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2021 SCC OnLine Guj 2858

In the High Court of Gujarat at Ahmedabad

(BEFORE A.Y. KOGJE, J.)

Chirag Kantibhai Patel

Versus
State of Gujarat
Criminal Misc. Application (Modification of Order) No. 1 of 2019, R/Criminal Misc.
Application No. 7999 of 2018, Criminal Misc. Application (Cancellation of Bail) No.
6 of 2018 and R/Criminal Misc. Application No. 7999 of 2018
Decided on November 17, 2021
Advocates who appeared in this case :
Appearance in Criminal Misc. Application No. 1 of 2019
Kartikkumar K Joshi for the Petitioner(s) No.
Mr. LB Dabhi, APP for the Respondent(s) No.
Appearance in Criminal Misc. Application No. 6 of 2018
Mr. PP Majmudar for the Applicant
Mr. LB Dabhi, APP for the Respondent(s) No. 1
Mr. Kartikkumar K Joshi for the Petitioner(s) No. 2
The Order of the Court was delivered by
A.Y. KOGJE, J.:— Both these applications are arising in connection with the same
order dated 27.04.2018 in the main matter being Criminal Misc. Application No. 7999
of 2018. Criminal Misc. Application No. 1 of 2019 is filed by the original applicant-
accused (hereinafter to be referred to as “the applicant” for modification of condition
and Criminal Misc. Application No. 6 of 2018 is filed by the original complainant
(hereinafter to be referred to as “the complainant”) for cancellation of bail on account
of non-compliance of condition of bail.
2. Learned Advocate for the applicant submitted that the applicant, at the relevant
time, was released on regular bail by imposing a condition of depositing an amount of
Rs. 2 crores as per the schedule provided and the applicant, after being released on
regular bail, has made attempts to deposit the amount as per the schedule. But, on
account of financial difficulties faced, the applicant was unable to deposit the amount
and therefore, has filed the application for modification of condition and to hold that no
further amount is required to be deposited as condition of bail.
3. Learned Advocate for the applicant submitted that though the applicant has
willingness to deposit the amount as per the condition of bail, but on account of
subsequent development, the condition is rendered impossible to be complied with
and therefore, is required to be modified/deleted.
4. Learned Advocate for the applicant has referred to and relied upon several
decisions of the Apex Court to support his contention that imposing of onerous
condition, which cannot be complied with, amounts to rejection of bail.
5. Learned Advocate for the applicant has also attempted to make submissions on
merits that the offence is such that in the original order of bail itself, such condition
ought not to have been imposed. It is further submitted that with regard to the
financial transaction, complainant side has received cheques and such cheques were
deposited, but were dishonoured and for which purpose, complainant has already
initiated proceedings under the provisions of Section 138 of the Negotiable
Instruments Act.
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6. Learned APP and learned Advocate for the original complainant have opposed the
application submitting that in the interregnum period, the applicant was required to
deposit the amount as per the schedule, but has not deposited even the first
installment as per the schedule and made an application for extension of such period
and this Court had been benevolent enough to consider such request on more than
two occasions and despite this, the applicant has not complied with the condition.
7. It is submitted that the application itself is not maintainable as the applicant has
come after lapse of period by which the applicant was required to deposit the entire
amount as per the condition of bail. It is submitted that as per the schedule given
before this Court, last date for completing all the installments was on 01.12.2019 and
the present application is filed after having failed to comply with the depositing the
installment since December 2018.
8. Learned Advocate for the complainant submitted that the issue of impossibility to
make the payment is an afterthought as in the previous applications filed before this
Court, the applicant has never raised contention about financial hardship in making
such deposit, but once having been enlarged and taken benefit of the order of bail, the
applicant is now trying to escape liability.
9. Learned Advocate has taken this Court to the relevant observations made in the
order granting bail to indicate that at the relevant point of time, the applicant has
expressed his willingness which has been recorded by this Court and such deposit to
be made was a mitigating circumstance for grant of bail and therefore, if such
mitigating circumstance is not complied with then the application for bail has to be
considered on its own merits, which the applicant has not preferred before this Court
so far.
10. Having considered the rival submissions of learned; Advocates for the parties
and having perused documents on record, it appears that the applicant was ordered to
be enlarged on regular bail by order dated 27.04.2018 in connection with offence
being I-CR No. 34 of 2017 registered with Gotri Police Station, Vadodara for offence
under Sections 406, 420, 452, 467, 468, 477(A) and 474 of the Penal Code, 1860. In
the aforesaid order, the Court has recorded as under:—
“3.2 It is also submitted that by the learned advocate for the applicant that the
applicant has roots in society and is also having responsibility towards family and is
not likely to run away and his presence can be secured during trial by imposing the
the suitable conditions. The learned advocate for the applicant, on instructions,
submits that without prejudice to his rights and contention, the applicant is ready
and willing to deposit; Rs. 2 crore before the trial Court concerned, however, some
time may be given for the same and the applicant has no objection if 50% of the
same is disbursed to the complainant. An undertaking to that effect will be also be
filed. However, he submits that the same may not be construed as admission of
guilt on the part of the applicant.”
11. Pursuant to the aforesaid, the applicant was enlarged on several conditions, one
of which being relevant for our purpose is condition No. 6(g), which reads as under:—
“[g] deposit Rs. 2 crore as per below schedule before the trial Court concerned,
without prejudice to his rights and contentions of the applicant with an undertaking
to that effect. Out of the amount to be deposited by the applicant, the trial Court
concerned shall disburse 50% of the said amount to the complainant on proper
verification and rest amount shall be invested in cumulative Fixed Deposit with any
Nationalized Bank, initially for a period of one year and thereafter, shall be renewed
periodically as it is deemed just and proper by the trial Court concerned:
I) amount shall be paid in 10 equal installments of Rs. 20 lakh each;
II) first of such installment shall be paid within 30 days of his release;
III) rest installments shall be paid at the interval of two months.”
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12. As per the schedule, the applicant was to deposit the amount as under:—
1st Installment; (Modified and extended 30.05.2018
upto 18.06.2019
2nd Installment Upto 18.08.2018
3rd Installment up to 01.10.2018
4th Installment up to 01.12.2018
5th Installment up to 01.02.2019
6th Installment up to 01.04.2019
7th Installment up to 01.06.2019
8 Installment
th
up to 01.08.2019
9th Installment up to 01.10.2019
10th Installment up to 01.12.2019
13. It appears that the application for cancellation of bail on account of non-
compliance was filed by the complainant on 17.09.2018. In the meantime, the
applicant filed Criminal Misc. Application No. 1 of 2018 for extension of period for
depositing the first installment scheduled on 30.05.2018, which came to be extended
till 18.06.2018. Again in Criminal Misc. Application No. 2 of 2018, by order dated
14.08.2018, the period was extended for depositing the first installment till
18.08.2018. Thereafter, Criminal Misc. Application No. 4 of 2018 was filed seeking
further extension for depositing the amount for second installment, which was
scheduled to be deposited by 18.08.2018 and extension was granted till 11.09.2018.
Therefore, from the record, it appears that by seeking extension of period to deposit
first and second installment, the applicant has so far deposited two installments out of
total 10 installments sought to be paid as condition of bail.
14. Criminal Application No. 1 of 2019 (for modification) if filed before this Court on
25.06.2019, where prayer for modification reads as under:—
“(B) This Hon'ble Court may be pleased to modified the condition no. 6(g) of
order dated 27.04.2018 passed in Cr.M.A. No. 7999 of 2019 and condition of
deposit of Rs. 2,00,00,000/- and 50% should be release to complainant may be
modified as amount which is deposited till to court concern shall be deposited in
bank till completion of trial and no more amount is required to be deposited as prior
condition and no amount shall be released in favor of complainant;”
15. The contention of the learned Advocate for the applicant that the condition is
onerous and requires to be deleted altogether on the ground of financial difficulties
now faced by the applicant, in the opinion of the Court, in view of the statement made
on behalf of the applicant and considering the order passed by this Court enlarging the
applicant on bail, voluntary deposit was a mitigating and relevant circumstance for
grant of bail. The FIR was registered and investigation involved fraud to the tune of
Rs. 5,40,00,000/-, out of which the applicant has volunteered to deposit Rs.
2,00,00,000/- in installments as per the schedule provided for and as the statement
was made voluntarily, the applicant was required to comply with such condition of
bail. In absence of this mitigating circumstance, bail of the applicant may not have
been considered. From the pleadings before this Court as well as oral submissions
made, nothing is coming on record to support the contention that the applicant is
facing financial difficulties. The Court has taken into consideration previous
applications made periodically for extension of time. There also, the applicant has not
pleaded financial hardship or has pleaded subsequent change in circumstance which
has created financial hardship. Therefore, in absence of any documentary evidence,
the Court is not inclined to presume that the applicant is facing any financial hardship
and therefore, contention of the applicant appears to be an afterthought only with a
view to wriggle out of the assurance made before this Court in the form of undertaking
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given.
16. The attempt on the part of the learned Advocate for the applicant to convince
the Court about nature of of offence and that such contention ought not to have been
imposed and if imposed, should be deleted immediately, cannot be accepted as this
Court is not sitting in appeal over the order of conditional bail granted by this Court.
The applicant has not challenged the order of bail before the higher forum and
therefore, merely on askance, the applicant's case for regular bail without any
condition on merits cannot be considered, especially when the present application is
filed only for the purpose of deletion of condition.
17. In the order of the Apex Court in the case of Dilip Singh v. State of Madhya
Pradesh in Criminal Appeal No. 53 of 2021 dated 19.01.2021, there is nothing to
indicate that the direction of deposit of Rs. 41 lakhs in the Court by the High Court
was invited.
18. Similarly, the order of the Apex Court in case of Mithun Chatterjee v. State of
Odisha, in Special Leave to Appeal (Cri.) No. 4705 of 2021 dated 12.11.2021,
does not indicate voluntary nature of deposit. The order was passed on a well-known
principle that imposition of onerous condition for grant of bail amounts to denial of
bail.
19. In the order of the Apex Court in case of M.D. Dhanpal v. State Rep. by the
Inspector of Police in Special Leave to Appeal (Cri.) No. 5195-5196 of 2019 dated
11.06.2019, the condition of depositing an amount of Rs. 10 lakhs each, totalling to
Rs. 70 lakhs, for the family members of the victim on the Chief Priest of Temple, who
was arrested in connection with the accident, was treated to be onerous condition
which was set aside by the Apex Court. In the facts of the present case, financial
fraud, as stated, has been committed by the applicant over the complainant and that
the condition imposed by this Court for enlarging the applicant on bail was invited
voluntarily by the applicant.
20. In view of the aforesaid discussion, Criminal Application (for modification of
order) No. 1 of 2019 is hereby dismissed. As a necessary consequence, Criminal Misc.
Application (for cancellation of bail) No. 6 of 2018 is hereby allowed. The applicant-
accused is directed to surrender to the judicial custody forthwith.
21. At this stage, learned Advocate for the applicant-; accused requests for time to
surrender. Considering the period that has lapsed in-between, request being
reasonable, the same is granted. The applicant-accused is directed to surrender within
a period of 4 weeks from today.
22. Direct service is permitted.
———
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