Allahabad High Court
Mohd. Tahir Siddiqi vs State Of U.P. on 6 April, 2022
Bench: Sadhna Rani (Thakur)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 90
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43366 of 2021
Applicant :- Mohd. Tahir Siddiqi
Opposite Party :- State of U.P.
Counsel for Applicant :- Javed Husain Khan,Imran Khan
Counsel for Opposite Party :- G.A.,Kranti Kiran Pandey
Hon'ble Mrs. Sadhna Rani (Thakur),J.
Heard learned Counsel for the applicant as well as learned A.G.A. and perused the record.
The accused- applicant is involved in Case Crime No. 0787 of 2021, under Section 471, 323, 504, 506, 406, 420, 467, 468 I.P.C. Police Station Karvi Kotwali Nagar, District- Chitrakoot.
It is argued by the learned counsel for the applicant that sections 406 and 420 I.P.C. cannot be invoked against the applicant at the same time and in support of his version he has invited the attention of the court to the judgment of Wolfgang Reim and others Vs. State and another, 2012 0 Supreme (Del) 2726, wherein in paragraph-34 of the judgment, the finding has been given by the Single Bench that a person cannot be charged with the offence of cheating and criminal breach of trust simultaneously for the same transaction because for the offence of cheating- it is a prerequisite that dishonest intention must exist at the inception of any transaction whereas in case of criminal breach of trust, there must exist a relationship between the parties whereby one party entrusts another with property as per law, therefore, for commission of criminal breach of trust, the dishonest intention comes later. It has also been argued by the learned counsel for the applicant that the trust has not been made a party wherein the allegation upon him is that the complainant was lured by the applicant to invest money in the trust as the applicant showed himself to be the owner / proprietor of the trust. In support of his contention, the applicant's counsel drew the attention of the court to the judgement of Sushil Sethi and another Vs. State of Arunachal Pradesh and others, (2020) 0 (Supreme) SC 100, wherein the Hon'ble Apex Court held that where the main allegations are against the company, the company is to be made a party. It is also argued by the learned counsel for the applicant that his intention was not bad from the very beginning, so section 420 I.P.C. can not be invoked against him. The receipts presented by the complainant are not of the Sakshi trust. The receipts do not bear his signatures also. The allegation against him is only of issuing forged receipts. He is neither the owner of the trust nor he is founder of the same. In the first information report the ingredients of section 406 and 420 I.P.C. can not be said to be present. It is a no evidence case. The applicant is having a criminal history of two cases. He is languishing in jail from 10.1.2021, hence, the prayer for bail is made.
Per contra the learned counsel for the first informant has argued that in his statement under section 161 Cr.P.C. the complainant has clearly stated that the applicant had taken Rs. 4,28,000/- from him to invest in the company and had issued forged documents and committed fraud with him and by committing fraud he misappropriated his whole money. The attention of the court has been drawn by him at the page no. 34-35 of the paper book, wherein the stamp of Sakshi Mutual Benefit Trust is present. It is also alleged that the applicant used to disclose himself to be the owner of the bank. All his customers are poor persons from whom he used to collect money daily. The applicant is having a criminal history of 8-10 cases. Since the age of 17 years till now when he is of 56 years of age, he is continuously committing offence of cheating, misappropriation of money and murder also. If he is released on bail, he will certainly continue to indulge himself in the crime, hence, the bail is opposed.
So far as the judgment of Sushil Sethi and another (supra) is concerned, it is found that the company was considered to be a necessary party when there was no specific allegation and averment in the first information report that the appellants were In-charge of administration and management of the company and thereby vicariously liable. In the present case the applicant is said to be the owner / proprietor of the trust wherein he is said to have lured the complainant to invest the money. It is argued by the learned counsel for the applicant that the receipts issued do not contain the signatures of the applicant. This fact can be proved only by the evidence. The applicant is said to be in custody from 10.1.2021
Having heard the submissions of learned counsel for the parties, considering the seriousness of the charge and the severity of punishment in case of conviction and the nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment, and larger mandate of the Article 21 of the Constitution of India, the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, reported in (2018) 2 SCC 22 and without expressing any opinion on the merit of the case, I find it to be a case of bail.
Let the applicant Mohd. Tahir Siddiqi 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 subject to following conditions.
1. The applicant will attend and co-operate the trial proceedings pending before the court concerned on the dates fixed after release.
2. He will not tamper with the witnesses.
3. He will not indulge in any illegal activities during the bail period.
The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.
It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case.
In case of breach of of any of the above conditions, it shall be a ground for cancellation of bail
Order Date :- 6.4.2022
Gss
