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2017 DIGILAW 991 (HP)

Ashok Kumar v. State of Himachal Pradesh

2017-08-30

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present bail application has been maintained by the petitioner under Section 438 of the Code of Criminal Procedure for releasing him on bail, in the event of his arrest, in case FIR No. 136 of 2017, dated 20.05.2017, registered under Sections 406, 420 and 506 of Indian Penal Code, 1860 (for short “IPC”) and Section 24 of the Passports Act, registered at Police Station Indora, District Kangra, Himachal Pradesh. 2. As per the learned counsel for the petitioner, the petitioner is innocent and has been falsely implicated in the present case. He is permanent resident of Ludhiana (Punjab) and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, thus he may be released on bail. 3. Police reports stand filed. As per the prosecution story, on 20.05.2017 complainant, Shri Aman Joshi, made a complaint to the police alleging that the petitioner met him in the month of March, 2016, and he told to his father that he does the work of making work permits of youth for sending them abroad. The petitioner also told that he would send the complainant on work permit to Australia and the petitioner demanded rupees twenty five lac for doing so. The petitioner also told that he would take rupees twenty lac beforehand and rest of the money after the approval of the viza. Thereafter, the complainant and his father on different dates gave rupees twenty lac in total to the petitioner for sending the complainant to Australia and the petitioner also took the passport, school certificates and eight passport size photographs of the complainant. After lapse of considerable time, the complainant did nothing and on asking he used to give evasive replies. Lastly, when the complainant asked for return of his money, then the petitioner threatened to do away with his life. The complainant also alleged that he is apprehending that his passport and other documents may be illegally used by the petitioner. On the basis of the above complaint of the complainant, police registered a case against the petitioner. Police investigated the matter and found that on the pretext of sending the complainant to Australia, the petitioner took the money from the complainant. On the basis of the above complaint of the complainant, police registered a case against the petitioner. Police investigated the matter and found that on the pretext of sending the complainant to Australia, the petitioner took the money from the complainant. The petitioner was interrogated and he divulged that being contractor he entered into an agreement to execute the construction work of a hotel in Damtal and the said hotel was being constructed by four partners, viz., Moti Lal (father of the complainant), Aman Joshi (complainant), Raj Vikram Rai and Ram Muhammad Isa @ Rami. He also handed over a copy of said agreement. Raj Vikram Rai disclosed that he is building a hotel on his land and he entered into a contract for construction work of the said hotel with the petitioner. He also disclosed that Moti Lal and Aman Joshi have no concern with the hotel. The petitioner further divulged that the hotel for which he has been engaged, grand-mother of Aman Joshi is also partner therein, however, grand-mother of Aman Joshi disclosed that no land is registered in her name at Damtal. The petitioner also disclosed that he took the decoration work of the hotel for thirty one/thirty two lac, but due to non-payment, he left the work amidst. It was unearthed during the investigation that the petitioner and Raj Vikram Rai have entered into the agreement and Raj Vikram Rai is the owner of the hotel. The matter was reinvestigated and it was found that in DR Resorts, Damtal, Aman Joshi, Moti Lal, Raj Vikram Rai, Ram Muhammad Isa @ Rami and Savitri Devi are the partners. As per the prosecution, the petitioner is not disclosing true facts and is also not co-operating in the investigation. The petitioner is very clever person and in case he is enlarged on bail, he may flee from justice. 4. I have heard the learned counsel for the petitioner, learned Additional Advocate General for the State, learned Senior counsel for the complainant and gone through the record, including the police reports, carefully. 5. The petitioner is very clever person and in case he is enlarged on bail, he may flee from justice. 4. I have heard the learned counsel for the petitioner, learned Additional Advocate General for the State, learned Senior counsel for the complainant and gone through the record, including the police reports, carefully. 5. The learned counsel for the petitioner has argued that the material, which has come on record, demonstrates that the complainant made demands from the petitioner because of the fact that petitioner was making internal decoration of the resort and one Raj Vikram Rai, for which as per the arrangement between the parties, the complainant was to make the payments. He has further argued that the documents on record further demonstrate that said Raj Vikram Rai asked the petitioner to stop the work if no further payment is made by the complainant party. Conversely, the learned Additional Advocate General has argued that the petitioner is not co-operating in the investigation and so the bail application may be dismissed, as the investigation is at its initial stage. 6. Learned Senior Counsel, appearing for the complainant has argued that in fact the petitioner has demanded amount for sending the complainant abroad and now he is coming up with a different plea and he is also not co-operating in the investigation. He has further argued that the petitioner has cheated the complainant, so the bail application of the petitioner may be dismissed. 7. In rebuttal, the learned counsel for the petitioner has argued that ‘bail is rule and jail is exception’. He has further argued that there is nothing on record to show that the petitioner is not joining and co-operating in the investigation. 8. 7. In rebuttal, the learned counsel for the petitioner has argued that ‘bail is rule and jail is exception’. He has further argued that there is nothing on record to show that the petitioner is not joining and co-operating in the investigation. 8. After hearing the learned counsel for the parties and going through the record, at this stage, this Court finds that as per the petitioner there was an agreement between the petitioner and DR resorts for interior decoration of the resort for which the payment was to be made by the complainant, as there was an internal arrangement inter se DR Resorts and the complainant, this submission of the petitioner does not convince this Court to conclude that the petitioner has received the payment from the complainant qua the agreement, as there is nothing in the documents placed on record or nothing is emanating from the investigation to conclude that the complainant and his mother made the payment to the petitioner and they were liable to make the payment to the petitioner for the work he has done for DR Resorts. It is not a ground available with the petitioner for grant of bail that the father of the complainant was a witness to the agreement, entered into inter se the petitioner and the DR Resorts, therefore, this Court finds that the complainant made payment of the amount to the petitioner and at this stage the investigation is in nascent stage. Considering all the above mentioned facts in mind, the present is a fit case where the judicial discretion to admit the petitioner on bail is not required to be exercised in his favour, as the records reflect that the petitioner is not co-operating in the investigation and the truth is yet to be elicited. This Court finds that there is no plausible reason to enlarge the petitioner on anticipatory bail. 9. In view of what has been discussed hereinabove, the petition, which sans merits, deserves dismissal and is accordingly dismissed.