Allahabad High Court
Sumit Awasthi vs State Of U.P. on 10 December, 2019
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45991 of 2018 Applicant :- Sumit Awasthi Opposite Party :- State of U.P. Counsel for Applicant :- Anand Mohan Pandey,Amit Misra Counsel for Opposite Party :- G.A.,A.K. Mishra,Satish Trivedi,Sheshadri Trivedi Hon'ble Sudhir Agarwal,J.
1. Heard Sri Viresh Mishra, learned Senior Counsel assisted by Sri S.K. Dubey, Advocate holding brief of Sri Amit Misra, learned counsel for applicant and Sri Satish Trivedi, learned Senior Advocate holding brief of Sri Sheshadri Trivedi, learned counsel for Informant/complainant and learned AGA for State of U.P.
2. The present bail application has been moved by accused-applicant for enlarging him on bail in Case Crime No. 1095 of 2015, under Sections 419, 420, 467, 468, 471, 120-B/34 I.P.C., Police Station Kalyanpur, District Kanpur Nagar.
3. It is contended that a large number of FIRs have been registered against applicant and his entire family members i.e. father, brothers, married and unmarried sisters, only to harass them. A bulky supplementary affidavit has also been filed on behalf of applicant, which is running in 286 pages and contains 15 Annexures.
4. Sri Mishra, learned Senior Counsel for applicant has placed the said affidavit in extensio before this Court and vehemently argued that dispute is civil in nature and no criminality is involved; all bank accounts of applicant have been frozen; offences under Sections 419, 420, 467, 468, 471, 120-B/34 I.P.C. wherein report has been registered against applicant are not made out; applicant has no criminal antecedents; there is no scope of tampering with evidence and also considering the fact that applicant and his entire family members are in jail for a long time and nobody is available to do pairvi of their cases, therefore, applicant deserves to be enlarged on bail.
5. On the contrary, Sri Trivedi, learned Senior Counsel has submitted that applicant was salesman in the Informant's firm i.e. M/s Biomass Research and Technical Solution Private Limited (hereinafter referred to as "M/s Biomass"); he along with his entire family members were involved in embezzlement of crores of rupees which have been collected in the shape of cheque/ cash against the goods supplied by Company to customers and, therefore, he has committed offences under Sections 419, 420, 467, 468, 471, 120-B/34 I.P.C.
6. Since this matter has been argued at great length by learned Senior Counsels and despite of being pointed out that any discussion on merit may prejudice the parties, they requested the Court to consider their submissions at length, hence, I proceed to consider the above submissions to find out as to whether applicant is justified in requesting for grant of bail or not.
7. First Information Report (hereinafter referred to as "FIR") registered as Case Crime No. 1095 of 2015 at Police Station Kalyanpur, was lodged by R. Bala Subramaniyan, Proprietor of M/s Bhagwati Agencies and R.B.S. Poultries (both are situated in the State of Tamil Nadu) through Attorney, Sri Pushkar Sharma son of Sri Vijay Kumar Sharma. Report was registered after an order passed by Magistrate on an application under Section 156(3) Cr.P.C. filed by Complainant/Informant.
8. FIR case is that Sri R. Bala Subramaniyan is a proprietor of M/s Bhagwati Agencies and R.B.S. Poultries. It used to purchase poultry feed supplements from M/s Biomass Research and Technical Solution Private Limited (hereinafter referred to as "M/s Biomass") at 402, Krishna Tower, Civil Lines, Kanpur Nagar and T.F.F. Home and Fabric Care Chemicals Private Limited, Kanpur. Applicant-accused Sumit Awasthi son of Rishi Nath Awasthi, was working as Salesman in M/s Biomass. He used to collect cash, cheque etc., towards payment made by Complainant/Informant's Firm to M/s Biomass for the supply of poultry feed supplements. When M/s Biomass made a demand for payment of supply of goods made to Complainant/Informant's Firm, it was told that M/s Biomass Salesman Sumit Awasthi had collected Rs. 20,25,000/- in cash between 20.12.2013-2014 and Rs. 4,25,000/- by NEFT through applicant. M/s Biomass told that Sumit Awasthi has not deposited any cash amount collected from Complainant/Informant's Firm for the period as told by Complainant/Informant. When enquiry was made by Complainant/Informant from its bank, it came to know that accused applicant Sumit Awasthi and Smt. Ramawati Awasthi (mother of applicant) have constituted a Firm with the same name as M/s Biomass with the only difference that the words "Private Limited" was omitted. Its address was given as residential address of accused-applicant Sumit Awasthi. The entire amount paid by Complainant/Informant's Firm was deposited by Sumit Awasthi in the forged firm, M/s Biomass Research and Technical Solution. It was found that amount collected by Sumit Awasthi from Complainant/Informant's firm was further invested in fake accounts, opened in the name of accused-applicant's mother Smt. Ramawati Awasthi, his father Sri Rishi Nath Awasthi and sisters Anjali Awasthi and Rachna Awasthi. Accused-applicant Sumit Awasthi also introduced Rishi Nath Awasthi, Anand Tripathi and Vivek Tripathi as employees of M/s Biomass and told that payment of goods supplied may be given to them. Believing thereon, Complainant/Informant's Firm also made payment to aforesaid three persons in cash of Rs. 20,25,000/- during the period of 20.12.2013-2014 and receipts were obtained from these three persons. Subsequently, when enquiry was made by M/s Biomass, they told that they had no such employee in the name of Sri Rishi Nath Awasthi, Anand Tripathi and Vivek Tripathi, therefore, on the fraud and conspiracy of Sumit Awasthi, he has received a huge amount from Complainant/Informant's firm towards payment of goods supplied but it was not actually deposited with M/s Biomass, who had actually supplied goods. Accused-applicant also introduced that M/s Biomass, to increase turnover and reduce liability has constituted sister concerned and operating M/s Biomass i.e. R.R.S. Laboratories and Promos Life Rise and Animal Health Care. Invoice of aforesaid Companies supplied to Complainant/Informant's Firm had a logo of M/s Biomass and in that manner, he playing fraud, obtained a huge amount from Complainant/Informant's firm and the same has been embezzled and used the same for his own purposes. Fraud played by accused-applicant in conspiracy with persons above named, could not be detected immediately or within a reasonable time since Complainant/Informant's Firm is in State of Tamil Nadu and that is why, some delay has occurred in detection of alleged fraud.
9. In the supplementary affidavit filed by accused-applicant, it is disclosed that Sri Rishi Nath Awasthi is his father and Smt. Ramawati Awasthi is his mother. He also admits that he has four sisters, namely, Smt. Vandana Tripathi, Smt. Ranjana Pandey, Km. Rachna Awasthi and Km. Anjali Awasthi. Sri Anand Tripathi is the husband of accused-applicant's sister Smt. Vandana Tripathi and Sri Vinod Pandey is the husband of another sister Smt. Ranjana Pandey. Other two accused Vinay Tripathi and Vivek Tripathi are brothers of Sri Anand Tripathi, therefore, apparently entire FIR version shows that allegations of fraud involve all the family members of accused-applicant and details of the manner in which fraud was played, has been given in FIR and substantial parts has been stated hereinabove.
10. Basically, arguments advanced by learned Senior Counsel are mostly founded on sentiments stating that parents of applicant are old, aged about 62 and 63 years, respectively; two sisters, namely, Km. Rachna Awasthi (aged about 21 years) and Km. Anjali Awasthi (aged about 19 years) are still undergoing education and they have also been implicated which will spoil their entire future but he could not dispute that accused-applicant was employed as a Salesman in M/s Biomass wherein Sri Ajay Kumar son of Dr. Vijay Shanker is one the of Director. M/s Biomass is manufacturing and supplying poultry feed supplements and sale is given effect directly by Company and also through salesmen. Accused-applicant was employed as a Salesman since 2005. M/s Biomass received a complaint from various customers from different States that Poultry Feed Supplement is not being received by them though they have made payments, either through cheque or cash, to the Salesman of M/s Biomass i.e. Sumit Awasthi accused-applicant. It was also informed that accused-applicant told customers of M/s Biomass that there is a sister concern of M/s Biomass with the name of M/s Biomass Technical and Solution (the words "Private Limited" were omitted) and in that name, he collected cash and cheques. Thereupon, Sri Ajay Kumar, Director of M/s Biomass made enquiry and found that accused-applicant has got opened certain bank accounts in his name as well as his mother and they played fraud and embezzled a huge amount. In this regard, Sri Ajay Kumar, also initially lodged FIR registered as Case Crime No. 534 of 2014, under Sections 420, 467, 468, 471, 408 IPC, Police Station Kotwali, Kanpur Nagar in which accused-applicant and his mother Smt. Ramawati Awasthi were named and it was stated that they have embezzled and misappropriated a sum of Rs. 1,70,00,000/-. Investigating Officer after making enquiry submitted an application before Special Judicial Magistrate, Kanpur Nagar dated 04.03.2015 requesting for freezing of various bank accounts operating in different banks in the name of accused-applicant as well as his other relatives. The Firms which were constituted by accused-applicant and details of bank accounts are as under:-
S.No. Bank Name Name of Account-Holder Account No. 1 ICICI Bank Biomass Research and Technical Solution 06000500072
2.
ICICI Bank R.R.S. Laboratories 06000500562
3. ICICI Bank Sumit Awasthi 06000500839
4. ICICI Bank Rishipal Awasthi 060001502789
5. ICICI Bank Ramwati Awasthi Not clear
6. ICICI Bank Rachna Awasthi 060001503183
7. ICICI Bank Anjali Awasthi 060001502837
8. HDFC Bank Biomass Research and Technical Solution 0298761000115
9. HDFC Bank R.R.S. Laboratories 0292020002614
10. HDFC Bank Sumit Awasthi 02981000135122
11. HDFC Bank Rachna Awasthi 50100040110992 12 HDFC Bank Rishipal Awasthi Not clear
13. SBI R.R.S. Laboratories 32170729257
14. SBI Sumit Awasthi 20016283027
15. OBC Bank Promos Life Rise and Animal Health Care 525011310.....
16. OBC Bank Sumit Awasthi 5250219100...
17. IDBI Bank Sumit Awasthi 01411040000508..
11. Supplementary Affidavit filed by accused-applicant also shows that in Case Crime No. 534 of 2014, police has filed charge-sheet under Sections 420, 467, 468, 471, 408 IPC against accused-applicant Sumit Awasthi as well as his mother Smt. Ramawati Awasthi. Similar reports in respect of other transactions by forged and fictitious Firms, have been lodged against accused-applicant and it is not necessary for me to refer all these reports.
12. Suffice it to mention that admittedly, accused-applicant was only a Salesman in M/s Biomass but Annexure-3 to the supplementary affidavit shows that he has maintained many bank accounts in different banks, namely, ICICI Bank, HDFC Bank, State Bank of India, OBC Bank and IDBI Bank. It is also on record that a compromise was sought to be made, and against the alleged embezzled sum of Rs. 1,70,00,000/-, accused-applicant agreed to pay Rs. 40,00,000/- through cheque. This also shows that he has made transactions of huge amount though has not disclosed his financial status in the capacity of Salesman.
13. Prima facie, thus, it cannot be said that offences under various provisions are not made out. The allegations leveled against accused-applicant of playing fraud is also of very large scale. Offences leveled against accused-applicant also includes provisions in which maximum punishment goes to the extent of life imprisonment.
14. In the entirety of the facts and circumstances, I do not find that it is a fit case for grant of bail particularly considering the fact that applicant has played central role in the entire matter and if he is allowed to go free, possibility of tampering evidence cannot be ruled out.
15. In the result, application is rejected.
16. However, it is made clear that this order shall not be construed as expression of opinion on merits of the matter and the same has been discussed only for the purpose of this bail application. Authorities and Court below shall deal with the matter independently and without being influenced by observations made in this bail application.
Order Date :- 10.12.2019 Siddhant Sahu