Court No. - 23
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11047 of 2018 Applicant :- Vikas Sharma Opposite Party :- State Of U.P.
Counsel for Applicant :- Manish Tiwary,Ashwini Kumar Awasthi Counsel for Opposite Party :- G.A.,Prashant Vyas
Hon'ble Vivek Kumar Singh,J.
Heard Sri Manish Tiwary, learned counsel for the applicant, Sri Gopal Chaturvedi, learned Senior Advocate appearing for the complainant and Sri Abhinav Prasad, learned Additional Government Advocate for the State.
The prosecution story as per the first information report is that the first informant namely Mohit Goel @ Mohit Kumar who is the Director of the M/s RINGING BELLS PVT.LTD.,a company engaged in the business of marketing and trading of cellular phones and that in the month of August, 2015,the first informant claims to have met with the applicant, who is the director of M/s VIE TECHNOLOGY PVT. LTD.and allegations have been made that by making a false projections about the image and operation of his company, Vikas Sharma, lured the first informant into making an order for purchase of mobile phones, in lieu of which an advance payment of Rs.35 lacs through an RTGS transfer was also made into the Bank account of M/s VIE Technology PVT. LTD. on 25.9.2015 and thereafter on 30.09.2015 an agreement was also entered into between M/s RINGING BELLS Pvt. Ltd. and M/s VIE Technology Pvt.Ltd.,documenting the terms and conditions under which both the companies shall carrying on their business and via various RTGS transfers, the first informant claims to have remitted a sum of Rs. 3,27,30,000/- to the applicant.
It is further submitted by learned counsel for the applicant that the applicant only delivered mobile phone amounting to Rs.1,23,69,000/- and then stopped making further deliveries and when the first informant demanded the remaining money remitted by him to the applicant be returned,then the applicant gave him two cheques amounting to Rs.1 Crore drawn on the HSBC bank, which subsequently were returned as dishonoured by the bank and when the first informant tried to make communication through telephone but he did not respond.
It is further submitted that due to fake Tin Number the first informant had to face difficulties before the sales tax department. In the first information report he has mentioned the Tine Number 07256895919. In this regard it is submitted that the Tine number of the company in question of which the applicant is the Director is a valid Tin Number which has been duly given to the company by the department of Trade and Taxes Government of NCT Delhi on 23.8.2013. The company has been filing its returns on the basis of the said Tin Number and the latest is of 16.3.2017.
It is further submitted by learned counsel for the applicant that the first informant entered into an agreement on 30.9.2015 and allegedly on the basis of the said agreement the first informant deposited money on different dates in the account of the applicant but the applicant did not honour his part of the agreement. In this regard it is submitted that the agreement dated 30.9.2015 is actually a service provider agreement which means that the applicant was to provide service centre for the products that he sold to the company of the first informant and nothing beyond that. The agreement as per clause 7.1 was valid only upto 15.4.2016. The said agreement was neither extended by the applicant nor by the first informant. As such it is submitted that as per the agreement dated 30.9.2015 the applicant was required to provide service centre to the first informant only upto 15.4.2016 for the products which needed servicing for any reason whatsoever. It is however clarified that the service agreement was restricted to the products that were sold by the applicant to the first informant.The said agreement dated 30.9.2015 is annexed as Annexure-3 to the affidavit.
Learned counsel for the applicant in support of his prayer for bail submits that the applicant is innocent and he has been falsely implicated in the present case due to ulterior motive. It is next contended that the applicant was falsely implicated in Case Crime No. 807 of 2017, in which he has been released, a copy of the order is annexed as Annexure- 20 of the affidavit filed in support of bail application. In support of his contention, learned counsel for the applicant has placed reliance on a Judgment of Apex Court in S.K.Alagh vs. State of Uttar Pradesh and others reported in (2008) 5 Supreme Court Cases 662.
Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the court. The circumstances which, according to the counsel, led to the false implication of the accused has also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been submitted that the applicant is languishing in jail since 2.12.2017.
Per contra, learned A.G.A. and Sri Gopal Chaturvedi, Sr.Advocate appearing on behalf of the complainant submitted that the money has been misappropriated by the applicant fraudulently and dishonestly by committing fraud and forgery and, therefore, he is not entitled for indulgence, and in case the applicant is released on bail, the amount in question be secured by this Court.
Thus it seems that it may be a breach of contract between the parties,it is a commercial transaction hence, enlarging the applicant on bail will not in any way hamper the trial or investigation.
Keeping in view the nature of offence, evidence, complicity of the accused, severity of punishment and submissions of the learned counsel for the parties as well as the undertaking given by the applicant, I am of the view that the applicant should be granted bail.
Without expressing any opinion on the merits of the case, let the applicant Vikas Sharma involved in Case Crime No. 1123 of 2017 under sections 406, 420, 467, 468, 471, 506, 120-B I.P.C., Police Station Sector 49, District Gautam Budh Nagar be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned and also subject to prior deposit of Rs. 25 Lakh ( Rupees Twenty Five Lakh only) by way of Fixed Deposit Receipt or as the case may be in the court concerned (payable in court's name) to be invested in a nationalized bank and ultimately paid to the person concerned occasioned to wrongful loss on the satisfaction of the court concerned.
It is made clear that furnishing of aforesaid security by the applicant will not, in any way, prejudice the right/defence of the applicant during the trial of the case.
In case the applicant is acquitted in the present criminal case by the court of law, aforesaid security, if furnished by the applicant, shall be discharged in his favour.
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
The trial court is directed to expedite the trial of the present case and conclude the same expeditiously preferably within a period of one year from the date of production of a certified copy of this order, if there is no legal impediment.
In case of breach of any of the above conditions or in case of default in deposition of amount as directed herein above, the trial court will be at liberty to cancel the bail granted herein above and the applicant will be taken into custody immediately.
Order Date :- 29.3.2018 Su