CRMAS/588/2021
Received on : 13/07/2021
Registered on : 13/07/2021
Decided on : 16/07/2021
5
Exh. :
In the Court of 2nd Addl. Sessions Judge at Morbi.
Cri. Misc.(Regular Bail) Application No.588 of 2021
Applicant :
Illiyas Mehbubbhai Shaikh,
Aged: 42 yrs., Reli.: Muslim, Occu.: Commission Agent,
Residing at House No.2819, Beldarvad,
B/h. Shahpur Police Station, Shahpur,
Ahmedabad.
At present Judicial Custody.
VERSUS
Opponent:
The State of Gujarat.
Appearance :
Ld. Adv. Mr. V. J. Lakkad for the applicant/accused.
Ld. Addl.P.P. Mr. D.R. Adroja for the opponent - State.
Regular bail application U/s.439 of Criminal Procedure Code.
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JUDGEMENT
(1) Read the application. Heard Ld. Mr. V. J. Lakkad for the
applicant/accused and [Link]. P.P., Mr. D.R. Adroja for the
opponent – State.
(2) The present application is filed by the applicant/accused U/s. 439 of
Code of Criminal Procedure to get release on regular bail, who is
arrested in connection with the FIR registered before the Halvad
Police Station vide CR No.11189001210147/2021, for the offences
punishable U/Ss. 406, 420 and 114 of Indian Penal Code. The
applicant/accused was arrested on 24/06/2021 and produced before
the Addl. Chief Magistrate, Halvad, he sent in Judicial Custody. The
applicant/accused has filed bail application before the Additional
Chief Judicial Magistrate, Halvad, which was rejected, and hence,
present regular bail application has been filed.
(3) The brief facts of the prosecution case are that the present
applicant/accused and other accused have made agreement for hiring
of Hitachi and JCB Machines on stamp paper before Notary with the
complainant by giving temptation that he will give higher rent.
Initially 2-JCB machines of complainant worth of Rs.40,00,000/-
and 1-JCB machine of witness worth of Rs.20,00,000/- were kept
on rent basis by the present applicant/accused and he won the trust
of complainant and witnesses. After winning the trust of
complainant, he had kept more Hitach and JCB Machines of
complainant and witness. The present applicant/accused and other
accused had not given any rent amount of JCB and they have not
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returned JCB Machines to the complainant and witness. By doing
such acts, present applicant/accused and other accused have
grabbed huge amount for their financial benefit from the
complainant and witness. Hence, complaint is lodged against the
present applicant/accused and other accused. The present
applicant/accused and other have committed criminal breach of
trust and cheated dishonestly inducing the complainant and witness
by abetment to each other. Therefore, present applicant/accused was
arrested by the I.O. Hence, present applicant/accused is in the
Judicial Custody. As such bail application is filed U/s. 439 of
Criminal Procedure Code, to release applicant/accused on regular
bail.
(4) The L.A. for the applicant/accused has argued before the Court that
the applicant/accused is innocent and not committed any offence. He
further argued before the Court that the false and fabricated
complaint lodged against present applicant/accused. He further
argued that the complainant and accused knew to each other before
the offence. He further argued that the hire agreement is not made in
the name of present applicant/accused. That in the JCB machines
GPS system is fitted, hence location of machines are easily
available. He further submitted that earlier rent was paid by the
present applicant/accused, but due to covid-19 machine was lying
idle position, hence, rent of machine not paid by the present
applicant/accused in time, hence, alleged complaint was lodged by
the complainant. It is further submitted that applicant/accused is
bread-earner of his family members. It is further submitted that the
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applicant/accused is permanent resident of Ahmedabad City, Dist.
Ahmedabad and he will remain present during trial. He further
submitted that alleged offence is triable by the J.M.F.C. Court and it
will take long time and maximum punishment of the alleged offence
is upto 7 years and not for life imprisonment. Hence, L.A. for the
applicant/accused has prayed before this Court to release the
applicant/accused on regular bail.
(5) The Ld. Addl. P.P., Mr. D.R. Adroja has drawn the attention of this
court towards FIR, affidavit and police papers and has strongly
objected this application and has submitted that present
applicant/accused has committed criminal breach of trust and
cheated dishonestly to the complainant and witness. He further
argued that present applicant/accused has contacted to the
complainant through telephone and by winning the trust of
complainant and they have made Rent Agreement of JCB before
Notary. Thereafter 11 JCB and 2 Hitachi machines handed over by
the complainant and witness to the present applicant/accused and
other accused. The present applicant/accused and other accused
have not paid any rent amount of JCB and Hitach Machines to the
complainant and witness. He further submitted that 9 machines are
yet to be recovered from the present applicant/accused and other
accused. The other accused are absconding and yet to be arrested by
the I.O., if present applicant/accused be released on bail, there is
possibility to help other accused. By doing such acts, they have
grabbed huge amount for their financial benefit. He further argued
that present applicant/accused is having criminal antecedents. He
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also argued before the Court that if application of applicant/accused
is granted by this Court, there is bad impact on the society. If this
application is granted, he will not remain present during the trial.
Hence, Ld. Addl.P.P. has prayed before this Court that regular bail
application of applicant/accused is requires to be dismissed.
(6) The Court has considered the ratio laid down by the Hon’ble Apex
Court in the case of Sanjay Chandra V/s. C.B.I. SCC 2012(1) 40,
wherein it is held that the Court has to struck balance between
personal interest and societal interest and it is further held that the
object of bail is not punitive, but to ensure the presence of the
accused during the trial. It is pertinent to note here that the
investigation of this case is not yet completed, hence it is not
requires to appreciate evidence on record on merits at this stage, as
held in the case of Gudikusti V/s. Narsimhul AIR 1978 SC 429.
(7) After carefully consideration and submissions made by both the
parties and perusing police papers and affidavit of I.O. at Exh.4, it
prima-facie transpires that alleged offence is pertaining to criminal
breach of trust and cheating with abetment of each other and grabbed
huge amount by luring complainant and witness. The present
applicant/accused is permanent resident of Ahmedabad City, Dist.
Ahmedabad, and hence, no apprehension of flee from the trial.
According to affidavit filed by the I.O., it appears that two offences
are registered against the present applicant/accused, there is nothing
on record to show that any Competent Court has convicted present
applicant/accused in any offence, hence, it cannot be sole criteria to
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reject this application. The trial will take long time, hence it would
be resulted into pretrial conviction, if this application is rejected. The
alleged is triable by J.M.F.C. Court and maximum punishment is
upto 7 years. The alleged offence is not pertaining to life
imprisonment or death penalty. Looking to the facts and
circumstances of this case, there is no apprehension of tempering
with the evidence in case of granting of this application. Thus,
considering the FIR and Police Papers and considering the nature of
allegations levelled against the present applicant/accused and role
attributed to the present applicant/accused and considering the
punishment prescribed for such offences, it is a fit case to use
discretionary power envisaged U/s. 439 of Cr.P.C. to this Court in
favour of the present applicant/accused. Hence, the following order
is passed in the interest of justice.
ORDER
The present bail application is hereby allowed on merits.
The applicant/accused – Illiyas Mehbubbhai Shaikh, resident of
Ahmedabad City, Dist. Ahmedabad is hereby ordered to be released on
bail on furnishing surety of Rs.25000/- (Rupees Twenty Five thousand
only) and personal bond of like amount, to the satisfaction of the Trial
Court in respect of Case Registered at Halvad Police Station, vide CR
No.11189001210147/2021; upon the following conditions;
(1) The applicant/accused shall not tamper with the evidence and not try
to induce or threaten to the witnesses of the case.
(2) The applicant/accused shall mark his presence before the concerned
Police Station on 1st and 15th date of every English Calender Month
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in between 11.00 a.m. to 5.00 p.m. till the charge-sheet is filed by the
police. The applicant/accused shall attend the dates of hearing
regularly during the trial.
(3) The applicant/accused shall furnish the details of the passport and
deposit it with the custody of the Court within 7 days, after release
on bail, and if he does not possess the passport, he shall file an
undertaking on oath within 7 days, after release on bail.
(4) The applicant/accused shall not leave the territory of India without
prior permission of Court.
(5) The applicant/accused shall furnish his residential address with proof
before the Ld. Trial Court as well as concerned Police Station and
the applicant/accused shall not change his residential premises
without prior permission of the Trial Court till the pendency of trial.
(6) It will be open for the Trial Court to delete, modify and/or relax any
of the above conditions, in accordance with law.
> Yadi be sent to the Trial Court as well as concerned Police Station.
Signed and pronounced in open Court today on this 16 th day of
July, 2021.
Place:Morbi (Chinmay Ghanshyambhai Mehta)
Date:16/07/2021 2nd Additional Sessions Judge
Morbi
(GJ00534)
bmdangar
7/7 2nd Addl. Sessions Judge
Morbi