B N Vinay Kumar vs State Of U.P.
2021 Latest Caselaw 4862 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

            Reserved On:- 24.03.2021 
 
   Delivered On:- 06.04.2021 
 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1180 of 2021
 

 
Applicant :- B N Vinay Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Manish Kumar Nigam
 
Counsel for Opposite Party :- G.A.,Rajesh Dutta Pandey,Anjani Kumar Mishra
 

 
Hon'ble Siddharth, J.

1. Heard Sri Manish Kumar Nigam, learned counsel for the applicant and Sri Anjani Kumar Mishra, learned counsel for the applicant and learned A.G.A for the State.

2. The instant Anticipatory Bail Application has been filed with a prayer to grant an anticipatory bail to the applicant, namely, B. N. Vinay Kumar, Case Crime No. 268 of 2020, under Sections- 419, 420, 467, 468, 406, 504 and 506 IPC, Police Station- Mutthiganj, District- Prayagraj.

3. Prior notice of this bail application was served in the office of Government Advocate and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.

4. The allegation in the FIR is that the informant is registered power attorney holder of the firm, Panchamukhi Traders, 709, Mutthiganj, Prayagraj, proprietor Rajesh Kumar Kesarwani. Manish Kumar Sahu, assists in the business of the firm and he has a truck which is used in transport of goods. On 31.05.2020 M/s Panchamukhi Traders sent wheat worth Rs. 5,66,775/- vide Bill No. 100 and 417 by the truck no. UP CT 5547 to M/s Shri Krishna Flour Mills Pvt. Ltd., Bangalore, Karnataka through middleman, Niraj Sahu. On 15.06.2020, Panchamukhi Traders supplied wheat worth Rs. 6,87,037/- by the bill no. 149 to M/s Roxy Roller Mills Pvt. Ltd., Bangalore, Karnataka through middleman, Niraj Sahu and on 17.06.2020 wheat worth Rs. 6,86,250/- was supplied to the same firm through same middleman. Total amount of Rs. 19,40,062/- was got transferred by accused persons, namely, Manish Kumar Sahu and Niraj Sahu on the basis of fabricated documents in the account of Jay Maa Vaishnao Trading Company, Mutthiganj, Prayagraj, Proprietor, Shankar Dayal Kesarwani. On 01.06.2020, Panchamukhi Traders supplied wheat worth Rs. 6,88,786/- to M/s Jwala Mala Agro Foods Private Ltd., Bangalore, Karnataka through middleman, Niraj Sahu. Similarly on 02.06.2020, wheat worth Rs. 5,64,750 was supplied to the same firm through same middleman by M/S. Panchamukhi Traders of the informant. Total amount of Rs. 12,53,536/- was got transferred by Manish Kumar Sahu and Vipin Kumar Sahu, by fabrication of document in the account of M/s Bhagwat and Ram Babu Traders, Allahabad from M/s Jwala Mala Agro Foods Pvt. Ltd. Hence, Manish Kumar Sahu, Vipin Kumar Sahu and Niraj Sahu, have misappropriated Rs. 31,53,598/- belonging to the firm of the informant. When the informant asked the aforesaid accused persons to make payment of aforesaid amount, he was threatened by them by licensed pistol and they are trying to kill the applicant and his family members, hence the FIR was lodged.

5. Learned counsel for the applicant has submitted that the applicant is not involved in the transaction. The payment was made by the firm of the applicant, namely, M/s. Jwala Mala Agro Foods Pvt. Ltd., on the direction of the broker, Niraj Sahu, in the account of M/s Bhagwat and Ram Babu Traders. He has made the payment in bonafide belief than the wheat was supplied by the same firm payment whereof was made by him. The applicant is resident of the state of Karnataka and he was being unduly harassed by the police and, therefore, he approached this Court and was granted interim protection. He has further submitted that the applicant has nothing to do with the offence alleged with the co-accused persons. He made the payment to M/s Bhagwat and Ram Babu Trader in genuine belief that the transaction is genuine. Whatever offence has been committed is by the co-accused persons who have been granted anticipatory bail.

6. He has relied upon Section 445 Cr.P.C., and judgment of the Apex Court in the case of Moti Ram vs. State of Madhya Pradesh, 1978 AIR (SC) 1594 and the judgment of Madras High Court in the case of Sagayam @ Devasagayam vs. State, Crl. M.P. No. 888 of 2017 in Crl. O.P. No. 2891 of 2017 dated 24.04.2017 and has submitted that since the applicant is the resident of Bangalore in the State of Karnataka, he cannot produce any local surety and has offered to give security in cash or in the form of a fixed deposit in the name of Court as directed by this Court.

7. Learned counsel for the informant, Sri Anjani Kumar Mishra, has vehemently opposed the bail application by filing counter affidavit. He has submitted that the applicant deliberately made payment of the goods supplied by the applicant to the firm of M/s Bhagwati and Ram Babu Traders and hence the alleged offences are made out against the applicant and he does not deserves to be enlarged on anticipatory bail.

8. After considering the rival submissions, it appears that the applicant has made the payment as admitted in the FIR but in the account of another firm which, as per the allegations in the FIR, never supplied the goods. The main allegations have been made against co-accused persons, namely, Manish Kumar Sahu, Niraj Sahu, Vipin Sahu, Salik Ram Sahu and Sumit Sahu. There is no allegation against the applicant that he has not made any payment at all regarding the goods supplied.

9. Hence without expressing any opinion on the merits of the case and considering the nature of accusations and applicant's antecedents the applicant is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98 and order dated 22.05.2020 passed by this Court in Criminal Misc. Anticipatory Bail Application No. 2609 of 2020. The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court. In case the applicant misuses the aforesaid liberty it will be open for the Government Advocate/ informant/ complainant to file bail cancellation application before this Court for cancellation of this bail granted to the applicant.

10. Let the applicant involved in the aforesaid crime be released on anticipatory bail on furnishing a personal bond of Rs. 5 lakhs and by producing a Fixed Deposit Receipt (FDR) drawn on a nationalized bank bearing maximum rate of interest of the like amount in his name before the Investigating Officer. The aforesaid FDR shall be fixed for an initial period of one year and shall be renewed thereafter, if the investigation is not concluded by the Investigating Officer in the meantime. The applicant will be released on anticipatory bail on the following conditions:-

1. The applicant will cooperate with the investigation being carried out by the Investigating Officer. Since the applicant is residing in a different state the Investigating Officer will send information of the date of appearance of the applicant before him, a week before the date fixed for his appearance.

2. 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 from disclosing such facts to the Court or to any police officer;

3. The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by him before the S.S.P./S.P. concerned.

4. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.

5. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

In default of any of the conditions, the Investigating Officer/Govt. Advocate is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.

The Investigating Officer is directed to conclude the investigation, if pending, of the present case in accordance with law, expeditiously, independently without being prejudiced by any observations made by this Court while considering and deciding the present anticipatory bail application of the applicant.

The applicant is directed to produce a copy of this order downloaded from the official website of this Court before the S.S.P./S.P. concerned within ten days from today, if investigation is in progress who shall ensure the compliance of present order.

Order date:- 06.04.2021

Rohit