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2020 DIGILAW 682 (JK)

Mohd. Shafi Dar v. Union Territory of J&K

2020-12-15

SINDHU SHARMA

body2020
JUDGMENT : SINDHU SHARMA, J. 1. This application for grant of bail was filed on behalf of Mohd. Shafi Dar, the then Chairman of Jammu and Kashmir State Cooperative Bank Limited, Srinagar. 2. Heard learned counsel for the parties. 3. The genesis of the alleged involvement of the applicant in the commission of crime lies in the facts which briefly stated as follows: One Hilal Ahmed claiming to be the Chairman of River Jhelum Cooperative Building Society approached the department of J&K Cooperative Bank Limited Srinagar for grant of assistance of Rs. 300 Crores for taking possession of land measuring 300 Kanals of outskirts of Srinagar by construction of Satellite Township. The Secretary of the Government Cooperative Department is said to have endorsed the application to the then Registrar of Cooperative Societies, J&K on 26.03.2018 who recommended it to the Managing Director, Jammu and Kashmir State Cooperative Bank Ltd. alongwith photocopy of the certificate of registration number ARK/SS.3 dated 31.03.1994 issued in favour of River Jhelum Cooperative Housing Society. 4. On 08.09.2019 on receipt of the application governing council of the Bank approved grant of loan of Rs. 250 Crores in favour of the Society. Thereafter, the sanction of loan was ratified by the Board of Directors of the J&K Cooperative Society Bank on 21.03.2019. After the Board had ratified the decision of the applicant/Chairman disbursed the loan of Rs. 223 Crores on 25.04.2019. 5. The Anti-Corruption Bureau, Srinagar having received the information about the fraudulent transaction of sanctioned loan started preliminary inquiry and on the basis of the report of the preliminary inquiry, FIR No. 04/2020 was registered on 08.03.2020 under Sections 465, 467, 468, 471, 120-B RPC read with Section 5(i)(d) read with section 5(2) of the Prevention of Corruption Act. 6. The applicant states that he surrendered before the Trial Court on 03.06.2020 and filed an application for grant of bail which the Trial Court rejected by an order dated 03.07.2020. 7. A fresh joint application was filed alongwith one Hilal Ahmed Mir on 03.07.2020 which was also dismissed by the Trial Court on 18.07.2020. It is after the dismissal of the said application on 18.07.2020, the petitioner filed this application for grant of bail. 8. During the pendency of this application, another bail application (Crl. 7. A fresh joint application was filed alongwith one Hilal Ahmed Mir on 03.07.2020 which was also dismissed by the Trial Court on 18.07.2020. It is after the dismissal of the said application on 18.07.2020, the petitioner filed this application for grant of bail. 8. During the pendency of this application, another bail application (Crl. M. No. 531/2020) was filed on the plea that the applicant was suffering from Covid-19, but the said application was dismissed on 18.09.2020 on the ground that it was founded on false plea. 9. Mr. B.A. Dar, learned Sr. AAG has submitted that the economic offence deserves no leniency and concession since the petitioner has committed grievous offence by dishonestly siphoning of huge amount of money, as such, the applicant does not deserve the concession of bail. Reliance is also placed on State of Bihar and Another vs. Amit Kumar @ Bachcha Rai (Criminal Miscellaneous No. 28879 of 2018) decided on 20.04.2017. 10. None of these facts as stated by the applicant have been controverted. In fact, it is admitted that the investigation is complete and challan has been produced. 11. If that be the case, then the question is whether the continuous detention of the applicant since 1st week of June, 2020 is justified and can the bail be denied to him because of the seriousness of the offences as allegedly committed by the applicant and the co-accused. 12. The fact is that except Section 467 IPC, all Sections i.e. 465, 466, 468 Penal Code and Section 5 of the prevention of Corruption Act, 1988 carry maximum punishment upto 7 years. The offence punishable under Section 467 Penal Code carries an alternate sentence upto 10 years. So it is the alternate sentence of 10 years which is relevant for the purpose of bail. Whether the charge under Section 467 of the Penal Code is made or not is yet to be considered by the Trial Court. The Trial Court, I am sure, will consider the offence punishable under Section 467 of Penal Code vis-a-vis the alleged forged documents while framing the charge, because the accused must have forged the documents and the documents must be of one of the clauses specified in the section. 13. The prosecution has produced the charge-sheet/challan after investigation, even supplementary charge sheet has also been produced, therefore, his presence in custody may not be necessary for further investigation. 14. 13. The prosecution has produced the charge-sheet/challan after investigation, even supplementary charge sheet has also been produced, therefore, his presence in custody may not be necessary for further investigation. 14. It is also the prosecution case that much of the amount has been paid to the owners of the land and details of the owners and the amount paid to each one is not disputed. It is also admitted that the owners have executed Power of Attorney on the basis of which lease has been granted in favour of Secretary of the Society. 15. In State of Rajasthan, Jaipur vs. Balchand @ Baliay, AIR 1977 SC 2447 . The Hon'ble Apex Court has observed as under: “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.” 16. In Sanjay Chandra vs. CBI, decided on 23.11.2011, the Hon'ble Apex Court has held that: “28. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.” 17. In Mohd. Razak and Another vs. State of J&K and Another, 2007 (2) JKJ 246 , this court held as under: “9. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.” 17. In Mohd. Razak and Another vs. State of J&K and Another, 2007 (2) JKJ 246 , this court held as under: “9. While considering release of persons accused of offences under the Prevention of Corruption Act, general principles governing grant or refusal of bail and provision of Section 497 of the Code of Criminal Procedure are undoubtedly required to be kept in view, and bail in such non-bailable offences may not be claimed, as of right, and in the absence of any special circumstances warranting refusal of bail, the well-recognized principle that bail is the rule and refusal an exception would always be a guiding factor for the Courts while considering the grant or refusal of bail in such cases.” 18. In view of the laws laid down in State of Rajasthan, Jaipur vs. Balchand @ Baliay and Sanjay Chandra vs. CBI, this application for grant of bail is allowed. The applicant is admitted to bail subject to furnishing personal bond as well as surety bond to the tune of Rs. 50,000/- each to the satisfaction of the Registrar Judicial of the J&K High Court, at Srinagar, subject to the conditions: (a) That he shall cooperate with the investigation as and when required. (b) That he shall not hamper or tamper with the prosecution witnesses/evidence. (c) That he will appear before the Trial Court on each and every date of hearing fixed by the Trial Court unless exempted by the Court concerned. (d) That he shall not leave the territorial jurisdiction of this Court without prior permission. 19. Application is disposed of in the above terms.