Himachal Pradesh High Court
Ramesh Sharma vs State Of H.P. & Another on 8 January, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MP(M) No. 1701 of 2018
Date of Decision 8th January, 2019
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Ramesh Sharma ...Petitioner
Versus
State of H.P. & another
Coram
r to ....Respondents
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting?1
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For the Petitioner: Shri C.D. Negi, Advocate.
For the Respondents Mr. Shiv Pal Manhans Additional
Advocate General with Mr.R.P.Singh
and Mr. R.R.Rahi, Deputy Advocate
General for respondent No.1 and
Mr. Mukul Sood, Advocate for
respondent No.2.
__________________________________________________________________
Vivek Singh Thakur, J.(Oral)
This petition has been preferred seeking regular bail for the petitioner in case No. 76 of 2017 titled Budhi Parkash vs. M/s Ramesh and Co. and another filed by respondent No.2 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 10/01/2019 23:02:33 :::HCHP 2 2 against the petitioner under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as 'NI Act') .
pending before learned Judicial Magistrate 1 st Class, Manali, wherein vide order dated 29.11.2018 petitioner has been remanded for judicial custody for the reasons that after taking cognizance of complaint filed by complainant/respondent No. 2, bailable warrants as well non-bailable warrants issued against the petitioner for 8.6.2017, 27.7.2017, 18.9.2017, 30.10.2017, 20.12.2017, 16.2.2018 and 10.4.2018 were received unexecuted and thereafter proclamation was published against him and after receiving the proclamation report on 25.7.2018, he was declared proclaimed offender and thereafter file was ordered to be consigned to the records.
2. Later on, the police had arrested petitioner from Sundernagar, District Mandi and produced him before learned Judicial Magistrate 1st Class, Manali, District Kullu on 15.11.2018 in case No. 37 of 2017 titled Lot Ram vs. Ramesh and Co. and another whereupon another cases filed by co-villagers under Section 138 of NI Act against the petitioner, consigned to record room were also revived and for past conduct and non-availability of petitioner on earlier occasions during trial, he was not ::: Downloaded on - 10/01/2019 23:02:33 :::HCHP 3 3 enlarged on bail and was sent for judicial custody by trial Magistrate.
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3. It is informed that there are about 20 cases pending before learned Judicial Magistrate 1st Class, filed by persons belonging to one and same village against Ramesh Sharma for dishonouring of cheques issued to them by the petitioner against the payment to be made by him to them for their horticultural crops i.e. apples and in 18 cases he was not traceable and therefore, he was declared proclaimed offender in 18 cases out of 20 cases initiated against him by the respective complainants.
All these cases, consigned to the record, on 20.7.2018 were recalled, revived and were listed on 15.11.2018. Thereafter, the petitioner was sent for judicial custody. In the meanwhile, petitioner has filed an application for enlarging him on bail, which stands rejected on 29.11.2018.
4. Thereafter, on 6.12.2018 petitioner has preferred present petition. On issuance of process against the complainant, grant of bail to the petitioner has been opposed by filing reply, stating therein that initially the bail petitioner and his other associates had made some payments in some cases and had won over the hearts of complainant(s) and others and being ::: Downloaded on - 10/01/2019 23:02:33 :::HCHP 4 4 impressed by him, villagers had agreed to provide the apple fruits to the petitioner on credit basis against the proper bill and .
in lieu of sale of apple fruits, petitioner had issued various cheques to the complainant and other villagers, which were dishonoured for 'insufficient funds/exceed arrangements' as informed by the Bank and thereafter, despite making repeated endeavours, the petitioner was not available, which resulted into filing of complaints under NI Act against the petitioner. However, petitioner has even avoided the bailable warrants as well as non-
bailable warrants issued against him and there is no possibility of his availability during trial and therefore, keeping in view his past conduct, he is not entitled for bail during trial. It is also contended on behalf of complainant that petitioner is basically resident of Nepal and does not own any property in Himachal Pradesh.
5. On behalf of the petitioner, it is pleaded that his non-
appearance before the trial Court was neither intentional nor deliberate but for the reasons that he was out of State in the remote areas of Jammu and Kashmir and Punjab on account of business activities and he was not aware about the proceedings pending against him and he is ready to be abide by any condition ::: Downloaded on - 10/01/2019 23:02:33 :::HCHP 5 5 imposed by this Court including the furnishing of separate bail bonds and local surety in each case.
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6 Learned counsel for respondent No.2 has submitted that in any case if the petitioner is to be released on bail, then condition for depositing 20% of the cheque amount in the trial Court before proceeding further, as per mandate of the Apex Court, be imposed upon the petitioner before his release on bail.
7 Though it is submitted on behalf of the petitioner that though the cheque was issued by him, on behalf of M/s Ramesh and Company. However, there is no material on record with respect to constitution/formation/registration of M/s Ramesh and Company being run by petitioner Ramesh Sharma, on whose behalf, he has issued the cheques. Whether it is a sole proprietorship or partnership or a company registered under the Companies Act or any other entity constituted under any valid statute is not clear. The petitioner is also not having any landed property either in the State of H.P. or rest of India. However, it is submitted on his behalf that there is sufficient land in the name of wife of his brother residing in village Bharari, PO Thanedar Katogarh, Tehsil Kumarsain, District Shimla comprised Khata/Khatuni No. 48/86 min measuring 0-77-77 situated in ::: Downloaded on - 10/01/2019 23:02:33 :::HCHP 6 6 Mohal Buna, Patwar Circle Kangal Tehsil Kumarsain, District Shimla. The brother and wife are none else but are those .
persons, who during the execution of bailable warrants and non-
bailable warrants, had expressed their ignorance about place of living/availability of petitioner for want of knowledge.
8 While considering the aforesaid facts and circumstances, it has also to be kept in mind that present case pertaining to the dishonour of cheque and petitioner, in a similar case No. 48 of 2017 titled Dharam Chand vs. Ramesh and Company has been released on bail on 14th December, 2018 by the trial Court on furnishing personal bond and surety bond, as directed by the Court, and also that purpose of bail is to ensure the presence of petitioner during trial, it would be appropriate to release petitioner on bail subject to conditions imposed by this Court with further liberty to the trial Court to impose further conditions as ordered hereinafter.
9. Accordingly, petitioner is ordered to be enlarged on bail, subject to furnishing personal bond in the sum of Rs. One lac with one local surety in the like amount, having sufficient property to indemnify the bond furnished by him and petitioner to the satisfaction of the trial Court with further rider that such ::: Downloaded on - 10/01/2019 23:02:33 :::HCHP 7 7 property should be free from all loans, charges, encumbrances etc. and shall not be subjected to alienation, transfer or creation .
of any charge during currency of surety furnished by him and also subject to further following conditions:-
(i) That the petitioner shall make himself available before the trial Court on each and every date as and when required;
(ii) That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
(ii) That he shall not obstruct the smooth progress of the trial;
(iii) That he shall not jump over the bail and also shall not leave the jurisdiction of Himachal Pradesh without informing the Court with clear particulars of address of that place, to which he intends to proceed with further disclosure of period for staying at that place.
(iv) He shall also furnish the details of mobile/contact number(s) being used by him and he shall also keep on informing the change ::: Downloaded on - 10/01/2019 23:02:33 :::HCHP 8 8 of mobile/contact number, if any. He is also directed to disclose his place of ordinary residence, during trial of complaint against .
him.
(v) That the petitioner shall not commit the offence similar to the offence to which he is accused or suspected or the commission of which he is suspected.
(vi) That petitioner shall not misuse his liberty in any manner.
10. It will be open to the complainant/prosecution to apply for imposing any such other or further condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice. It will also open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.
11. In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, complainant/prosecution may approach the competent Court of law for cancellation of bail in accordance with law.
12. Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No. ::: Downloaded on - 10/01/2019 23:02:33 :::HCHP 9 9 HHC/VIG/Misc.Instructions/93-IV.7139 dated 18.3.2013. Petition stands disposed of.
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13. So far as the prayer of direction to deposit of 20% amount, in view of recent amendment in the statute,is concerned, the same shall be considered by the trial Court in consonance with the law of land and it would pass the appropriate order in this regard.
14. Any observation made in this order shall not affect the merits of case in any manner and will strictly confine for the disposal of this anticipatory bail application filed under Section 439 of Code of Criminal Procedure 1973.
Dasti copy on usual terms.
January 08, 2019 (Vivek Singh Thakur)
(ms) Judge
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