Gujarat High Court
Vipulbhai Mansinhbhai Chaudhary vs State Of Gujarat on 15 April, 2025
NEUTRAL CITATION
R/CR.RA/428/2025 JUDGMENT DATED: 15/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY
SUBORDINATE COURT) NO. 428 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE M. R. MENGDEY
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Approved for Reporting Yes No
✔
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VIPULBHAI MANSINHBHAI CHAUDHARY & ORS.
Versus
STATE OF GUJARAT
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Appearance:
MR NIRUPAM D NANAVATI, SENIOR COUNSEL with MR RJ
GOSWAMI(1102) for the Applicant(s) No. 1,2,3
MR HARDIK DAVE, PUBLIC PROSECUTOR with MR.RONAK B. RAVAL,
APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 15/04/2025
ORAL JUDGMENT
1. This application has been filed by the present
applicants under Section 438 read with Sections 442 and 528 of
the Bharatiya Nagarik Suraksha Sanhita, 2023.
2. By way of the present application, the applicants
have challenged the order passed by the learned Special Court in
Application below Exh-256 in ACB Case No.9 of 2022 as well as
the charge framed by the Special Court against the present
applicants vide Exh-257.
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3. The facts and circumstances giving rise to the
present application are as such that the offence being C.R.No.I/8
of 2020 came to be registered with C.I.D. Crime, Gandhinagar
Zone on 11.12.2020 for the offence punishable under Section
408, 409, 120(B) and 114 of the Indian Penal Code, 1860 and
Sections 13(1) (A) and 13(2) of the Prevention of Corruption Act,
2018 (for short “PC Act“) against the applicants herein as well as
the other co-accused. The Investigating Agency carried out the
investigation on the basis of the said F.I.R. and after conclusion
of investigation, the Charge-sheet was filed against the present
applicants and the other co-accused for the aforesaid offences
and one of the applicants namely the applicant no.3 herein had
preferred an application for discharge before the learned Special
Court which was dismissed by the learned Special Court. The
said applicant, however, chose not to challenge the said order
further and thus, the order passed by the learned Special Court
dismissing the application for discharge filed by the applicant
no.2 has attained finality.
3.1 It is also pertinent to note that co-accused
Moghjibhai Dhanjibhai Patel had also filed an application for
discharge. The discharge application filed by him was also
dismissed by the learned Special Court against which, the said
co-accused has preferred the Revision Application before this
Court and same is pending consideration. By way of interim
order, the Special Court is directed not to frame charge against
the said co-accused.
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3.2 The applicants herein preferred an application before
the learned Special Court vide Exh-256. It was mentioned in the
said application that since the co-accused Moghjibhai Patel had
preferred Criminal Revision Application No.1586 of 2024 before
this Court challenging the order of the learned Special Court
whereby the application filed by the said co-accused for
discharge, was dismissed and this Court vide interim order had
directed not to frame charge against him. It was, therefore,
prayed that the trial of the present offence should be conducted
against all the accused simultaneously and it was prayed that
the trial qua the other co-accused including the present
applicants be deferred till the final conclusion of the aforesaid
Revision Application. The said application was dismissed by the
learned Special Court vide order dated 31.01.2025 and learned
Special Court, thereafter, proceeded on to frame charges against
the present applicants vide Exh-257. Being aggrieved by order
passed by the learned Special Court below Exh-256 and framing
of charges against the present applicants vide Exh-257, the
applicants herein have preferred the present Revision
Application.
4. Learned Senior Counsel Mr. N. D. Nanavati with
learned advocate Mr. R. J. Goswami appearing for the applicants
has submitted that though in the present Revision Application,
the prayer is made against the order passed by learned Special
Court below Application Exh-256, the applicants do not press
the prayer in the application so far as it relates to the order
passed by the learned Special Court below Application at Exh-
256 and challenge in the present Revision Application is limited
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to the action on the basis of the learned Special Court in framing
charges against the present applicants vide Exh-257. He has
submitted that the Investigating Agency after conclusion of the
investigation, filed a Charge-sheet against the present applicants
and other co-accused for the offences punishable under Sections
408, 409, 120(B), 114 and 201 of the Indian Penal Code, 1860
and Sections 13(1)(a)(b) and 13(2) of the PC Act. He has
submitted that the offence punishable under the provisions of
Indian Penal Code, 1860 as mentioned in the Charge-sheet by
the Investigating Officer may have been made out against the
present applicants herein. However, the offences alleged against
the present applicants under the PC Act can by no stretch of
imagination be said to have been made out against the
applicants. It is not even the case of the prosecution that the
applicants herein had demanded and accepted any illegal
gratification. Therefore, there is no question of any offences
punishable under the provisions of PC Act being made out
against them. The applicants herein have also been charge
sheeted by Investigating Officer for an offence punishable under
Sections 13(2) of the PC Act. There is no material whatsoever on
record which would indicate that the applicants herein were
responsible for any criminal misconduct and therefore, the
offence punishable under Section 13(2) of the PC Act, is also not
made out. At the best the applicants herein can be said to have
misappropriated the money belonging to the dairy and that is an
offence under the provisions of IPC. He has further submitted
that the prosecuting agency has not obtained the sanction under
Section 17(A) of the PC Act before prosecuting the applicants
herein and as per the provisions of Section 17(A), the
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Investigating Officer had no authority whatsoever to carry out
any investigation without any such sanction having been
obtained. Therefore, the entire Charge-sheet filed by the
Investigating Officer pales into insignificance.
4.1 Learned senior counsel has sought to rely upon the
following judgments in support of his submission: –
In the case of Dileepbhai Nanubhai Sanghani vs.
State of Gujarat & Anr. reported in (2025) LiveLaw
(Selection Committee) 273
In the case of V. C. Shukla vs. State through C.B.I.
reported in (1980) Supp. SCC 924.2 He has, therefore, submitted to allow the Revision
Application and quash and set aside the charges framed by
learned Special Court against the present applicants.
5. Learned Public Prosecutor Mr. Hardik Dave
appearing for the respondent State has opposed the present
application contending that applicant no.1 herein was a
Chairman of the dairy and while working as such, he had sent
“Sagardan” to the State of Maharashtra and Co-operative
Tribunal had saddled the liability of depositing the amount of
Rs.9 Crores with the dairy upon applicant no.1. To manage the
funds for deposit of the said amount, the applicants herein and
the other co-accused had evolved a mechanism whereby the
employees of dairy were awarded bonus @ 18% and thereafter,
the employees were directed by the applicants to withdraw 80%Page 5 of 17
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of the amount of bonus deposited in their accounts and hand it
over to the applicant no.2 and amount so obtained had been
utilised for deposit of the amount of Rs.9 Crores with the dairy.
He has further submitted that the material available on record
indicates that a Resolution was passed in the meeting dated
12.08.2019 by the Managing Committee of the dairy and it was
decided that the employees of the dairy to be awarded bonus @
18%. All the applicants herein were present in the said meeting
and supported the said Resolution. Thus, the applicants herein
actively participated in the meeting. As per the aforesaid
Resolution, the amount of bonus was credited into the accounts
of respective employees and upon instructions given by the
applicant no.2 herein; the respective employees had withdrawn
80% of amount of bonus and had handed it over to applicant
no.2. The Investigating Agency has recorded statements of
several such employees. One such employee namely, Ajaykumar
Priyakant Trivedi, who in his statement dated 14.12.2020 has
stated that between 20.08.2019 to 25.08.2019 the amount of
Rs.46,83,427/- of 82 employees was deposited into his bank
account. For deposit of the said amount, the rubber stamp in the
name of the said witness was prepared upon instructions of
applicant no.2 herein. Such amounts were deposited in the
accounts of several other employees also. He was instructed by
applicant no.2 to keep the amount in his account till further
instructions. Thereafter, he was instructed by applicant no.2 to
deposit the amount lying in his bank account in the account of
respective employees and thus, he had deposited amount of
Rs.32,22,659/- vide Cheque No.930786 and those respective
employees were thereafter instructed by applicant no.2 to
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withdraw the said amount and hand it over to him in cash.
Thus, the applicants herein had used corrupt practice to fulfill
their obligation of deposit of the amount of Rs.9 Crores as per
the order of the learned Co-operative Tribunal. The offence
punishable under the provisions of PC Act is clearly made out
against the present applicants. Judgments which are sought to
be relied upon by learned senior counsel appearing for the
applicants are of no use to the present applicants. He has
further submitted that the present Revision Application is
nothing but a tactic to delay the trial before learned Special
Court. He has therefore submitted to dismiss the present
application.
5.1 He has sought to rely upon the following judgments
in support of his submissions:-
In the case of Amit Kapoor vs. Ramesh Chander and
Another passed in Criminal Appeal No.1407 of 2012,
dated 13.09.2012
In the case of M.Natarajan vs. State by Inspector of
Police, Spe, Cbi, Acb Chennai reported in 2008 (0)
AIJEL (Selection Committee) 41348
In the case of State of Madhya Pradesh vs. Yogendra
Singh Jadon reported in 2020 (0) AIJEL (Selection
Committee) 65711
In the case of Baljinder Singh @ Ladoo and Others vs.
State of Punjab reported in (2024) SCC OnLine
Selection Committee 2622.
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6. Heard learned advocates appearing for the respective
parties and perused the material available on record.
7. Before adverting to the merits of the matter, the
scope for this court to interfere with the impugned order of
framing charge passed by learned Special Court in the present
application is required to be considered. The Hon’ble Supreme
Court in its judgment rendered in the case of Asian
Resurfacing of Road Agency P. Ltd. vs. Central Bureau of
Investigation [2018 (16) SCC 299] has held thus: –
“That the order framing charge is not purely an
interlocutory order nor a final order. Jurisdiction of the
High Court is not barred irrespective of the label of a
petition, be it under Sections 397 or 482 Cr.P.C. or Article
227 of the Constitution. However, the said jurisdiction is to
be exercised consistent with the legislative policy to ensure
expeditious disposal of a trial without the same being in
any manner hampered. Thus considered, the challenge to an
order of charge should be entertained in a rarest of rare
only to correct a patent error of jurisdiction and not to re-
appreciate the matter.”
8. Upon perusal of the material available on record,
learned senior advocate appearing for the applicants is not in a
position to convince the Court that by framing the charge
against the present applicants learned Special Court has
committed any patent error of jurisdiction.
9. It is also required to be noted that the applicant no.3
herein had filed an application for discharge before the learned
Special Court which was dismissed by the learned Special Court
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which has attained finality and the other applicants herein have
chosen not to file any such application for discharge. The
Hon’ble Apex Court in its judgment rendered in the case of K.
Ravi vs. State of Tamil Nadu and Another has observed in
Para-11 thus: –
“11. It is trite to say that Section 216 is an enabling
provision which enables the court to alter or add to
any charge at any time before judgment is
pronounced, and if any alternation or addition to a
charge is made, the court has to follow the procedure
as contained therein. Section 216 does not give any
right to the accused to file a fresh application seeking
his discharge after the charge is framed by the court,
more particularly when his application seeking
discharge under Section 227 has already been
dismissed. Unfortunately, such applications are being
filed in the trial courts sometimes in ignorance of law
and sometimes deliberately to delay the proceedings.
Once such applications though untenable are filed, the
trial courts have no alternative but to decide them, and
then again such orders would be challenged before the
higher courts, and the whole criminal trial would get
derailed. Suffice it to say that such practice is highly
deplorable, and if followed, should be dealt with
sternly by the courts.”
10. In view of the aforesaid observations from the Hon’ble
Apex Court, the scope for this court to entertain the present
application and to interfere with the orders of the learned Special
Court impugned herein, is very limited.
11. To understand the dispute involved in the present
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application, few facts are required to be mentioned. On
08.08.2019 an Annual General Meeting of Mehsana District Co-
operative Milk Producing Union was called for. Along with the
other subjects on the agenda of the said meeting, one subject
was with regard to the staff of the union. It was proposed to pay
incentive bonus to the employees @ 18%. As per the record, the
employees were instructed to withdraw 80% of the amount of
bonus in their respective accounts and hand it over to the
applicants. Thereafter 30 employees / officers were given
promise for promotion and rubber stamp in the names of 80
such employees / officers were prepared by applicant no.2. On
14.08.2019, the amount of Rs.14,80,70,022/- was deposited in
the accounts of respective employees of the union towards bonus
@ 18%. Those respective employees had thereafter withdrawn
the said amount as instructed by applicant no.2 and handed
over the said amount to him, who in turn had handed over the
said amount to applicant no.1 herein and on 05.11.2019, the
amount of Rs.9,00,10,651/- was deposited with Dudhsagar
Dairy, Mehsana as directed by Co-operative Tribunal.
12. Upon perusal of the papers of investigation, it
appears that the notice for meeting which was scheduled to take
place on 12.08.2019 was issued on 05.08.2019 and along with
the said notice, agenda for meeting was also circulated with the
signature of applicant no.2. The record also indicates that the
applicant no.3 had presided over the said meeting as a
chairperson and other co-accused, namely, applicant nos.1 and
2 and other co-accused – Moghjibhai Patel were also present in
the said meeting. They have also signed the attendance note
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indicating their presence in the meeting. In the said meeting, in
Resolution-9, it was resolved that the employees of union be paid
an incentive bonus @ 18% and the applicant no.2 being
Managing Director had signed the said Resolution. The
Investigating Agency has recorded the statement of one Hitendra
Puranchandra Sud during the course of investigation, who in his
statement, has stated that he was working with Dudhsagar
Dairy since 01.04.2013. Thereafter, he was promoted to
Assistant Executive H.R. in 2016 and in August, 2020, he was
further promoted as Executive H.R. as Admin. He has further
submitted that in his salary account, an amount of Rs.80,909/-
was deposited and he had handed over the cheque bearing
Number 602185 for the amount of Rs.64,800/- to Ajaykumar P.
Trivedi and the said cheque was deposited in his account on
22.08.2019. On 05.11.2019, the amount of Rs.64,800/- had
returned to his bank account and Mr. Trivedi had instructed to
pay the said amount in cash. Thereafter, he had deposited
Rs.50,000/- in the account of his wife and on 06.11.2019, he
had withdrawn Rs.64,800/- from the account of his wife and
handed it over to Shri Ajay Trivedi on 07.11.2019. Ajay Trivedi in
his statement dated 14.12.2020 given to the Investigating Officer
has stated that prior to the meeting of the General Body of
Sahyog, a meeting had taken place on 08.08.2019. the said
meeting was attended by the board of directors of Sahyog, the
Managing Director Bakshi, Vice Chairman, Becharbhai
Chaudhari etc. and in the presence of Chairman and other
members of the committee, Becharbhai Chaudhary had
proposed that Vipul Chaudhary – applicant no.1 was required to
deposit money as per the order of Tribunal and therefore, he was
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to be helped and hence, the employees should not withdraw the
amount of incentive bonus. In the year 2019, it was resolved to
pay incentive bonus to the employees @ 18% though over the
years, such incentive bonus was paid to the employees @ 8.33%.
For the purpose of payment of incentive bonus, an approval note
was required to be submitted by him. However in the present
case, such approval note was not prepared by him but on
08.08.2019, the Managing Director – Nishit Jyotindra Baxi –
applicant no.2 herein had prepared the approval note and had
also signed the said approval note. The said note was taken by
him to the meeting and the Resolution of payment of incentive
bonus @ 18% was passed in the meeting on 12.08.2019. The
payment of such bonus was made from the account maintained
with the HDFC Bank, Mahesana. The applicant no.2 herein had
signed the list of employees to whom incentive bonus was to be
paid and which was to be recovered from them, was sent to the
other units of the Dudhsagar Dairy situated in the other States
vide email on 14.08.2019. Such list was prepared by the present
applicant no.2 with the help of Hitendra Sud and Rakesh
Shukla. Between 20.08.2019 to 25.08.2019, the amount of
Rs.46,83,427/- was deposited into his account towards payment
of incentive bonus to 82 employees. Thereafter, he was called by
applicant no.2 and was instructed that he was required to pay
the said amount back to the applicant no.2 as and when asked
for. The rubber stamp required for deposit of the said cheques
were also got prepared at the instruction of applicant no.2.
Thereafter, he was instructed by applicant no.2 that the amount
which was lying in his account be deposited in the accounts of
the respective employees and therefore, he had issued cheques
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for the amount of Rs.32,22,659/- from his bank account for
deposit of the said amount in the accounts of respective
employees and those employees were, thereafter, instructed by
applicant no.2 that after the amount was credited in their
accounts, they should withdraw the same and pay the said
amount in cash to him. Accordingly, 62 employees had paid the
amount of Rs.32,22,659/- to the applicant no.2 on 05.11.2019.
He has further stated that the amount of incentive bonus of the
other employees was also deposited in his bank account and an
amount of Rs.10,52,367/- was paid by him to the applicant no.2
in cash. Another witness – Narendrabhai H. Chaudhary in his
statement dated 05.02.2021 has stated that he was called by
present applicant no.2 in September / October, 2019 and he was
handed over the said cash by applicant no.2 and was instructed
to hand over the said cash to the applicant no.1. From the
material available on record, it can be said that the amount of
Rs.9 Crores which was required to be deposited by the applicant
no.1 with the dairy pursuant to the order of Co-operative
Tribunal, was managed by the present applicants, by taking
recourse to the aforesaid mechanism. It can be prima facie said
that the funds of the dairy itself had been misused for payment
of the said amount of Rs.9 Crores. The record further indicates
that the applicants herein had managed to collect the amount of
more than Rs.14 Crores from the employees. It also emerges that
from amount so collected, the amount of Rs. 9 Crores was
deposited with the Dairy and the remaining amount was
invested by the applicants in the shares of Jainam Industries
Petro and had availed profit thereon. The mechanism adopted by
the present applicants amounts to nothing but a corrupt
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practice. The Investigating Agency, therefore, does not appear to
have committed any error in filing a Charge-sheet against the
present applicants for the offences referred to herein-above.
13. It is also sought to be contended on behalf of the
applicants that no sanction under Section 17(A) of the PC Act
was obtained by the Investigating Agency prior investigation into
the present offence. The applicants herein have chosen to remain
silent of this aspect till filing of the present application before
this Court. There is nothing on record to indicate that any such
contention had been raised by any of the present applicants
before the learned Special Court on any occasion. The sanction
under Section 17(A) would be required, if the alleged offence is
relatable to any recommendation made or decision taken by a
public servant in discharge of his official function. The material
on record prima facie indicates that from the very inception, the
intention of the applicants was to commit the present offence
and it was in furtherance of this intention that the acts alleged
against the applicants were carried out. As per the settled law, to
get the advantage of the protective umbrella of sanction, there
has to be some nexus between the official duty of the accused
and the act alleged against him. The Apex Court in its recent
judgment in case of G C Manjunath & Others V/S Seetaram in
Para 36 has observed that “If the act is wholly unconnected
or manifestly devoid of any nexus to the official function of
the public servant, the requirement of sanction is
obviated.” The act alleged on the part of the applicants is of
misappropriation of the funds of the dairy and as discussed
hereinabove, the funds of the dairy have not only been used for
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deposit of the amount as per the direction of the Tribunal but
the same have also been invested in the shares and profit is
earned out of it. Therefore, there is no nexus by any distance
between the official function of the applicants and the acts
alleged against them. Thus, the acts alleged on their part cannot
be equated with the official function or official duty which is the
prerequisite of Section 17(A). Therefore, the argument in this
regard on behalf of the applicants does not hold any ground and
the same requires rejection.
14. Learned Senior Advocate appearing for the applicants
has vehemently contended that there is apparently no demand of
any illegal gratification or acceptance of the same by any of the
applicants and therefore, the basic ingredients for the offence of
corruption are not present against any of the applicants. The
applicants herein are charged with an offence punishable under
Section 13 of the PC Act which deals with fraudulent
misappropriation of the property by public servant. The material
on record, as discussed herein-above, prima facie indicates
fraudulent misappropriation of funds of the dairy by the
applicants. Therefore, the absence of the ingredients of demand
and acceptance of illegal gratification would be of no significance
in the present case. The judgment of the Hon’ble Apex Court in
case of Dileepbhai Nanubhai Sanghanai (Supra) therefore, would
render no assistance to the applicants.
15. It is also sought to be contended by learned Senior
Advocate appearing for the applicant that the charge has not
been appropriately framed by learned Special Court and the
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judgment of the Hon’ble Apex Court in case of V. C. Shukla
(Supra) is pressed into service in this regard. However, learned
Senior Advocate is not in a position to convince this court as
regards the errors allegedly committed by the learned court.
Assuming for the sake of argument that the charge framed by
the learned court is erroneous, that by itself would not entitle
the applicants to challenge the same. As per Section 464 of
Cr.P.C., the applicants are required to show failure of justice
caused due to the alleged error in the charge. Having failed to
show any such failure of justice, this argument also would be of
no help to the applicants.
16. It is also required to be noted that the order passed
by learned Special Court below Exh-256 is also challenged in the
present Revision Application though this prayer is not pressed
by learned senior counsel appearing for the applicants at the
time of hearing. This conduct on the part of the applicants
herein indicates that the applicants are interested in delaying
the trial and present Revision Application also appears to have
been filed with the only intent to delay in trial as observed by the
Hon’ble Supreme Court in its judgment rendered in the case of
K.Ravi (supra).
17. Having regard to these facts, the present application
is devoid of merits and therefore, the same is hereby dismissed
with a cost of Rs.10,000/- to be deposited by the applicants
before the High Court Legal Services Committee.
18. After the order is pronounced, learned advocate
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Mr. R. J. Goswami appearing for the applicants prays to extend
the interim arrangement which was made by this Court vide
order dated 01.04.2025.
19. However, having regard to the reasons given by this
Court for dismissal of the present application, the prayer made
by learned advocate Mr. R. J. Goswami appearing for the
applicants cannot be entertained and hence, this prayer is
rejected.
(M. R. MENGDEY,J)
NABILA
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