High Court
Case Details
Neutral Citation No. - 2023:AHC:161388 Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26219 of 2023 Applicant :- Subhash Gupta Opposite Party :- State of U.P. Counsel for Applicant :- Dhirendra Bahadur Singh,Gaurav Kakkar,Pandey Balkrishna,Sunil Kumar Mishra Counsel for Opposite Party :- G.A.,Maithali Sharan Pipersenia,Utsav Hon'ble Vikram D. Chauhan,J. 1. Learned A.G.A. for the State submits that instructions have been received and has no objection in case the bail application is heard on merits.
Legal Reasoning
1A. Rejoinder affidavit filed by learned counsel for the applicant is taken on record. 2. Heard learned counsel for the applicant, Sri M.S. Pipersenia along with Sri Utsav, learned counsel for informant as well as learned A.G.A. for the State and perused the record. 3. It is submitted by learned counsel for the applicant that initially the First Information Report was lodged on 18.01.2020 with respect of incident dated 6.12.2018 to 20.12.2018. As per allegation in the FIR, four nominated accused persons including applicant have represented the informant for supply of paddy three firms, namely, M/s Shyam Lal and Sons, M/s Fakirchand and Sons and Krishikeels Private Limited. In pursuance to the representation made by applicant, informant has supplied paddy worth Rs.30,59,028/-. It is submitted that as per allegation in the FIR, paddy was supplied to the aforesaid firms through transporter, however since the payment was not received, FIR has been lodged against applicant, who is alleged to be the agent in the aforesaid transaction. He submits that there is no privity of contract between applicant and the informant, goods were supplied directly to the firm and the transporter received the goods. It is submitted that once the firm/purchaser has received the goods and the sale consideration has not been paid, agent cannot be held liable and the criminal proceedings cannot be lodged as measures to recover the amount of the goods supplied. He submits that the dispute is purely of civil nature and the provisions of Sections 420 and 406 IPC would not be attracted in the facts and circumstances of the case. It is submitted that at the initial stage, applicant was granted anticipatory bail by this Court by order dated 10.2.2021. However subsequently, anticipatory bail application of the applicant was rejected by this Court by order dated 9.12.2021. It is submitted that subsequently applicant has been arrested and the present bail application has been filed. 4. The submission of learned counsel for the applicant is that applicant is alleged to be agent could not be proceeded with criminally as no goods were entrusted to the applicant for supplying it to the firms. The goods were directly sent to the firms through transporter. It is not the case of the informant that firms were not existing on the date when the applicant is alleged to have induced the informant for supply of goods. He submits that the transaction is purely a business transaction, which has failed. Once the business transaction arising out of contract has failed, the remedy lies in civil law and the criminal proceedings would not be maintainable. The criminal history of the applicant has been explained in paragraph nos.19 and 21 of the affidavit. Applicant is languishing in jail since 13.04.2023 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the trial. 5. Learned counsel for the informant submits that on the inducement of applicant and the other co-accused, informant has supplied paddy worth about Rs.30,00,000/- to the three firms. Learned counsel for the informant further submits that on 13.4.2023 a sum of Rs.3,00,000/- has been paid by the co-accused Sachin Gupta. He submits that applicant may be directed to pay the amount of goods supplied. He submits that after rejection of anticipatory bail application, applicant has not appeared before the court concerned and non bailable warrant was issued against applicant, whereafter he has been arrested and as such, it would not be in the interest of justice to release the applicant on bail. 6. Learned A.G.A. has appointed the argument of learned counsel for the informant. Learned AGA for the State has pointed out the criminal antecedents of the applicant. No material or circumstance has been brought to the notice of this Court with regard to tampering of evidence or intimidating of witness in previous criminal cases. In Ash Mohammad Vs. Shiv Raj Singh, (2012) 9 SCC 446, the Apex Court in para 30 has observed:- "We may hasten to add that when we state that the accused is a history- sheeter we may not be understood to have said that a history-sheeter is never entitled to bail. But, it is a significant factor to be taken note of regard being had to the nature of crime in respect of which he has been booked." 7. In the case of Prabhakar Tewari Vs. State of U.P. and another, 2020 (11) SCC 648, the Hon'ble Supreme Court has observed that pendency of several criminal cases against an accused may itself cannot be a basis for refusal of bail. 8. In so far as criminal antecedents of the applicant is concerned, it is not the case of the State that applicant might tamper with or otherwise adversely influence the investigation, or that he might intimidate witnesses before or during the trial. The State has also not placed any material that applicant in past attempted to evade the process of law. If the accused is otherwise found to be entitled to bail, he cannot be denied bail only on the ground of criminal history, no exceptional circumstances on the basis of criminal antecedents have been shown to deny bail to accused, hence, the Court does not feel it proper to deny bail to the applicant just on the ground that he had criminal antecedent. 9. The principle that Bail is a rule and Jail is an exception has been well recognised by Apex Court more specifically on the touch stone of Article 21 of the Constitution. The said principle has been reiterated by the Apex Court in Satyendra Kumar Antil Vs. Central Bureau of Investigation and another, 2022 (10) SCC 51. Learned AGA has not shown any exceptional circumstances which would warrant denial of bail to the applicant. 10. No material, facts or circumstances has been shown by learned AGA for the State that the accused may tamper with the evidence or witnesses or the accused is of such character that his mere presence at large would intimidate the witnesses or that accused will use his liberty to subvert justice or tamper with the evidence. 11. It is settled principle of law that the object of bail is to secure the attendance of the accused at the trial. No material particulars or circumstances suggestive of the applicant fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like have been shown by learned AGA for the State. 12. Learned AGA for the State has not shown any material or circumstances that the accused/applicant is not entitled to bail in larger interests of the public or State. 13. At this stage, learned counsel for the applicant submits that applicant is ready to give heavy sureties of Rs.1,00,000/- each to ensure presence of the applicant and that applicant undertakes to appear before the court concerned on the date fixed unless specifically exempted in writing by the court concerned. 14. Both learned counsel for applicant and informant as well as AGA agrees that the trial may be expedited in the case looking to the facts and circumstances of the case. 15. In the present case, as per prosecution, the applicant who is alleged to be agent has induced the informant for supply of paddy worth about Rs.30,59,028/- to three firms, namely, M/s Shyam Lal and Sons, M/s Fakirchand and Sons and Krishikeels Private Limited. The aforesaid paddy was sent through a transporter. The applicant is not the transporter. When the sale consideration of the aforesaid paddy was not received by the informant, who is seller, the present FIR has been lodged. It is not the case of the informant that the paddy supplied to the firms, were not existing. The transporter has duly supplied the goods to the firms as per informant. It is not the case of the opposite party including informant that the applicant is the Director/Partner of the firms, to whom the goods have been supplied. The dispute in the present case, prima facie, appears to be a civil dispute arising out of business transaction. 16. Considering the facts and circumstances of the case, nature of offence, evidence, complicity of the accused, submissions of learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. 17. Let the applicant Subhash Gupta involved in Case Crime No. 09 of 2020, under Sections 420, 406 IPC, Police Station Moth, District Jhansi be released on bail on furnishing a personal bond and two sureties Rs.1,00,000/- each in the like amount to the satisfaction of the court concerned subject to the following conditions:- i. The applicant will not tamper with the evidence during the trial. ii. The applicant will not pressurize/intimidate the prosecution witness. iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicant shall make himself available for interrogation by a police officer as and when required. iv. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. v. 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 or tamper with the evidence. vi. The applicant shall not leave India without the previous permission of the Court. vii. In the event, the applicant changes residential address, the applicant shall inform the court concerned about new residential address in writing. viii. Applicant shall remain present before the trial court on the date fixed unless specifically exempted in writing by the court concerned. 18. In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court. 19. The trial court is directed to complete the trial expeditiously preferably within a period of one year, without granting unnecessary adjournment to the parties. Order Date :- 10.8.2023 D. Tamang Digitally signed by :- DHIRENDRA TAMANG High Court of Judicature at Allahabad