agreement, the complainant exported 27,300
metric tons of Brolga Hard Coking Coal to the Company of thePage 2 of 22
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applicant, i.e, Vimla Resources F.Z.E. Sharjah at U.A.E. on
27.12.2024 from the Kandla port valued at INR 89,00,00,000/-,
which had to be paid by the applicant to the Company of the
complainant, as per the agreement. It is further alleged that,
thereafter, on 29.01.2025, U.A.E. Currency AED 7,999,973.75/-
was credited in the U.A.E. Bank Account of the applicant, out of
which, Bank Payment Advise of AED 7,000,000/-, i.e, INR
16,50,00,000/- was created in the H.D.F.C. Bank Account of the
Complainant, and send the same in the Company related
WhatApp Group, and an OTP Number of the same was obtained
from the U.A.E. Mobile Number of the Company, and on the same
day, U.A.E. Currency AED 7,856,090.75 was credited in the
aforesaid H.D.F.C. Bank Account of the complainant. It is alleged
that thereafter on 30.01.2025, the applicant changed the mobile
number on which the complainant used to receive the OTPs, and
registered his another mobile number, and thereby started to
send the amount in the Bank Account of the Vimla Resources
F.Z.E. Co. at U.A.E. It is alleged that the Bank Payment Advise of
AED 7,000,000/- earlier created by the applicant got rejected by
the applicant, and then on inquiry being made, it came to the
knowledge of the complainant that one another Payment Advise
was created by the applicant to transfer AED 1,53,00,000/-, i.e.,
INR 36,00,00,000/- in his sister concerned Company named
Vimla Fuels & Metals Ltd., and as such, the Bank Account of
Vimla Resources F.Z.E Company at U.A.E. got freezed by the
complainant so that no transaction takes place from the said
account. It is further alleged that then the complainant went to
U.A.E., Dubai to see that he may get the payment of coking coal
exported by him to the applicant’s Company. It is alleged that
even after the account got freezed, the applicant made certain
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transactions and transferred amounts in the local Bank at U.A.E
as also in the Bank Account of his sister concerned Company,
namely, Vimla Fuels & Metals Ltd. At Gandhidham, and thereby
committed an offence of cheating by not paying the amount of
INR 36,00,00,000/- due and payable to him by the applicant
towards the export of coking coal by the complainant to the
applicant’s Company. With this sort of allegations, the present
FIR has been registered.
6. Thus, apprehending his arrest pursuant to the registration
of the aforesaid FIR, the applicant preferred anticipatory bail
before the trial court, however, the trial court has not entertained
the said application and rejected the same.
7. Being aggrieved, the applicant is here before this Court with
the present application.
8. Learned advocate Mr. Virat Popat appearing for the
applicant submits that the allegations made in the FIR are of such
a nature, for which, custodial interrogation of the applicant at this
stage is not necessary. He further submits that the applicant will
keep himself available during the course of investigation as well
as the trial proceedings and will not flee from justice. He further
submits that the applicant is a Director in Vimla Resources FZE,
Sharjah, United Arab Emirates (VRF), which indulges in doing the
business of import and export of coking coal as well as in Vimla
Fuels & Metals Limited (VMFL), situated at Bhachau, which is a
manufacturer, wholesaler and retailer in offering a finest quality
collection of Anthracite Coal, Breeze Coke, Coal Fine, Coke Arsh,
Steam Coal, Nut Coke, Pearl Coke, Petroleum Coke etc. Learned
advocate Mr. Popat also submits that this is a second round of
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litigation, and in the previous application filed by the applicant,
the applicant was directed to appear before the investigating
officer, and in compliance with the said direction, the applicant
appeared before the investigating officer and his statement came
to be recorded, however, simultaneously, the investigating officer
was also directed to follow the dictum as laid down by the
Hon’ble Apex Court in the case of Arnesh Kumar Vs. State of
Bihar and in case of Satender Kumar Antil Vs. Central Bureau
of Investigation & Anr. Thereafter, all of a sudden, the
investigating officer submitted an application on the basis of
same set of materials for addition of Section 409 of the IPC,
which indicates that by hook or crook, the investigating officer
wants to arrest the present applicant.
9. Learned advocate Mr. Popat further submits that a bare
perusal of the FIR clearly shows that the dispute involved in
the present case is purely of a civil nature, which has been
given a veneer of criminality with a view to exert pressure
upon the applicant, which is nothing but an abuse of process of
law. He further submits that present transaction is not the
single transaction that has taken place between the applicant
and the complainant, but there are number of transactions
took place between the applicant’s Company and the Company
of the Complainant. Learned advocate Mr. Popat submits that
the complainant and his wife Santosh are the Directors of
Canon Tradecom Pvt. Ltd., situated at Gandhidham as well as
are also the Directors in Narayani Coke Private Limited. The
VMFL used to purchase coking coal from Narayani Coke Private
Limited and Harsh Fuels Private Limited (the sister concern of
Canon Tradecom Private Limited), and then used to sell the
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same by exporting to KGC General Trading LLC, Dubai, who in
turn used to sell the said material to VRF, who then used to sell
the goods to Eventual Buyer viz. ESCO (Esfahan Steel
Company), situated at Iran. He also submits that all the
services like booking of vessels, entering into charter
agreement, paying custom duty etc. were being done by the
VFML. Learned advocate Mr. Popat submits that there are
numerous transactions entered into between the Company of
the applicant and the company of the complainant, and in all
those transactions payment were being made by the
applicant’s Company after receiving the payment from the end
user, which is evident from the statement of account/ledger
account of Narayani Group maintained by VMFL. Thus, the
ingredients of ill-intention right from the beginning to cheat the
complainant is completely missing as numerous payments
were being made by the applicant to the complainant.
10. Learned advocate Mr. Popat submits that amongst other
various transactions, on 16.04.2024, the Company of the
applicant, namely, VMFL entered into Sales Purchase
Agreement with KGC for purchase and supply of 30,000 Metric
tons of coking coal. Therefore, VMFL purchased the said coal
from the Company of the Complainant, i.e, Narayani Group,
which is evident from the Tax Invoices issued by Narayani
Group on VMFL, which is annexed along with the memo of the
application. As stated above, after receiving the material, KGC
sold the said material to the Eventual Buyer, i.e, ESCO, Iran.
However, when the said material reached to the Eventual
Buyer, it found the material supplied to be of an inferior
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quality, and therefore, vide letter dated 01.09.2024, rejected
to accept the said material and refused to clear the payment
towards the said material. The said lot is still lying at Bandar
Imam Khomeini Port at Iran. Thus, in lieu of the said dispute, a
Tripartite Agreement dated 16.01.2025 came to be executed
between VFML, KGC and VRF, whereby it was agreed between
the parties that the payment on behalf of KGC shall be made
by VRF to VMFL directly. He, therefore, submits that in
compliance of the terms of Tripartite Agreement dated
16.01.2025, VRF on behalf of KFC made payment of AED
1,53,00,000 (INR 36 Crores) into SBI Account of VMFL on
30.01.2025. However, as the SBI Account of VFML was
irregular, SBI adjusted the payment of Rs. 36 Crores against
overdue of Rs.38 Crores, and as such, it cannot be said that
the transfer of Rs.36 Crores by the applicant as Director of VRF
was with any ill-intention to avoid payment or to cheat the
complainant.
11. Learned advocate Mr. Popat submits that thus the
allegations of not making the payment to the complainant and
of transferring the amount in the Bank Account of his another
Company by the applicant are false and frivolous one made
only with a view to exert pressure upon the applicant. Even
there are number of transactions took place between the
Company of the applicant and the Company of the
complainant, and in pursuance of such transactions, the
complainant was required to either replace the inferior quality
of material or to reimburse the amount towards inferior quality
of material, however, as the complainant did not do so, the
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wife of the applicant, namely, Rakhi Sanjaykumar Agrawal
gave a written complaint to the Gandidham ‘B’ Division Police
Station against the wife of the complainant, daughter-in-law
and other persons. However, because of political influence of
the complainant, the FIR of the wife of the applicant was not
registered, and as a counterblast to the said complaint, the
present FIR has been registered.
12. Learned advocate Mr. Popat further submits that it is
alleged in the FIR that the applicant’s Company entered into an
agreement with the Complainant’s Company for supply of
27,300 metric tons of Brolga Hard Coking Coal, and
subsequently, an Addendum-01 was also executed. However,
the said allegations are completely false and frivolous one as
neither any Addendum-01 is executed between the parties nor
signed by the applicant. Moreover, it is also alleged in the FIR
that payment had to be made to the complainant on the very
same day when the applicant received the amount from the
end user, which is false and contrary to the terms of the
Agreement. As per Clause-6 of the Agreement, the payment
was to be made within 60 days from the date of shipment, and
without waiting for the said period of 60 days, the present FIR
has been filed by the complainant. Further as per Clause-12 of
the Agreement, in case of any dispute being arisen between
the parties, the same shall be resolved through Arbitrator.
Thus, there is a clear cut breach of terms of Agreement
mutually executed between the parties. He submits that the
complainant, instead of resolving the dispute through
Arbitrator or initiating any civil proceedings, straightway has
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filed the present FIR, which is nothing but an arm twisting
tactics. Learned advocate Mr. Popat further submits that the
amount of Rs.36 Crores was set-off by the applicant in lieu of
the payment which were to be recovered by the applicant from
the complainant on account of inferior quality of material
supplied by the complainant vide Sales Purchase Agreement
dated 16.04.2024. Thus from the above, it appears that
allegations made in the FIR are false, fabricated and got up.
The applicant has neither induced nor deceived the
complainant. The applicant has not committed criminal breach
of trust or cheating. Thus, if the entire allegations, levelled in
the FIR, are taken as it is, then, no case is made out against
the applicant. To fortify his submissions, learned advocate Mr.
Popat has relied upon the decision in the case of Delhi Race
Club (1940) Limited & Ors. vs. State of Uttar Pradesh & Anr.,
reported in (2024) 19 SCC 690.
13. In such circumstances, referred to above, learned
advocate Mr. Popat prays that there being merit in his
application, the same be allowed and the applicant be released
on anticipatory bail.
14. Per contra, the present application has been opposed by
learned senior advocate Mr. Anshin Desai assisted by learned
advocate Mr. Panthil Majmudar appearing for the original
complainant. Learned senior advocate Mr. Desai submits that
the offence committed by the applicant is quite grave and
serious in nature wherein huge volume of amount is alleged to
have been cheated by the applicant. Learned senior advocate
Mr. Desai further submits that as the applicant and the
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complainant were dealing in the same business, they came
into contact and entered into business relationship, and then
started doing the business with each other. The first
transaction took place between the applicant and the
complainant in the year 2017, and till 2023-24, the
complainant was dealing with the applicant on cash and carry
basis. However, then, the applicant successfully gained the
trust of the complainant, and therefore, the complainant
started to supply the material of coal on credit terms. Learned
senior advocate Mr. Desai further submits that before entering
into the contract/agreement dated 24.12.2024 for supply of
27,300 metric tons of coal, for the purpose of transparency, it
was mutually agreed that till completion of all contractual
obligations, all transactions OTP for the Bank Account at U.A.E
will be generated on the complainant’s Dubai Mobile Number,
and accordingly, the complainant’s mobile number of Dubai
was registered, and the complainant was also given the
viewing rights for the said Bank Account at U.A.E. He also
submits that on 24.12.2024, a sales purchase agreement
being No.Canon/24-25/02, came to be executed between the
Company of the applicant and the Company of the
complainant along with Addendum No.01, whereby it was
agreed that the imported coking coal of 27,300 metric tons
being Brolga Hard Coking Coal with a contract value of AED
37,674,000.00, i.e, INR 89,00,00,000/- on Free on Board (FOB)
basis of the Complainant’s Company, would be exported to the
applicant’s Company at Sharjah, U.A.E, and the same will be
sold by the applicant’s Company there and the pre-decided
sale consideration amount which would be deposited in the
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applicant’s Company’s Bank Account in Dubai, will be
transferred in the HDFC Bank Account of the Complainant’s
Company on the same day which is situated at Gandhidham.
15. Learned senior advocate Mr. Desai further submits that
the amount of AED 37,674,000, i.e, INR 89,00,00,000/- was to
be deposited by the applicant’s Company to the Company of
the complainant, and on 29.01.2025, the amount of AED
7,999,973.75/- was credited in the Bank Account of the
applicant’s Company in Dubai, out of which, the applicant sent
the Bank Payment Advise for the amount of AED 7,000,000/-,
i.e, INR 16,50,00,000/- in favour of the Company of the
complainant and shared the said payment advise in the
WhatsApp group and also the OTP of the same was also
received on the U.A.E. Mobile number of the complainant, and
also on the same day, further amount of AED 7,856,090.75/-
was credited in the applicant’s Company’s Bank Account in
Dubai. Learned senior advocate Mr. Desai also submits that
instead of crediting the further amount in the Bank Account of
the complainant, the applicant not only rejected the earlier
Bank Payment Advise of the amount of Rs.7,000,000/- but also
created another Bank Payment Advise of the amount of AED
1,53,00,000/-, i.e, INR 36,00,00,000/- in the Bank Account of its
sister concern Company, i.e, Vimla Fuels & Metals Ltd. He
further submits that the complainant was at Jaipur on
29.01.2025 and 30.01.2025 to attend the wedding, where the
applicant was also supposed to come. However, the
complainant did not find the applicant over there, and
therefore, made a phone call to the applicant and found that
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the applicant misguided the complainant and actually he was
in Dubai, and thus, the said conduct of the applicant clearly
shows that there was an ill-intention on the part of the
applicant to cheat the complainant.
16. Learned senior advocate Mr. Desai submits that the
applicant, behind the back of the complainant, reached Dubai
and changed the mobile number of the complainant on which
the complainant was receiving the OTPs. However, as per the
U.A.E. banking law, while replacing the existing mobile number
for OTP purpose to a new number, the Bank must send a
confirmation OTP to the existing number, however, in the
present case, the complainant has not received any message
from the Bank. He further submits that then the complainant
himself went to Dubai on 01.02.2025 and approached the Bank
so as to stop such irregularities. The complainant also tried to
meet the applicant, however, the same was in vain. The
complainant also got the account in Dubai freezed to stop the
fraudulent transaction of AED 1,53,00,000/-, however, despite
such efforts being made by the complainant, the applicant got
the amount of AED 1,53,00,000/- (INR 36 Crores) transferred in
the Bank Account of its sister concern Company, namely, Vimla
Fuels & Metals Ltd. by different transactions through their local
group companies’ bank accounts. Learned senior advocate Mr.
Desai further submits that the applicant had submitted
incomplete contract agreement executed between them and
the amended agreement was not produced before the court
below by the applicant, and the same was produced by the
investigating officer along with its affidavit, which indicates
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that the applicant had the intention to cheat the complainant
from the very inception. Not only that, the applicant has also
mislead the trial court by producing incomplete agreement. He
further submits that as per the amended agreement, which is
produced on record by the complainant, the effective date of
the amended agreement shall be from 24.12.2024 and as per
the amended agreement terms of payment, (a) immediately
upon receipt of the payment from the third party in the
applicant’s Bank Account in Dubai, the same has to be
transferred on the same day to the Bank Account of the
Company of the complainant. He submits that the applicant,
being a merchant, has committed the offence of criminal
breach of trust by changing the mobile number of the
complainant, and as such, ingredients to constitute the
offence under Section 316(5) are clearly spelt out.
17. Learned advocate Mr. Desai submits that after the
registration of the FIR, the complainant herein made an
inquiry from the end user as to whether they have received
any goods supplied by the applicant, upon which, a
correspondence was made by the end user through email, a
copy of which is also place on record, which shows that in fact
due to some technical errors, that agreement could not be
executed between the applicant and the end user, and
therefore, no goods were supplied to them by the applicant.
Thus, it appears that there was no contract executed between
the applicant and the end user and there was no actual supply
of goods by the applicant to the end user, and therefore, the
applicant has disclosed wrong facts before this Court and
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suppressed the true facts, which clearly shows that there was
a mens rea on the part of the applicant to deceive the
complainant.
18. Leaned advocate Mr. Desai further submits that, in fact, a
statement is made at bar that there is no Addendum No.1
being made and that the applicant has not signed any such
Addendum No.1, to which, learned senior advocate Mr. Desai
has drawn the attention of this Court to the grounds raised by
the applicant in the memo of the application before the trial
court, more particularly, Ground No.6, and submits that there
was an admission on the part of the applicant that
subsequently the said document had been executed between
him and the complainant, and therefore, quite contrary stand
is taken by the applicant with a sole intention to get the
favourable order.
19. Learned senior advocate Mr. Desai submits that similar
kinds of grievances have been raised by the other entities
against the applicant, the list of which, has also been produced
by the complainant along with the affidavit, and thus, it can be
said that the applicant is habitual in committing such kind of
offence. Learned senior advocate Mr. Desai further submits
that there is enough oral electronic evidence to suggest that
the applicant has committed the present offence very
deliberately with a view to dupe the complainant. Ample
evidence has been collected by the investigating officer so far,
establishing the nexus between the applicant and the
commission of the crime, and to negate and stall the
investigation, a deliberate attempt is made by the applicant by
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filing the present application to subvert the issue and to
conceal the facts which would make the picture more clear.
He also submits that the present offence is quite serious in
nature, involving huge volume of amount and the investigation
is yet not completed and is at a very crucial stage. Moreover,
the applicant is absconding, and there are all chances of he
being fled away as he is having Company at Dubai. Moreover,
the applicant was served with the notice under Section 35(3),
however, he has chosen not to appear before the investigating
officer, and thereby evading and avoiding the cooperation in
the investigation. He submits that there is a strong prima facie
case against the applicant. The offence alleged against the
applicant is a non-bailable offence. Thus, considering the
overall facts and circumstances of the present case, as well as
the allegations of misappropriation of huge volume of amount,
the presence of the applicant is very much necessary while
conducting the investigation.
20. In such circumstances, referred to above, learned senior
advocate Mr. Desai prays that there being no merit in the
present application, the same be rejected.
21. The present application has also been opposed by learned
APP Mr. Jay Mehta. Learned APP submits that the present
applicant has been named in the FIR along with his specific role.
He further submits that there are similar kind of complaints
against the applicant by the different entities, and therefore,
considering the allegations made in the FIR and the role
attributed to the applicant, discretion should not be exercised in
favour of the applicant at this stage.
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22. I have heard the learned counsel appearing for the parties
and perused the record.
23 It goes without saying that the alleged offence of
misappropriating crores of rupees of the complainant is quite
grave in nature. Hence, while it is extremely important to
protect the personal liberty of a person, it is equally incumbent
upon me to analyze the seriousness of the offence and
determine if there is a need for custodial interrogation.
24. In Siddharam Satlingappa Mhetre v. State of
Maharashtra, (2011) 1 SCC 694, the Supreme Court carefully
considered the principles established by the Constitution
Bench in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2
SCC 565. After a thorough deliberation, the Supreme Court
arrived at the following conclusion:
“112. The following factors and parameters can be taken
into consideration while dealing with anticipatory bail:
(i) The nature and gravity of the accusation and the exact
role of the accused must be properly comprehended
before arrest is made;
(ii) The antecedents of the applicant including the fact as
to whether the accused 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;
(iv)The possibility of the accused’s likelihood to repeat
similar or other offences;
(v) Where the accusations have been made only with the
object of injuring or humiliating the applicant by arrestingPage 16 of 22
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him or her;
(vi)Impact of grant of anticipatory bail, particularly in
cases of large magnitude affecting a very large number
of people.
xxx xxx xxx”
25. In Sushila Aggarwal v. State (NCT of Delhi), (2018) 7 SCC
731, the Constitution Bench of the Hon’ble Apex Court
reaffirmed that when considering applications for anticipatory
bail, courts should consider factors such as the nature and
gravity of the offences, the role attributed to the applicant, and
the specific facts of the case.
26. In Satpal Singh vs. State of Punjab, (2018) 13 SCC 813,
the Supreme Court has held that the satisfaction of the court
for granting protection under Section 438 Cr.P.C. is different
from the one under Section 439 Cr.P.C. while considering
regular bail.
27. In Pratibha Manchanda and another Vs. State of Haryana
and another, (2023) 8 SCC 181, the Supreme Court has opined
that the relief of anticipatory bail is aimed at safeguarding
individual rights. While it serves as a crucial tool to prevent the
misuse of the power of arrest and protects innocent individuals
from harassment, it also presents challenges in maintaining a
delicate balance between individual rights and the interests of
justice. The tight rope we must walk lies in striking a balance
between safeguarding individual rights and protecting public
interest. While the right to liberty and presumption of
innocence are vital, the court must also consider the gravity ofPage 17 of 22
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the offence, the impact on society, and the need for a fair and
free investigation. The court’s discretion in weighing these
interests in the facts and circumstances of each individual case
becomes crucial to ensure a just outcome.”
28. This Court after considering number of decisions of the
Apex Court as well as of this Court, has observed in case of
MOHMED SALIM ABDUL RASID SHAIKH V. STATE OF GUJARAT
reported in 2001 [2] GLR 1580 as under;
“13. There is no scope for present applicant to urge that
he may be saved from disgrace or unwarranted hardship.
While entertaining the anticipatory bail application of the
accused, the Court should consider various aspects such
as;
[i] earlier offences registered against the applicant
accused and the nature thereof including the area of
activity, modus etc. if brought to the notice of the Court;
[ii] gravity of the circumstances in which the offence is
committed. Whether custodial interrogation is, prima
facie, unavoidable ?
[iii] likelihood of the accused fleeing from justice;
[iv] position and status of the accused individually and
also with reference to the victim and witnesses;
[v] likelihood of repetition of similar type of offence;
[vi] whether he would jeopardise his own life being faced
with grief or grim prospects of possible conviction in the
case;
[vii] likelihood of tampering with the evidence or
witnesses during the process of investigation, status and
stage of investigation;
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[viii] plea of false implication on some special vendetta, if
taken.
[ix] other relevant grounds which may apply to facts and
circumstances of that particular case; ”
29. Similarly, the Apex Court has also considered the scope
of Section 438 in case of DUKHISHYAM BENUPANI, ASSTT
DIRECTOR, ENFORCEMENT DIRECTORATE [FERA] V. ARUN
KUMAR BAJORIA reported in 1998 [1] SCC 52. The relevant
observations made in para-7 are quoted as under :-
“7. It seems rather unusual that when the aggrieved
party approached the High Court challenging the order
passed by a subordinate court the High Court made the
position worse for the aggrieved party. The officials of the
Directorate are now injuncted by the Division Bench from
arresting the respondent and the time and places for
carrying out the interrogations were also fixed by the
Division Bench. Such kind of supervision on the enquiry
or investigation under a statute is uncalled for. We have
no doubt that such type of interference would impede the
even course of enquiry or investigation into the serious
allegations now pending. For what purpose the Division
Bench made such interference with the functions of the
statutory authorities, which they are bound to exercise
under law, is not discernible from the order under
challenge. It is not the function of the Court to monitor
investigation processes so long as such investigation
does not transgress any provision of the law. It must be
left to the investigating agency to decide the venue, the
timings and the questions and the manner of putting
such questions to persons involved in such offences. A
blanket order full insulating a person from arrest would
make his interrogation a mere ritual.”
30. Coming to the case on hand, from the allegations levelled
in the FIR and the materials placed on record, it appears that
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the present case does not fall within the category to be of civil
nature only. There prima facie appears to be the elements of
criminality in the peculiar facts and circumstances of the
present case. In the present case, very serious allegations of
misappropriation of crores of rupees have been made against
the applicant. Moreover, the present case also falls within the
category of economic offences and the amount involved in the
present case is quite huge, and it is trite law that in economic
offences, the accused is not entitled to anticipatory bail.
Moreover, learned advocate for the complainant has also
placed on record certain documents, indicating that there was
no contract or agreement executed between the applicant and
the end user, and no actual supply of goods had taken place.
Further, the complainant has also brought to the notice of the
Court the admission on the part of the applicant before the
trial court of being entered into Addendum No.1 with the
complainant, which clearly falsifies the claim of the applicant
that he has not signed or executed any such Addendum No.1.
31. Moreover, when the Court is satisfied that a prima facie
case of custodial interrogation of the accused is made out by
the prosecution for securing the incriminating materials from
the information likely to be received from the accused, then
the power under Section 482 should not be exercised in a
routine manner. Here in the case on hand, the entire case of
the prosecution hinges upon documentary evidences in
physical as well as in digital format, and as such, the
apprehension of tampering with the evidence cannot be
discarded at this stage. The presence of the applicant seems to
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be needed to uncover the truth. Further, the discretion under
Section 482 cannot be exercised with regard to offences
punishable with death or imprisonment for life, unless the
court at that very stage is satisfied that such a charge appears
to be false or groundless. The larger interest of the public and
State demand that in serious cases like economic offences
involving cheating and misappropriation of huge volume of
amount, the discretion under Section 482 of the BNSS should
not be exercised. One more apprehension of applicant being
fled away also cannot be ignored, as he is having business
entities in U.A.E. Moreover, as stated by the learned advocate
for the applicant, this is a second round of litigation for the
same relief, and in my view, the same should not be
entertained unless there is some change of circumstances or
other grounds exist which would justify the consideration of
second application.
32. Thus, what is discernible from the above is that while
deciding anticipatory bail application, it is the first duty of the
Court to see seriousness of the offence, prima facie case and
interest of the society at a large. Therefore, when no special
and compelling circumstances are made out and no case of
false implication of present applicant in the alleged offence is
made out before this Court, I am of the opinion that this Court
should refrain itself from exercising its discretionary powers in
favour of the present applicant at this stage.
33. In view of above discussion and considering the materials
produced before this Court, I am of the opinion that there
seems to be a prima facie involvement of the present applicant
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in the commission of the alleged offence. Thus, this Court is of
the opinion that at the initial stage of the investigation of the
offence, grant of anticipatory bail in favour of the applicant is
likely to hamper the investigation and investigating agency is
likely to lose an opportunity to exploit all the fact situation,
probabilities or opportunities which the Agency may get during
the custodial interrogation of a person, and therefore, keeping
in mind all the factors, no interference is required at this stage.
The impugned order passed by the trial court, rejecting
anticipatory bail application of the applicant is just and proper
and does not require any interference at the end of this Court.
34. In the result, all the applications, being devoid of any
merit, are hereby rejected. However, it is made clear that the
observations made by this Court herein above at this stage
while deciding the anticipatory bail applications, would not
come in the way of the applicants at the time as and when if
ultimately the trial court is proceeded with the trial, and at the
stage of consideration of regular bail applications, if preferred
by the applicants. Rule is discharged.
(DIVYESH A. JOSHI,J)
VAHID
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