Bail application filed by three accused persons charged with cheating and forgery. Court allowed bail observing lack of physical evidence against them and parity with co-accused already on bail.
Release on bail furnished by personal bonds and two sureties each in the like amount of the sentence.
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Neutral Citation No. - 2024:AHC-LKO:54782
Court No. - 28
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 8554 of 2024
Applicant :- Umesh Awasthi And 2 Others Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Syed Zulfiqar Husain Naqvi,Nida Navi,Shishir Srivastava
Counsel for Opposite Party :- G.A.
Hon'ble Shree Prakash Singh,J.
Heard learned counsel for the applicants,learned A.G.A. for the State and perused the record.
The instant bail application has been filed on behalf of the applicants with a prayer to release them on bail during the trial in Case Crime No. 8 of 2024, under Sections 419, 420, 34 I.P.C. & 66DI.T. Act Police Station Cyber Crime, District Faizabad/Ayodhya.
Prosecution story is that the complainant received a call from 9727741346 through Whatsapp calling and was informed that whatever amount he would deposit through bet daily app link, he would get more money and, thereafter, the complainant deposited Rs.1,66,399/- in different accounts but later on, it was found that same was fake and cheat and fraud has been committed.
Contention of the learned counsel for the applicants is that the applicants are innocent and have falsely been implicated in the present case. He submits that the applicants are not named in the F.I.R. and once the police raided two places in Bharat City Tower at Ghaziabad, the applicants including other co-accused persons were arrested though nothing was recovered from their possession so as to connect them with the instant offence as only the mobile phones have been shown to be recovered as per the recovery memo. He next added that the present applicants have been connected only on the basis of the confessional statement of the main accused Himanshu @ Sainki and Saurabh @ Hani and except apart, there is no cogent piece of evidence
against them. He also submitted that it is an admitted fact that the applicants were working as employees on salary of Rs.18000/- and except apart, they have no concern with any kind of criminal activity as has been alleged to have been done by them.
Adding his arguments, he submits that the applicants have no previous criminal history as has been mentioned in paragraph 35 of the afÏdavit filed in support of the bail application and the applicants are law abiding citizens, who are languishing in jail since 22.5.2024 and in case, the applicants are granted bail, they will not misuse the liberty of the same and will co-operate in the trial proceedings. He further added that the identically situated co-accused persons namely, Anand Shukla, Madhvendra Shukla, Ravi and Prashant Peshwani, have already been enlarged on bail by this court vide orders passed in Criminal Misc. Bail Application No. 7707 of 2024,Criminal Misc. Bail Application No. 7107 of 2024,Criminal Misc. Bail Application No. 8013 of 2024 and Criminal Misc. Bail Application No. 7737 of 2024 and the applicants are seeking parity with the aforesaid co-accused persons.
Per contra, learned A.G.A. has vehemently opposed the prayer of bail and submitted that present applicants including other twenty coaccused persons were arrested by the police, on a raid in Bharat City Tower at Ghaziabad and from the statements of the co-accused persons, namely,Himanshu @ Sainki and Saurabh @ Hani, it is evident that the applicants were involved in committing the offence, but, he could not dispute the fact that the identically situated co-accused persons named above, have already been granted bail by this court.
Having heard the learned counsels for the parties and after perusal of record, it is evident that nothing was recovered from the possession of the applicants as is apparent from the recovery memo and the applicants have been connected only on account of the confessional statements of the coaccused Himanshu @ Sainki and Saurabh @ Hani; there is no previous criminal history of the
applicants, which has been explained in paragraph 35 of the afÏdavit filed in support of the bail application; the applicants are law abiding citizens; the applicants are languishing in jail since 22.5.2024 and they have undertaken that they will not misuse the liberty of bail and the identically situated co-accused persons named above have already been granted bail by this court.
Considering the submissions of learned counsel for the parties, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a case of bail.
Let the applicants, Umesh Awasthi,Birkha Bogati and Tek Bogati, involved in the aforementioned crime be released on bail, on their furnishing personal bonds and two sureties each in the like amount, to the satisfaction of the court concerned, with the following conditions:-
(1) The applicants shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial;
(2) The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. They shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufÏcient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code;
(3) The applicants 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.; and
(4) In case, the applicants misuse the liberty of
bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code.
The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.
It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case.
Order Date :- 8.8.2024 AKS
Digitally signed by :- ANUJ KRISHNA SRIVASTAVA High Court of Judicature at Allahabad, Lucknow Bench
2 issues framed by the court
Whether the applicants qualify for bail in a cheating and forgery case considering lack of recovery from their possession and reliance solely on co-accused confession.
Whether parity can be granted with identically situated co-accused who have already been released on bail.
Umesh Awasthi
Birkha Bogati
Tek Bogati
State Of U.P.
Shree Prakash Singh
As recorded by the court registry
2 orders share this CNR
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