Court No. - 66
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21812
of 2021
Applicant :- Yogeshwar Sood
Opposite Party :- State of U.P.
Counsel for Applicant :- Alok Ranjan Mishra,Shashi Kant Shukla,Syed Ahmed Faizan,Zaheer Asghar
Counsel for Opposite Party :- G.A.,Adarsh Verma,Bhanu Prakash Verma,M J Akhtar,Shashi Kant Shukla
Hon'ble Ali Zamin,J.
Heard Sri G.S. Chaturvedi and Sri S.F.A. Naqvi learned Senior Advocates assisted by Sri Alok Ranjan Mishra and Sri Imran Ullah learned counsel for the applicant, learned A.G.A. for the State as well as Sri VM. Zaidi learned Senior Advocate assisted by Sri M.J. Akhtar, Sri Imran Khan and Sri B.P. Verma learned counsel for the informant and perused the material on record.
The present bail application has been filed by the applicant with a prayer to enlarge him on bail in Case Crime No.648 of 2019, under Sections 420 & 409 I.P.C., P.S. Kotwali, District Mathura.
Learned counsel for the applicant submits that as per prosecution version applicant and other accused placed an order to prepare a gold Chhattar weighing 3-4 kgs for donating at Shri Badri Nath Dham (Uttrakhand), same was prepared by the informant weighing 3 kg 352 grams and handed over to the accused persons vide Bill No.B2C/012 of Rs.1,31,36,289/- dated 06.04.2018 and accused persons promised to make payment in the bank account of the informant within a week but the same was not made. On demand avoided to make payment ultimately refused to pay then F.I.R. was lodged on 31.08.2019. He also submits that after registration of F.I.R. applicant approached this Court for anticipatory bail through Criminal Misc. Bail Application u/s 438 Cr.P.C. No.5011 of 2020, which was granted on 23.09.2020 with the condition that he shall make himself available for interrogation by police as and when required by the police. In compliance of the order he went several times to police station but his statement was not recorded and as a proof he clicked few pictures at police station Kotwali Mathura on 14.10.2020 which shall be produced before the court during trial. A case crime no.270 of 2020, under Section 174-A I.P.C. was registered against him and another, then again applicant and another approached this Court through Criminal Writ Petition No.12772 of 2020 in which an undertaking was given by the Counsel that he will appears before the Magistrate Court on date given by this Court and vide order dated 20.11.2020 date of 14.12.2020 was fixed by this Court but due to blockade of border by farmers protesting against agriculture reforms law, he could not appear, charge- sheet was submitted against the applicant and he again moved Anticipatory Bail Application u/s 438 Cr.PC. No.525 of 2021 before this Court which was rejected on 09.02.2021 against which applicant approached Hon'ble Apex Court through Special Leave to Appeal (Crl.) No.1807 of 2021 but it was withdrawn on 02.03.2021 with liberty to apply for regular bail. He was arrested by police and since 18.02.2021 he is languishing in jail. He further submits that applicant is one of the Director of a Mukat Arts Pvt. Ltd. Company registered under the Companies Act, 1956. Prior to the registration of the present case, informant approached to the applicant company for conducting interior work and agreed to pay Rs.9.5 crores for the same. After settlement of the deal informant made part payment of one crore and twenty lakhs on different dates from 23.05.2017 to 12.06.2018. Informant was not in a position to pay entire amount for the project and applicant's company already invested the entire amount for which only one crore twenty lakh was paid, therefore, dispute arose between parties, on repeated request they refused to make payment regarding which a notice was sent by the applicant's counsel Gagan Deep Singh Chahal on 17.06.2019, thereafter, this F.I.R. has been lodged on 31.08.2019 on a concocted story. He further submits that Chhattar was purchased for payment in future therefore, Section 409 is not attracted. As per statement of informant on page 65 of the bail application the Chhattar was prepared by him on behest of Pundrik Maharaj from whose family his family has good relation.
He next submits that according to informant he issued an Invoice No.B2C/012 on 06.04.2018 for Rs.1,31,36,289/- through his HUF Firm i.e. M/s. Kanha Gems @ Art Gallery having GSTIN No.09AADHP8334D1Z5 but he did not disclose it in GSTR for the month of April, 2018 which was to be filed in May, 2018 and it is also not disclosed in GSTR for the month of June filed in July, 2018. Later on after one year he has shown/filed the said invoice in his GSTR on 20.07.2019 for the month of June, 2019 claiming that he had issued this invoice in April, 2018 which shows that he never issued the aforesaid invoice which is evident from GSTR-3B, annexed as 35 & 36 of the application and same has been prepared as an after thought only to avoid payment to the applicant's Firm for the interior decoration work regarding which a Civil Suit also has been filed in Ludhiana. It is further submitted that offence is triable by Magistrate-Ist Class and maximum punishment for the offence is seven years. There is no possibility of the applicant of fleeing away from the judicial process or tampering with the witnesses and, in case, the applicant is enlarged on bail, the applicant shall not misuse the liberty of bail. It is next contended that there is no criminal history of the applicant and is languishing in jail since 18.02.2021.
Per contra, learned A.G.A. as well as learned counsel for the informant opposed the bail prayer of the applicant and referring case of Kumer Singh vs. State of Rajasthan and others, MANU/SC/0483/2021, that Hon'ble Supreme Court has laid down parameters for grant of bail and one of the parameter is character, behaviour, means, position and standing of the accused and in the case of Santosh vs. State of Maharashtra, (2018) 1 SCC (Cri) 87, interim protection was granted to the petitioner but he did not co-operate in the investigation, it was held that since there is no co-operation by the petitioner, the petitioner is not entitled for relief of anticipatory bail and proper investigation is still required for completion of investigation. He further submits that co-ordinate Bench of this Court also rejected Criminal Misc. Anticipatory Bail Application, under Section 438 Cr.P.C. No.4213 of 2021 vide order dated 22.03.2021 on the ground that on application under Section 482 Cr.P.C. applicant was granted time to surrender before court below and obtain bail which was not complied with, submit that so far as civil litigation is concerned, it is malafidely filed, genesis of crime start from 06.04.2018, they promised to pay within a week, the notice has been given subsequent to the date of incident. He further submits that as per annexure of the supplementary counter affidavit, it is established that the article was taken by the applicant and donated by him to Sri Badri Nath Dham (Mandir), Uttrakhand regarding which entry No.47/3 in the stock book jewrat register at page no.403, Item No.4 has been made. Further submits that applicant and co- accused have not complied with the order passed in Criminal Misc. Bail Application u/s 438 Cr.P.C. No.5011 of 2020 in co- operating in investigation and order of Division Bench in Criminal Misc. Writ Petition No.12772 of 2020 in appearing before the concerned Magistrate/court as well as in a Contempt Application (Civil) No.650 of 2021 filed by the informant in which by this Court one more opportunity was granted to the opposite party nos.1 and 2 i.e. applicant and co-accused to comply with the order within a month and in case by the next date fixed the directions of the Writ Court are not complied with and an affidavit to that effect is not filed, the opposite party nos.1 and 2 i.e. applicant and co-accused shall remain present before this Court on the date fixed but he did not comply the order therefore, in view of the aforesaid submission, applicant is not entitled for bail.
Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties, as per prosecution article was handed over on 06.04.2018 vide Bill B2C/012 of Rs.1,31,36,289/- but not disclosed in GSTR for the month May and June, 2018, statement of Pundrik Maharaj, lodging of F.I.R. on 31.08.2019 after giving notice to the informant by counsel of applicant on 17.06.2019, payment of Rs.1,20,00,000/- made by the informant in the applicant's company between 23.05.2017 to 12.06.2018, nature of offence as well punishment for the offence and applicant also languishing in jail since 18.02.2021, without expressing any opinion on merit of the case, the applicant is entitled for bail, let the applicant- Yogeshwar Sood involved in aforesaid case crime be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned, subject to the following conditions :-
(i) The applicant shall file an undertaking to the effect that he will not tamper with the evidence and will not pressurize/intimidate the prosecution witnesses and will cooperate with the trial. The applicant 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 party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
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. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Order Date :- 20.9.2021 Jitendra