Bail App No. 158/202 vs Union Territory Of J&K
2021 Latest Caselaw 775 j&K

                                                                                       S. No. 249
                               HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                                              AT JAMMU

                                                                          Bail App No. 158/2020
               Rajesh Kumar Kashyap                                     ...Appellant/Petitioner(s)


                                Through :- Mr. Arvind Singh Jalmeria, Advocate
                               v/s   <




               Union Territory of J&K                                 .....Respondent (s)
               't




                                     Through :- Mr. Raman Sharma, AAG
               Coram:            HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

                                                       ORDER

1. The present bail application has been filed by the petitioner for

grant of bail in FIR bearing No. 18/2020 for commission offences under

sections 420/468/467 IPC registered with Police Station, Crime Branch,

Jammu on the ground that the petitioner was arrested in the month of January,

2020 and thereafter, the challan has been filed against him.

2. It is stated that the petitioner is the only bread earner of his

family and the custody of the petitioner is not required for the purpose of any

investigation. It is further stated that the petitioner had earlier filed bail

application before the court of learned 2nd Additional Sessions Judge, Jammu

(hereinafter to be referred as trial court) and the learned trial court vide order

dated 29.07.2020 had dismissed the said bail application.

3. Response stands filed by the respondent in which it is stated that

a written complaint was lodged by one Javed Ahmed Zargar S/o Din Mohd.

Zargar R/o Village Kilothran Bhallesa Tehsil Gundoh District Doda A/P

Chirag Colony Bathindi Morh, Jammu alleging therein that in the month of

February, 2019, he received a message on facebook from one lady namely

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Christina George that she wants to share in some business investment in India

and gave her whatsapp number. After that he received a phone call from

another lady claiming her to be a custom officer from Delhi International

Airport and told him to talk with the lady "Christina George" who has come

to India from UK. During conversation with said Christina George, she told

him that she came to India with huge amount of money and custom officials

at airport have seized her money for clearing the custom duty amounting to

rupees two lakhs. She further told him that she had no money to meet the

required custom duty, as all her money has been seized so she needs rupees

two lakhs. The complainant then transferred an amount of Rs. 1.06 lakhs in

the given account. After that, the said lady allured him on one pretext or the

other for getting her released and her alleged seized money and gave him

various accounts and subsequently the complainant transferred huge amount

in the given accounts. After that said so called Christina George again called

him and told that she has not been given the seized amount and the amount is

lying with the custom department. The complainant advised her to contact

U.K Embassy for help but she told that she had already contacted the embassy

and informed him that one Mr. Philip will contact him soon. Thereafter, a

person claiming as Mr. Philip contacted complainant and demanded more

money for release of seized amount of Chirstina George. On the directions of

said person, the complainant again transferred huge amount in given accounts

crediting Rs. 88,58,883/- (Rupees eighty eight lakhs fifty eight thousand eight

hundred and eighty three) in total from his personal bank accounts.

4. It is further stated that on receipt of this complaint, a preliminary

enquiry was initiated and subsequently, FIR bearing No. 32/2019 for

commission of offences under sections 420, 465, 467, 468, 471, 120-B RPC NEHA KUMARI 2021.08.03 10:10 I attest to the accuracy and integrity of this document

was registered at Police Station, Crime Branch Jammu. Respondent in the

response has stated details of the accounts in which a sum of Rs. 88,58,883/-

was deposited and during the course of investigation, the teams were sent to

different locations to trace out the accused persons but the given addresses on

customer application forms (CAFs) and account opening forms (AOFs) were

found to be fake, fabricated and fictitious. Ultimately, on 15.12.2019, one

accused namely Raj Kumar was arrested from Delhi and was brought to

Jammu and his confessional statement was recorded in which he disclosed

that he along with other accused namely Rajesh Kumar Kashyap-petitioner

herein and others had hatched a criminal conspiracy and prepared Aadhar

card of Raj Kumar by changing his parentage from Kedar Singh to Ramesh

and provided fake address. On the basis of fake Aadhar card, the accused

persons prepared PAN card and after getting both the documents, the accused

persons purchased various sim cards in the name of Raj Kumar and opened

various bank accounts saving as well as current accounts in different bank

branches at Delhi and Noida. It is further stated that after hectic efforts, the

petitioner herein was arrested on 08.01.2020 and during his personal search

besides other items, voter card in the name of petitioner and voter card and

pan card in the name of Anurag Mittal were recovered. It was found that the

petitioner in connivance with officers/officials of various departments

prepared voter card and pan card in the name of Anurag Mittal. It is further

stated that the petitioner has been committing financial frauds by cheating

gullible victims in criminal connivance of his Delhi based associates and

some Nigerian Nationals through fraudulent means. Statement of the

petitioner was recorded and on the basis of disclosure made by the petitioner,

seven banks accounts in the name of Anurag Mittal were traced out in which NEHA KUMARI 2021.08.03 10:10 I attest to the accuracy and integrity of this document

transaction of worth laks of rupees was detected. It was further revealed that

the petitioner is one of the kingpins of an organized cybercrime frauds

operating from Delhi-NCR in association with accused Raj Kumar and other

Delhi based cyber officials. It was also stated in the response that FIR bearing

No. 56/2019 for commission of offences under sections 406, 420, 468, 471,

34 IPC stands registered with Police Station, Chamarajpet Bangalore (fraud of

Rs. 1.72 crore) against the petitioner. It is further stated that the petitioner is

also involved in various other cases i.e. FIR No. 7726/2019 registered with

Cybercrime Police Station Bangalore City, FIR No. 50/2020 registered with

Police Station Shivaji Park Mumbai and FIR No. 61/2020 registered with

Police Station, Crime Branch, Mumbai. It is further stated that other gang

members are still at large. It has been reliably learnt that after the arrest of

accused persons, other co-accused persons have vanished to evade arrest. In

view of this, preliminary charge sheet in the instant case against the petitioner

and Raj Kumar stands filed in the court on 12.02.2020.

5. Mr. Arvind Singh Jalmeria, learned counsel for the petitioner has

vehemently argued that the petitioner has been in custody since January, 2020

and the investigation is complete. So, custody of the petitioner is not required

by the respondent.

6. Per contra, Mr. Raman Sharma, learned AAG submits that the

petitioner is guilty of duping worth crores of rupees along with his associates

and he is one of the kingpins of the organized cyber criminals. So, the

petitioner is not entitled to bail.

7. Heard and perused the record.

8. The Hon'ble Apex Court in case titled Prahlad Singh Bhati vs.

NCT, Delhi (2001) 4 SCC 280 has laid down as under: NEHA KUMARI 2021.08.03 10:10 I attest to the accuracy and integrity of this document

The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.

9. From the record, it is evident that there are serious allegations of

duping gullible and innocent people of their hard earned money. There are

number of other FIRs of similar nature registered against the petitioner and

other gang members of the petitioner are still at large. The number of FIRs

pending against the petitioner reveals that he is a habitual offender and his

occupation is only to deprive the poor people of their hard earned money and

to become rich at the expenses of poor people. The antecedent of the accused

is also one of relevant consideration for grant of bail. Reliance is placed on

the judgment of the Supreme Court in Neeru Yadav vs. State of UP and

another, 2015 2 Crimes (SC) 101, in which in paragraph 15, it has been held

as under:

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"15.This being the position of law, it is clear as cloudless sky that the High Court has totally ignored the criminal antecedents of the accused. What has weighed with the High Court is the doctrine of parity. A history- sheeter involved in the nature of crimes which we have reproduced hereinabove, are not minor offences so that he is not to be retained in custody, but the crimes are of heinous nature and such crimes, by no stretch of imagination, can be regarded as jejune. Such cases do create a thunder and lightening having the effect potentiality of torrential rain in an analytical mind. The law expects the judiciary to be alert while admitting these kind of accused persons to be at large and, therefore, the emphasis is on exercise of discretion judiciously and not in a whimsical manner."

10. In view of what has been discussed above, there are serious

allegations against the petitioner and if the petitioner is released on bail, there

are every chances of petitioner's jumping over the bail. So, I am of the

considered view that the petitioner does not deserve to be enlarged on bail, as

such, the bail application is rejected.

(RAJNESH OSWAL) JUDGE JAMMU 30.07.2021 Neha Whether the order is speaking: Yes Whether the order is reportable: Yes/No

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