Yakkali Balakrishna Murthy vs State Of U.P. And Another
2022 Latest Caselaw 8182 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on: 14.7.2022
 
Delivered on: 27.7.2022
 
Court No. - 74
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 4008 of 2022
 

 
Applicant :- Yakkali Balakrishna Murthy
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Amarnath Tripathi
 
Counsel for Opposite Party :- G.A.,Ashok Kumar Rai,Jitendra Kumar
 

 
Hon'ble Suresh Kumar Gupta,J.

1. Heard Shri Viresh Mishra, learned Senior Counsel assisted by Shri Amarnath Tripathi, learned counsel for the applicant, learned AGA as well as Shri Mangla Prasad Rai, learned Senior Counsel assisted by Shri Ashok Kumar Rai, learned counsel for the first informant and perused the material available on record.

2. Being aggrieved and dissatisfied with the rejection order dated 1.4.2022 passed by the sessions court, the applicant filed this anticipatory bail application.

3. The present first application under Section 438 Cr.P.C. has been filed by the applicant seeking anticipatory bail apprehending his arrest in Case Crime No. 17 of 2018, under Sections 420, 406 IPC, Police Station- Luxa, District- Varanasi, during pendency of trial.

4. Brief fact of the case is that the FIR was lodged by the first informant against the applicant with the allegations that the complainant is ad-hoc member of the Shri Kashi Annapurna Vaiswi Arya Vaisya Vridhashram and Nityanatram Committee (In short ''Society') whose administrative office is located in Hyderabad. The main objective of this Organization to provide food and lodging facility to the visiting pilgrims and in exchange for this facility, pilgrims donate money to this Institution. On 28.7.2013, the applicant himself declared as a President of the said Society. It has been alleged that during his tenure, the applicant destroyed the arrival and departure register of pilgrims and also destroyed the donation receipts and register of the Society. It has further been alleged that the applicant received donation amount without having been accounted for and sent to administrative headquarters located in Hyderabad. Thus, the applicant misappropriated the money of the said Society and also destroyed the important register of the Society. When the higher official of the administrative office, Hyderabad came to Varanasi on 2.11.2017 for inquiry, all letters, registers and computer data were thoroughly checked and monitored and disclosed above forgery and misappropriation of money. On this allegation, the FIR was lodged against the applicant in the aforesaid case crime U/s 406/420 IPC on 9.3.2018.

5. The counsel for the applicant submits that the applicant is innocent and has been falsely implicated in this case. It is further submitted that the record of arrival and departure and donation receipt register was regularly updated and he neither removed the arrival register or received any donation outside the record book nor criminal breach of trust was committed by him. It is further submitted that due to being computerized system, the applicant during his tenure, the entire donation fund and arrival register was regularly sent to the main branch located at Hyderabad.

6. The learned counsel for the applicant further states that during course of investigation, the investigating officer failed to record the statement of any witnesses located in the main branch of Hyderabad. On the basis of telephonic message and the statement of employees of Varanasi Branch, the investigating officer without collecting cogent and credible evidence filed charge-sheet against the applicant on 27.4.2018 in a routine manner. It is further stated that the informant has no locus as he is neither a victim nor any loss caused to him. As such, the complainant has no authorization letters from the said Society to lodge the FIR. It is also submitted that the Institution did not make any allegations against the applicant as stated above. But due to political rivalry of the informant, the false prosecution has been launched against the applicant. It is further submitted that the applicant is fully unaware as to how he committed cheating and breach of trust. The entire statement of the first informant is having no leg to stand. A perusal of the entire investigation indicates that the investigating officer failed to collect any evidence with respect to alleged amount or any arrival register or breach of trust committed by the applicant. It is also submitted that this case is of civil nature and no criminal offence is made out against the applicant.

7. The learned counsel for the applicant states that the ingredients of an offence of cheating are; (i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act of omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. None of them are fulfilled in the instant case. Thus, no case of cheating against the applicant is made out. The applicant has no previous criminal history and he is ready to cooperate in the trial.

8. The learned counsel for the applicant submits that during investigation, the applicant fully cooperated with the investigating officer. Even the investigating officer did not arrest the applicant during course of investigation. The charge-sheet has already been submitted before the court concerned and the trial court already took cognizance and thereafter in the year 2020 due to Covid-19 pandemic, no summon or bailable warrant was received by the applicant. The NBW was issued against the applicant and when he got the knowledge of the said N.B.W., then he immediately applied for the certified copy of the same.

9. The counsel for the applicant submits that the applicant moved the application on 4.5.2022 through his counsel with the prayer that the case be decided as per law propounded by the Apex Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another (Special Leave to Appeal (Crl.) No.5191 of 2021, decided on 07.10.2021 but the learned Magistrate held that the case is not liable to consider under ''Category A' and the mater would come under the purview of economic offence and thus, rejected the prayer of the applicant.

10. The learned counsel for the applicant submits that the case will not come under the economic offence and it is not a case of corruption by Government officials nor scam nor FERA/FEMA/ED/Bank fraud/GOI/CBI is involved and as such, it will not come within the purview of economic offence. The allegation of financial irregularities was alleged against the applicant, but there is no indication of the misappropriation of the said money. It is further stated that during his tenure, each financial account of Society was regularly updated and sent to the main branch of Hyderabad. It is also submitted that during investigation, the applicant was never arrested by the police in such type of incidents. The counsel undertakes that the applicant is ready to cooperate with the investigation. If the anticipatory bail application is allowed, he shall not misuse the liberty of the same. The applicant has no criminal antecedents.

11. The learned counsel for the applicant in support of his submissions has relied on a catena of judgements of the Apex Court which is as follows:

(i) Satender Kumar Antil Vs. Central Bureau of Investigation and another (Special Leave to Appeal (Crl.) No.5191 of 2021, decided on 07.10.2021

(ii) Siddharth vs. State of U.P. and another decided on 16.8.2021 in Criminal Appeal No. 838 of 2021

(iii) Rekha Jain vs. State of Karnataka and Another 2022 0 Supreme (SC) 424

(iv) Arnesh Kumar vs. State of Bihar decided on 2.7.2014 in Criminal Appeal No. 1277 of 2014 and

(v) Joginder Kumar vs. State of U.P. and others decided on 25.4.1994 in W.P. Crl. No. 9 of 1994

vi) Neelu Chopra and Another vs. Bharti (2009) 10 SCC 184.

12. The learned counsel for the first informant has raised preliminary objection that the present anticipatory bail application is not maintainable inasmuch as after investigation charge-sheet has already been filed before the court below and the trial court took cognizance. Thereafter, bailable warrant was issued to the applicant to appear before the court below, but the applicant failed to appear before the court below. Consequently, NBW was issued to the applicant on 30.4.2022 in which the date of appearance was mentioned as 30.5.2022. Thereafter, the application was moved on behalf of the applicant on 4.5.2022 and he prayed for recall of the said N.B.W. order as per the law propounded by the Apex Court in Satender Kumar Antil (supra). It is further stated that unless and until the accused appears before the court and application is moved on behalf of the applicant, he cannot avail the remedy as per the law propounded by the Apex Court. The offence would come under the purview of the economic offence and the offence under the ''Category D' as mentioned in Satender Kumar Antil (supra) and in these circumstances, appropriate remedy for the applicant is to surrender before the court below in order to obtain regular bail. It is further stated that same nature of offence already lodged against the applicant as Case Crime No. 238/2018 under Sections 406/420/34 IPC at PS Singhri, District- Ahmadnagar on 1.7.2018. Thus, the applicant is having criminal history of same nature. It is also submitted that the co-accused already surrendered before the court of law and his bail application was duly rejected by the Magistrate court while the applicant failed to appear before the trial court and he was declared absconder. Prima facie, a case of anticipatory bail is not made out. So he is not entitled for getting any relief and the present anticipatory bail application is liable to be dismissed on this ground alone.

13. I have heard learned counsel for the parties and perused the record.

14. The main contention of the learned counsel for the applicant is that after issuance of NBW, the applicant could not approach the court concerned. The applicant much earlier moved the anticipatory bail application before the sessions court and the same was rejected vide order dated 1.4.2022. After rejection of anticipatory bail, process of bailable warrant was issued against the applicant and due to non-appearance, order for NBW was also issued against the applicant on 30.4.2022. When the same came to the knowledge of the applicant, he immediately filed application for recall of NBW with the prayer that the said NBW may be converted as bailable warrant as per law propounded by the Apex Court in Satender Kumar Antil (supra). But the trial rejected the same with the findings that there was an allegation of financial irregularities against the applicant and the offence would come under the purview of the economic offence and the allegation for economic offence against the applicant would fall in Category D as mentioned in Satender Kumar Antil (supra). In the said order, it was directed that on appearance of the accused in court pursuant to process of bailable warrant, the case to be decided on merit. Although, the said NBW was issued against the applicant but no process U/s 82 CrPC was issued against the applicant and after rejection of aforesaid anticipatory bail application, the statutory remedy still exists and in pursuance of remedy, the applicant has approached this Court by means of this application.

15. Now coming to the factual matrix of the case, this Court finds that the FIR dated 9.3.2018 was registered against the applicant. But no time, date or period of alleged incident is mentioned. The object of section 438 of the CrPC is to prevent undue harassment of the accused persons in pretrial arrest and detention. The gravity of the offence is an important factor to be taken into consideration while granting such anticipatory bail so also the need for custodial interrogation, but these are only factors that must be borne in mind by the courts concerned while entertaining a petition for grant of anticipatory bail and the fact of taking cognizance or filing of a charge-sheet cannot by itself be construed as a prohibition against the grant of anticipatory bail. This Court has the necessary power vested in them to grant anticipatory bail in non-bailable offences under section 438 of the CrPC even when cognizance is taken or a charge-sheet is filed provided the facts of the case require the court to do so.

16. The Hon'ble Supreme Court in the case of Aman Preet Singh vs. C.B.I. through Director, AIR 2021 Supreme Court 4154, the Court has observed as under:

"10. Insofar as the present case is concerned and the general principles under Section 170 Cr.P.C., the most apposite observations are in sub-para (v) of the High Court judgment in the context of an accused in a non-bailable offence whose custody was not required during the period of investigation. In such a scenario, it is appropriate that the accused is released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.

11. The rationale has been succinctly set out that if a person has been enlarged and free for many years and has not even been arrested during investigation, to suddenly direct his arrest and to be incarcerated merely because charge sheet has been filed would be contrary to the governing principles for grant of bail. We could not agree more with this."

17. In Aman Preet Singh (supra), the Court has clearly held that if a person, who is an accused in a non-bailable/cognizable offence, was not taken into custody during the period of investigation, in such a case, it is appropriate that he may be released on bail as the circumstances of his having not been arrested during investigation or not being produced in custody is itself sufficient to entitle him to be released on bail.

18. Since the applicant was not arrested at the time of investigation and the applicant has one criminal history which is clearly explained in the supplementary affidavit and contention of the learned counsel for the applicant is that this is the subsequent case, however, lodged after this FIR. In that matter, the final report was already submitted. The counsel for the applicant has also relied on the judgement of the Apex Court in Aman Preet Singh (supra). Since the applicant was never arrested during course of investigation and as such, the trial court without appreciating any evidence on merit of the case rejected the aforesaid anticipatory bail application of the applicant vide order dated 1.4.2022.

19. Hence considering the nature of accusations and without expressing any opinion on the merits of the case, 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.

20. Let the applicant- Yakkali Balakrishna Murthy involved in the aforesaid crime be released on anticipatory bail till conclusion of trial on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the trial court concerned with the following conditions:-

1. The applicant shall not leave India during the currency of trial without prior permission from the concerned trial Court.

2. The applicant shall surrender his passport, if any, to the concerned trial Court forthwith. His passport will remain in custody of the concerned trial Court

3. That 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 or to any police officer;

4. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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 to ensure presence of the applicant.

5. In case, the applicant misuses the liberty of bail, the trial Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.

6. 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

21. In view of the aforesaid terms, the present application is allowed.

Order Date :- 27.7.2022

Shravan