Allowed

Nitin Kumar Srivastava v. State of U.P. Thru. Prin. Secy. Home Lko.

Allahabad HC21 Oct 2024/2880/2023

Case brief

AI extract

What is this about?

The court allowed a bail application filed by a director accused of cheating and criminal misconduct regarding company deposits. Ruling that allegations were civil in nature with no evidence of flight risk, the court released the applicant on bail with personal bond and specific conditions to ensure attendance and prevent witness tampering.

What did the court decide?

The applicant is released on bail by furnishing a personal bond with two reliable sureties each in the like amount to the satisfaction of the court concerned.

Nitin Kumar Srivastava Vs State of U.P. Thru. Prin… — Cheating and Forgery | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:70761

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Court No. - 8

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2880 of 2023 Applicant :- Nitin Kumar Srivastava Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Karunanidhi Yadav,Krishna Kant Counsel for Opposite Party :- G.A. Hon'ble Jaspreet Singh,J.

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Heard Shri Karunanidhi Yadav, learned counsel for the applicant and Shri Vishwas Saraswat, learned AGA for the State-respondent.

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This is a regular bail application filed by the applicant who has been arraigned in a Case Crime No.0864 of 2019 under Section 406, 420 IPC, Police Station- Aashiyana, DistrictLucknow.

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As per the averments contained in the FIR, it is alleged by the complainant that the Company floated by the applicant and other co-accused invited deposits and after receiving the money certain FD certificates were issued. Despite the amount deposited against which the FD certificate were issued but at the time of redemption of the said amount, the Company and its officials including the applicant and other co-accused defaulted in payment and defrauded the complainant and the other investors.

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The submission of learned counsel for the applicant is that it is primarily a civil dispute where the applicant being a bona fide Director of the Company and floated certain schemes, which did not materialize. However, there was no intent of the applicant to defraud the investors. Due to uncertain investment climate, the schemes of the Company did not do well, which created a cash crunch, which resulted in failure of the Company to honour its commitment. It is also urged that no money was paid to the applicant directly rather it was all deposited in the funds of the Company, which was managed not only by the applicant but even by the other Directors.

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It is further urged that in the instant case, the charge sheet has already been filed and another Director of Company, namely, Aniruddh Prasad Tiwari has been enlarged on bail passed by this Court in Criminal Misc. Bail Application No.8874 of 2023 vide order dated 08.04.2024. It is further urged that the similar allegations have been levelled against the applicant in other States, wherein the applicant has been enlarged on bail. The applicant has been in jail since 25.09.2021 and the applicant is not in a position to influence any witness or tamper with the

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evidence and having spent more than two and half years in jail the applicant is entitled to be enlarged on bail.

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Learned AGA has opposed the bail application, however, could not dispute the fact that the allegations against the applicant are primarily in respect of the investment made by the complainant in the Company, which is a civil dispute. It is also not disputed that the matter as to whether the schemes were floated by the applicant to defraud its investors or it was a bad business decision is to be seen during trial. It is also not disputed that the charge sheet has been filed and the applicant is not at flight risk. It is also not apprehended that the applicant may influence any witness or tamper with the evidence. The allegations regarding filing of the FIRs in different States have been explained, wherein the applicant has been enlarged on bail and the several FIRs are relating to different transactions made by the investors with the Company, of which the applicant is a Director. It is also pointed out by learned AGA that in the instant case, though the charge sheet has was filed, but certain Sections have been added. It is also pointed out that the applicant has already moved an application under the newly added Sections before the trial court, which is still pending. Hence, the bail application of the applicant may be rejected.

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The Court has heard learned counsel for the parties and also perused the material on record.

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Considering the rival submissions and material available on record, it could not be disputed by learned AGA that even though the applicant was the Managing Director of the Companies, but there is no clear indication as to whether the applicant deliberately floated the Companies for duping its investors or it was a bad business decision, which led to dishonouring the business commitment.

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Once the charge sheet has been filed and the matter is yet to be decided in trial and the applicant has been in jail since 25.09.2021 and insofar as the bail applications moved by the applicant in other States are concerned, he has been enlarged on bail and the history as pointed out by learned AGA relates to similar allegations against the applicant in separate matters relating to the Companies and investments made therein by the investors, they are primarily contractual matter and it is not the case of learned AGA that the applicant is at flight risk or he is in a position to influence any witness or tamper with the evidence, and co-accused Aniruddh Prasad Tiwari has already been granted bail. Hence, taking an overall view, this Court is of the view that the applicant can be enlarged on bail. However, insofar as the contention that certain additional Sections have

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been added, it is to be seen that the instant bail application is being considered only in respect of Sections 406 and 420 IPC. In case, if some additional Sections have been imposed and for which the bail application is pending before the trial court, the same shall be considered on its own merits and subject to its outcome, if any application comes up before this Court, the same shall be considered then. However, the present bail application is being considered only in respect of Sections 406 and 420 IPC.

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Let the applicant- Nitin Kumar Srivastava involved in the aforesaid case be released on bail on his furnishing a personal bond with two reliable sureties each in the like amount to the satisfaction of the court concerned.

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At the time of executing required sureties the following conditions shall be imposed in the interest of justice.

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when 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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(ii) 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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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails 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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(iv) 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, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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Order Date :- 21.10.2024/Ashutosh

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Digitally signed by :- ASHUTOSH PANDEY High Court of Judicature at Allahabad, Lucknow Bench

Nitin Kumar Srivastava v. State of U.P. Thru. Prin. Secy. Home Lko.

Case brief

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Nitin Kumar Srivastava v. State of U.P. Thru. Prin. Secy. Home Lko.

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