Wednesday, April 24, 2024

Punjab and Haryana High Court grants bail to petitioner in migration fraud

The Punjab and Haryana High Court has granted bail to the petitioner on the ground that his co-accused (mother) has already been enlarged on bail and he has undergone incarceration of nearly two months.

A Single Bench of Justice Vinod S. Bhardwaj passed this order while hearing a petition filed by Sanjay Bakshi.

The petition has been filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail to the petitioner in case FIR dated 23.01.2020 under Sections 406, 420, 506 and 120-B of the Indian Penal Code, 1860, registered at Police Station City Rupnagar.

The counsel for the petitioner submitted that the FIR in question has been registered against the petitioner on the basis of a complaint given by one Pomy Soni, who is completely unknown to the petitioner, and there had been no transaction of any nature whatsoever by the petitioner with the said complainant.

In any case, the gist of the allegations levelled in the FIR is to the effect that the said complainant claims to be interested in sending his son Manish Soni aged 33 years abroad and for which he had a discussion with his friend from Ropar, who is stated to have informed him about Susham Lata, wife of Rajinder Bakshi, and also informed him that the son and daughter-in-law of Susham Lata do immigration work in Canada.

The complainant is stated to have met Susham Lata and was convinced by Susham Lata about her capacity and capability to ensure a foreign travel for his son Manish Soni to Canada. A demand of Rs 40,00,000 is stated to have been made by Susham Lata, however, upon negotiations, the same was settled at Rs 35,00,000. An advance of Rs 5,00,000 was sought for and it was stated that the necessary formalities shall take about a year to conclude.

It is further alleged that the petitioner alongwith his mother Susham Lata is stated to have come to the residence of the complainant at Ropar to get an advance payment of Rs 5,00,000 in April 2016 and signatures on the file for documentation were also obtained.

It is further alleged in the FIR that in the month of May 2016, Susham Lata and the petitioner also collected the remaining amount of Rs 30,00,000 from the residence of the complainant in Ropar. It is alleged that thereafter, the complainant had been pursuing the matter with the Susham Lata for either carrying out the work so promised or to return the money instead.

In November 2018, it is alleged that the petitioner-accused refused to return the money; but on insistence, Bhavna Bakshi daughter of Susham Lata issued a cheque of Rs 35,00,000 dated 28.10.2019. Petitioner Sanjay Bakshi is also stated to have given a receipt for the said cheque in the presence of one Mewa Singh. On presentation, the cheque was, however, dishonoured.

The counsel for the petitioner further contends that the case of the prosecution does not inspire confidence inasmuch as the conduct of the complainant does not reflect an ordinary conduct of a prudent man. There was no reason for the complainant to have advanced huge amount of Rs 35,00,000 within a span of one month without taking any receipt for advancing such a huge amount notwithstanding the fact that cash transaction of such a huge amount is impermissible in law and capacity of the complainant to advance such a huge amount is itself yet to be established.

It is further argued that in addition thereto, there was no occasion as to why the complainant did not institute proceedings under Section 138 of the Negotiable Instruments Act, 1881 especially when the cheque in question had been dishonoured in October 2019. It was apparently on account of gross failure on the part of the complainant to establish existence of a legally enforceable debt and pre-existing liability that the complainant chose not to take recourse to the appropriate remedy in accordance with law and has instead connived with police officials to institute the FIR in January 2020.

He further submitted that it would even otherwise be beyond comprehension as to why the complainant would travel all the way to Yamuna Nagar for sending his son abroad considering especially that a large number of travel agents, who are fully functional within Punjab.

It is also argued that even if the allegations levelled in the FIR are taken into consideration, the allurement is stated to have been made by Susham Lata (mother of the petitioner) and that it was not the petitioner who had induced the complainant to part with any money or made any assurance that Manish Soni son of the complainant Pomy Soni would be sent to Canada. It is at best a case where the petitioner accompanied his mother to collect the money.

He contends that Susham Lata has already been granted regular bail vide order dated 17.02.2020. It is contended that the petitioner has been in custody since 10.05.2022 and that it is a magisterial trial. His continued custodial interrogation is not warranted for conclusion of the investigation.

Per contra, State counsel has submitted that a huge amount of Rs 35,00,000 was fraudulently obtained by the petitioner in connivance with his mother and that neither the amount has been returned nor has the son of the complainant been sent to Canada. She, however, could not contradict the fact that the mother of the petitioner has already been granted regular bail and also that the petitioner is in judicial custody and that he is not required in relation to any further investigation in the case. She has, however, expressed that the petitioner was apprehended at the airport while making an attempt to escape and that another case of similar nature is also pending against the petitioner.

The counsel for the petitioner said that the petitioner is ready and willing to furnish heavy surety to ensure his presence and undertakes to deposit his passport with the investigating agency to ward off any apprehension expressed by the prosecution agency.

“Taking into consideration the fact that the co-accused of the petitioner, to whom the attribution of inducement is made, has already been enlarged on bail. It is further noticed that it is a magisterial trial in which further custodial interrogation of the petitioner is not warranted. Besides, the petitioner has already undergone an actual incarceration of nearly two month since his arrest. In view of the above, I deem it appropriate to allow the petition,” the Court observed while allowing the petition.

“The petitioner is admitted to regular bail subject to his furnishing bail/surety bonds to the satisfaction of trial Court/Duty Magistrate, concerned.

It is made clear that the petitioner shall not extend any threat and shall not influence any prosecution witnesses in any manner directly or indirectly,” the order reads.


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