STATE OF GUJARAT Vs. BHARAT SANMUKHLAL KAPADIYA

JUDGEMENT

(1.) THE applicant, by present Criminal Misc. Application filed under section 439(2) of the Code of Criminal Procedure, 1973 (for short the Code) challenged the judgment and order dated 16.5.2013 passed by the learned Additional Sessions Judge, Surat, in Criminal Misc. Application No.1040 of 2013, whereby the learned Additional Sessions Judge by exercising power conferred under section 438 of the Code has enlarged the opponent accused on anticipatory bail on certain terms and conditions. In this case, the respondent accused had worked as agent and thereby goods running in crores of rupees have been sold away and thereby accused had actively participated in the commission of crime. As stated at bar, by now, charge -sheet is filed against the co -accused.

(2.) THE facts filtering out unnecessary details are thus: During the period between January, 2013 and March, 2013, present opponent accused with co -accused persons by way of hatching pre -conspiracy to achieve common intention and with the connivance of each other, hired shops bearing No.1031 -32 at Annapurna Market, Shop No.4094 at Shivshakti Market, Shop No.C -122 at Jay Jogmaya Prints and L.B. Apartment as also at Raghunandan Enterprise and started the business firms, where the accused persons namely Lalit Gaurishanker, Bhaveshbhai Dave, Thanaram Chaudhary, Shyam Sunder Lalvani and Promodkumar Lal Bahadur were sitting as businessmen whereas other accused persons were working as agents and were making contract with the other co -accused introducing them to be a good businessmen and if they do any business with them, then the payment will be made in time and thereby got the trust of the complainant and like other persons. In furtherance of pre -conspiracy, the accused persons had purchased the different quality of clothes from the different businessmen to the tune of Rs.2,19,87,857/ - and thereafter, under the guise that all these grey clothes were required to be sent for dying, they sold with connivance of each other in lowest price in the market and thereby siphoned away huge amount of money. Thus, the accused persons committed the offence of cheating, criminal breach of trust and thereafter, the accused persons ran away by closing their shops. On this broad facts, a complaint came to be filed against the opponent accused and other co -accused. As stated at bar, by now, charge -sheet is filed against the co -accused.

(3.) HAVING come to know about lodging of complaint given by the applicant against the respondent, the respondent filed aforesaid Criminal Misc. Application praying to enlarge him on anticipatory bail before the learned Additional Sessions Judge. The learned Additional Sessions Judge after considering the application as well as papers placed on record before him exercised his power under section 438 of the Code and accepted the application of the respondent and released him on anticipatory bail by the impugned judgment. Hence, the present petition.