JUDGMENT 1. - This is a second bail application filed u/s 439 Cr. P. C. in Cr. Case F I. R. No. 24/86 registered for offence under section 120-B read with Section 409 I.P.C. 2. The accused petitioner is a director in M/s Laxmi Oil and Extraction Mills Ltd., Jaipur, a public limited company incorporated under the Companies Act, 1956 having its registered office at Jaipur. The said company is engaged in the business of refining of oil amongst other things. The State Trading Corporation of India Ltd., a corporate body registered under the Companies Act, 1956 imports raw oil of various kinds and gets imported the raw oil refined from various refineries in India to make the said oil fit for human consumption. Thereafter, refined oil is sold by the S. T. C. through various agencies. The petitioner through its above mentioned company has been doing this business of refining oil since last about 6-7 years on contract basis under various contracts executed with the S.T.C. It is alleged that M/s Laxmi Oil and Extraction Mills Ltd. and S.T.C. entered into an agreement on 30. 4. 1984 under which 33000 metric tons of rapeseed oil was sent to the company of petitioner between 10. 5. 1984 to 28. 12. 1984 for refining and the petitioner's company actually received 32090.900 metric tons for refining. It is asserted on behalf of the petitioner that most of the oil received was refined and delivered back to the S T. C. but 600 metric tons oil was not delivered. The value of this oil admittedly comes to around Rs 90 lacs. The petitioners company had deposited Rs. 20 lacs as guarantee amount in the bank, which has admittedly been encased by the S. T. C. towards the amount payable by the petitioner company to the S.T.C. In this way an amount of about 10 lacs has yet to be paid by the petitioner-company to the S. T. C. in lieu of the oil received for refining. 3. I have heard Mr. U. N. Bhandari for the petitioner and Mr. S. P. Tyagi appearing on behalf of the State. 4. Learned counsel for the State has raised a preliminary objection that the petitioner should have first filed its bail application before the trial court and thereafter approached the High Court, therefore this application is liable to be dismissed on this count. U. N. Bhandari for the petitioner and Mr. S. P. Tyagi appearing on behalf of the State. 4. Learned counsel for the State has raised a preliminary objection that the petitioner should have first filed its bail application before the trial court and thereafter approached the High Court, therefore this application is liable to be dismissed on this count. He has drawn my attention to the case of Hajialisher v. State of Rajasthan, 1976 RLW 232 in which it was held by this court that under section 437 Cr. P. C. it is only in exceptional circumstances that an application for bail should be made direct to the High Court and in absence of special circumstances, the application should be first filed before the trial court and should not be entertained by the High Court. He has therefore, contended that it was necessary for the petitioner to have filed this bail application first before the Sessions Judge, Jaipur City rather than filing this bail application under section 439 Cr. P. C. before this court. 5. Learned counsel for the petitioner has on the other hand pointed out that the application for bail in the first instance was filed in the court of Sessions Judge, which was rejected vide its order dated 24.4.86. Thereafter, the bail application was filed in this court, which was also dismissed by this court vide its order dated 25.6.1986, in which this court observed that "it would be open to the petitioner to move fresh bail application after the investigation is completed." He therefore, contends that since the investigation is complete, he has filed this second bail application before this court and it is not correct to say that the petitioner has not filed the bail application before the Sessions Court, as is evident from the facts stated above. He has drawn my attention to the case of Mohan Lal and others v. Prem Chand and others, AIR 1980 H.P. 36 in which this point was considered and even though there was a specific rule in that state that Sessions court should first be approached for bail before an application for bail is filed in the High Court, it was held that an applicant cannot be asked to apply to the Sessions Judge before making an application to the High Court. The case of Puritipati Jagga Reddy (AIR 1979 A.P. (Full Bench) 146) and the case of Kesavan Sivan Pillai, Rev. v. Sreedharan Raja Mohan (AIR 1978 Kerala (F.B.) 131) were also referred to in support of the view taken by the Full Bench of Himachal Pradesh in the case of Mohan Lal (supra). In this case it is clear that the petitioner did first of all approach the Sessions Court soon after he was arrested and his bail application was rejected and thereafter, filed another bail application before this Court, which was also rejected and it was observed by this court that the petitioner can file fresh application for bail after investigation is completed. This is what the petitioner has done. I am therefore, of the opinion that there is no force in the preliminary objection raised by learned counsel for the State. 6. Learned counsel for the petitioner has pointed out that there is a written agreement as mentioned above entered into between both the parties, in which terms and conditions of refining the oil are mentioned in details. He has drawn my attention to clauses 1.3,15 16,17,19.20 and 23 in which all relevant terms and conditions of payment, penalties, if any, loss up to certain percentage on account of double refining or tinning, handling transportation etc. is to be given to the petitioner company, if losses are more than the agreed limit, rate at which the payment for oil not delivered to the S.T.C. is also mentioned. In clause 23 of the agreement, it is agreed between the parties that if there are any disputes or differences whatsoever arising out of this agreement between the parties, the matter shall be referred to the arbitration in accordance with the rules of Arbitration of the Indian Council of Arbitration Act, New Delhi and the award in pursuance thereof shall be final and binding on both the parties. My attention has been drawn to the schedule filed along with the bail application, which shows that the S.T.C. has filed arbitration proceedings in the court of District Judge, Jaipur City as well as in the High Court of Delhi. My attention has been drawn to the schedule filed along with the bail application, which shows that the S.T.C. has filed arbitration proceedings in the court of District Judge, Jaipur City as well as in the High Court of Delhi. The S.T.C. has also got a Commissioner appointed from Delhi High Court for inspection and preparation of inventory of the property of the petitioner which has also been done in accordance with the directions of the court proceedings before the C.T.O. have also been filed in Jaipur under the land Revenue Act. In all 9 civil proceedings have been filed against the petitioner. It has also been pointed out by the learned counsel for the petitioner that an injunction has been issued by the Delhi High Court restraining the petitioner from creating any charge or transferring etc. any of his property including the factory, which itself is more than 3 crores. In fact arbitration proceedings were filed in the court even before the F.I.R. was lodged against the petitioner. It has been pointed out by the learned counsel for the petitioner that this is essentially a dispute of civil nature as is evident from the agreement executed between the parties. He has drawn my attention to section 73 of the Contract Act, which deals with compensation for loss or damages caused by breach of contract and section 74 which deals with compensation for breach of contract, where penalty has been stipulated for. It has been further contended that the investigation is over and the petitioner is in judicial custody since 5-6-1986 and no useful purpose will be achieved by keeping him any more behind the bars. Moreover, the petitioner has to face several civil proceedings, which have been filed against him, in which voluminous books of accounts have to be seen and the replies filed in the civil suit and arbitration proceedings pending against him at Jaipur and Delhi and it is necessary that he should be given facility to defend the proceedings properly, filed against him. Apart from that, the petitioner should also be given proper opportunity to defend present criminal proceedings launched against him. He has further stressed that there is absolutely no danger of his absconding nor there is any chance or allegation of petitioners tampering with the witnesses in the event he is enlarged on bail. Apart from that, the petitioner should also be given proper opportunity to defend present criminal proceedings launched against him. He has further stressed that there is absolutely no danger of his absconding nor there is any chance or allegation of petitioners tampering with the witnesses in the event he is enlarged on bail. My attention has been drawn to the case of Hari Prashad Chamaria v. Vishnu Kumar, AIR 1974 S.C. 301 in which it was held by their Lordships of the Supreme Court that the fact that respondents subsequently did not abide by their commitment as per agreement, would not be sufficient to fasten criminal liability on the respondents r for the offence of cheating under section 420 IPC. In the case of Trilok Singh and ors. v. Satya Dev Tripathi, AIR 1979 S.C. 850 it was held by their lordships of the Supreme Court that when there was hire purchase agreement for purchase of truck, which included default clause and seizure of truck on default by the financier the criminal prosecution launched by purchaser against the financier was held to be of purely civil nature and it was further held that the criminal proceedings initiated were the abuse of process of the court and were therefore, quashed. In the case of Bhagirath Singh v. State of Gujarat, AIR Cr. LJ (1984) 160 their lordships of the Supreme Court observed that the power to grant bail is not to be exercised as if the punishment before the trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for the trial or whether he is likely to abuse the discretion granted in his favour, by tampering with the evidence. Even where prima facie case is established against the accused the approach of the court in the matter of bail is not that accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with the evidence. In the case of Gudikanti Narsuhulu and Others v. Public Prosecutor, AIR 1980 S.C. 429 it was observed by their Lordships of the Supreme Court that personal liberty deprived when bail is refused is too precious value of our constitutional system recognised under article 21 of the Constitution of India, that the crucial power to negate it is great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. It was further observed that another relevant factor is as to whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the court to be freed for the time being. It is not only traditional but rational, in this context to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail. 7. Mr. S.P. Tyagi appearing for the State has on the other hand pointed out that the petitioner has acted dishonestly and has misappropriated the imported oil given to him for refining and there is no doubt that he has prima facie committed offence u/s 409 r.w. Section 120-B IPC. He has further pointed out that there is likelihood of petitioners tampering with the witnesses some of whom are workers in the factory of the petitioner. He has also stressed that the petitioner has committed crime against community and deserves no sympathy to be enlarged on bail. 8. I have given my thoughtful consideration to the rival contentions of learned counsel for both the parties. 9. It is given out by the learned counsel for the petitioner that the factory of the petitioner is closed since the criminal proceedings started against him and all workers have already left the factory and even their whereabouts are not known to the petitioner. So, the question of tampering the witnesses in the circumstances, does not arise. It is clear that the petitioner is not wanted by the State any more, in as much as he is in judicial custody since first week of June, 1986. The investigation is over and the petitioner is a person who has no criminal antecedents at his credit. 10. It is clear that the petitioner is not wanted by the State any more, in as much as he is in judicial custody since first week of June, 1986. The investigation is over and the petitioner is a person who has no criminal antecedents at his credit. 10. The question is whether the accused should be kept behind the bars during the course of trial, which is likely to take few years or he may be released on bail to enable him to defend himself properly not only the criminal proceedings but also number of civil proceedings filed against him. which require voluminous accounts to be dealt with and explained by the petitioner to his legal adviser. Refusal of bail in this case to the accused petitioner when he is not required any more for any interrogation or investigation may am runt to punishment even before he is actually held to have committed offence charged-with by the appropriate court of law. 11. Keeping in view the law discussed above and without expressing any opinion on the merits of the case, I am inclined to grant bail to the accused petitioner It is therefore, ordered that the accused petitioner Ramesh Chandra Jariwala shall be released on bail provided be furnishes a personal bond in the sum of Rs. 1,00,000/ - (Rs. one lac) together with two sureties in the amount of Rs. 50,000./ - each to the satisfaction of the trial court, with the stipulation that he should appear in the court on each and every date of hearing or whenever he is called upon to do so, and shall not leave India without permission of the trial court.Bail granted. *******