Madhya Pradesh High Court
Sagar vs The State Of Madhya Pradesh on 7 May, 2021
Author: Vivek Rusia
Bench: Vivek Rusia
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HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
(SINGLE BENCH: HON'BLE Mr. JUSTICE VIVEK RUSIA)
M.Cr.C. No. 9466/2021
(Sagar V/s. The state of M.P.)
Date: 07.05.2021:
Shri Mohan Lal Patidar, learned counsel for the applicant.
Shri Amit Rawal, learned Panel Lawyer/ Government
Advocate for the respondent/State .
Shri Yogesh Kumar Gupta, learned counsel for the Respondent
[OBJ].
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This is the First application filed under section 439 Cr.P.C seeking bail in connection with Crime No.725/2020 registered at police station Dhamnod, District Dhar for the offence punishable under section 406, 409, 420/34 of I.P.C. The applicant is in custody 13.12.2020.
As per the prosecution, Writer Business Services Pvt. Ltd. through its Assistant Manager Sudhir S/o Shivnaryan submitted a written complaint dated 11.12.2020 at Police Dhamnod that M/s Writer Business Services Pvt. Ltd is having its registered office at Mumabi works as the cash replenishment agency for various banks for the transfer of cash in the ATM Machine, cash management, ATM services etc. The Company has appointed two employees namely Sagar Patidar and Kirtan Patidar as ATM operators on 11.12.2020 for a period of one year. They were made in-charge of five ATM Machines located in Damnod, Gujri, Dehri, Saray and Dhar. Assistant Manager, Vijay Badgoti and Rakesh Prasad reached Dhamnod and conducted the audit in presence of aforesaid two employees and their father on 05.11.2020 and found Rs. 33,31,500/- less. According to him present applicant and Kirtan Patidar were in- charge of withdrawing the amount from the bank in cash and uploading in the ATM machines, therefore, they misappropriated the
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aforesaid Money.
The police arrested the applicant and another co-accused on 13.12.2020 and recorded their statement under Section 27 of the Indian Evidence Act in which they said to have admitted that they were recruited in the month of November - December 2019 and they used to withdraw the cash from the bank for depositing in five ATMs'. They have the password and key of the ATM machine, during the lockdown, after withdrawal of cash, they deposited the less amount in the ATMs and made an entry for the complete amount and the remaining amount they have distributed and spent it gambling. At the disclosure of this applicant, police recovered Rs. 3,40,000/- cash from his house. Likewise, police has recovered Rs. 3,50,000/- from the house of other co-accused. The police collected the various documents like bank receipts, withdrawal receipts, audit report, service agreement and filed the charge-sheet on 22.12.2020 against this applicant for the aforesaid offence.
Learned counsel for the applicant submits that applicant has falsely been implicated in the present case. There is a mistake in the resettling of account between two companies and this present application has been made a scapegoat. There is a delay in lodging the FIR. Except for the audit report prepared by the complainant, nothing has been recovered by the prosecution to connect the applicant in this case. The audit report prepared by the complainant, cannot be relied on without a balance sheet . There is no document pertaining to the details of the withdrawal of cash amount from the bank and deposited in the ATM. It appears that there is a lack of reconciliation of the amount between the bank and the complainant's company. At the most offence under Section 420 and 406 is made out against him and both the offence are triable by Judicial Magistrate First Class and the maximum sentence is up to 7 years. The offence
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under Section 409 of I.P.C. is not made out against the applicant. The applicant is youth 23 years with no criminal past. There is no possibility of his absconding and tampering with the evidence as the charge-sheet has been filed, thus there is no further interrogation is required.
Learned Panel Advocate opposes the bail application and prays for rejection of the application.
Learned counsel for the objector submits that the complainant's company earlier known as Writer SafeGuard but later on the company has changed its name to Writer Business Service Pvt. Ltd. The company is engaged in the business of replenishment of the cash in the ATMs Machines of the respective bank. The applicant had the key and password of the ATM Machine. After the withdrawal of the amount from the bank, they did not deposit the entire amount in the five ATMs machine and embezzled Rs.33,31,500/- which has not been recovered from them so far. Hence, they are not entitled to bail. He further submits that now the complainant company has compensated the loss of the bank by depositing the amount of Rs.33,31,500/-.
I have heard learned counsel for the parties and perused the case diary (Challan).
The complainant company is having a service agreement with Dlabold System Private Limited in short "DSPL". The DSPL is engaged in the business of cash management service for ATMs at various sites. The DSPL is having a contract with the various banks for providing the cash management service. The DSPL later on entered into agreement for the aforesaid services with Writer Safeguard Pvt. Ltd. (the complainant ) and same is working in the field through its employee and in the course of business, the company has appointed the present applicant and other co-accused
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for transferring cash from bank to ATM machines. The prosecution has collected only two receipts whereby the applicant and co-accused were given the cash Rs. 5,00,000/- by ICICI Bank on 08.04.2020 and Rs. 4,00,000/- on 03.04.2020 for depositing in the ATM machines. Except audit report prepared by the complainant company in respect of shortage of Rs. 33,31,500/- no other documents in support has been collected by the prosecution. No further interrogation of the applicant is required. The investigation is complete, challan has been filed. The trial is not in progress. The applicant is not a habitual offender. He is the youth of 23 years of age. It is for the complainant company and prosecution to establish before the court by way of evidence that the applicant has committed embezzlement of Rs. 33,31,000/- .
Considering the above facts and circumstances of the case in totality but without commenting on the merits of the case, the application filed by the applicant is allowed. The applicant is directed to be released on bail on his furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of the trial Court for his regular appearance before the trial Court during the trial with a condition that he shall remain present before the court concerned during the trial and shall also abide by the conditions enumerated under Section 437(3) Cr.P.C.
Before releasing the applicant from custody the jail authorities are directed to medically examine in order to rule out the possibility of COVID -19 infections and shall comply with the direction given by the Hon'ble Apex Court in Writ Petition No. 1/2020.
C.c as per rules.
( VIVEK RUSIA ) JUDGE praveen PRAVEEN NAYAK 2021.05.12 12:04:29 +05'30'