Uttarakhand High Court
Indu Thakur vs State Of Uttarakhand And Others on 12 January, 2023
Author: Ravindra Maithani
Bench: Ravindra Maithani
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Bail Cancellation Application No. 9 of 2021
Indu Thakur ...... Applicant
Vs.
State of Uttarakhand and Others ..... Respondents
Bail Cancellation Application No. 10 of 2021
Poonam Negi ...... Applicant
Vs.
State of Uttarakhand and Others ..... Respondents
Present:
Mr. Harshpal Sekhon, Advocate for the applicant-informant.
Mr. Lalit Miglani, A.G.A. for the State of Uttarakhand.
Mr. Karan Anand and Mr. Ravi Bisht, Advocates for the private
respondents-accused.
Hon'ble Ravindra Maithani, J. (Oral)
The respondent nos. 2 & 3, namely, Ajay Kumar Sharma and Smt. Bhawna Sharma, respectively (hereinafter referred to as "the accused") were granted bail in FIR No.127 of 2019, under Sections 420, 406 IPC, Police Station Rajpur, District Dehradun ("the case"), by this Court on 09.12.2020, by an order passed in BA1 No.2793 of 2019. The bail was conditional. Now, the applicants have filed the instant bail cancellation applications on the ground 2 that the accused did not comply with the condition subject to which, they were granted bail.
2. Heard learned counsel for the parties and perused the record.
3. While arguing bail, on behalf of the accused, a submission was made that the accused were ready to settle the dispute with the aggrieved persons within two months from the date of their release. The Court, in its order dated 09.12.2020, noted the submission and granted bail to the accused, subject to the condition that they would refund the money within two months from the date of their release, to the aggrieved persons. The order dated 09.12.2020 is as hereunder:-
"Since the accused are ready to refund the money within a period of two months, accordingly, their bail application is allowed and the applicants are directed to be released on bail on their executing personal bond(s) and furnishing to-two reliable sureties each of the like amount, to the satisfaction of the Court concerned. This bail order shall exclusively be subject to the condition that the accused will refund the money within two months from the date of their release to the aggrieved person.
In case of non-compliance of this order, the State as well as the aggrieved person will have a right to move the bail cancellation application before this Court.
Pending application, if any, stands disposed of."
4. It appears that the accused did not refund the money to the aggrieved persons, therefore, the 3 applicants, who are the informants in the case, filed the instant bail cancellation application.
5. Learned counsel for the applicants would submit that the accused were granted bail subject to the condition that they would refund the money within two months from the date of their release, which they have not done. Therefore, the bail granted to the accused is liable to be cancelled.
6. During the course of hearing, on 05.01.2023, an argument was made on behalf of the accused that the accused had visited the house of the applicants, but they refused to take the money. The Court, while noting this submission made on behalf of the accused, had directed the applicants to file a short affidavit categorically revealing the names of the aggrieved persons, with the amount due to them along with their bank details, IFSC Code and their account numbers. The Court had further directed the accused to deposit the money in the accounts of the aggrieved persons and produce a sheet mentioning as to what amount was deposited in which of the aggrieved persons' account for the perusal of the Court. It was to be placed today. The order dated 05.01.2013 is as follows:-
"Let the applicant file a short affidavit categorically revealing the names of the aggrieved 4 persons with the amount due to them along with their bank details, IFSC Code and account numbers. It shall be done within next two days. After filing of it by 11.01.2023, the private respondents shall remit the amounts in the accounts of aggrieved persons and shall produce a sheet mentioning what amount was deposited in which of the aggrieved persons' account for perusal of the Court on 12.01.2023.
List this case on 12.01.2023, as a first case."
7. The applicants have filed the short affidavit pursuant to the order dated 05.01.2023, of the Court, which was duly served on the accused. The affidavit reveals the names and account numbers of the aggrieved persons along with the amount, which is due to them, as per the applicants.
8. The accused did not place for perusal of the Court any document revealing that any amount was deposited in any of the aggrieved persons.
9. Learned counsel appearing for the accused would submit that the amount, as disclosed in the affidavit filed by the applicants, is huge, which cannot be deposited within two days. Therefore, some time may be given and the matter may be fixed in the last week of February, 2023 so that the accused may take steps to settle the refunds.
10. Learned counsel for the accused would also submit that, in fact, in the garb of the bail order, what the applicants seek is recovery of the money, which, it 5 is argued, has never been due to the applicants and others.
11. Learned counsel for the accused would further submit that the bail order is being treated as a money recovery suit; if any money is due to the applicants and any other person, they could have filed money recovery suit, which they have not filed; what is due to any person, including the applicants and the aggrieved, may, it is argued, would be determined after the witnesses are examined and the accused are given opportunity to cross-examine them, but before that, the accused may not be pressured to pay any amount to the applicants or to any other person.
12. On behalf of the accused, reference has been made to the judgment of the Gauhati High Court passed in the case of Puja Sharma Vs. State of Assam and Another, in I.A. (Crl.) No.124 of 2021. In the case of Puja Sharma (supra), the Hon'ble Supreme Court observed as hereunder:-
"15. Coming to the facts of the present case, it is to be noted that there was no specific undertaking by the accused/opposite party no.2 to pay the remaining amount at the time of granting the privilege of pre-arrest bail and considering his earlier conduct that he paid the 50% of the amount after filing of the bail application as per direction of this Court and considering his willingness to pay the remaining amount, this Court made the interim bail absolute. The accused/petitioner has also contended that due to financial constraint, he is unable to pay the remaining amount.6
16. The devastating pandemic under COVID- 19 has affected the livelihood of millions of people and due to closure of day-to-day activities during lockdown, sufferings of persons engaged in business cannot be denuded. Only because of inability to pay the amount, the same cannot be taken as a fraud upon the court and a design to hoodwink the court and it is a case of inability of a person to fulfil his commitment. In the given facts and circumstances and the plausible explanation given by the accused/opposite party no.2, this court is of the opinion that it is not a fit case for cancellation of bail."
13. A bare perusal of the judgment in the case of Puja Sharma (supra) reveals that, in fact, 50 per cent of the amount had already been paid in that case. The Court took notice of the fact that the accused, in that case, was unable to pay the remaining amount and the Court observed that, in fact, the accused in that case did not play any fraud upon the Court.
14. Undoubtedly, generally, orders of bail should not be made conditional on payment of any money, which is in dispute. But, it has been done in the instant case. This bail order was passed on 09.12.2020. The Court, on its own, did not require the accused to pay the dues to the applicants or the aggrieved persons. The order dated 09.12.2020, passed in BA1 No.2793 of 2019, as quoted hereinabove, reflects that, in fact, the conditional order 7 was made based on the submission made on behalf of the accused.
15. In the case of Bhupinder Singh Vs. Unitech Limited, (2020) 18 SCC 406, a conditional bail order was passed subject to deposition of some money, which was not deposited. The Hon'ble Supreme Court, under such facts, observed that the bail granted may not be enlarged because the accused in that case did not comply with the conditions on which he was granted bail. In Para 12, the Hon'ble Supreme Court observed as hereunder:-
"12. By the order of this Court dated 30-10- 2017, Sanjay Chandra v. State (NCT of Delhi), 2017 SCC OnLine SC 1260, the petitioners were admitted to bail, subject to the deposit of an amount of Rs 750 crores. The order in that regard was passed by a three-Judge Bench of this Court. At this stage, the admitted facts before the Court indicate that the order for the deposit of Rs 750 crores has not been complied with. The prayer for enlargement on bail is misconceived because the petitioners have been admitted to bail, subject to the condition of deposit which is not fulfilled. The two Directors have been arrested following the orders passed by the ACMM. They failed to obtain any order from the Delhi High Court."
(emphasis supplied)
16. In the instant case, the accused did not pay even a single paisa either to the informant or to any other aggrieved persons. An excuse was taken on 05.01.2023 that the applicants are not receiving the money. But, when the entire account details were 8 given to the accused persons, now, on behalf of the accused, time is being sought. The bail order, in the instant case, is not being taken by this Court as money recovery suit. The bail order was subject to a condition that the accused would refund the money within two months. It is more than 2 years, the money has not been refunded. Apparently, the accused has violated the condition subject to which they were granted bail. Therefore, this Court has no other option but to cancel the bail granted to the accused persons.
17. The bail cancellation applications are allowed.
18. The bail granted to accused- Ajay Kumar Sharma and Smt. Bhawna Sharma in FIR No.127 of 2019 in BA1 No.2793 of 2019, is hereby cancelled. Let them surrender to custody within three days from today. If they fail to do so, the concerned court is directed to issue coercive processes so that they may be arrested and remanded to judicial custody.
19. Let a copy of this order be immediately sent to the court concerned.
(Ravindra Maithani, J.) 12.01.2023 Ravi Bisht