Abhay Patel vs State Of U.P. & Others
2018 Latest Caselaw 2178 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED ON:- 03.08.2018
 
	DELIVERED ON:-  27.08.2018
 

 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 13817 of 2010 
 

 
Petitioner :- Abhay Patel 
 
Respondent :- State Of U.P. & Others 
 
Counsel for Petitioner :- Bajarang Bahadur Singh 
 
Counsel for Respondent :- Govt. Advocate, Awadhesh Singh, R.P. Shukla, Shailesh Kumar Tripathi 
 

 
Hon'ble Siddharth,J. 

Heard Shri Bajarang Bahadur Singh, learned counsel for the petitioner and Shri Shailesh Kumar Tripathi, learned counsel for the respondent.

This revision is directed against the judgment and order dated 03.07.2010 passed by Additional Sessions Judge, Court No. 11, Varanasi in Bail Application No. 1570 of 2010 (Abhay Patel vs. State of U.P.) in Case Crime No. 282 of 2010 under Sections 420, 406, 120-B I.P.C., P.S. Lanka, District- Varanasi, regarding the pre-conditions imposed in the bail order directing payment of certain amount to certain person mentioned in the order, before release of the applicant on bail.

The brief facts of the case of the petition are that on 05.06.2010 respondent no. 3, Vijay Kumar Verma, lodged a first information report against Uma Shankar Verma and against the petitioner, owner of Modern Technology Coaching Institute, Varanasi. The allegation is that the informant is an unemployed youth. One, Uma Shankar Verma, introduced him to the petitioner, Abhay Patel, who was co-owner of the coaching and the petitioner assured him that in case the informant pays Rs. 1,50,000/- he can get job for him. He paid the aforesaid amount to the petitioner through Uma Shankar Verma but he neither secured him any job nor returned the money. Petitioner has taken similar amounts on the promise of providing job from Ramesh Kumar, Prabhat Singh, Ajad Singh and Ram Sakal Singh and from many other youths on the pretext of providing them jobs but neither provided jobs nor returned their amounts. Petitioner was arrested by the police and during investigation names of 16 other persons who were found to have been cheated by the petitioner came to light.

The petitioner applied for bail before the court below and he was directed to be enlarged on bail by the order dated 03.07.2010 but condition was imposed that the petitioner will return the amounts taken from 16 other persons, besides the informant, respondent no. 3 and shall furnish undertaking to this effect within a month that he will deposit the bank drafts of the amounts mentioned in the order in their favour. The petitioner has approached this Court challenging the condition imposed in the bail order dated 03.07.2010 passed by the Court below.

By the interim order dated 02.08.2010, this Court stayed the condition imposed by the court below, in the bail order 03.07.2010. Counter affidavit has been filed on behalf of the respondent no. 3, justifying the impugned order on the ground that condition imposed therein is in accordance that Section 437(3) Cr.P.C. and the order is justified and does not calls for any interference by this Court.

Learned Counsel for the petitioner has placed reliance upon the judgment of the Apex Court in the case of Sandeep Jain vs. National Capital Territory of Delhi, LAWS (SC) 2000 (1) 32 and has argued that in this case the Apex Court disapproved the condition of deposit of Rs. 2 lakhs as pre-condition for grant of bail. He has further relied upon the judgment of the Apex Court in the case of Amarjeet Singh vs. State of National Capital Territory of Delhi, LAWS (SC) 2002-1-57 and has argued that case in Section 406 and 420 I.P.C., the condition of deposit of Rs. 15 lakhs as FDR for grant of anticipatory bail under Section 438 was disapproved by the Apex Court. He has further relied upon the Apex Court's judgment in the case of Shyam Singh vs. State through CBI, 2000 LAW SUIT (SC) 924 wherein the Apex Court held that the direction of payment of Rs. 1 lakh per month to the informant after his release on bail cannot be justified since it is open to the court to grant or refuse bail be to assume that an offence can be committed at the stage of grant of bail and direct repayment of amount is both onerous and unwarranted. Reliance on the judgment of the Apex Court in the case of Sheikh Ayyub vs. State of M.P., LAW (SC) 2000-9-177 has also been relied upon wherein direction for deposit of Rs. 2,50,000/- was made as a pre condition for grant of bail.

Learned counsel for the respondent no. 3, has placed reliance upon the judgment of the Apex Court in the case of Nimagadda vs. CBI, (2013) 7 SCC 466, wherein the Apex Court held that the economic offence constitute a class apart and need to be vested with a different approach in the matter of bail. Reliance upon the case of Y.S. Jagar Mohan Reddy vs. CBI, 2013 (7) SCC 439 has also been made wherein the release of the accused pending investigation of economic offence was turned down by the Apex Court. Finally, reliance upon the judgment of this Court dated 11.11.2016 passed in Application Under Section 482 Cr.P.C. no. 13805 of 2016 Ravindra Rai vs. State through CBI has been made wherein this Court held that in economic offences the direction can be issued for deposit of the money unlawfully taken by the accused causing loss to the state government.

After considering the rival submissions and the authorities cited on their behalf, this court finds that the Apex Court in general has held that the condition for deposit of any amount as a pre condition of grant of bail is not justified and has set aside the same as clear from the judgment of the Apex Court in the case of Santosh Jain (supra), Amarjeet Singh (Supra) etc., cited above. However, in the case of economic offences the Apex Court has directed that the amount found by the investigating officer to have been illegally taken by the accused and in unlawful loss to the state Government, the deposit of the amounts by the accused as a pre condition of grant of bail was justified by this court, in the case of Ravindra Rai (supra).

This court in the case of Ravindra Rai (Supra) relied upon the judgment of the Apex Court and other judgments where losses were caused by the accused persons of big magnitude of money. In the present case the alleged loss has been caused to private persons and the investigating officer has found that the petitioner has caused similar losses to many other persons.

The court below relying upon the investigation of the case has directed the payment of certain amounts to various persons found by the investigating officer to be the persons who have also been cheated by the petitioner.

It is clear from the record that only respondent no. 3 had lodged the first information report alleging that he paid Rs. 1,50,000/- to the petitioner. From the investigation conducted by the police this allegation has been found to be proved but the same is required to be proved before the court concerned in trial. It could not be justified, keeping in view the mandate of the Apex Court in the case of Sandeep Jain (supra), Amarjeet Singh (supra), etc., to saddle the petitioner with the liability of making payments to all the persons named in the impugned order who were not even informant, except the respondent no. 3.

Therefore, the impugned order dated 03.07.2010 passed by Sessions Judge, Court No. 11, Varanasi in bail application no. 15170 of 2010, Abhay Patel vs. State of U.P. is modified and the petitioner is directed to make payment of Rs. 1,50,000/- to the respondent no. 3 in pursuance of the aforesaid order which shall be subject to final outcome of trial.

The writ petition is partly allowed to the extent stated above.

Order date:- 27.08.2018

Rohit