Friday, December 2, 2022

Allahabad High Court grants anticipatory bail to man in money bungling case

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The Allahabad High Court has granted the anticipatory bail application of the accused of embezzlement of money from two bank accounts in the Union Bank of India, Branch Khari Babri, Delhi in the name of Vikas Sahakari Awas Samiti Ltd Shatabdi Enclave, Noida, Gautambudh Nagar.

The Single-Judge Bench of Justice Siddharth passed this order while hearing a Criminal Miscellaneous anticipatory bail application filed by Preetam Singh.

This is the second anticipatory bail application of Singh. The applicant was enlarged on anticipatory bail order dated 19.11.2020 passed in Criminal Miscellaneous Anticipatory Bail Application U/S 438 CrPC till the submission of police report u/s 173 (2) CrPC before the competent court.

Counsel for the applicant submitted that the charge sheet has been submitted against the applicant on November 21, 2021, which does not disclose offence alleged against the applicant as would be clear from the following facts :-

There are allegations against 20 named and one unnamed accused, including the applicant, in the First Information Report that the accused opened two bank accounts in the Union Bank of India, Branch Khari Babri, Delhi in the name of Vikas Sahakari Awas Samiti Ltd and Shatabdi Enclave, Sector 49, Noida, Gautambudh Nagar only whereof informant was Secretary.

The accused persons misled the members of the Society and collected huge amounts from them by means of cheques and cash in the name of the Society and fake receipts were issued to them. Despite objections raised before the Branch Manager of the aforesaid Bank he did not stop the operation of the bank account by the applicant and accused persons. The illegal activities of the accused came to light in the audit report of the year 2016-17. The accused persons entered into criminal conspiracy and have committed offences of cheating etc, alleged in the First Information Report. There are two rival Committees of Management in the Society in dispute. Co-accused, Jail Singh, was elected as president and co-accused, Harish Kotnala was appointed as Secretary, who was expelled illegally by the informant from the post of Secretary. Ravindra Singh Chauhan was appointed as secretary and Ajit Chauhan, the informant, was elected as president of the Society.

In the appointment resolution of Ravindra Singh Chauhan as Secretary of the Society the signature of one member of Committee, Anand Bhalla, was forged and he denied his presence in the meeting wherein Ravindra Singh Chauhan was appointed as Secretary of the Society. In the year 2015, the aforesaid president and secretary of the Society illegally hiked maintenance charges and the members of the Society made complaints to the general house in this regard. In the meeting dated 20.12.2015, 130 members of the Society decided to open a new account of the Society and, therefore, two accounts in dispute were opened in Union Bank of India Delhi.

The earlier accounts of the Society in HDFC Bank was closed. The information about the opening of the account was sent to the registrar concerned. The accounts are being operated by the co-accused, Jai Singh, as President of the Society along with co coaccused, Harish Kotnala and Shyam Lal Verma. The total amount of Rs 5,98,000 was deposited in the bank account towards maintenance charges. Out of which Rs 507,000 was withdrawn for expenses of the Society. The informant himself indulged in corruption in the Society and sold the land of the Society to third parties.

It has further been submitted by the counsel for the applicant that against the informant, the first information report was lodged under Sections 147, 332, 353, 420, 467, 468, 471, 504, 506 at Police Station- Sector-49, Noida, District- Gautam Budh Nagar, which was challenged by way of Criminal Misc Writ Petition, Ajeet Singh Chauhan and 2 Ors Vs State of UP and 4 Ors, which was dismissed by Division Bench of the Court by order dated 13.08.2015.

It has been submitted that number of co-accused persons namely, Smt Madhu Singh, Jagjit Chandra Sharma Govind Singh, etc, have been granted anticipatory bail by the Sessions Judge, Gautam Budh Nagar, and co-accused, Jai Singh, has been enlarged on bail by the Court on 20.07.2022 vide Criminal Misc Bail Application. There is a serious dispute regarding the management of the society. The applicant is only a general member of the society and is depositing his monthly maintenance charges regarding his membership of the society. He has been falsely implicated in the case. The Investigating Officer has not considered the entire facts of the case and has submitted a charge-sheet and cognizance has been taken thereon by the court without application of mind.

AGA has opposed the prayer for anticipatory bail of the applicant. He has submitted that in view of the seriousness of allegations made against the applicant, he is not entitled to grant anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear anticipatory bail cannot be granted.

After considering the rival submissions, the court found that there is a case registered against the applicant. It cannot be definitely said when the police may apprehend him. After the lodging of FIR the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an FIR has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violations of human rights.

The Court noted that in the case of Joginder Kumar vs State of Uttar Pradesh AIR 1994 SC 1349 the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60 percent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 percent of expenditure of the jails. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the peculiar case the arrest of an accused should be made.

Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, the Court directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs State (NCT of Delhi)- 2020 SCC Online SC 98.

The Court said that the future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgement of the Apex Court. In the event of arrest, the applicant shall be released on anticipatory bail.

The Court ordered, “Let the applicant, Preetam Singh, involved in Criminal Case No 4741 (State of UP Vs Jai Singh and others) u/s 406, 420, 467, 471, 120-B IPC pending before 2nd Additional Chief Judicial Magistrate, Gautam Budh Nagar, be released on anticipatory bail on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-

(i) The applicant shall not leave the country during the currency of trial without prior permission from the concerned trial Court.

(ii) The applicant shall surrender his passport, if any, to the concerned Court forthwith.

(iii) His passport will remain in custody of the concerned Court.

(iv) That the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.

(v) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 to ensure presence of the applicant.

(vi) In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.

(vii) 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 CrPC. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law,” the order read.

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