Final Order 2

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SHRI TARUN YOGESH
ADDITIONAL SESSIONS JUDGE-06 : NDD
PATIALA HOUSE COURTS, NEW DELHI
Bail Matters 1956/2023
FIR No. 24/2023
PS Cyber New Delhi
under section 420/34 IPC & 66 of IT Act
STATE Vs. Suresh Kumar @ Sanjeev
25.11.2023
Preface
1. 4th application under Section 439 Cr.P.C. has been filed
after application under section 437 Cr.P.C. was dismissed by Ld.
CMM, NDD, PHC, New Delhi on 18.08.2023 followed by
dismissal of earlier applications under section 439 Cr.P.C. by Bail
Roster Judge vide order dated 03.10.2023, 02.11.2023 and
22.11.2023.
Brief Facts
2. FIR for offence under section 420 IPC has been registered
at PS Cyber South-West, Delhi on the basis of written complaint
of Ms. Babita D/o Bahadur Singh wherein she has alleged to
have met a boy namely Krish Bhasin on ‘Betterhalf’ App
(matrimonial site) who asked her to trace the link of surprise Gift
Box followed by call received from Ms. Rupali on 01.04.2023
asking her to pay Rs.39,800/- for custom clearance. Another call
was received on the next date asking complainant to pay GST
amount Rs.1,96,200/- followed by calls asking her to pay
Rs.8,00,000/-. Complainant having paid almost Rs.6,50,000/- got
suspicious and lodged complaint seeking quick action by
furnishing following details:
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1. Contact Number of Krish Bhasin +31685888933
2. Contact Number of Rupali 9319867201
3. Bank details of complaint’s account :
i. IDFC Bank Account No. 10061210548
ii. ICICI Bank Account No. 114301501570
4. Bank details of alleged persons :
i. South Indian Bank Account No. 0420053000008486
in the name of Krishna Kumar.
ii. PNB Account No. 2083100100004216 in the name
of Vijay Sharma.
Grounds for seeking bail
3. Advocate Shri Vishal Chauhan has addressed submissions
seeking regular bail of Suresh Kumar @ Sanjeev inter alia on
following grounds:-
1. Accused/applicant being peace loving and law abiding
citizen has been falsely implicated in the present case.
2. Krishna Kumar S/o Rajendra Kumar being main
accused has not been arrested by police despite having
his Aadhar Card and PAN card (Annexure A4);
Photograph of Krishna Kumar (Annexure A5); Bank
KYC (Annexure A6) and screen-shot of PAN
verification through Unique Identification Authority of
India/Aadhaar (Annexure A7).
3. Copy of on-line transfer (Annexure 2) would reveal
Rs.1,00,000/- and Rs.72,000/- transferred from Account
No. xxxxxxxxxx70 to account No. xxxxxxxxxxxx8486
of Krishna Kumar. Applicant being unaware of the
fraud used to withdraw the amount for Krishna Kumar
after keeping 0.5% share/commission.
4. Investigation of the case has been completed and there
is no ground for further incarceration of accused who
has remained in JC for almost six months since
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29.05.2023.
5. Charge-sheet has been filed and applicant having deep
roots in society will not run away from trial.
6. Accused is ready to abide by any term and condition
imposed by the Court and shall neither threaten or
influence any witness nor tamper with any evidence.
Submissions opposing bail application:
4. Shri S.K. Kain, Ld. Addl. PP for State has opposed
application seeking regular bail of Suresh Kumar @ Sanjeev by
alluding to reply filed by SI Chandra Shekher, PS Cyber, South-
West, Delhi wherein he has inter alia mentioned about on-line
fraud inducing complainant to pay:
1. Rs.1,00,000/- in PNB Account No. xxxxxxxxxxxx4216
2. Rs.6,52,000/- in South Indian Bank Account No.
xxxxxxxxxxxx8486.
5. Ld. Addl. P.P. for State, in addition, has adverted to reply
wherein IO has mentioned about:
1. Rs.1,80,000/-; Rs.1,10,000/- and Rs.4,20,000/-
withdrawn from South Indian Bank through cheque No.
1053290, 1053291 & 1053292 respectively in the name
of accused Sanjeev Kumar who has been identified in
CCTV footage at the time of withdrawing the amount
by encashing cheques in his name.
2. Co-accused Chandan Kumar @ Rupesh @ Anil S/o
Shivji Mahto apprehended in course of investigation on
the basis of IMEI Number of devices using alleged No.
9899391546 (registered number with South Indian
Bank Account) and 9319867201 who confessed his
crime and accused Suresh Kumar @ Sanjeev @ Nitin
S/o Ram Chander was thereafter arrested at his
instance.
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3. Three mobile phones including mobile used for
committing on-line fraud with SIM cards; 35 ATM
Cards of different banks including alleged South Indian
Bank, Bandhan Bank & DCB Bank; 32 cheque books
of different bank with some lose cheques; 01 Aadhar
card AND Voting Election Card recovered from the
possession of alleged Chandan Kumar AND 03 mobile
phones with SIM Cards; 03 PAN Cards; 08 Aadhar
Cards of different name and address including Aadhar
Card of Krishna Kumar used for opening alleged South
Indian Bank Account xxxxxxxxxxxx8486; 03 Election
Voting ID Cards; 01 E-Shram Card; 01 Rent
Agreement; 15 ATM cards of different Banks; 05 Pass-
books of different banks; 14 cheque books of different
bank with some lose cheques recovered from the
possession of Suresh Kumar @ Sanjeev Kumar.
Discussion and Conclusion:
6. Shri Vishal Chauhan has urged for regular bail of accused
by contending that charge-sheet under section 173(2) Cr.PC has
been filed after investigation qua Suresh Kumar @ Sanjeev has
been completed and no purpose will be served by keeping him
behind bar. Defence counsel, in addition, has relied upon
judgments titled Jeetendra Vs. State of Madhya Pradesh & Anr.
AND Ramesh Vs. State of Haryana in support of prayer seeking
regular bail of accused Suresh Kumar @ Sanjeev.
7. Ld. Addl. P.P. for State, per contra, has vehemently
opposed bail application by submitting that offence is serious in
nature and accused being beneficiary having withdrawn the
cheated amount through cheques may jump bail and/or try to
threaten/induce/influence witnesses and/or tamper with evidence.
8. I have considered their submissions.
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9. Bail is not be withheld as punishment and liberal
interpretation to the provision of bail is almost a century old as
held in Emperor Vs. H.L. Hutchinson AIR 1931 ALL 356
wherein it was observed that grant of bail is the rule and refusal
is the exception.
10. Principles guiding judicial discretion of granting or
declining bail laid in (i) Prahlad Singh Bhati Vs. NCT of Delhi
(2001) 4 SCC 280 AND (ii) State of UP Vs. Amarmani Tripathi
(2005) 8 SCC 21 have been reiterated by Hon'ble Supreme Court
of India in para 37 & 38 of Sanjay Chandra Vs CBI (2012) 1
SCC 40:
“37. The principles, which the Court must
consider while granting or declining bail, have
been culled out by this Court in the case of
Prahlad Singh Bhati v. NCT, Delhi thus: (SCC
pp. 284-85, para 8)
"8. The jurisdiction to grant bail has to be exercised
on the basis of well-settled principles having regard
to the circumstances of each case and not in an
arbitrary manner. While granting the bail, the court
has to keep in mind the nature of accusations, the
nature of (the) evidence in support thereof, the
severity of the punishment which conviction will
entail, the character, behaviour, means and standing
of the accused, circumstances which are peculiar to
the accused, reasonable possibility of securing the
presence of the accused at the trial, reasonable
apprehension of the witnesses being tampered with,
the larger interests of the public or State and similar
other considerations. It has also to be kept in mind
that for the purposes of granting the bail the
legislature has used the words 'reasonable grounds
for believing' instead of 'the evidence' which means
the court dealing with the grant of bail can only
satisfy it (sic itself) as to whether there is a genuine
case against the accused and that the prosecution
will be able to produce prima facie evidence in
support of the charge. It is not expected, at this
stage, to have the evidence establishing the guilt of
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the accused beyond reasonable doubt."
38. In State of U.P. v. Amarmani Tripathi this
Court held as under : (SCC pp. 31 & 32 , paras
18 & 22)
"18. It is well settled that the matters to be
considered in an application for bail are (i) whether
there is any prima facie or reasonable ground to
believe that the accused had committed the offence;
(ii) nature and gravity of the charge; (iii) severity of
the punishment in the event of conviction; (iv)
danger of the accused absconding or fleeing, if
released on bail; (v) character, behaviour, means,
position and standing of the accused; (vi) likelihood
of the offence being repeated; (vii) reasonable
apprehension of the witnesses being tampered with;
and (viii) danger, of course, of justice being
thwarted by grant of bail [see Prahlad Singh Bhati
v. NCT, Delhi and Gurcharan Singh v. State (Delhi
Admn.)]. While a vague allegation that the accused
may tamper with the evidence or witnesses may not
be a ground to refuse bail, if the accused is of such
character that his mere presence at large would
intimidate the witnesses or if there is material to
show that he will use his liberty to subvert justice or
tamper with the evidence, then bail will be refused.
We may also refer to the following principles
relating to grant or refusal of bail stated in Kalyan
Chandra Sarkar v. Rajesh Ranjan: (SCC pp. 535-36,
para 11)
"11. The law in regard to grant or refusal of bail is
very well settled. The court granting bail should
exercise its discretion in a judicious manner and not
as a matter of course. Though at the stage of
granting bail a detailed examination of evidence
and elaborate documentation of the merit of the case
need not be undertaken, there is a need to indicate
in such orders reasons for prima facie concluding
why bail was being granted particularly where the
accused is charged of having committed a serious
offence. Any order devoid of such reasons would
suffer from non-application of mind. It is also
necessary for the court granting bail to consider
among other circumstances, the following factors
also before granting bail; they are:
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(a) The nature of accusation and the severity of
punishment in case of conviction and the nature of
supporting evidence.
(b) Reasonable apprehension of tampering with the
witness or apprehension of threat to the
complainant.
(c) Prima facie satisfaction of the court in support of
the charge. (See Ram Govind Upadhyay v.
Sudarshan Singh and Puran v. Rambilas.)"
22. While a detailed examination of the evidence is
to be avoided while considering the question of bail,
to ensure that there is no prejudging and no
prejudice, a brief examination to be satisfied about
the existence or otherwise of a prima facie case is
necessary." (emphasis in original)
11. Offences of on-line fraud have become rampant and public
interest of fair trial will outweigh the personal interest of accused
in order to bring home the guilt for offence of cheating.
12. Following observation of Hon'ble Supreme Court of India
in State of Bihar Vs. Rajballav Prasad (2017) 2 SCC 178
emphasizing that while liberty of the subject is an important
consideration, the public interest in the proper administration in
criminal justice is equally important is extracted herein below:
“…undoubtedly the courts have to adopt a
liberal approach while considering bail
applications of accused persons. However, in a
given case, if it is found that there is a
possibility of interdicting fair trial by the
accused if released on bail, this public interest
of fair trial would outweigh the personal interest
of the accused while undertaking the task of
balancing the liberty of the accused on the one
hand and interest of the society to have a fair
trial on the other hand. When the witnesses are
not able to depose correctly in the court of law,
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it results in low rate of conviction and many
times even hardened criminals escape the
conviction. It shakes public confidence in the
criminal justice delivery system. It is this need
for larger public interest to ensure that criminal
justice delivery system works efficiently,
smoothly and in a fair manner that has to be
given prime importance in such situations.”
(Emphasis supplied)
13. Possibility of accused Suresh Kumar @ Sanjeev trying to
flee from justice and/or influence complainant/witness cannot be
ruled out in case he is admitted to bail.
14. Application under Section 439 Cr.P.C. seeking regular
bail of Suresh Kumar @ Sanjeev is therefore dismissed.
15. Observations made herein shall not tantamount to
expression of opinion on the merits of this case.
16. Copy of this order be given dasti.
(Tarun Yogesh)
Bail Roster Judge
ASJ-06/NDD/PHC
New Delhi:25.11.2023
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