Rajasthan High Court - Jaipur
Hon'Ble Mrs. Justice Nisha Gupta vs Dr.Rajkumar Agarwal & Anr. : Air 2013 Sc ... on 20 August, 2014
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR O R D E R S.B. CRIMINAL MISC.2nd BAIL APPLICATION NO.9133/2014. Shashikant Sharma Vs. State of Rajasthan Date of Order:- August 20, 2014. HON'BLE MRS. JUSTICE NISHA GUPTA Smt.Seema Sharma, wife of the petitioner is present in court. Shri Arun Mathur, Assistant Director Prosecution, for State. ****
Heard the representatives of the petitioner and the State and perused the material available on record.
This is second bail application presented by the petitioner on the ground that now charge-sheet has been filed. The contention of the representative of the petitioner is that offence is only triable by the Magistrate. Trial will take time. Out of 25 investors, 21 have submitted affidavits in favour of the petitioner. The petitioner was engaged in foreign trading company. He has invested the money and also made payments to the complainants. He has not committed any cheating. S.O.G. has not conducted the investigation fairly. Trading account of the petitioner has not been seen. Petitioner is behind the bars from last about four months. The petitioner is only the bread earning person having two small children and his father and mother are also sick. Initially, the FIR was submitted only on behalf of 15 persons, where names of 25 persons have been mentioned but some of them have not stated anything against petitioner during investigation also. Petitioner has repaid the profit ranging 10% to 15% to the complainant. For the same amount, proceedings u/S.138 of the Negotiable Instruments Act, 1881 have also been initiated. Hence, he be released on bail.
Per contra, the contention of the representative of the State is that after withdrawal of the first bail application, no new facts have arisen in favour of the petitioner except that charge-sheet has been filed, which also shows involvement of the petitioner that after investigation, a triable case has been found against petitioner. Complainant and other investors have categorically stated that money has been procured from them by persuading that a handsome profit would be given to them but even for a long time, money has not been repaid to them and after investigation, it was found that petitioner has procured Rs.2,60,00,000/- (Rupees Two Crores & Sixty Lacs) out of this fraud.
It is true that before the session court, some of the investors have filed affidavits but at the stage, affidavits cannot be looked into as held by the Hon'ble Apex Court in the case of State of Rajasthan Vs. Dr.Rajkumar Agarwal & Anr. : AIR 2013 SC 847, wherein it has been held, as under:-
It is risky to encourage the practice of filing affidavits by the witnesses at the stage of investigation or during the court proceedings in serious offences such as offences under the P.C. Act. If such practice is sanctioned by this Court, it would be easy for any influential accused to procure affidavits of witnesses during investigation or during court proceedings and get the FIR and proceedings quashed. Such a practice would lead to frustrating prosecution of serious cases.
In view of the above, therefore, petitioner should not be released on bail.
Without going into the merits of the case but looking to the above, involvement and large impact of the offence and law laid down by the Apex Court in Dr.Rajkumar Agarwal supra, it is not a fit case to release the petitioner on bail.
Consequently, this second bail application under Section 439 Cr.P.C. is dismissed.
(NISHA GUPTA), J.
Anil/86 All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
anil goyalSr.PA-cum-JW