Allahabad High Court
Mukesh Kumar vs State Of U.P. on 18 November, 2020
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD 1 Reserved on :- 10.11.2020 Delivered on :- 18.11.2020 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36221 of 2020 Applicant :- Mukesh Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Inder Pal Singh Tomar Counsel for Opposite Party :- G.A.,Abhishek Tripathi,Rajesh Kumar Kanojia Hon'ble Siddharth,J.
1. Heard Sri Inder Pal Singh Tomar, learned counsel for the applicant, Sri Rajesh Kumar Kanojia and Sri Abhishek Tripathi, learned counsels for the informant and learned A.G.A. for the State.
2. The instant bail application has been filed on behalf of the applicant, Mukesh Kumar, with a prayer to release him on bail in Case Crime No. 203 of 2020 under Sections 406, 420, 323, 504, 506 I.P.C., Police Station- Bahadurgarh, District- Hapur, during pendency of trial.
3. The allegation in the F.I.R. is that the applicant along with his brother are known to the informant and both persuaded him to invest in his company namely, M/s. Nift Tech Global Private Ltd. He has further alleged that an amount of Rs. 36,44,000/- was given to the applicant, his father Vishwambhar and younger brother, Dinesh. The applicant is alleged to have received Rs. 1,00,000/- in his bank account on 10.05.2019 and further amount of Rs. 10,70,000/- in his account on 09.07.2019 and 06.06.2018. When the informant sought the money invested in the company of the applicant back, he initially avoided and thereafter refused to return the same.
4. Learned counsel for the applicant submitted that the offences alleged against the applicant are not made out. He has relied upon the judgement of the Apex Court in the case of Prof. R.K. Vijaysarathy & Another vs. Sudha Seetharam & Another, 2019 (4) Scale 254 and has submitted that for constituting offence under Section 406 I.P.C., the ingredients of Section 405 should be disclosed. The essential ingredients for constituting offence under Section 405 I.P.C. is entrustment of the property. He has further submitted that the offences u/s 420 I.P.C. is not made out since there should have been intention to cheat since the very beginning and there is no such allegation in the F.I.R. The investment was made in the company.
25. Learned counsels for the informant have vehemently opposed the bail application of the applicant. They have filed counter affidavit and submitted that the applicant has received Rs. 33.88 lakhs during the period 23.04.2018 to 06.12.2019 and 01.03.2020 from M/s. Nift Tech Global Private Ltd and the photocopy of the passbook of the company has been brought on record. The informant has given a cheque no. 946971 of Rs. 1,07,000/- to the applicant and the same was deposited in the bank account of the applicant. The photocopy of the passbook of the informant has been brought on record showing transfer of aforesaid amount to the account of the informant. It has further been submitted that the applicant along with other co-accused persons has been implicated in 8 such cases. He is a habitual offender and has cheated number of persons of lakhs of rupees.
6. Learned A.G.A. also opposed the prayer for bail of the applicant.
7. After considering the rival submissions, this Court finds that the money is alleged to have been transferred in the account of the applicant by the informant. Therefore, entrustment of money is there. For constituting offences under Section 420 I.P.C., the intention to cheat from the very beginning should be proved and in this case, it appears that the applicant took money only to misappropriate the same since the money was transferred in his account and not in the account of the company by the informant. Therefore, the offences alleged are clearly made out against the applicant. However, considering the fact that offences alleged are triable by Magistrate and the applicant is in jail since 25.07.2020, the applicant is directed to deposit Rs. 1,07,000/- transferred by the informant to his bank account before the court below as a pre-condition for his release on bail.
8. Keeping in view the nature of the offence, argument advanced on behalf of the parties, spreading of novel corona virus in jails, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another, reported in (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.3
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
(iv) In case the applicant has been enlarged on short term bail as per the order of committee constituted under the orders of Hon'ble Supreme Court his bail shall be effective after the period of short term bail comes to an end.
(v) The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored. In case the court below is functioning normally, this condition will not apply and the applicant shall be enlarged on bail on execution of personal bond and two sureties to the satisfaction of the court below.
(vi) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(vii) The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
(viii) The applicant will deposit Rs. 1,07,000/- in the account of the informant by way of N.E.F.T. and produce the receipt of the same along with certificate of the bank before the trial court as a condition for release of the applicant on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 18.11.2020 KS