Rajeev Kumar vs State Of H.P
2021 Latest Caselaw 846 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.53 of 2021 Reserved on: 27.01.2021.

.

Date of Decision: Feb. 4, 2021.

    Rajeev Kumar                                                ...Petitioner.





                              Versus

    State of H.P.                                             ...Respondent.





    Coram:

The Hon'ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting?1NO

_____________________________________________________________

For the petitioner: Mr. Naveen K. Bhardwaj, Advocate.

    For the respondent: Mr.Sudhir    Bhatnagar,    Additional
                        Advocate General with Ms. Seema


                        Sharma, Deputy Advocate General with
                        Mr. Shriyek Sharda, Senior Assistant
                        Advocate General    and Mr. Manoj
                        Bagga,       Assistant      Advocate




                        General.





                  THROUGH VIDEO CONFERENCE

        FIR   Dated            Police Station                  Sections





        No.
        65    18.02.2019Sadar,       District 420,467,468,
                        Hamirpur, H.P.        471 and 120B
                                              IPC
    Anoop Chitkara, Judge

The petitioner, incarcerating upon his arrest for

committing fraud, has come up before this Court seeking

regular bail.

Whether reporters of Local Papers may be allowed to see the judgment?

2. Earlier, the petitioner had filed a petition under

Section 437 CrPC before the concerned Chief Judicial

.

Magistrate. However, vide order dated 07.01.2021 Ld. Chief

Judicial Magistrate, Hamirpur HP, dismissed the petition

because the petitioner is a habitual offender.

3. Though, the bail application is silent about the

criminal history of the petitioner, but as per status report, so

different police station.

r to many cases are pending/registered against the accused in

4. Manager of the Kangra Central Co-operative Bank,

Bhota, Distt Hamirpur, made a complaint to SHO in the

following terms:-

"Application to lodge FIR against. Sh. Pawan Kumar (Lonee) Sh. Rajeev Kumar (Guarantor) for

frauding/cheating the Kangra Central Co-operative Bank Ltd. B.O. Bhota distt Hamirpur. Sir, we have financed a

loan (personal Loan) to Sh. Pawan Kumar but we have come to know that he along with guarantors cheated the bank by submitted forgery DDO certificate and wrong

address. The detail of the loan as follow: Name of the loanee Pawan Kumar father names Sh. Prem Chand address as provided to bank will kothi PO Town Bharari Distt Hamripur official address (...do) Sr. Asstt unit Killer 38 BRIF (GREF) Manali Distt Kully Actual Address VPO Bhamrol Tehsil Bhoranj Distt. Hamirpur date of loan sanctioned 21.03.2005 amount sanctioned 40,000/- security 1.DDOCertificate (Seems to be forged) issued by Ex. Engineer, 70 Road Constr. Coy. General Reserve Engineer Formation Manali (HP) 2. Two Guarantors 1) Rajeev Kumar village Kothi PO Twon Bharari Distt. Bamirpur @ M.9816445788. 2) Preet Pal S/o Sh. Amar Singh village Mehari, PO Nalti, Tehsil Ghumarwin, Distt.

Bilaspur. Amount recovered 1. 3600/- as on 21.6.2005 through draft. 2. Rs.2500/- as on 15.9.2005 (cash) 3. Rs.200 as on 15.6.2005 (from SBI A/c) 4. 5000 as on 20.7.2006 (by cash). We also received two letter from the

.

lonee written on 13.6.2005 and 19.6.2006 (without

signature) and a cheque (dt26.5.2006) amounting to Rs.15000/- of third party relating to Himachal Gramin bank Ponta was also sent by him to be credited in his loan

amount but the same cheque was not realized with the memorandum" Suit recovery has been filed please do not lodge any cheque in future on dated 11.11.2006. The loanee was returning the amount n intervals. When we did not receive some installments and try to meet him, we

come to know that they all have given wrong address in the loan accounts that ie there was no one was such name of found on the address. There after we try to find there address where come to know in the month of

October, 2008 that the loanee Sh. Pawan Kumar belongs

to VPO Bhamrol. We send the notice to him, his guarantors and DDO but all were returned back by the post office within following remarks. 1. Pawan kumar receivers has gone out of home address is not known. 2.

Rajeev Kumar address written is not complete. 3. Preet pal Singh the man of this name is not in BD NALTI. 1. DD incomplete address. I also visited village Dhamrol on 8.12.2008 and try to meet him but in vain. I was told by a

Mazdoor that a house which is under construction is of Pawan Kumar. We come to know that he is a fraud man

when we Tribune dt. 30.12.2008 that three persons are arrested for Bank fraud and found the name of Pawan Kumar (Loanee) and Rajeev Kumar (guarantor among the

3 (copy enclosed). Thereafter I approached my bank head office on the same dt with all facts and figures with a request to advice for action. w e should take. The bank has advised us to lodge FIR against this defaulter for this cheating. There I request your good to kindly to lodge FIR against loanee and both the guarantors. Balance position is of the account is as follow: Principal 41119-00. Interest 6400-00 up to 31.12.2008 loanee (actual address) Sh. Pawan Kumar S/o Prem Chand VPO Dhamrol. The Bhoranj, Distt. Hamirpur guarantors. Rajeev Kumar S/o Sh. Prem Chand, VPO dhamrol, The. Bhoranj, Distt. Hamirpur. Actual address 2 Preet Pal Singh S/o Amar Singh Village Mahari, PO Kathala The Ghumarwin Distt.

Bilaspur. For the Kangra central Cooperative bank ltd. Sd. Manager Bhota Distt. Hamirpur dt. 18.2.2009." Based on these allegations, police registered the FIR

.

mentioned above.

5. Ld. Counsel for the petitioner contends that

incarceration before the proof of guilt would cause grave

injustice to the petitioner and family.

6. While opposing the bail, the alternative contention

on behalf of the State is that if this Court is inclined to grant

bail, such a bond must be subject to very stringent conditions.

7. The possibility of the accused influencing the

investigation, tampering with evidence, intimidating witnesses,

and the likelihood of fleeing justice, can be taken care of by

imposing elaborative and stringent conditions. In Sushila

Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional Bench

held that unusually, subject to the evidence produced, the

Courts can impose restrictive conditions.

8. Since the amount involved is Rs.40,000/- and the

petitioner is only a guarantor and is already in custody since

06.01.2021 that is around from one month.

9. An analysis of entire evidence does not justify

further incarceration of the accused, nor is going to achieve any

significant purpose. Without commenting on the merits of the

case, the stage of the investigation and the period of

.

incarceration already undergone would make out a case for bail.

10. In the facts and circumstances peculiar to this case,

the petitioner makes out a case for release on bail.

11. Given the above reasoning, the Court is granting bail

to the petitioner, subject to strict terms and conditions, which

shall be over and above and irrespective of the contents of the

form of bail bonds in chapter XXXIII of CrPC, 1973.

12. In Manish Lal Shrivastava v State of Himachal

Pradesh, CrMPM No. 1734 of 2020, after analysing judicial

precedents, this Court observed that any Court granting bail

with sureties should give a choice to the accused to either

furnish surety bonds or give a fixed deposit, with a further

option to switch over to another.

13. The petitioner shall be released on bail in the FIR

mentioned above, subject to his furnishing a personal bond of

Rs. Twenty-five thousand (INR 25,000/-), and shall furnish two

sureties of a similar amount, to the satisfaction of the Judicial

Magistrate having the jurisdiction over the Police Station

conducting the investigation, and in case of non-availability,

any Ilaqa Magistrate.Before accepting the sureties, the

concerned Magistrate must satisfy that in case the accused fails

to appear in Court, then such sureties are capable to produce

.

the accused before theCourt, keeping in mind the

Jurisprudence behind the sureties, which is to secure the

presence of the accused.

14. In the alternative, the petitioner may furnish

aforesaid personal bond and fixed deposit(s) for Rs. Twenty-five

thousand only (INR 25,000/-), made in favour of "Chief Judicial

Magistrate, District Hamirpur, H.P.,"

a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g., HDFC Bank, ICICI

Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the linked account.

b) Such a fixed deposit need not necessarily be made from

the account of the petitioner and need not be a single fixed deposit.

c) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.

d) If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall get the online liquidation disabled.

e) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such information be sent either by e-mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR number.

f) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

g) It shall be total discretion of the petitioner to choose

between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa.

h) Subject to the proceedings under S. 446 CrPC, if any,

.

the entire amount of fixed deposit along with interest

credited, if any, shall be endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A

CrPC, 1973, or until discharged by substitution as the case may be.

15. The furnishing of the personal bonds shall be

deemed acceptance of the following and all other stipulations,

terms, and conditions of this bail order:

a) The petitioner to execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay the proceedings, and

undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A

CrPC.

b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s), WhatsApp

number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioner shall immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.

c) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or

the Court, or to tamper with the evidence.

d) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer;

.

and shall cooperate with the investigation at all further

stages as may be required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail. Whenever the investigation occurs within the police

premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

e) In addition to standard modes of processing service of

summons, the concerned Court may serve or inform the accused about the issuance of summons, bailable and non- bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if

any). [Hon'ble Supreme Court of India in Re Cognizance for

Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020]:

i. At the first instance, the Court shall issue the

summons.

ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the

concerned Court may issue bailable warrants.

iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to procure the

petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose.

16. The petitioner shall surrender all firearms,

ammunition, if any, along with the arms license to the

concerned authority within 30 days from today. However,

subject to the provisions of the Indian Arms Act, 1959, the

petitioner shall be entitled to renew and take it back in case of

acquittal in this case.

.

17. The petitioner shall neither stare, stalk, make any

gestures, remarks, call, contact, message the victim, either

physically, or through phone call or any other social media, nor

roam around the victim's home.

18. During the trial's pendency, if the petitioner repeats

or commits any offence where the sentence prescribed is more

than seven years or violates any condition as stipulated in this

order, the State may move an appropriate application before this

Court, seeking cancellation of this bail. Otherwise, the bail

bonds shall continue to remain in force throughout the trial and

after that in terms of Section 437-A of the CrPC.

19. Any advocate for the petitioner and the Officer in

whose presence the petitioner puts signatures on personal

bonds shall explain all conditions of this bail order, in

vernacular and if not feasible, in Hindi.

20. In case the petitioner finds the bail condition(s) as

violating fundamental, human, or other rights, or causing

difficulty due to any situation, then for modification of such

term(s), the petitioner may file a reasoned application before this

Court, and after taking cognizance, even to the Court taking

cognizance or the trial Court, as the case may be, and such

Court shall also be competent to modify or delete any condition.

.

21. This order does not, in any manner, limit or restrict

the rights of the Police or the investigating agency from further

investigation per law.

22. Any observation made hereinabove is neither an

expression of opinion on the merits of the case, nor shall the

23. to trial Court advert to these comments.

In return for the protection from incarceration, the

Court believes that the accused shall also reciprocate through

desirable behavior.

24. The SHO of the concerned Police Station or the

Investigating Officer shall arrange to send a copy of this order,

preferably a soft copy, to the victim, at the earliest. In case the

victim notices any objectionable behavior or violation of any

terms or conditions of this order, the victim may inform the

SHO of the concerned Police Station or the Trial Court or even

to this Court.

25. There would be no need for a certified copy of this

order for furnishing bonds. Any Advocate for the petitioner can

download this order along with the case status from the official

web page of this Court and attest it to be a true copy. In case the

attesting officer or the Court wants to verify the authenticity, such

an officer can also verify its authenticity and may download and

.

use the downloaded copy for attesting bonds.

The petition stands allowed in the terms mentioned

above.

Anoop Chitkara, VacationJudge.

February 4, 2021 (R.Atal)