Allahabad High Court
Dharmendra Kumar vs State Of U.P. on 5 February, 2025
Author: Ashutosh Srivastava
Bench: Ashutosh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:15876
Judgement Reserved On : 20.01.2025
Judgement Delivered On : 05.02.2025
Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42120 of 2023
Applicant :- Dharmendra Kumar
Opposite Party :- State of U.P.
Counsel for Applicant :- Ashok Kumar Singh,Atul Kumar Shahi,Dewendra Singh,R.P.S. Chauhan,Sarita Kumari,Vijay Kumar Rai,Vipin Kumar Singh
Counsel for Opposite Party :- G.A.,Sanjeev Kumar Singh
Hon'ble Ashutosh Srivastava,J.
Heard Sri R. P. S. Chauhan along with Sri Vipin Kumar Singh, learned counsels for the applicant, Sri Sanjeev Kumar Singh, learned counsel for the first informant and Sri Arimardan Yadav, learned AGA for the State and perused the record.
The instant bail application under Section 439 Cr.P.C. at the instance of the applicant Dharmendra Kumar has been filed seeking enlargement on bail in Case Crime No. 22 of 2021 under Sections 419, 420, 467, 468, 471, 406 IPC, Police Station Shahpur, District Gorakhpur during the pendency of the trial before the court below.
It has been argued that the applicant is innocent and has been falsely implicated in this very case for ulterior motive. The FIR is the result of an afterthought lodged after three years of the alleged incident and it is for this reason that no date and time has been mentioned in the FIR. The allegations levelled in the IR has been cooked up and is far from the reality. The applicant was doing private work and took financial assistance/loan from the informant but on account of financial crisis could not repay the same. Some hot talk took place between the applicant and the informant and the informant threatened the applicant to sell his property to him and on the denial of the applicant to sell his property, the informant on the basis of false and forged documents is trying to grab the property of the applicant by implicating the applicant in this false case. The FIR has been lodged only for exerting pressure over the applicant. At the time of taking loan the informant had taken two blank cheques as security which he did not return and now has lodged the FIR using the cheques.
After investigation the charge sheet against the applicant has already been submitted on 29.06.2023 and the custodial interrogation of the applicant is no longer required. The applicant has not prepared any forged documents at any point of time and cheated the informant. No documents or any other incriminating articles has been recovered from the applicant and no case under Sections 419, 420, 467, 468, 471 and 406 IPC is made out.
It is further argued that in the charge sheet dated 29.06.2023 submitted against the applicant 13 prosecution witnesses have been mentioned. The learned AGJM/SD-I, Gorakhpur vide order dated 17.07.2023 has taken cognizance and the trial of he case registered as Case No. 38903 of 2023 (State Vs. Dharmendra and another) is proceeding at a snail's pace even though the applicant has been extending his full cooperation by being present on each and every date fixed. Criminal history of 4 cases besides the instant case has been shown against the applicant which has been duly explained in the supplementary affidavit dated 08.09.2024.
It is also argued that the charge-sheet against the applicant was submitted as far back as on 29.06.2023. The trial court has already taken cognizance of the same vide order dated 17.07.2023. Even after passage of considerable time the trial has not proceeded nor the charge has been framed nor any prosecution witnesses has been examined despite full cooperation of the applicant. A purely civil dispute has been given the colour criminality. The applicant is languishing in jail since 25.06.2023. Hence the bail has been claimed.
Per contra, Sri Sanjeev Kumar Singh, learned counsel for the first informant in opposition to the bail application submits that the applicant had taken Rs. 38 Lacs from the first informant for providing job in State Bank of India and did not provide the job. When the money was asked to be returned the applicant issued the two cheques and also executed the Agreement to Sale of his house in favour of the first informant in lieu of the amount of Rs. 38 Lacs taken The applicant has duped others also and is not entitled to be released on bail.
Likewise, learned AGA in opposition to the bail application has submitted that the applicant took money to the tune of Rs. 38 Lacs from the first informant on the pretext of providing job to two sons of the first informant. He failed to provide the job. He gave written assurance that he will get registered his house in the name of the first informant and also gave two cheques to Rs. 29 Lacs and Rs. 9 Lacs to the first informant in lieu of the money taken. However, the bank account was closed and cheques could not be presented for encashment. During the course of investigation the Investigating Officer has collected the forged interview letter and re-training letter. All the witnesses of the case have stated in their statements recorded under Section 161 Cr.P.C. that the applicant had taken the money for providing job. The wife of the applicant in her statement has also deposed that her husband took money to provide jobs and neither the money was paid back nor the sale deed of the house was executed. The applicant has committed offences punishable under Sections 419, 420, 467, 468, 471, 406 IPC and the applicant does not deserve to be released on bail.
Having heard learned counsel for the parties and having perused the records of the case, I find that the charge sheet against the applicant was filed as far back on 29.06.2023. The Trial Court took cognizance of the same vide order dated 17.07.2023, the charge has yet not been framed nor any of the witnesses have been examined. The Apex Court in the case of Vinod Bhandari Vs. State of Madhya Pradesh reported in 2015(11) SCC 502 in Para 12 observed as under:-
"12. It is well settled that at pre-conviction stage, there is presumption of innocence. The object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be passed. The detention is not supposed to be punitive or preventive. Seriousness of the allegation or the availability of material in support thereof are not the only considerations for declining bail. Delay in commencement and conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for indefinite period if trial is not likely to be concluded within reasonable time. Reference may be made to decisions of this Court in Kalyan Chandra Sarkar vs. Rajesh Ranjan1, State of U.P. vs. Amarmani Tripathi, State of Kerala vs. Raneef and Sanjay Chandra vs. CBI."
In the same judgment in Para 18 thereof the Apex Court has observed as under:-
"18. It is certainly a matter of serious concern that the appellant has been in custody for about one year and there is no prospect of immediate trial. When a person is kept in custody to facilitate a fair trial and in the interest of the society, it is duty of the prosecution and the Court to take all possible steps to expedite the trial. Speedy trial is a right of the accused and is also in the interest of justice. We are thus, of the opinion that the prosecution and the trial Court must ensure speedy trial so that right of the accused is protected??????."
In view of the above and also considering the larger mandate of the Apex Court laid down in the case of Dataram Singh Vs. State of U.P. and another) reported in 2018(3) SCC 22 that the "Bail is a Rule and Jail is an exception, I am inclined to release the applicant on bail.
Accordingly, the bail application is allowed.
Let the accused-applicant, Dharmendra Kumar, involved in above mentioned case crime number be released on bail, on his executing a personal bond and two reliable sureties each, in the like amount to the satisfaction of the court concerned, subject to the following conditions:
1. The applicant will not tamper with the evidence.
2. The applicant will not indulge in any criminal activity.
3. The applicant will not pressurize/intimidate the prosecution witnesses and co-operate in the trial.
4. The applicant will appear regularly on each and every date fixed by the trial court, unless his personal appearance is exempted through counsel by the court concerned.
In the event of breach of any of the aforesaid conditions, the court below will be at liberty to proceed to cancel his bail.
Order Date :- 5.2.2025
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