Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33275 of 2021 Applicant :- Rishinath Awasthi Opposite Party :- State of U.P.
Counsel for Applicant :- Ashwini Kumar Ojha Counsel for Opposite Party :- G.A.,Madhur Prasad,Malay Prasad
Hon'ble Sanjay Kumar Pachori,J.
Heard Sri Ashwini Kumar Ojha, learned counsel for the applicant, learned A.G.A. for the State and none is present on behalf of informant even in the revised call and perused the record of the case.
An exemption application has been filed on behalf of the applicant along with present application for exempting the filing of certified copy of the F.I.R. as it could not be made available to the applicant due to COVID-19.
The exemption application is allowed.
The filing of certified copy of the F.I.R. is hereby exempted.
The present bail application has been filed on behalf of applicant Rishinath Awasthi under Section 439 of The Code of Criminal Procedure, with a prayer to release him on bail in Case Crime No. 314 of 2019, under Sections 406, 420, 467, 468, 471, 120-B of the Indian Penal Code, registered at Police Station- Kotwali, District- Kanpur Nagar, during pendency of trial.
As per prosecution version, the first information report has been lodged on 16.12.2019 against the applicant and four other named accused persons under Sections 406, 420, 467, 468, 471, 120-B I.P.C. As per F.I.R. stating that the company of the informant is H.D. Enterprises is doing business of poultry feed supplement with Biomass Research Evam Technical Solution Pvt. Ltd. Kanpur and co-accused Sumit Awasthi was salesman of "Biomass Research Evam Technical Solution Pvt. Ltd. Kanpur". Co-accused Sumit Awasthi collects cheques and cash on behalf of the aforesaid company for the goods supplied by the company to its customers. But after sometimes, company was informed that money has not been received. On inquiry, it was discovered that money has been deposited in the account of the firm opened by co-accused Sumit Awasthi along with his mother co-accused Smt. Ramwati. On further inquiry, it was found that Sumit Awasthi along with other co-accused grabbed the money of the informant.
It has been submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case due to business rivalry. It is further submitted that the first information report has been lodged on the false and frivolous allegations. The applicant has been implicated in multiple cases of same nature by same party for the same transaction. No prima- facie case is made out against the applicant. It is next submitted that there is no details of cheques alleged to have been given by the customers to the co-accused Sumit Awasthi, which were allegedly deposited in his company. It is further submitted that Co-accused Smt. Ramwati Awasthi has been granted bail by this Court in Criminal Misc. Bail Application No. 42675 of 2019 on 23.3.2019. He next contended that applicant has criminal history of 32 cases out of which applicant has been enlarged on bail four cases by Coordinate Bench of this Court in Criminal Misc. Bail Application Nos. 45266 of 2020, 1106 of 2021, 1079 of 2021 and 1325 of 2021 vide orders dated 28.01.2021 and in one case he has been enlarged on bail by court below, copy of bail order is annexed as Annexure No. 6 of the affidavit filed in support of bail application. Charge-sheet in this case has been submitted and applicant is no more required for the purpose of investigation. It is further submitted that applicant is languishing in jail since 07.12.2015 undertakes that he will not misuse the liberty, if granted. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Learned A.G.A. for the State vehemently opposed the prayer of the bail and submitted that it is a clear case of cheating and fraud committed by applicant and he and other co-accused persons realise the money from the customers who received goods from the company and they deposited the money in the account opened in the name of his own partnership firm. The name of the company of the informant and partnership firm of the accused persons are almost identical which has been opened by the accused persons to cheat company of the informant. It is further submitted that applicant has criminal history of large number of cases which has been registered against the applicant. If he has been enlarged on bail, no useful purpose would be served. The applicant has criminal history of 32 other cases.
It is settled position of law that bail is the rule and committal to jail is an exception in the case of State of Rajasthan Vs. Balchand @ Baliay (1977) 4 SCC 308, the Apex Court observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution and opined para 2 "The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court. We do. not intend to be exhaustive but only illustrative." and considering the facts of the case and keeping in mind, the ratio of the Apex Court's judgment in the case of Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, 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 interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.
Let applicant, Rishinath Awasthi be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
(i) The applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) 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 of Cr.P.C.
(iv) 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 the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 17.9.2021 Ishan