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'Pious Stream Of Justice' Must Not Be Polluted: Gujarat High Court Refuses Bail To Lawyer Accused Of Cheating & Criminal Breach Of Trust

24 May 2022 4:45 AM GMT
An Advocate Should Argue His Clients Grievance, Not His Own – Bombay High Court

While opining that it is a matter of shame for a lawyer to be involved in serious offences of cheating, criminal breach of trust and criminal intimidation, the Gujarat High Court has refused bail to the Applicant who had allegedly eloped for 3 years with a huge amount of money during the execution of a sale deed.

The Bench comprising Justice Niral R Mehta observed,

"applicant being a lawyer by profession, is oftenly involved in the offence serious in nature which itself is a matter of shame. The profession of a lawyer is a noble profession, as it has direct nexus with pious stream of justice which at any cost shall not be allowed to be polluted. It is highly unexpected from a lawyer to have indulged in such an offence not once, but several times in past. Though some offences are settled, but the fact remains that the offences took place at the instance of the applicant. Thus, the conduct of the applicant seems to be not befitting to the standard of the profession."

The Court was hearing an application under Section 439 of CrPC where the Applicant had prayed for bail for offences under Section 406, 420, 120-B, 506(2) and 34 of the IPC.

The relevant complaint was filed by a Complainant intending to purchase a certain property while the Applicant was the power of attorney holder. It was alleged that Rs. 77 lakhs was paid to the Applicant who subsequently. The Applicant also sought Rs. 58 lakhs by way of RTGS and Rs. 29 lakhs (transferred to the joint account of the Applicant and his wife) for the execution of the sale deed. These sums were duly remitted.

It is alleged that while going to the office of the registrar with the requisite sums, the Applicant somehow managed to escape and did not come to the Sub-Registrar for the execution of the sale deed. The Applicant was arrested in 2021 after three years.

The primary contention of the Applicant was that the matter was governed by civil law arising out of a land transaction. Further, the offences were not serious in nature and the Applicant was merely acting as a power of attorney holder.

Per contra, the APP argued that the FIR was lodged in 2018 and the Applicant having legal knowledge could manage to escape and avoid arrest for three years even though a warrant under Section 70 of CrPC was issued. Rs. 30 lakhs was clearly transferred to the Applicant in cash and this was transferred to the Applicant's brother post which he escaped. This could be corroborated by CCTV footage.

The statements of the Sub-Registrar against the Applicant were also available that he went for the modification of sale deed but never returned. Other bank transactions of the Applicant were also available to establish a case for the criminal breach of trust and cheating.

The Bench identified that the primary issue worth consideration was whether the Applicant, a lawyer by profession and a habitual offender could be granted regular bail. To address this question, reliance was placed on Kamla Devi v. State of Rajasthan & Anr., 2022 SCC Online 307 where the Apex Court had opined:

"The primary considerations which must be placed at balance while deciding the grant of bail are: (i) the seriousness of the offence; (ii) the likelihood of the accused fleeing from justice; (iii) the impact of release of the accused on the prosecution witnesses; (iv) likelihood of the accused tampering with evidence."

Concluding that the Applicant had a 'legal brain' who could evade his arrest for 3 years, the Bench observed that the Applicant had pocketed Rs. 58 lakhs out of the sale consideration through his son's accounts and the joint account of the Applicant and his wife. There were also 6 FIRs against the Applicant for similar offences and there was sufficient evidence that the Applicant had committed the instant offences, as well.

Emphasising that there was a possibility of the Applicant fleeing from justice and the fact that the Applicant had 'polluted' the 'pious stream of justice', the High Court dismissed the bail application.


Case Citation: 2022 LiveLaw (Guj) 179

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