High Court
Case Details
Court No. - 79 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44431 of 2021 Applicant :- Upendra Kumar Verma Opposite Party :- State of U.P. Counsel for Applicant :- Abhinav Gaur,Ankit Shukla,Mohd. Rashid Siddiqui Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
Legal Reasoning
Learned counsel for the applicant has further drawn the attention of this Court towards paragraph-27 read with paragraph- 52 of the bail application so as to contend that applicant does not possess criminal history, except the cases, which are intermingled and off-shoot of the present matter, as in this regard, learned counsel for the applicant has drawn the attention of this Court towards the bail rejection order starts from page-58 relevant extract at page-59 of the paper-book, wherein the applicant has sought to argue that so far as Case Crime no. 546 of 2020 is concerned, applicant has been enlarged on bail by a coordinate Bench of this Court in Crl. Misc. Bail Application No. 45989 of 2021 on 31.1.2022, so far as Case Crime no.572 of 2020 is concerned, applicant stands bailed out by a coordinate Bench of this Court in Crl. Misc. Bail Application No. 46049 of 2021 on 23.2.2022, so far as Case Crime no. 571 of 2020 is concerned, applicant has been bailed out on 8.2.2022 in Criminal Misc. Bail Application No.51635 of 2021, so far as Case Crime no. 565 of 2020 is concerned, applicant has been bailed out on 22.2.2022 in Criminal Misc. Bail Application No.44510 of 2021, so far as Case Crime no. 562 of 2020 is concerned, applicant has been bailed out on 31.1.2022 in Criminal Misc. Bail Application No.46437 of 2021. Learned counsel for the applicant has further argued that so far as Case Crime no.580 of 2020, 966 of 2020 and 564 of 2020, are concerned, they have been referred to, relied upon and noticed while granting bail in the aforesaid cases, and so far as Case Crime no.563 of 2020 is concerned, applicant is in the process of obtaining bail and he is thus languishing in jail since 23.8.2022. If the applicant is released on bail, he will not misuse the liberty of bail, he be enlarged on bail. Countering the said submission, the learned AGA has opposed the bail while arguing that applicant has committed the offence, as such he has been proceeded with and merely because he has tendered his resignation, his liability cannot be said to be eliminated, however, learned A.G.A. has argued that the applicant has explained the criminal history, however, passing of the order in the present bail application may not be construed to an expression that the same will also be a ground to hold that the applicant stands bailed out in other cases in which he has not been bailed out. Considering the submissions so advanced by the learned counsel for the parties on the question of bail, this Court prima facie finds that this is a fit case for grant of bail, as criminal history has been properly explained and the applicant has been languishing in jail since 23.8.2020, as also looking into the nature of acquisition, the evidence collected by the I.O, in support of the charge, gravity of offence, nature and severity of the punishment in the case of conviction, complicity of accused and all attending circumstances. Courts have taken notice of the overcrowding of jails during the current pandemic situation (Ref.: Suo Motu Writ Petition (c) No. 1/2020, Contagion of COVID 19 Virus in prisons before the Supreme Court of India). These circumstances shall also be factored in while considering bail applications on behalf of accused persons. In the light of the aforenoted discussion and without making any observations on the merits of the case, the bail application is allowed. Let the applicant- Upendra Kumar Verma involved in aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :- i) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial. (ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment. (iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail. (iv) 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 to any police officer or tamper with the evidence. (v) Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Any observations made in granting bail to the applicant shall not in any way affect the learned Trial Judge in forming his independent opinion based on the testimony of the witnesses. Order Date :- 10.3.2022 N.S.Rathour Digitally signed by NIPENDRA SINGH RATHOUR Date: 2022.03.11 17:44:37 IST Reason: Location: High Court of Judicature at Allahabad
Arguments
Heard Sri Vibhu Rai (A.O.R. No.A/V 0074/2012) holding brief of Sri Abhinav Gaur, learned counsel for the applicant, and Sri Indrajeet Singh Yadav, learned AGA for the State. This bail application purported to be under Section 439 of the Cr.P.C. has been moved on behalf of applicant- Upendra Kumar Verma for enlarging him on bail in Case Crime No.570 of 2020, under Sections 409, 411, 420, 467, 468, 471, 504, 506 & 120-B I.P.C, registered at Police Station- Phase-3, District- Gautam Budh Nagar. The bail application so preferred by the applicant has been rejected by the court below on 23.3.2021. Learned counsel for the applicant has argued that a first information report has been lodged by Mahendra Singh Rana son of Sri Govind Singh Rana before P.S. Phase-3, District Gautam Budh Nagar being FIR No.0570 on 12.8.2020 at 18:00 hours under Sections 420, 406, 467, 468, 471, 504, 506 I.P.C. relatable to commission of the offence against the applicant and 7 others, wherein the applicant has been shown to be the Ex- Director of the Westland Trade Private Limited. Learned counsel for the applicant has further argued that as per the case so set up by the prosecution itself being the complainant himself has come up with the stand that he was the aspirant and he even in fact invested certain money for the execution of the agreement relatable to the scheme so sought to be floated by the Company concerned, however, despite the fact that he has made the payment in this regard and completed the formalities from his end, but he has been duped in that regard. Learned counsel for the applicant has drawn the attention of this Court towards page-35 so as to contend that he has tendered resignation and his resignation was accepted on 3.2.2020, pursuant to the Board's resolution dated 3.2.2020. Learned counsel for the applicant has further sought to argue that even from the narration of the FIR relevant extract at page-19, certain payments were sought to be made by the complainant and on 11.12.2019, he insisted for execution of the agreement, however, as certain payments were not made, so the agreement was not executed and the last payment which is shown to be made is on 4.2.2020 to the tune of Rs.2,50,000/-, as apparent from page-20, 2nd line from the top and on 3.2.2020 the applicant himself resigned and same was accepted by the Board itself, and no criminal liability can be fastened upon him. Learned counsel for the applicant has sought to argue that even if the entire case of the prosecution is taken to its face value, then it is the commercial transaction and present remedy is not appropriate legal remedy. Learned counsel for the applicant has further argued that it is Sri Ashish Joshi, whose name finds place in the FIR, wherein he was instrumental in mobilizing the entire motion with respect to the payment of the money of the complainant, he has already been enlarged on bail in Crl. Misc. Bail Application No. 18251 of 2021 on 30.6.2021, order whereof is being quoted hereinunder: - "30.6.2021 Heard learned counsel for the applicant, Sri Vikas Sahai, the learned A.G.A for the State and perused the record. The present bail application has been filed by the applicant in case crime No. 570 of 2020, under Sections 420, 467, 468, 471, 504, 506, 409, 120B IPC, Police Station Phases-III, District Gautam Budh Nagar with the prayer to enlarge him on bail. For the purposes of considering the prayer for grant of bail, the Court takes note of the submission of learned counsel that the allegations as levelled clearly establish the existence of a commercial dispute since undisputedly the shop in question did commence operations. It was further contended that there is no allegation that the applicant induced the informant to enter into that commercial relationship on a false promise. It is further contended that the business essentially faltered and suffered losses on account of the ensuing pandemic. The Court also takes note of the orders passed on Criminal Misc. Bail Application Nos.7137 of 2021, 18041 of 2021 and 9715 of 2021 in terms of which the applicant against whom similar F.I.Rs. have been lodged by other franchisees has been accorded bail. The applicant has been in jail since 04 December 2020. Learned counsel for the applicant submits that in case the applicant is enlarged on bail he shall not misuse the liberty of bail. Learned AGA has opposed the prayer for grant of bail to the applicant but could not point out anything material to the contrary. Considering the facts and circumstances of the case as also the submissions noticed above, without commenting upon merits of the case, I am of the opinion that the applicant is entitled to be released on bail. Let the applicant Aashish Joshi be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:- (i) The applicant shall not tamper with the evidence or threaten the witnesses. (ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when 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. (iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code. (iv) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (v) 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 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. (vi) It shall be open to the State to move this Court for cancellation of the bail accorded, if upon due verification it be found, that a declaration or statement made in this petition was false or incorrect or in case any material fact or information is found to have been concealed or withheld. (vii) In view of the measures adopted by the High Court during this period in light of the upsurge of COVID cases, the respondents and all other authorities shall proceed in accordance with the directions contained in this order, upon presentation of a copy thereof downloaded from the official website of the Court and duly authenticated by the counsel on record being presented. Counsels may authenticate the downloaded copies by affixing their signatures thereon and recording their Bar Council registration number as well as the Advocate Roll Number as allotted by this Court. In case of default or breach of any of the aforementioned conditions it shall be open to the Investigating Officer to file an appropriate application before this Court for cancellation of the bail granted."