Allowed

Anand Tripathi v. State of U.P. Thru. Prin. Secy. Home Lko

Allahabad HC26 May 2022/2234/2022

Case brief

AI extract

What is this about?

This court allowed a bail application for Anand Tripathi, an accused in fraud and forgery cases. The grant relied on parity with a co-accused who had been released and the applicant's detention exceeding half the maximum possible sentence under Section 436-A Cr.P.C. The court directed expedited trial and imposed specific bail conditions.

What did the court decide?

The applicant Anand Tripathi released on bail with personal bonds and two sureties of Rs. 1 lakh each on conditions of attendance and non-adjournment. Trial court directed to conclude trial within six

Anand Tripathi Vs State of U.P. Thru. Prin… — Civil Procedure and Limitation | Allahabad HC (2022)

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RESERVED

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2234 of 2022 Applicant :- Anand Tripathi Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko Counsel for Applicant :- Yogeshwar Sharan Srivastava Counsel for Opposite Party :- G.A.,Ashish Kumar,Raj Kumar Pandey

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Hon'ble Rajesh Singh Chauhan,J.

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1. Heard Mr. Yogeshwar Sharan Srivastava, learned counsel for the applicant, learned Additional Government Advocate for the State and Mr. Ashish Kumar, learned counsel for the complainant/ informant.

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2. Learned counsel for the applicant has submitted that the present applicant is languishing in jail since 20.08.2015 in Case Crime No.266 of 2015, under Sections 408, 426, 420, 467, 461 & 471 I.P.C., Police Station-Gangaghat, District-Unnao.

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3. On account of the prosecution story, so narrated in the First Information Report (in short F.I.R.), the present applicant with the collusion of his brother-in-law, Sumit Awasthi, has opened a forged Bank Account in the name of M/s Promose Life Science in the Oriental Bank of Commerce, Branch Barra, Kanpur Nagar. The coaccused, Sumit Awasthi, has embezzled Rs.30,00,000/- (Thirty lakhs).

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4. The precise allegations of the impugned F.I.R. are that the accused applicant as well as his co-accused persons were relatives of each other, who had found a coccus after the appointment of coaccused Sumit Awasthi in original Biomass Company where he was entrusted with the collection of money from the buyers on Pan India

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basis and the payments were made mostly through cheques as M/S Biomass Research and Technical Solution Private Limited Company which was officially registered as a private limited company and had its registration with the ROC and the company after its formation was duly allotted PAN Number in the year 2006 and the said company was involved in manufacturing and supply of Chicken Feed and other poultry food items and certain chemicals were also manufactured in the factory which were supplied on PAN India basis as well as different foreign companies also. Further, the coccus of the accusedapplicant had in all opened three firms, namely, (i) R.R.S. Laboratories (ii) Biomass Research and Technical Solution and (iii) Promose Life Science. M/S R.R.S. Firm was a proprietorship firm and Sumit Awasthi was its proprietor. The said firm was opened in the year 2011 i.e. 07.05.2011. The firm R.S.S. Laboratories is stood for Rishi Nath Ramwati Sumit. All the aforesaid firms were opened in collusion with each other and in the said firms, Sumit Awasthi had started working as Accountant & Sales and Collection Agent with the company of the complainant where he was entrusted with the responsibility of collection the payments from buyers on Pan India basis related to different State viz Karnataka, Punjab, Haryana and other States.

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5. Learned counsel for the applicant has drawn attention of this Court towards Annexure No.3 of the affidavit filed in support of the bail application, which is a bail order dated 02.12.2021 passed by this Court in Bail Case No.12465 of 2021 in the case of main accused/ coaccused Sumit Awasthi in the same crime case i.e. Case Crime No.266 of 2015. Therefore, on the basis of principles of parity the present applicant may be released on bail.

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6. Learned counsel for the applicant has submitted that in almost all the cases wherein the charge-sheet has been filed the maximum punishment is ten years, if the charges are proved against the present

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applicant and in view of Section 436-A Cr.P.C., which provides that if the accused has undergone detention for a period extending upto onehalf of the maximum period of imprisonment, he may be released on bail.

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7. In the present case, the present applicant is in jail with effect from 20.08.2015 i.e. for about six years-and-nine months, therefore, he may be given the benefit of Section 436-A Cr.P.C.

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8. He has further submitted that despite the direction being issued by this Court vide order dated 24.08.2018 in the Case:- U/S 482/378/407 No.5119 of 2018; Anoop Khanna vs. State of U.P. & others; to dispose of the Criminal Case No.2245 of 2016 arising out of Case Crime No.266 of 2015, under Sections 408, 420, 426, 467, 468, 471 & 120-B I.P.C. within a period of six months, but there is no good progress in the trial proceedings.

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9. Learned counsel for the applicant has drawn attention of this Court towards para-13 of the affidavit filed in support of the bail application wherein he has indicated that there are 25 criminal cases against the present applicant which are of identical nature having similar allegations. The detailed chart has been annexed explaining the criminal history of the present applicant as Annexure No.4 to the affidavit. The charge-sheet has been filed in this case, therefore, there is no apprehension of absconding or tampering with the evidence if the present applicant is released on bail. He shall not misuse the liberty of bail and shall abide by all terms and conditions of bail order and shall co-operate with the trial proceedings.

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10. Per contra, learned Additional Government Advocate as well as Mr. Ashish Kumar, learned counsel for the complainant/ informant have opposed the aforesaid prayer for bail.

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11. Mr. Ashish Kumar has submitted that the parity may not be a sole ground to grant bail. He has further submitted that the bail application of the present applicant bearing Criminal Misc. Bail Application No.25353 of 2021 has been rejected by this Court at Allahabad on 08.04.2022. He has also submitted that since the present applicant has got long criminal history and has been indulged in so many heinous offence relating to fraud, forgery and cheating etc., therefore, he should not be granted bail. He has also submitted that the petition to expedite the trial was filed on behalf of the informant/ complainant wherein the direction was issued by this Court to expedite the trial but the present applicant and his side is lingering on the trial proceedings.

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12. Mr. Ashish Kumar has drawn attention of this Court towards Annexure No.SCA-5 of the supplementary counter affidavit, which is a Certificate of Registration and Allotment of TIN to M/s Promose Life Science & Animal Health Care of which the present applicant is a proprietor. Thereafter, he has drawn attention of this Court towards Annexure No.SCA-8 of the supplementary counter affidavit, which is a letter dated 04.03.2015 preferred by the Inspector Incharge, Police Station-Kotwali, Kanpur Nagar addressing to Special Chief Judicial Magistrate, Kanpur Nagar and apprised, on the basis of thorough investigation, that there are total 17 account holders, the details thereof have been indicated in such letter who defrauded Rs.1,70,000,00/- (one crore seventy lakhs). In such letter, name of the firm of the present applicant i.e. Promose Life Science and Animal Health Care is at serial no.15. He has also drawn attention of this Court towards Annexure No.SCA-11 of the supplementary counter affidavit, which is an exhaustive report dated 08.02.2016 of the Additional Superintendent of Police, Kanpur Nagar addressing to the Senior Superintendent of Police, Kanpur Nagar wherein vide internal page 12 of such report it has been categorically indicated that the

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present applicant, his brother Vivek Tripathi and their other relatives are indulged in fraud, forgery and cheating etc.

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13. Mr. Ashish Kumar has also submitted that in the impugned F.I.R. the quantum of fraud is about Rs.1,80,000,00/- (one crore eighty lakhs). He has further submitted that since the reason of delay not to conclude the trial is the delayed tactic being adopted from the side of the present applicant, therefore, they cannot take benefit of the delay to conclude the trial.

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14. Heard learned counsel for the parties and perused the material available on record.

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15. I have noticed that all the criminal cases, so indicated in the chart, which has been annexed as Annexure No.4, are relating to the years from 2015 to 2019 i.e. the period when the present applicant was in jail. It appears that after being languished in jail on 20.08.2015 various F.I.Rs. were lodged against the present applicant and other accused persons. Therefore, prima-facie, it appears that this is not a case where the present applicant has misused the liberty of bail after being released from jail. I have also noted that almost all the cases are relating to the same allegation i.e. cheating, forgery, fraud and purgery etc. On account of the said cases the Gangster Act was also imposed against the present applicant. It has also been noted that in maximum cases the co-accused Sumit Awasthi is the accused.

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16. In the present case, in crime case i.e. Crime Case No.266 of 2015 the main allegations have been levelled against the co-accused Sumit Awasthi and the role attributed to the present applicant is of accomplish who was hand in gloves with Sumit Awasthi to cheat and make forgery etc. from the informant/ complainant.

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17. Notably, the main accused/ co-accused Sumit Awasthi has been granted bail by this Court in the same case crime i.e. Case Crime

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No.266 of 2015 on 02.12.2021 in Bail Case No.12465 of 2021 (Annexure No.3), therefore, the present applicant may seek parity with the co-accused Sumit Awasthi.

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18. I have also considered the submission of the learned counsel for the applicant in respect of Section 436-A Cr.P.C. that the present applicant has served more than half of the sentence prescribed for most of the offences as he is in custody with effect from 20.08.2015 i.e. for about six-years-and-nine-months and maximum punishment in almost all the sections under which the charge-sheet has been filed is ten years. Therefore, he may entitle for bail in terms of Section 436-A Cr.P.C.

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19. It is true that the parity may not be the sole ground to grant bail, but in the present case, since the co-accused, Sumit Awasthi, against whom there are more serious allegations than the present applicant, has been granted bail, therefore, the present applicant may not be denied the parity.

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20. During the course of arguments, learned counsel for the complainant/ informant has submitted that there are some cases relating to attempt to murder registered against the present applicant, as that offence has been committed when he was in custody therefore, if he is released on bail there may be likelihood that he may influence the witnesses. Therefore, so as to protect the witnesses the present applicant may not be released on bail.

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21. On that, it would be apt to observe here that it is a bounded duty of the prosecution/ police agency to protect the witnesses and produce before the Court taking all safety measures so that those could be examined in a fearless manner.

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22. Accordingly, the bail application is allowed.

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23. Let the applicant,Anand Tripathi, be released on bail in the aforesaid case crime number on his furnishing personal bonds and two reliable sureties of Rs.1,00,000/- (one lac) each to the satisfaction of the court concerned with the following conditions:

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(1) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence, if the witnesses are present in Court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law;

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(2) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code;

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(3). In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fail to appear before the Court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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(4) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

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(5) The present applicant shall not leave the country without prior permission of the Court.

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24. The Trial Court is directed to make an earnest endeavour to conclude the trial with all expedition preferably within a period of six months. The trial court shall not grant any unnecessary adjournment to

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the prosecution for adducing witnesses as contained in the chargesheet. Similarly the trial court shall not grant any unnecessary adjournment to the applicant for cross-examination of the witnesses. In the event, there is any apprehension of injury being caused to the witnesses, the trial court shall ensure granting the protection to the witnesses in the light of the judgment of the Supreme Court rendered in the case of Mahendra Chawla and others vs Union of India and others; (2019) 14 SCC 615.

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Order Date :- 26^th May, 2022. [Rajesh Singh Chauhan,J.] Suresh/

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Digitally signed by SURESH CHANDRA Date: 2022.05.26 18:23:48 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Anand Tripathi v. State of U.P. Thru. Prin. Secy. Home Lko

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Anand Tripathi v. State of U.P. Thru. Prin. Secy. Home Lko

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