Shamim Ahmed vs The State Of Madhya Pradesh on 8 March, 2022

[Cites 11, Cited by 1]

Madhya Pradesh High Court

Shamim Ahmed vs The State Of Madhya Pradesh on 8 March, 2022

This first application under Section 439 of the Code of Criminal Procedure has been filed on behalf of the applicants for grant of bail in connection with Crime No.143/2021 registered at Police Station Cyber Crime Branch, District Bhopal, for the offence punishable under Sections 419, 420, 471, 468 of IPC and Section 66(d) of I.T. Act. The applicants are in jail since 18.12.2021.

2. Learned counsel for the applicants submits that as per the case of the prosecution, as explained in the FIR, the complainant, being the Director of National Health Mission, Bhopal has submitted a written complaint in Cyber Crime Branch, Bhopal on 26.08.2021 that some unknown persons while running a fake website, i.e. www.rgsm.in, floated an advertisement in the newspaper for selection of candidates on different posts in Madhya Pradesh under the National Health Mission and as such, by committing fraud, money is being extracted from the intending candidates.

3. The FIR has been registered and during the course of investigation, the Cyber Cell found that the said website has been registered with Mobile No. 8376052226 and gmail ID:

rgsmngo@ gmail.com and on that gmail ID, access of Mobile No. 8700018418 was also noticed. The said mobile number belongs to applicant no.1 and access of that gmail ID was also noticed on other two mobile numbers which Cra No.539/2004, Cra No.833/2010 & Cr.R. No.780/2004.

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belonged to accused Akram and Rashid. The fake website www.rgsm.in was created through gmail ID and in the same, there was an access of Mobile number 8700018418 which got issued in the name of applicant no.1-Shamim Ahmed @ Guddu, S/o. Rayees Ahmed, R/o. Shahzad Building, Saberi, Thana Bisrakh, Noida, Goutam Buddh Nagar, Uttar Pradesh and as such, he was arrested on 19.12.2021. The mobile, sim and defrauded amount of Rs. 60,000/- were seized from the applicant no.1. The other co-accused persons were also arrested and seizure have also been made from them which reveals that a fraud has been committed in the name of National Health Mission and the amount received out of said fraud has been deposited in the bank account of Punjab National Bank vide Account No. 0371100100000214. It is also noticed that applicant no.1 Shamim Ahmed was in touch with other co-accused persons namely Akram and Ravi Shankar, R/o. Sasaram, Bihar and there was a conversation between them through mobile. Similar type of offence has also been registered in Police Station Madhav Nagar, Katni vide Crime No. 893/2021 under Section 420 of IPC.

4. Learned counsel for the applicants submits that one of the co-accused Ravi Shankar has been granted bail by the trial Court. According to him, the present applicants have been made accused only because they had an access on the alleged fake website and the gmail ID whereby the fake website was created and as such, the connection as established by the prosecution is not enough to prove involvement of the present applicants in the alleged crime. He further submits that access to the alleged fake website is possible by any mobile and, therefore, in absence of specific material, present applicants cannot be made accused. Learned counsel has placed reliance upon a judgment reported in (2012) 1 SCC 40 Sanjay Chandra Vs. Central Bureau of Investigation and also in the case of Gujarat High Court in Cra No.539/2004, Cra No.833/2010 & Cr.R. No.780/2004.

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Misc. Criminal Case No. 1234 of 2022, parties being Yash Jayeshbhai Champaklal Shah Vs. State of Gujarat in which bail has been granted by the Court in an offence registered under various provisions of the N.D.P.S. Act.

5. Ms. Shweta Yadav, learned Govt. Advocate appearing for the respondent/State on the other hand has opposed the submissions made by learned counsel for the applicants and submitted that the crime which has been committed by the present applicants along with other co-accused persons is an organized crime and has been committed not only in one place but in different places. One of the crime of similar nature has been registered in another Police Station, i.e. Madhav Nagar, Katni vide Crime No. 893/2021. She further submits that the mobile number 8700018418 was registered in the name of applicant no.1-Shamim Ahmed @ Guddu and he had not only the access of the website but also of the gmail ID on the basis of which, the fake website got created. She submits that in the memorandum of applicant no.1, he has explained as to how he was involved in the crime and what role he has played in the said crime. From the seizure made from applicant no.1, an amount of Rs. 60,000/- which he earned through fraud and one mobile of VIVO Company of bearing number 8700018418 have been seized. Further, in the memorandum of Ravi Shankar who got the fake website prepared, he had disclosed that once or twice, he went to the house of Akram for giving him registration form at Julena Park, New Friends Colony, New Delhi where one Babu Khan, R/o. Delhi and Shamim alias Guddu-the present applicant no.1 were used to visit. She further submits that from the memorandum and other material collected by the prosecution, it is clear that the present applicants were connected with other co-accused persons and as per the memorandum of applicant no.1, he got the office on rent @ Rs. 6000/- per month where intending candidates after Cra No.539/2004, Cra No.833/2010 & Cr.R. No.780/2004.

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reading the fake advertisement used to come to the said office situates at Laxmi Nagar, Delhi and they filled up the form in the said office only for which they used to pay Rs. 800-1500/- as registration fee and forged receipt was also issued to those candidates. She submits that in view of the aforesaid facts and circumstances, the submission made by learned counsel for the applicants has no substance that merely because the present applicants were known to other co-accused persons who were actually involved in the crime, they have been made accused but there are other material also collected by the prosecution connecting the involvement of the present applicants with the other co-accused persons and the crime which they have committed. The memorandum of the present applicants is corroborated with the other material and as such, the submission made by learned counsel for the applicants that the said memorandum is inadmissible as per Section 27 of the Evidence Act is also not appropriate.

6. So far as applicant no.2 is concerned, from his possession, an amount of Rs. 60,000/-, one mobile phone of Toshiba Company and documents relating to appointment in National Health Mission viz. applications and registration forms have been seized. Those documents clearly indicate that applicant no.2 was also involved in the alleged fraud and as such, he is not entitled to be granted the benefit of bail only on the pretext that he has been made accused on the basis of memorandum. Although, in his memorandum, he has admitted as to in what manner he was involved in the alleged crime and how he committed the same.

7. Considering the rival submissions made by learned counsel for the parties and perusal of the charge-sheet and also the judgments on which learned counsel for the applicants has placed reliance, I am not convinced with the submissions made by learned counsel for the applicants. So Cra No.539/2004, Cra No.833/2010 & Cr.R. No.780/2004.

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far as the observation made by the Supreme Court in case of Sanjay Chandra (supra) is concerned, the Supreme Court has very categorically observed in para 24 as under:-

"24. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice".

8. In the said case, the Supreme Court has also observed that provisions of Cr.P.C. confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions. Since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general.

9. So far as the case of Yash Jayeshbhai Champaklal Shah (supra) is concerned, the same does not give any help to the present applicants for the reason that in the said case, it is observed by the Court that there is hardly anything which connects the applicants with the offence. But here in this case, situation is otherwise.

10. Here, in this case, considering the conviction prescribed under the relevant provisions in which the offence has been registered against the present applicants and the nature of crime and its impact over the Society and the material collected by the prosecution, I am not inclined to consider the bail application.

11. Thus, the bail application is accordingly rejected.

(Sanjay Dwivedi) Judge rao SATYA Digitally signed by SATYA SAI RAO DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=fd8212036fdbf89fa7ca6dd1d45561a7803f381 62f693a3cbabf7e416131fa7f, SAI RAO pseudonym=6D368848B6731EB999EE2C54F154A7245 187F1E5, serialNumber=D71B7C71D530E3C544E8EBF848D8818 167BECB37EB09E44776D0667970EED1E9, cn=SATYA SAI RAO Date: 2022.03.11 18:29:02 +05'30'

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