Allahabad High Court
Rahul Kumar Mishra (Second Bail ... vs State Of U.P. on 1 May, 2020
Author: Jaspreet Singh
Bench: Jaspreet Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?In Chamber Case :- BAIL No. - 2737 of 2020 Applicant :- Rahul Kumar Mishra (Second Bail Application) Opposite Party :- State of U.P. Counsel for Applicant :- Arti Ganguly,Hemant Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Jaspreet Singh,J.
In view of the guidelines laid down by this Court, the urgent bail applications have been directed to be heard through Video Conferencing. Learned counsel for the applicant had made an application for urgency which was placed before the Hon'ble Senior Judge which has been allowed on 28.04.2020 and it is in this fashion that this bail application has been placed before this Court.
The Court has heard Sri Hemant Kumar Mishra, learned counsel for the applicant and Shri J.S. Tomar, learned AGA through video conference.
This is the second bail application. The learned counsel for the applicant has pointed out that earlier the bail application was moved before this Court and an order was passed on 10.04.2020, a copy of which has been annexed at Page 55 with the bail application, indicates that the Court by means of order dated 10.04.2020 had referred the matter to the high powered committee situated under the orders of the Apex Court in the suo-moto Writ Petition No. 1 of 2020 contagion of Naval COVID-19 Virus in person. In terms of the order dated 10.04.2020, the matter of the applicant was required to be considered by the high powered committee, however, it has been informed by Sri Hemant Mishra that despite having placed the order passed by this Court before the Committee concerned, no orders has been passed by the Committee and accordingly in the aforesaid circumstances, the instant second bail application has been moved especially where the earlier bail application was dismissed by the Court by observing that at this stage it is not considering the application of the applicant on merits.
The further submission of Sri Hemant Mishra is that primarily it is a civil dispute between the complainant and the applicant. In the First Information Report which was lodged, the complainant did not even make a mention regarding the amount as allegedly paid by the complainant to the applicant, neither there is any detail of any amount paid and from the bare perusal of the First Information Report alone, it only indicates that at best it could be a case for dishonour of cheque.
Sri Mishra has further pointed out that subsequently in the statement recorded under Section 161 Cr.P.C. of the complainant, he improved his case and he clearly set up that the applicant company had invited deposits at high rate of interest and under the aforesaid circumstances, it is alleged that the complainant deposited a sum of Rs. 14 lakhs on 15.09.2016 and subsequently another sum of Rs. 22 lakhs on 25.09.2016. It has been alleged that thereafter since the applicant did not return the aforesaid sum and upon pressurizing, the applicant issued 2 cheques for a sum of Rs. 15, 29,500/- and Rs. 22, 32,000/- which were stopped for clearance by the applicant and under the aforesaid circumstances, the First Information Report was lodged and the details have been mentioned in the statement under Section 161 Cr.P.C.
It has also been submitted that the applicant has no intention to dupe and merely being a civil dispute triable by the Magistrate where the maximum sentence is under 7 years, coupled with the fact that the applicant is an educated person running his company but according to certain bad financial circumstances, the company is not doing well, however, he has no intentions to not return the aforesaid sum rather since the complainant is a contractor of the company, accordingly, the matter is to be accounted for and whatever amount is actually due and payable shall be paid to the complainant.
The learned A.G.A. Sri J.S. Tomar has submitted his instructions via e-mail which are taken on record. Along with the instructions it has been pointed out by Sri Tomar that there are 4 cases against the applicant of similar nature. It has also been pointed out that in one of the cases the applicant is already been enlarged on bail in Bail Application No. 2712 of 2020 by means of order dated 23.04.2020.
It has also been pointed out by Sri Tomar that the applicant is in the habit of duping the people and has taken large sums of deposits and now when it is time to return, he is shirking from his responsibility and it is in this fashion that the other cases against the applicant are pending. Sri Tomar has also stated that under the aforesaid circumstances, it is not a case where any indulgence can be shown to the applicant.
The Court has considered the rival submissions and also perused the record. In light of the submissions recorded and considering the nature of accusations against the applicant, the severity of punishment and the fact that the charges against the applicant are yet to be tested in trial before the applicant can be convicted.
Considering the overall circumstances and without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail.
Let the applicant Rahul Kumar Mishra involved in Case Crime No. 0121 of 2020, under Sections 420, 406, 504, 506 I.P.C, Police Station Kotwali Nagar, District Faizabad be released on bail on his furnishing a personal bond to the satisfaction of the Jail Authorities where said accused is imprisoned, provided the accused applicant/s shall also undertake to furnish two reliable sureties required by the court concerned, within a period of 6 weeks from the date of his/her actual release.
At the time of executing required sureties the following conditions shall be imposed in the interest of justice.
(i) The applicant shall not leave the district without permission of the Court.
(ii) The applicant shall deposit a good subsisting security of Rs. 50,00,000/- before the Court concerned within a period of 8 weeks from his release.
(iii) The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iv) The applicant shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(v) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against her, in accordance with law, under Section 174-A of the Indian Penal Code.
(vi) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against her in accordance with law.
(vii) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
(viii) The computer generated copy of such order shall be self attested by the counsel or the party concerned.
(ix) 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.
Order Date :- 1.5.2020 Asheesh