Akhil Sarda vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 10566 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4344 of 2023
 

 
Applicant :- Akhil Sarda
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
 
Counsel for Applicant :- Divyanshu Bhatt,Desh Deepak Singh,Shashwat Singh
 
Counsel for Opposite Party :- G.A.,Nadeem Murtaza,Nilish Anand,Sudhanshu S. Tripathi
 

 
Hon'ble Rajeev Singh,J.

Counter affidavits filed by Sri Nadeem Murtaza, learned counsel for the informant and Sri Rao Narendra Singh, learned A.G.A. are taken on record.

Sri Jaydeep Narain Mathur, Senior Advocate assisted by Sri Desh Deepak Singh, learned counsel for the applicant refuses to file rejoinder affidavit.

Heard Sri Jaydeep Narain Mathur, learned Senior Advocate assisted by Sri Desh Deepak Singh, Sri Divyanshu Bhatt, Sri Shashwat Singh, learned counsel for the applicant, Sri Prashant Chandra, learned Senior Advocate assisted by Sri Nadeem Murtaza, Sri Sudhanshu Shekhar Tripathi and Ms. Mahima Pahwa, learned counsel for the informant and Sri Rao Narendra Singh, learned A.G.A for the State of U.P.

The present bail application has been filed on behalf of the applicant in F.I.R. No. 260 of 2018, under Sections 406, 420, 467, 468, 471 and 120-B I.P.C., Police Station Hussainganj, District Lucknow, with the prayer to enlarge him on bail.

Learned counsel for the applicant submits that the F.I.R. No. 260 of 2018 was lodged on the basis of incorrect facts. He further submits that after going through the contents of the F.I.R. and material collected by the Investigating Officer, no alleged offences can be said to be made out. He also submits that on the date of incident, applicant was working as Branch Sales Manager in M/S United Breweries Ltd. (hereinafter to be referred as 'U.B.L.'), which manufactures alcoholic breweries in the country. He next submits that informant of the present case ordered for delivery of two trucks of beer/supply of breweries on 7.9.2018 and made payment of Rs.65,66,152/- through R.T.G.S. Thereafter, on 11.9.2018, excise permit was issued by the Excise Department in accordance with law for supply of ordered goods to the informant. The validity of the excise permit was upto 13.9.2018 and the goods were supplied on 11.9.2018 through M/S Sical Logistics Ltd. Learned counsel for the applicant vehemently submits that indisputably, two trucks came out from the premises of the factory in accordance with the record of Excise Department. However, later on, those trucks were gone missing, due to which, the goods were not received by the informant. Thereafter, present F.I.R. No. 260 of 2018 was lodged on 16.9.2018. He further submitted that when this fact came into notice of officers of U.B.L., it was informed to M/S Sical Logistics, on which, M/S Sical Logistics also lodged a complaint for loss of two trucks, which was registered as F.I.R. No. 390 of 2018, Police Station Badalpur, District Gautam Buddh Nagar.

Learned counsel for the applicant submits that the during the course of investigation of the present case, the applicant cooperated in the investigation and his statement was recorded twice by the Investigating Officer under Section 161 Cr.P.C., firstly on 6.10.2018 and thereafter on 2.2.2019. The said statements of the applicants are mentioned in Parcha C.D.4 and S.C.D.- 61, respectively. Learned counsel for the applicant further submits that S.C.D.20 was prepared by the Investigating Officer and came to the conclusion that the alleged offences under Sections 406, 420, 467, 468, 471 and 120-B I.P.C. are made out against the applicant and three others. The Investigating Officer also observed that the charge-sheet is being filed against the M/S United Breweries Ltd., Shekhar Rama Murthy, Akhil Sarda (applicant), Arvind Pardhi, Himanshu Kumar Tiwari, without taking them into custody. The court below had taken cognizance on the charge sheet. Thereafter, a petition under Section 482 Cr.P.C. No. 2005 of 2019 was filed before this Court challenging the charge-sheet against the applicant, which was allowed vide order dated 6.3.2020 with the direction to C.B.C.I.D. to conduct further investigation in Case Crime No. 390 of 2018, which was lodged by the Manager of M/S Sical Logistics Ltd.

Learned counsel for the applicant also submits that the aforesaid judgment of this Court dated 6.3.2020 was challenged by the State Government before the Hon'ble Apex Court in Criminal Appeal Nos. 840 of 2022 and 841 of 2022 respectively, which were allowed by the Hon'ble Apex Court vide order dated 11.7.2022 and set aside the order dated 6.3.2020 and restored the proceedings before the trial court in Criminal Case No. 5694 of 2019 arising out of the charge sheet of the present case. The applicant applied for anticipatory bail, which was rejected by the learned Sessions Judge. Thereafter, the application under Section 438 Cr.P.C. was filed before this Court, which was registered as Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No.105 of 2023, which was rejected on 23.1.2023. Thereafter, the applicant approached the Hon'ble Apex Court in Special Leave to Appeal, which was dismissed on 6.2.2023 with the observation that the applicant may apply for regular bail, which may be considered in accordance with law on its own merit as expeditiously without influencing any of the observation made by the High Court or even by the Apex Court. Thereafter, the applicant appeared before the court below, but his bail application was rejected.

Submission of the learned counsel for the applicant is that there is no evidence against the applicant in the entire case diary for the alleged offences. Further, in the case diary, it is recorded by the Investigating Officer that the goods were supplied, but it had gone missing in the way and thereafter, immediately the goods were supplied afresh by M/S U.B.L. on fresh excise permit. The Investigating Officer also observed that the officers of the Excise Department also verified the goods in the godown of the factory. Learned counsel for the applicant, while drawing the attention of the Court towards page No.196 of the bail application, on which, the statement of the informant of the present case is annexed, submits that the statement of the informant was also recorded by the Investigating Officer on 6.10.2018, in which, he categorically stated that he received the ordered goods beyond prescribed time. Further, Mr. Vijay Kumar Singh, Deputy Excise Commissioner (Liquor), Head Quarter, Prayagraj filed affidavit before the Chief Judicial Magistrate, Lucknow, which is mentioned in parcha S.C.D. 29 of case diary, in which, he categorically stated that the ordered goods were supplied by the M/S U.B.L. after ten days. In the said affidavit, it is also mentioned that there is no excise duty evasion. He next submits that the charge sheet has been filed and there is no possibility of tampering of any evidence.

Learned counsel for the applicant, thus, submits that admittedly, the applicant cooperated in the investigation, as has been observed by the Investigating Officer also in the case diary, therefore, he may be enlarged on bail. In support of his argument, learned counsel for the applicant places reliance on the decisions of the Hon'ble Apex Court in the cases of Dataram Singh Vs. State of Uttar Pradesh reported in (2018) 3 SCC 22, Aman Preet Singh Vs. C.B.I. reported in 2021 SCC Online SC 941, Satender Kumar Antil Vs. C.B.I. and Anr. reported in (2022) 10 SCC 51, Chandmal Vs. State of Madhya Pradesh and Anr. reported in 2023 SCC Online SC 127, Govind Prakash Pandey Vs. Directorate of Enforcement, Govt. of India in Criminal Misc. Bail Application No.1943 of 2023, Mahdoom Bava Vs. C.B.I. reported in S.L.P. (Crl.) No.376 of 2023 and Siddharth Vs. State of U.P. reported in (2022) 10 SCC 51.

On the other hand, Sri Prashant Chandra, Senior Advocate vehemently opposes the prayer for grant of bail and, while drawing the attention of the Court towards the Annexure No. C.A.-1, i.e., the order dated 11.7.2022 passed by the Hon'ble Apex Court in Criminal Appeal No. 840 of 2022 (State of Uttar Pradesh & Anr. Vs. Akhil Sarda & Ors.) and Criminal Appeal No.841 of 2022 (Sanjeet Jaiswal Vs. State of U.P. and Ors.), in which, the judgment and order passed by this Court in Petition u/s 482 Cr.P.C. No.2005 of 2019 was challenged, submits that while allowing the aforesaid criminal appeals, the Hon'ble Apex Court categorically observed that there is a large conspiracy and the applicant and other co-accused persons are responsible for the same. He further submits that the goods ordered by the informant of the present case were never supplied. It is, thus, submitted that the applicant is not entitled for bail. However, learned counsel for the informant does not dispute that the informant, in his statement recorded under Section 161 Cr.P.C. accepted that the goods in question were received by him beyond time.

Learned A.G.A., while opposing the prayer of the applicant, submits that Special Leave Petition filed by the applicant was dismissed with a direction to him to appear before the court below and apply for regular bail, but the applicant did not comply the same, due to which, proceeding under Section 82 Cr.P.C. was initiated and thereafter, he appeared and applied for regular bail. It is, thus, submitted that the applicant is not entitled for bail. However, learned A.G.A. also does not dispute that during the course of investigation, applicant cooperated and the charge sheet was filed without taking him into custody as per provisions of Section 170 Cr.P.C.

Learned counsel for the complainant as well as learned A.G.A. also do not dispute this fact that during the course of investigation, statement of the applicant was recorded under Section 161 Cr.P.C. twice and charge sheet was filed by the Investigating Officer without taking him into custody. Learned A.G.A. as well as Investigating Officer of this case, who is present before this Court, also do not dispute the fact, on the basis of material available in the case diary, that goods ordered by the informant were supplied to him subsequently after some delay by paying fresh excise duty, in accordance with law.

Considering the submissions of learned counsel for the applicant, learned A.G.A., learned counsel for the complainant and going through the contents of F.I.R., bail application, counter affidavits of the State as well as informant, case diary, judgments relied by learned counsel for the applicant as well as other relevant documents, it is evident that indisputably, during investigation, statements of the applicant was recorded twice under Section 161 Cr.P.C. It is well settled by the Hon'ble Apex Court that, in case, the accused person cooperates in the investigation and has not misused the liberty granted by the Investigating Officer, he is entitled for bail.

In view of above facts and circumstances, I am of the view that the applicant is entitled to be released on bail.

Let applicant - Akhil Sarda - be released on bail in aforesaid F.I.R. No. 260 of 2018, on his furnishing personal bond and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following conditions:-

(i) The applicant shall not commit or participate in any offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

(ii) 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 or tamper with the evidence.

(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 shall remain present before the Trial Court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A IPC.

(v) 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 IPC.

(vi) 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.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

Trial court is directed to conclude the trial expeditiously without giving any unnecessary adjournments to either of the parties.

Office is directed to communicate this order to the trial court, forthwith.

Order Date :- 11.4.2023

Gaurav/-