Sonu v. Presence

approached the police and lodged the present FIR on 20.09.2024, i.e., eight days after the incident of alleged unauthorised deduction.

5. On the same day, while the complainant was passing through Kankhal Chowk market at around 3:00 p.m., he allegedly spotted the same two individuals at a nearby shop owned by a woman, again posing as Paytm executives and attempting to “update” the scanner device at that location. The complainant, with the assistance of a local resident named Deepak Verma, confronted the duo and restrained them.

6. A search of their belongings allegedly led to the recovery of certain Paytm-related materials, including scanner stands, stickers, and sound boxes.

7. The applicant and his co-accused were thereafter handed over to the local police. The applicant was formally arrested on 21.09.2024 and has remained in custody since.

8. Heard learned counsel for the Applicant, Mr. Avidit Noliyal and Mr. Virendra Singh Rawat, A.G.A. for the state. Perused the records available.

9. The learned counsel for the applicant has assailed the veracity of the FIR and subsequent proceedings, contending that the applicant is innocent and has been falsely implicated in the present matter. 2

10. It is submitted that the delay of eight days in lodging the FIR has not been satisfactorily explained, and that such delay is indicative of afterthought or manipulation.

11. The applicant contends that there is no prior animosity with the complainant, and the transactions in question appear to have been voluntary and commercial in nature, for which the appropriate remedy, if any, lies in civil proceedings.

12. It is argued that the present FIR has been engineered by the complainant in collusion with the local police as a means to shield themselves from public criticism over the emergence of such scams in the region.

13. It has also been urged on behalf of the applicant that the arrest was made in violation of the mandatory provisions of Section 41-A of the Code of Criminal Procedure (as applicable), inasmuch as the offence alleged carries a punishment below seven years and no notice under the said provision was served before effecting arrest.

14. The applicant has also pointed to the absence of any independent witness to the alleged arrest or recovery and contends that the recovery of Paytm materials from his bag has been planted to support a concocted version of events.

15. It is further argued that the applicant has no prior criminal antecedents and is a permanent resident of Delhi. He has already spent a significant duration in judicial custody, and in the absence of any concrete material showing his involvement in a larger conspiracy, his continued incarceration would amount to pre-trial punishment.

16. The applicant has also brought to the Court’s notice that following the registration of the instant FIR, his name was also implicated in another FIR of similar nature Case Crime No. 799 of 2024 registered at Police Station Kotwali Nagar, Haridwar which raises serious doubts as to the bona fides of the investigating agency.

17. It is submitted that the applicant is being indiscriminately roped into such cases without any objective evaluation of individual culpability. 3

18. Per contra, the State has filed a counter affidavit opposing the grant of bail. It is submitted on behalf of the respondent–State that the applicant and his co-accused are involved in a systematic and premeditated act of digital fraud wherein they impersonate representatives of Paytm and use such deception to gain access to scanner devices, ultimately manipulating transactions for wrongful gain.

19. The incident involving the complainant is not isolated, and the involvement of the applicant in similar fraudulent conduct is evidenced by his implication in FIR No. 799 of 2024.

20. The State contends that there is ample material on record, including statements under Section 180 of BNSS from the complainant and multiple other witnesses, namely Deepak Verma, Vipin Verma, Fareed, and Mitesh Kumar Thareja, which corroborate the sequence of events and the applicant's role in the same.

21. The State further submits that CCTV footage was collected during the investigation, substantiating the physical presence and interaction of the applicant at the complainant’s premises on the relevant dates.

22. The charge sheet in the matter has been filed, and the investigation has yielded sufficient material indicating direct involvement of the applicant in the commission of the alleged offence.

23. It is further contended that the applicant was apprehended on the spot by the complainant and other shopkeepers while attempting to replicate the same modus operandi on another unsuspecting shop owner, which rebuts the claim of false implication.

24. Regarding the arrest without prior notice under Section 41-A Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the State submits that the provision was not attracted in the peculiar facts of the case, as the applicant was apprehended in the act by members of the public and handed over to police amidst public outrage. In such a scenario, the formal issuance of a notice would not be warranted, especially given the likelihood of breach of peace and the possibility of flight. 4

25. The State thus argues that, considering the gravity of the offence, the existence of multiple similar allegations, the applicant’s non-local residence, and the likelihood of his tampering with evidence or influencing witnesses, no case is made out for the grant of bail at this stage. The respondent prays that the application be dismissed in the interest of justice.

26. This Court has carefully considered the rival submissions advanced on behalf of the applicant and the respondent–State. It has also perused the material available on record, including the contents of the FIR, statements recorded under Section 180 of the Bharatiya Nagarik Suraksha Sanhita, the counter affidavit filed by the investigating agency, the bail rejection order passed by the learned Sessions Court, and the charge sheet submitted in the case.

27. The allegation against the applicant pertains to a form of digital fraud involves impersonation and misrepresentation, wherein applicant, along with another co-accused, allegedly posed as representatives of Paytm an established digital payment service provider and approached small shopkeepers under the guise of updating scanner devices. Such impersonation, combined with subsequent manipulative conduct involving transaction reversals, is indicative of a fraudulent scheme specifically designed to exploit trust and lack of technical awareness among ordinary shop owners.

28. The facts alleged in the FIR suggest not a casual or isolated commercial dispute, but rather a deliberate and structured mechanism aimed at deceiving individuals under the pretext of legitimate commercial service.

29. The present incident, as narrated by the complainant Shivaji Rathore, was not an isolated occurrence. It was preceded by a series of interactions in which the applicant and his associate initially gained the confidence of the complainant through apparently successful Paytm transactions. 5

30. It was only upon retrospective deduction of funds from complainant’s account that the deception became apparent. The pattern of conduct, involving successive visits, fraudulent payments, and unauthorised debit of funds, prima facie reveals pre-planning and a calculated abuse of digital infrastructure.

31. This Court is not inclined to accept the applicant’s assertion that the incident amounts to no more than a civil dispute or failed transaction. On the contrary, the cumulative facts, when viewed holistically, lend weight to the allegation that deception was employed from the very inception.

32. The contention of the applicant that there is an unexplained delay in lodging the FIR does not, in the facts of this case, undermine the credibility of the State. The delay of approximately eight days appears to have been occasioned by the complainant’s effort to verify the loss and understand the cause of the unauthorised deduction.

33. In cases involving digital fraud, especially where the mechanism of cheating is technical and not easily comprehensible to laypersons, such delay is not uncommon and cannot be treated as fatal to the State’s case.

34. Furthermore, the delay stands substantially neutralised by subsequent recovery of Paytm-branded items from the possession of the applicant, and the corroboration provided by multiple independent witnesses whose statements have been recorded under Section 180 of the BNSS.

35. It is also pertinent to note that the applicant was apprehended not through formal arrest by the police but was instead caught red-handed by the complainant and local shopkeepers while attempting to allegedly commit a similar act of deception at another shop in the same market area.

36. The recovery of digital transaction accessories from the possession of the applicant further strengthens the allegations made in the FIR. 6

37. The State has placed on record that CCTV footage has been retrieved, and the presence of the applicant at the complainant’s shop on the relevant dates is confirmed. This lends an added layer of objective evidentiary support to the State version.

38. Moreover, it has been brought to the notice of this Court that another FIR of similar nature, Case Crime No. 799 of 2024 under Section 318(4) of the BNS, is registered against the applicant in Police Station Kotwali Nagar, Haridwar.

39. The existence of this parallel FIR involving comparable modus operandi significantly diminishes the credibility of the defence claim that the present case is a one-off instance of false implication.

40. On the contrary, the material on record gives rise to a reasonable apprehension that the applicant may be involved in a wider pattern of fraudulent activities targeting unsuspecting traders by exploiting the growing dependence on digital payment infrastructure.

41. The submission of the applicant that his arrest was affected without compliance with the mandate of Section 41-A of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) (as applicable under the BNSS) is not sustainable in the peculiar circumstances of this case.

42. The applicant was apprehended on the spot by private individuals, amidst public outrage, and later handed over to the police. The procedural protections contemplated under Section 41-A are intended to prevent arbitrary arrest in cases of minor offences, not to shield an accused apprehended in flagrante delicto during commission of a cognisable offence.

43. The concern for maintaining public order and preventing further repetition of such offences justified the immediate arrest.

44. This Court also takes into consideration the fact that the applicant is a resident of Delhi, with no fixed roots in the district where the alleged offence occurred. In the event of his release on bail, there exists a legitimate and serious apprehension that he may abscond or tamper with the evidence, including influencing or intimidating the witnesses, 7 who are all shopkeepers and residents of the same locality where the offence took place.

45. The possibility of reoffending in a similar fashion also cannot be ruled out at this stage, particularly given the allegation that the applicant was attempting to target another shop at the time of being apprehended.

46. While the right to personal liberty under Article 21 of the Constitution is sacrosanct and bail remains the rule in criminal jurisprudence, this right must be weighed against the larger interest of society and the necessity to ensure the integrity of ongoing investigations, especially in cases involving novel and technical forms of crime such as cyber and digital fraud.

47. The gravity and the manner of commission of the alleged offence, coupled with its potential to cause widespread financial harm to unsuspecting victims, elevate the case beyond a routine bail consideration. ORDER In view of the foregoing discussion, this Court is of the considered view that the applicant has not been able to establish any special or mitigating circumstance that would justify the grant of bail at this stage. The material on record, viewed in its entirety, discloses a prima facie case against the applicant, and the apprehensions expressed by the State regarding flight risk and interference with the course of justice appear to be well-founded. Accordingly, application stands rejected. It is clarified that the observations made herein are confined to the consideration of bail and shall not be construed as an expression on the merits of the trial. (Ashish Naithani J.)

09.04.2025 NR/ 8