In a criminal bail application under Section 389(2) CrPC, the Hon'ble High Court rejected the prayer for bail during the pendency of appeal for alleged offenders of cheating and criminal breach of trust, holding the case was not fit for bail.
Prayer for bail of the applicants rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Reserved
Court No. - 42
Case :- CRIMINAL MISC. APPLICATION U/S 389(2) No. - 2 of 2019
Applicant :- Harish Chandra And 2 Ors Opposite Party :- State Of U.P. Counsel for Applicant :- Siddharth Saran,V.P. Srivastava (Sr. Advocate) Counsel for Opposite Party :- G.A.,V. K. Dubey
Hon'ble Krishna Pratap Singh,J.
Heard Mr. V.P. Srivastava, learned Senior Advocate assisted by Mr. Siddharth Saran, learned counsel for the applicants and Mr. Manish Kumar Pandey and Mr. Vijay Kumar Dubey, learned counsel for the first informant and learned Additional Government Advocate representing the State and perused the record of the case.
By means of this application under Section 389(2) of the Code of Criminal Procedure, the applicants have prayed for quashing of the order dated 21.2.2019 passed by the District and Sessions Judge, Sant Kabir Nagar in Criminal Appeal No. 4 of 2019 arising out of Case crime No. 989 of 2008, under Sections 406, 419, 420, 467, 468 and 471 IPC, police station Khalilabad, district Sant Kabir Nagar and enlarge the applicants on bail during the
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pendency of appeal before the court below.
The brief facts of the case are that a First Information Report was lodged by the first informant Smt. Dev Pati Devi, wife of Late Girja Prasad Mishra, Village Umri Kala, police station Kotwali Khalilabad, district Sant Kabir Nagar to the effect that the informant is an old and illiterate lady. Accused-Harish Chandra works as a servant in the clinic of his nephew for the last 15-16 years and is familiar to the informant. The first informant has good faith upon the accused-Harish Chandra. The accused had the knowledge about the money of the informant deposited in the Post Office as he used to accompany her to the Post Office in connection with deposit and withdrawal of money. The first informant had invested certain amount in N.S.C and Kishan Vikas Patra, which was in the knowledge of the accusedHarish Chandra. The report further mentioned that before the maturity of the N.S.C. and Kisan Vikas Patra, the accused-Harish Chandra asked the informant to put her thumb impression on the NSC and KVP so that he could complete the formalities to facilitate the payment, which she did on good faith. When the money was not given to the informant, she enquired the accused about the money to which, he replied that some formalities are still left to be completed, for which she has to go to the Post
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Office. Thereafter, the accused Harish Chandra took her to Post Office, which is near the Registry Office and got her thumb impression on certain papers. Prior to this accused also brought her to Khalilabad and got her thumb impression on certain papers on the pretext that he shall purchase NSC from the amount which is deposited in her account at State Bank of India. On repeated request, when amount of N.S.C. and K.V.P was not given to the informant, she told about the same to his nephew. On enquiry it revealed that the accused has got the amount of NSC amounting to Rs. 70,000/- transferred in the name of his wife, amount of KVP has also been got transferred in the account of his wife through two cheques amounting to Rs. 1,91,000/- (rupees one lac ninety one thousand only) each. Later on, it was also revealed that the accused has also got transferred all the agricultural land, Bhumidhari land and Madaiya situated in Umri Dhamraja and two stories Pakka House, situated at Umri Kala in the name of his wife and brother.
On the basis of aforesaid information, Case Crime No. 989 of 2008, under Sections 419, 420, 467, 467 and 471 IPC, police station Khalilabad, district Sant Kabir Nagar was registered and after investigation charge sheet has been submitted against the applicants and case was registered as
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Criminal Case No. 2440 of 2010.
Learned Chief Judicial Magistrate, Sant Kabir Nagar vide order dated 25.1.2019 convicted and sentenced each of the applicants to three years' RI and a fine of Rs. 5000/- each under Sections 406 and 419 IPC, seven years' RI and a fine of Rs. 5000/each under Sections 420, 478, 468 and 471 IPC with default stipulation.
Being aggrieved and dissatisfied by the order of learned Magistrate, the applicants filed Criminal Appeal No. 04 of 2019 before the learned District and Sessions Judge, Sant Kabir Nagar along with an application for bail. The bail application of the applicants was rejected by the learned District and Sessions Judge vide order dated 21.2.2019.
Shri V.P. Srivastava, learned Senior Advocate submitted that the applicants have been falsely implicated in the instant case due to some ulterior motive. Learned counsel further contends that as applicant No. 1, Harish Chandra used to assist Smt. Dev Pati Devi, the first informant in all her routine work and she being happy with the services rendered by the applicant-Harish Chandra, had given the money to him out of her own freewill. He further submitted that as the first informant was in dire need of money, she has sold her house. Learned counsel for the applicants also submitted that the learned
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Magistrate has convicted the appellants without there being sufficient evidence on record and the learned Sessions Judge without application of mind, has rejected the bail application of the applicants. Learned counsel submits that after their conviction, the appellants have been in jail since 22.1.2019. They do not have any criminal antecedent to their credit and in case they are released on bail, they shall not misuse the liberty of bail.
Rebutting the submissions of learned counsel for the applicants, Shri Manish Kumar Pandey and Mr. Vijay Kumar Dubey, learned counsel for the informant, submitted that applicant No. 1, Harish Chandra dishonestly induced the first informant and has got transfered the amount of NSC and Kisan Vikas Patra in the account of his wife, applicant No. 2, Jamotri Devi. Further the applicant-Harish Chandra has also got transferred the agricultural land, two stories Pakka house and other properties of the first informant in the name of his wife Jamotri Devi and brother Dileep Chandra. Learned counsel further submits that if the first informant had sold her house as she was in dire need of money, as to why she would transfer the money in the account of applicant No. 2, Jamotri Devi. Learned counsel for the first informant also submitted that the learned Magistrate after evaluating and assessing the evidence on
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record has convicted and sentenced the applicants. There are ample evidence on record to show the misdeed of the applicants. Learned counsel submits that the applicants have betrayed the first informant, who was having good faith on the applicant-Harish. He submits that the first informant has also met her maker.
Having considered the submissions of the parties, looking to the nature of offence and its gravity, overall circumstances of the case and the manner in which it was committed, I am of the view that it is not a fit case for bail.
Accordingly, the prayer for bail of the applicants-appellants is rejected.
However, it is provided that the learned Appellate Court shall make an endeavour to decide the appeal expeditiously, preferably within a period of three months from the date of receipt of an order of this Court and for this purpose learned Court may also adopt coercive measure provided under law.
Order Date :- 08.04.2019 Ishrat
1 issue framed by the court
Whether the applicants are entitled to bail during the pendency of their criminal appeal.
1 provisions across 1 enactments
Harish Chandra and 2 Ors
Krishna Pratap Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
