Heard learned counsel for the applicant as well as the learned A.G.A. for the State.
As per the version contained in the First Information Report, a copy of which has been brought on record as Annexure No. 2, the informant had stated that Rukhsar Ahmad Shah and Firdaus Ahmad Shah who are running a company under the name and style of "Umeed Trading Company" wherein they have floated a scheme that they will pay 10% interest on their invested amount.
It is also alleged that having been lured with the aforesaid lucrative offer, the informant invested a sum of Rs. 4,00,000/-which belonged to the informant of his hard earned savings. In view of the aforesaid investment, the informant was issued a notorized acknowledgement but till now, the informant has not received a penny apart from the assurance that they will return the aforesaid amount. When the informant repeatedly insisted to return his money, they abused and threatened him for dire consequences.
It was also alleged that the accused and Ruksar Ahmad Shah were fooling a number of innocent people and had duped them of their hard earned savings.
The submission of learned counsel for the applicant is that the allegations in the First Information Report are false, inasmuch as, it is stated that the alleged occurrence took place at Alimah Show Room at Shalimar Elldee Plaza, Bhoot Nath, Faizabad Road, Lucknow but actually the said office remained closed since May, 2017 and thus the allegation that the occurrence took place on 14.12.2017 is also false.
It has also been urged that Rukhsar Ahmad Shah, the husband of the applicant is the main partner in "Umeed Trading". The applicant on the other hand is an honest businesswomen running her company in the name of Firdaus Textiles Pvt. Ltd. Since the husband of the applicant had been running the firm "Ummeed Trading" and being a member of the family, she had been inducted in the said firm but the main managing partner has been her husband Sri Rukhsar Ahmad Shah.
It is further submitted that on account of demonetization, the firms of the applicant and her husband suffered losses and it is on account of the aforesaid reasons that there was a cash crunch. Though, the applicant never induced any person to invest in any such scheme promising exorbitant returns, however, since the husband of the applicant was running the business, hence, 20 First Information Reports were lodged against the applicant along with her husband as she has been unnecessarily roped in. The detail of number of cases have been mentioned in Chart-A contained in pargraph 20 of the bail application.
The learned counsel for the applicant submits that in the instant case, the applicant has been incarcerated in jail since 30.10.2017. Apart from the cases as mentioned in Chart-A which are of similar nature and all have been instituted in the year 2017 as a result of a cascading effect, the applicant has no criminal history. She is an honest businesswomen having two children aged about 12 and 9 years of age who have been deprived of their maternal love and affection and under grave circumstances, are residing with their grandparents.
The learned counsel for the appellant has further submitted that apparently the allegations are primarily against her husband Rukhsar Ahmad Shah but being the wife and a partner, she has also been dragged into the controversy. Nevertheless, the husband of the applicant has been arrested on 18.06.2021 whereas as far as the applicant is concerned, the investigation is complete and a charge sheet has already been filed before the Competent Court.
It has also been pointed out by the learned counsel for the applicant that in most of the cases, the aggrieved persons have also instituted cases under Section 138 of the Negotiable Instruments Act.
It has also been urged that in none of the cases, though, the charge sheet has been filed, but the trial has yet not commenced and the applicant has already undergone a substantial period of 3 and half years in Jail and that too at the pre-trial stage. The maximum sentence in most of the offences is 7 years and are triable by the Magistrate and in the aforesaid circumstances, it is a fit case where the applicant is entitled to be enlarged on bail.
The learned counsel for the applicant has also submitted that in a number of case crime numbers, the details of which has been mentioned in Chart-A contained in paragraph 20 of the bail application. The applicant has already been bailed out and the true copies of the bail orders have been brought on record along with the rejoinder affidavit whereas this bail order in Case Crime No. 681 of 2017 has been annexed as Annexure No. 6 with the bail application.
The learned A.G.A. has vehemently opposed the bail application and it has been primarily urged that the applicant along with her husband had floated a ponzi scheme to lure innocent persons who have invested their hard earned savings. At the time when the aforesaid investments were to mature, they realized that it was nothing but a farce, moreover, the husband of the applicant had been absconding and only recently on 18.06.2021, he has been apprehended and is now in custody.
The learned A.G.A. has also submitted that there are large number of cases of similar nature regarding financial embezzlement against the applicant and in such circumstances, the applicant is not entitled to be enlarged on bail.
Having heard the learned counsel for the parties and from the perusal of the record, certain undisputed facts at this stage are that all the offences as mentioned in the First Information Report are relating to the financial embezzlement. The learned A.G.A could not dispute the fact that the applicant has been in Jail for more than three and a half years. It is also not disputed that the trial has yet not commenced and the husband of the applicant has also been apprehended. The learned A.G.A. could further dispute that the investigations are complete and the charge sheet has been filed and therefore there is no apprehension regarding the tampering of any evidence so also could not dispute the fact that the applicant is not at the risk of fleeing justice.
Considering the aforesaid facts and circumstances as well as considering the case of Data Ram Singh Vs. State of U.P. and Others decided by the Apex Court on 06.02.2018 in Criminal Appeal No. 227 of 2018and taking a holistic view of the matter, including the nature of allegations and accusation against the applicant, the severity of the punishment if convicted and the period of incarceration as well as the fact that no apprehension has been expressed by the learned AGA that the applicant is at the risk of fleeing justice or that he would tamper with evidence or influence any witness, hence, at this stage, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail.
Let the applicant Mrs. Firdous involved in Case Crime No. 1077 of 2017, under Sections 147, 504, 506, 420 and 406 IPC, Police Station Gazipur, District Lucknow be released on bail on her furnishing a personal bond with local two reliable sureties each in the like amount to the satisfaction of the court concerned.
At the time of executing required sureties the following conditions shall be imposed in the interest of justice.
(i) The applicant shall surrender her passport to the Court concerned.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.
(iii) 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 of the Indian Penal Code.
(iv) 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. is issued and the 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 of the Indian Penal Code.
(v) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.
(vi) The applicant shall neither influence any witness nor tamper with any evidence after his release.
Order Date :- 12.8.2021 Asheesh