Research › Search › Judgment

Gauhati High Court · body

2024 DIGILAW 1521 (GAU)

Kumar Rajesh v. State of Mizoram

2024-11-07

NELSON SAILO

body2024
JUDGMENT : NELSON SAILO, J. 1. Heard Mr. B K Mahajan, learned counsel for the petitioner and Ms. Mary L Khiangte, learned Addl. Public Prosecutor, Mizoram through Video Conferencing. 2. On 30.10.2024, Court passed the following order: “Heard Mr. B K Mahajan, learned counsel for the petitioner through V.C who submits that the petitioner by filing the instant application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 prays for enlargement on bail. He submits that the petitioner was arrested on 26.07.2024 in connection with C&EO P.S Case No. 1/2024 registered under Section 420/103 of the Indian Penal Code and also under Section 138 of the Negotiable Instruments Act, 1881. The learned counsel submits that charge-sheet has already been filed by the Investigating Agency and the petitioner had also moved Bail Application No. 895/2024 on 01.08.2024 and as well as on 06.08.2024 under the same registration number. However, the outcome of the bail application is not known to the petitioner. Nevertheless, the petitioner in view of the settled law is not debarred from filing the instant bail application. In view of above, issue notice of motion returnable by 07.11.2024. Ms. Mary L Khiangte, learned Addl. Public Prosecutor accepts notice on behalf of the State and therefore, no formal notice is required. However, the petitioner shall furnish requisite extra copies of the bail application to the learned Addl. Public Prosecutor, if not already done. The learned Addl. Public Prosecutor shall produce the scanned copy of the case record, which should also include a scanned copy of the charge-sheet by the next date. List the matter again on 07.11.2024.” 3. Today, when the matter is listed again, the learned counsel for the petitioner submits that the outcome of the Bail Appln. No. 895/2024 filed before the Court of Chief Judicial Magistrate, Aizawl, Mizoram is still not known. Likewise, the learned Addl. Public Prosecutor also submits that she has no information about the said bail application. She further submits that since the case record is quite bulky, she was only given a scanned copy of the chargesheet alongwith the statements of the complainant, the co-accused person and the petitioner. Likewise, the learned Addl. Public Prosecutor also submits that she has no information about the said bail application. She further submits that since the case record is quite bulky, she was only given a scanned copy of the chargesheet alongwith the statements of the complainant, the co-accused person and the petitioner. Having regard to the fact that there is no bar to consider the instant bail application even while another bail application is pending before the Lower Court in view of Kusha Duruka vs. State of Odisha, (2024) 4 SCC 432 , the instant bail application is taken up for consideration. 4. Brief facts of the case is that an FIR was lodged by the complainant on 31.01.2024 to the effect that based upon an agreement reached between the complainant, the petitioner and the co-accused person to secure certain road construction work, the complainant deposited a sum of Rs. 10 lakhs in the account of the co-accused person but however, the road construction project did not materialize and was cancelled. Thereafter, the complainant was persuaded by the petitioner and the co-accused person to deposit an amount of Rs. 1.5 crores in the account of the petitioner to secure a contract work relating to Delhi Police Housing Project at Dheerpur, which was allegedly worth Rs. 200 crores. According to the complainant, she deposited the amount into the account of the petitioner in January, 2022 and the latter was supposed to return the capital alongwith the interest amounting to Rs. 3 crores by 25th March, 2022. However, the petitioner failed to honour the agreement and repaid only a sum of Rs. 33 lakhs in three sepatate installments in November, 2022. Further, when the complainant demanded payment of the balance amount, 2 (two) cheques amounting to Rs. 100 crores and 200 crores were issued to her by the petitioner, but the same bounced. As a result, she lodged an FIR and therefore, C&EO Police Station Case No. 1/2024 under Section 420/403 IPC and under Section 138 of the Negotiable Instruments Act, 1881 dated 31.01.2024 was registered. The petitioner was thereafter arrested on 26.07.2024 and he is in judicial custody till date. 5. The petitioner as stated earlier filed Bail Appln. As a result, she lodged an FIR and therefore, C&EO Police Station Case No. 1/2024 under Section 420/403 IPC and under Section 138 of the Negotiable Instruments Act, 1881 dated 31.01.2024 was registered. The petitioner was thereafter arrested on 26.07.2024 and he is in judicial custody till date. 5. The petitioner as stated earlier filed Bail Appln. No. 895/2024 before the Court of Chief Judicial Magistrate, Aizawl and the same was moved on 01.08.2024 & 06.08.2024 but however, the same has not been disposed of till date according to the petitioner and therefore, the instant bail application has been filed. In the meantime, on the 60th day of arrest of the petitioner i.e. 23.09.2024, the investigating authority filed the charge-sheet. 6. Mr. B K Mahajan, learned counsel submits that the nature of the case as can be seen is an agreement reached between the parties to secure certain contract work and therefore, the case is basically of a civil nature. He submits that the complainant ought to have filed a money suit or initiated appropriate proceedings under the Negotiable Instruments Act, 1881. He submits that at any rate, as the co-accused person has already been granted Anticipatory Bail, the petitioner should also be granted bail in parity thereof. 7. The learned counsel further submits that charge-sheet was no doubt filed on 23.09.2024 on the 60th day of the investigation, but unless the same is received by the Magistrate concerned and acknowledged as prescribed under the Rule 644 & 686 of the Mizoram Police Manual, it cannot be said that the charge-sheet was filed within the time prescribed by law. Therefore, even on this ground, the petitioner is entitled to get default bail. In support of his submission, the learned counsel relies upon the Order dated 07.10.2022 passed by a Co-ordinate Bench of this Court in Bail Application No. 1958/2022 (Samsun Noor vs. State of Assam). 8. The learned counsel further submits that under Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), it is mandatory for the police to inform the person being arrested the reason and grounds of his arrest so as to enable him to avail the services of a legal practitioner and submit appropriate bail application. 8. The learned counsel further submits that under Section 47 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), it is mandatory for the police to inform the person being arrested the reason and grounds of his arrest so as to enable him to avail the services of a legal practitioner and submit appropriate bail application. He submits that from the charge-sheet, it is nowhere seen that the petitioner was given such information and therefore, the Constitutional Rights of the petitioner under Article 22(1) has only been violated. In this regard, the learned counsel relies upon the case of Prabir Purkayastha vs. State (NCT of Delhi), (2024) 8 SCC 254 . 9. The learned counsel further submits that from the FIR submitted by the complainant it only goes to show that the purpose of filing the FIR is for recovery of the money which was said to have been deposited by the complainant in the account of the petitioner. Therefore, if such is the purpose, the complainant should file a money suit and not a criminal complaint since recovery of money is essential within the realm of civil proceedings. In this connection, the learned counsel relies upon the case of Bimla Tiwari vs. State of Bihar & Ors. (2023) 11 SCC 607 . 10. The learned counsel further submits that after the arrest of the petitioner, a settlement agreement was signed between him and the complainant, while lodged in Jail. As per the said settlement agreement, the amount of money deposited by the complainant in the account of the petitioner is to be refunded to the complainant in three installments and the petitioner has already paid the first installment of Rs. 29,40,000/- on 01.08.2024. Therefore, the case being of a civil nature and in absence of any denial on the part of the petitioner that the amount was deposited in his account by the complainant, the petitioner should be released on bail. 11. 29,40,000/- on 01.08.2024. Therefore, the case being of a civil nature and in absence of any denial on the part of the petitioner that the amount was deposited in his account by the complainant, the petitioner should be released on bail. 11. The learned counsel has also relied upon the case of Rakesh Kumar Paul vs. State of Assam, (2017) 15 SCC 67 in respect of his submission on default bail and the Judgment & Order dated 19.07.2023 passed by a Coordinate Bench of this Court in Bail Application No. 2022/2023 (Anjan Nath vs. State of Assam) by which, grant of bail on parity basis was declined and on further challenge made by the applicant before the Supreme Court in SLP(Crl.) No. 9860/2023, bail was granted to the applicant on the basis of parity. 12. Ms. Mary L Khiangte, learned Addl. Public Prosecutor, on the other hand, submits that the question of granting default bail will arise only after the statutory period of 60 days have lapsed. In the instant case, according to the petitioner, regular bail application was moved on 01.08.2024 and thereafter, on 06.08.2024 and that by that time, the statutory period for considering default bail had not lapsed. Charge-sheet was filed on 23.09.2024 and within the statutory period of 60 days from the date of arrest of the petitioner. Therefore, there is no question of granting default bail. She further submits that as per Annexure-3 to the charge-sheet, an arrest memo was duly prepared in respect of the arrest of the petitioner and therefore, it is clear that the requirements of law has been fulfilled. 13. The learned Addl. Public Prosecutor further submits that the petitioner cannot seek parity and be granted bail like the co-accused person inasmuch as, the co-accused person was granted Anticipatory Bail and not regular bail through A.B Appln. No. 12/2024 by this Court on 24.10.2024 after the Court was satisfied that the co-accused person had fully co-operated with the investigation and had also surrendered one vehicle bought with the complainant’s money. As for the instant petitioner, the learned Addl. Public Prosecutor submits that as recorded in the charge-sheet itself, he did not co-operate when he was questioned during the investigation and therefore, with the approval of superior Officers, the Investigating Officer arrested him and forwarded him to the Court for remand. The learned Addl. As for the instant petitioner, the learned Addl. Public Prosecutor submits that as recorded in the charge-sheet itself, he did not co-operate when he was questioned during the investigation and therefore, with the approval of superior Officers, the Investigating Officer arrested him and forwarded him to the Court for remand. The learned Addl. Public Prosecutor submits that the petitioner is also not a local resident of the State and therefore, in the event of his release on bail, he is likely to abscond and not co-operate with the trial proceedings. She lastly submits that the Court, while granting bail, has to take into consideration relevant factors such as the nature of accusation, the role ascribed to the accused concerned, possibility/chances of tampering with the evidence and/or witnesses, antecedents, flight risk etc. In respect of the petitioner having regard to the amount of money involved and seeing his conduct, his application for bail should be rejected. 14. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 15. The petitioner was said to have been arrested on 26.07.2024 after the filing of the FIR on 31.01.2024. The allegation against him and the co-accused person is that they are liable to be booked and punished under Section 420/403 of the IPC and Section 138 of the Negotiable Instruments Act, 1881. Section 420 is a cognizable offence that the punishment prescribed is imprisonment for 7 years and also a fine. It is compoundable by the person who has been cheated with the permission of the Court. Section 403 attracts the punishment of imprisonment which may extend to 2 years or with fine or with both. Section 138 of the Negotiable Instruments Act, 1881 deals with the offence of dishonoring of cheques and if established, can lead to imprisonment up to 2 years or a fine up to twice the amount of cheque or both. The materials on record go to show that charge-sheet has been filed on 23.09.2024 and the prosecution has named as many as 17 prosecution witnesses to be examined. The charge-sheet further goes to show that the appellant admitted that he had received the money from the complainant and also admits that he has no communication with the two companies which he had mentioned in the agreements prepared and signed by him with the complainant. The charge-sheet further goes to show that the appellant admitted that he had received the money from the complainant and also admits that he has no communication with the two companies which he had mentioned in the agreements prepared and signed by him with the complainant. Further, the petitioner is also said to have not co-operated with the investigation and therefore, in order to ensure that he does not abscond, he was arrested with the approval of the superior officer concerned. 16. As regards, the prayer for default bail, it may be seen that it is admitted by the petitioner that the charge-sheet was filed on the 60th day of the arrest of the petitioner. Only dispute raised is that the date of filing the chargesheet cannot be accounted unless the Magistrate concerned had acknowledged receipt of the same on the said day. The petitioner, otherwise, has not produced any material to show that the charge-sheet was not received by the Magistrate concerned on 23.09.2024. This is because the counsel for the petitioner on 01.10.2024 had applied for a certified copy of the chargesheet alongwith all the annexures, FIR copy, arrest memo and any other related documents. Likewise, even the Addl. Public Prosecutor has also not produced any materials in this regard except a photocopy of the charge-sheet without annexures besides the statements of petitioner, complainant and the co-accused before the police. In the absence of any such materials that the charge-sheet was not filed on 23.09.2024, this Court cannot presume that the same was not received by the Magistrate concerned. There is no dispute to the fact that there is an option on the part of the complainant to file the money suit for recovery of the money given to the accused persons, but there is no bar in filing a criminal complaint since there is an allegation that the accused persons had cheated the complainant. Insofar as parity in the grant of bail is concerned, it may be seen that the role of the accused persons appears to be not similar. While both are alleged to have induced the complainant in parting with her money but the amount of money said to have been given by the complainant was deposited in the account of the instant petitioner. It is also noticed that second last paragraph of the FIR has not been translated properly. While both are alleged to have induced the complainant in parting with her money but the amount of money said to have been given by the complainant was deposited in the account of the instant petitioner. It is also noticed that second last paragraph of the FIR has not been translated properly. According to the complainant, it is the petitioner who failed to make the repayment. However in the translation, the name of the co-accused person has also been added. Therefore, having regard to the nature of involvement of the two accused persons in the case, this Court is of the considered view that the principles of parity cannot be said to be attracted. 17. Thus, upon due consideration, this Court is not inclined to grant bail to the petitioner. Accordingly, the Bail Application stands rejected.