Krishan Chand vs State Of U.P.
2021 Latest Caselaw 7361 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

1
 
Judgment Reserved on 1.7.2021
 
Delivered on 9.7.2021.
 
Court No. - 68
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50997 of 2019
 

 
Applicant :- Krishan Chand
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Akhilesh Singh,A.T. Pandey,Ashok Nath Tripathi,Jyoti Bala,Rajan Srivastava,Shivam Yadav
 
Counsel for Opposite Party :- G.A.,Sujeet Kumar
 

 
Hon'ble Saurabh Shyam Shamshery,J.

1. This Court is convened through video conferencing.

2. Heard Shri B.P. Srivastava, learned Senior Advocate assisted by Ms. Jyoti Bala, Advocate for applicant, Sri Gaurav Gaur and Sri P.H. Vashishtha, Advocates for Complainant and learned A.G.A. for State and perused the record.

3. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.0258 of 2019, under Sections 408, 420, 467, 468, 471 and 120-B of I.P.C., Police Station-Phase Second, Noida, District-Gautam Budh Nagar after rejection of his Bail Application vide order dated 10.10.2019 passed by learned Additional District and Sessions Judge, Court No.5, Gautam Budh Nagar.

4(a). A complaint was lodged before the police on 24.4.2019 on behalf of a company namely M/s. Virtual Employees, which deals with providing services to various clients across the globe relating to remote offshore office services of its personnel/employees working under the physical supervision of the Company. 

(b). Applicant a well qualified person was working with the company in the Accounts Department since 2002 and allegedly was responsible for handling all accounts and finance in day to day basis. It is also alleged that during the course of employment, applicant earned so much trust that he started operating all bank accounts exclusively.

(c) It is further alleged that since 2017-18 and 2018-19, the applicant had been transferring funds from legal bank accounts of the company to another accounts which was manipulatively operated by the applicant with ICICI Bank. Co-accused were actively participated in hatching conspiracy and they transferred about Rs. 5 Crores during this period to the account, which was used to purchase different properties.

(d) In January 2019, when complainant detected the fraud, they confronted the applicant who admitted his guilt and entered a Memorandum of Understanding dated 2.3.2019 for repayment of Rs.1.18 Crores and to hand over a flat within a month.

(e) It is brought on record that the complainant company has filed suit for specific performance before Karkarduma Court, Delhi against applicant and his wife, co-accused on 9.4.2019.

(f) In these circumstances F.I.R. was lodged against applicant and two co-accused under Sections 420, 467, 468, 471, 408 and 120-B I.P.C. for misappropriation of funds, criminal breach of trust, cheating, forgery of amount of about Rs.5 Crores.

5. Pleadings are complete.

6. Sri. B.P.Srivastava, learned Senior Counsel assisted by Ms. Jyoti Bala, learned counsel for the applicant has argued:-

(i) Essentially it is a civil dispute between two entities which has been given a colour of criminality.

(ii) Complainant Company has already availed civil remedy by way of filing suit for specific performance of a Memorandum of Understanding dated 2.3.2019 entered between the company and applicant and his wife co-accused on 9.4.2019.

(iii) The complainant filed F.I.R. under the above referred offence on 24.4.2019 concealing the fact of filing suit for specific performance on 11.4.2019. Object of filing F.I.R. is only to pressurize the applicant to settle the issue.

(iv) Applicant has not committed any criminal breach of trust, cheating or forgery of valuable security. There was no embezzlement by the applicant, rather amounts were transferred by the applicant only on directions of the employer.

(v) Applicant had worked only under suspension of Manager of accounts department. He had not operated any bank account on his own. The conditions of Memorandum of Understanding have already been satisfied and paper of flats have been handed over to the other party.

(vi) Applicant is in jail since 1.7.2019. He has no other criminal history and after investigation charge-sheet was submitted on 27.9.2019. There is no chance for absconding and there is no reason to keep the applicant behind bars. The prosecution case mainly rests on documents which are already seized and there is no possibility of either tampering with evidence or influencing any witness, the application deserves to be allowed.

7. Shri Gaurav Gaur and P.H. Vashistha, Advocates for complainant and the learned A.G.A. have opposed the bail on the following grounds:-

(i) Applicant along with co-accused have hatched a conspiracy and in a planned manner embezzled the money which is around 5 Crores. He not only misused trust imposed by the employer but dishonestly misappropriated funds of the Company for his own use and for his family members.

(ii) Applicant had forged salary sheet and got the salary of other employees transferred to his own account. He has committed forgery of valuable security by fraudulently opening a company's account operated by him alone and got the money siphoned off. The offence under Sections 468 I.P.C. is punishable with imprisonment of life also.

(iii) Learned counsel further submitted that applicant has disclosed about a bank account in ICICI and certain other facts that co-accused (wife of applicant) was shown as employee of the company. Applicant was operating a bank account of company where huge money was transferred. This information was placed before the Investigating Officer by the informant.

(iv) The applicant has committed grave offence and there are sufficient evidence against him. In case of bail, he could leave India as well he would try to influence the witnesses, therefore, present bail application is liable to be rejected.

8 (A). Law on bail is well settled that 'Bail is a rule and jail is an exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused.

(B). It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered.

(C). It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the court for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

(D). The Court while granting bail in the cases involving sexual offence against a woman should not mandate bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others Vs. State of Madhya Pradesh and another, 2021 SCC Online SC 230, in this regard.

9. The applicant was an employee with the complainant company working in the accounts department. It appears that during the period of 2017-18 and 2018-19 applicant had transferred some funds of the company for his personal use. The dispute was settled and parties were entered in a Memorandum of Understanding dated 2.3.2019 on certain conditions:

(a) Apparently, the terms of the MOU were not executed, therefore, company has filed a suit for specific performance against applicant and his wife on 11.4.2019. The amount involved was Rs.1.18 Crores.

(b) Subsequently to filing of suit, it appears that Company came to know about some more embezzlement of funds by the applicant and an F.I.R. was lodged on 24.4.2019 against the applicant and co-accused alleging an embezzlement of about Rs.5 Crores without disclosing that a civil suit is pending between the parties.

(c) The main thrust of the arguments of complainant and the learned A.G.A. is based on pleadings of the suit, where according to them the applicant has disclosed and accepted that he had embezzled money of the company to the tune of Rs.5 Crores. On the other hand, learned Senior Counsel for the applicant has mainly argued that it is a case where civil dispute is given a colour of criminality.

(d) It is not disputed that a civil litigation is pending between the parties before a competent court. The complainant has concealed the fact of pending civil litigations in the F.I.R. After conclusion of investigation, a charge-sheet was filed on 27.9.2019. In the present case, predominantly dispute is of a civil nature which has been given the guise of a criminal offence that too after availing civil remedies. Apparently, the purpose of lodging F.I.R,. is to settle score and to pressurize the applicant and co-accused to settle the dispute by increasing the amount of embezzlement to Rs.5 Crores on the basis of certain disclosures made in the written statement filed by the applicant.

10. Pleadings of a civil suit could not be made a ground to keep the applicant in jail. The applicant has no other criminal history and he is in jail since 1.7.2019, therefore, on the basis of above discussion, the applicant is entitled to be released on bail in this case.

11. Let the applicant Krishan Chand, involved in aforesaid case crime number be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

(i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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., may be issued and if 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 I.P.C.

(v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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 and the trial court may proceed against him under Section 229-A IPC.

(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

(vii) The applicant shall deposit his passport before the concerned court.

(viii) The applicant shall appear before the Station Incharge Phase II Gautambudh Nagar in first week of every month to record his presence.

(ix) Applicant shall disclose his new address in case there is change in the address.

12. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

13. The bail application is allowed.

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

15.The computer generated copy of such order shall be self attested by the counsel of the party concerned.

16. 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.

17. The observations made hereinabove are only for the purpose of adjudicating the present bail application.

Order Date :- 9.7.2021

SB