Ram Kulshestra vs State Of H.P
2021 Latest Caselaw 854 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 2263 of 2020 Reserved on: Feb. 1st 2021.

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                                    Date of Decision:      2021.





    Ram Kulshestra                                                           ...Petitioner.





                                    Versus

    State of H.P.                                                           ...Respondent.





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

    Whether approved for reporting?1 NO

    For the petitioner:     Mr. Dheeraj K. Vashista, Advocate.

For the respondent: Mr. Rajinder Dogra, Senior Addl. Advocate General with Mr. Vikrant Chandel, Deputy Advocate General, Addl.

Advocate General.

                             THROUGH VIDEO CONFERENCE




        FIR No. Dated            Police Station      Sections
        26    of 18.3.2020       Paonta       Sahib, 409 & 420 IPC.





        2020                     District Sirmour,
                                 H.P.





    Anoop Chitkara, Judge.

The partner of the proprietorship made a written complaint in the Court of learned ACJM Paonta Sahib, under Section 153 Cr.P.C. The learned ACJM forwarded the same to the concerned Police Station, which led the registration of FIR No. 26 of 2020 and the petitioner, is now apprehending arrest came up before this Court under Section 438 CrPC, seeking anticipatory bail.

2. A perusal of the petition reveals that the petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a three Judges

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

Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 &

15), wherein the Full bench holds that a person can directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the

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Sessions Judge.

3. In Para 9 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the accused.

4. Briefly, the allegations against the petitioner are that the complainant is running the manufacturing unit of ayurvedic, herbal and cosmetics products at Village Barotiwala, Tehsil paonta Sahib (H.P.) under the name and style of Vedovas Herbal Care. The accused is a market professional, who is having a good experience,

strategies and techniques for attracting customers and for promoting the sales of a manufacturing company. The accused came in contact with the complainant in the month of February 2018, for enhancing the sales of the complainant in other States of

India, such as U.P., Delhi, Rajasthan, Bihar, J & K and Punjab. The accused made the

complainant believe that the sales of the complainant shall be doubled and tripled, if the accused is given a chance to serve the complainant. The complainant was allured by him and the complainant accepted all his conditions, on which the accused wanted

to do business with the complainant as the agent of the complainant. For this purpose, the accused demanded 25% profit/commission, out of the profit on the total

sales, so done through the accused by the complainant and the accused also asked to supply goods/material on credit basis to various persons at different places, on his

verbal guarantee/surety, as those persons were already well known to the accused and he was already supplying some other products to them. The complainant reposed

faith in the accused and accepted all the conditions of the accused. Apart from the above terms and conditions, the accused also demanded a monthly salary of Rs. 60,000/- and the Car, make Ford Fiesta, belonging to one of the partner of the complainant firm, bearing Registration No. CH01 AH 7990 for marketing the products of the complainant. The complainant also agreed to these demands of the accused. The accused took away the Car also and started working. Initially, the accused made contact with (I) M/s Jai Hanuman Traders, Agra, (ii) M/s R. P. Enterprises, Lakhnow, (iii) M/s Shri Balaji Pharma, Delhi, (iv) M/s Yogesh Traders, Jaipur, (v) M/s Upasna Enterprises, Bihar, (vi) M/s Promise, Ranchi, (vii) M/s Ganpati Bangle Store, Kapurthala, (viii) M/s JD Enterprises, Jammu and (ix) M/s

Virat Associates, Meerut, U.P. and asked the complainant to send the goods to all these persons. On the direction and instructions of the accused, the complainant supplied the material to the above mentioned persons of approx. Rs. 52 lacs, as

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mentioned in the account statement. Out of the above material, the accused got made

payment of Rs. 25 lacs only, from the said persons and still an amount of about Rs. 27 lacs is found recoverable from the accused, as all the material was sent by the

complainant to those persons on the personal guarantee of the accused. The accused from time to time, i.e. since 08.02.2018 to 31.08.2018 also received an amount of Rs. 7,70,270/- from the complainant in his account through bank transfers and cash. From the month of June, the business of the complainant was stopped by the accused

as he stopped talking/communicating with the complainant and also stopped sending orders to the complainant. He also stopped making the balance payment. When the accused was contacted, he did not give any satisfactory reply. Now, it came to the

knowledge of the complainant that the accused has started transferring the goods on

his own, without the knowledge of the complainant from one person to another, where the goods are already supplied by the complainant and he has also started collecting cash amount from those persons and misappropriating the funds, as he is

receiving such amount, on behalf of the complainant and he is not remitting the same to the complainant. The complainant on coming to know these facts, contacted the

accused with a great difficulty, then he avoided the matter, he also refused to return the Car, which was given to him. The accused has also not given any account of the

payment so received by him i.e. an amount of Rs. 7,70,270/-. It is crystal clear that the intention of the accused from the very beginning was to deceive the complainant

and to cause financial loss to him. The accused misappropriated the money, received by him, on behalf of the complainant, as an agent, so he is guilty of offence of cheating and criminal breach of trust. Based on these allegations, the Police registered the FIR mentioned above.

5. Ld. Counsel for the petitioner contends that during interim bail, the petitioner joined the investigation, and custodial investigation would serve no purpose whatsoever. The 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.

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REASONING:

7. In the facts and circumstances peculiar to this case, the petitioner makes out a

case for release on bail. The status report reveals that the petitioner was employed on monthly salary of Rs. 60,000/- and commission of 25%. The company had also given him a Car. Due to Covid-19 pandemic, certain recovery could not take place. Considering the patrimonial caused due to Covid-19 pandemic, at this stage, it would

be difficult to arrive any finding that the petitioner intentionally defrauded the complainant. However, it is not a final opinion and it is subject to the outcome of the investigation. Given above, there is no justification of any custodial investigation.

8. 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. In Sumit Mehta v.

State of N.C.T. of Delhi, (2013)15 SCC 570, Para 11, Supreme Court holds that while exercising power Under Section 438 of the Code, the Court is duty-bound to

strike a balance between the individual's right to personal freedom and the right of investigation of the police. While exercising utmost restraint, the Court can impose

conditions countenancing its object as permissible under the law to ensure an uninterrupted and unhampered investigation.

9. Given the above reasoning, coupled with the peculiar facts and circumstances of the case, 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.

10. 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.

11. Given above, the petitioner shall be released on bail in the FIR mentioned

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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 Investigator. Before accepting the sureties, the Attesting Officer must satisfy that in

case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court, keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused.

12. 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 Sirmour, H.P.,"

a) The arresting Officer shall give a time of ten working days to enable the

accused to prepare a fixed deposit.

b) 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.

c) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

d) 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.

e) 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.

f) 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.

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

h) 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.

i) 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

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expiry of the period mentioned under S. 437-A CrPC, 1973, or until discharged

by substitution as the case may be.

13. 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 in 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

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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. 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.

17. In case of non-appearance, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount

without interest) that the Government(s) might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, and also subject to the provisions of Sections 446 & 446-A of CrPC. The

petitioner's failure to reimburse shall entitle the trial Court to order the transfer of

money from the petitioner's bank account(s). However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner alone, and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and

that voyage was not for any other purpose/function what so ever.

18. 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.

19. 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.

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20. This order does not, in any manner, limit or restrict the rights of the Police or

the investigating agency from further investigation per law.

21. Any observation made hereinabove is neither an expression of opinion on the

merits of the case, nor shall the trial Court advert to these comments.

22. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.

23.

There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status

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

attesting officer 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.

Copy Dasti.

Anoop Chitkara, Vacation Judge.

Feb 4, 2021 (kck).