Ajay Kumar vs State Of Himachal Pradesh

Virender Singh, J

Applicant-Ajay Kumar has filed the present application, under Section 438 of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’), before this Court, with a prayer to direct the police/Investigating Officer of Police Station Kotkhai, District Shimla, to release him on bail, in the event of his arrest, in case FIR No. 41 of 2022, dated 16th May, 2022, registered under Section 420 of the Indian Penal Code (hereinafter referred to as ‘IPC’), with Police Station Kotkhai, District Shimla, H.P. .

According to the applicant, he is the permanent resident of the address, as mentioned in the application and a law abiding citizen. He is an agriculturist by profession. According to him, he is an innocent person and has not committed the offence, for which, he has been named as accused, in this case. He is having deep roots in the society and is ready to abide by any condition(s), to be imposed by this Court, in case any direction is issued under Section 438 CrPC.

According to the applicant, the allegations against him are that he has received the loan amount, but, has not constructed the house, and, as such, he has misused the same.

On the basis of the above facts, a prayer has been made by the learned counsel appearing for the applicant, that the application may kindly be allowed.

When put on notice, the police filed the status report, disclosing therein, that the complainant is a statutory corporation constituted under the State Bank of India Act 1955 (Act No 23 of 1955) carrying on business of banking and having its central office at Madam Cama Road, Nariman Point Bombay and one of its regional office is located at Shimla H.P. The Complainant has various branches all over India and one of the branch office is situated at Deori Khaneti, Tehsil Kotkhai, Distt. Shimla, H.P., which is under the administrative control of its Regional Office, Shimla, H.P. This bank was earlier known as the State Bank of Patiala, which has merged into State Bank of India, w.e.f. 01.04.2017.

It has further been disclosed in the status report that at present, Sh. Rajan Sharma is the Branch Manager and principal officer of complainant Bank at Deori Khaneti Tehsil Kotkhai Distt. Shimla H.P. The applicant approached the Bank branch and requested the then Branch Manager to provide him house loan, in the sum of Rs. 10,00,000/- (Ten Lacs Only) for the construction of house/building, over his land in Khata/Khatauni No 119/147, khasra Number 515, land area measuring 00-01-56 hectare (04 Biswa), situated in Mohal Shilli, Patwar Circle Khaneti, Tehsil Kotkhai, Distt. Shimla, H.P. The loan application was signed by the applicant in the Bank and the Bank sanctioned the sum of Rs. 10,00,000/- for the construction of house over the above land. The applicant mortgaged his above-mentioned land in favour of SBI Deori Khaneti for the loan amount of Rs. 10,00,000/- and the simple mortgage deed, to this effect, has been executed by the applicant, in favour of the complainant - Bank and duly registered in the office of Sub Registrar, Kotkhai, vide its registration No 10/20167, on 18-01- 2016.

It has further been stated that the applicant has also given the valuation report and the abstract of cost, measurement details, and the map of the proposed house in the Bank. The loan has been advanced to the applicant, on the basis of the above documents, for the construction of the house, but he has not constructed the house over the above land or and has mis-utilized the loan amount. The applicant has not produced any bills regarding the purchase of construction material.

On the basis of the above facts, the FIR in question has been registered and criminal machinery swung into motion.

In the status report, which was filed on 17th January, 2023, it has been mentioned that the applicant has not joined the investigation, despite the directions given to him. Thereafter, the matter was adjourned.

In the supplementary status report, filed on 23rd January, 2023, it has been mentioned that the applicant has joined the investigation on 19th January, 2023. The applicant has disclosed to the police that he has returned a sum of Rs. 3,00,000/-, out of the home loan, but, according to the police, for a considerable long time, he could not deposit the installments.

In the status report, which has been filed today, the police has mentioned that the applicant has obtained the loan of Rs. 10,00,000/- and has not constructed the house, as such, he has misused the amount and had committed the fraud with the Bank.

On all these submissions, a prayer has been made to reject the application.

A perusal of the status reports, which have been filed on different dates, shows that nothing has been mentioned, in those status reports, that the police requires the custodial interrogation of the applicant. The role, allegedly played by the applicant, in the commission of the alleged crime, is yet to be proved during the trial. No useful purpose would be served by sending the applicant to the police/judicial custody, as, pre-trial punishment is prohibited under the law. The accused is presumed to be innocent till his guilt is proved after the trial. The chances of commencement and conclusion of the trial against the applicant are not so bright, as such, no useful purpose would be served by rejecting the application.

It would be pertinent to record herein that, on 17th January, 2023, this Court has passed the following order:

“Status report filed.

To come up for consideration on 23.01.2023.

Till then, in the event of the arrest, the I.O., Police Station Kotkhai District Shimla is directed to release the applicant, on bail, subject to furnishing personal bond in the sum of Rs. 50,000/- with one surety of the like amount, to the satisfaction of the I.O.

The applicant, through his counsel, is directed to join the investigation, as and when, directed by the Investigating Officer, to do so.”

In pursuance of the said order, the applicant has joined the investigation.

Considering all these facts, there is no legal hesitation, for this Court, to confirm the interim order, passed in favour of the applicant. Consequently, interim order, dated 17th January, 2023, is made absolute. Therefore, it is ordered that the applicant be released on bail, in the event of his arrest, in case FIR No. 41 of 2022, dated 16th May, 2022, registered under Section 420 of the Indian Penal Code with Police Station Kotkhai, District Shimla, H.P., on his furnishing personal bond, to the tune of Rs. 50,000/- with one surety of the like amount, to the satisfaction of the Investigating Officer. The bail is granted, subject to the following conditions:

a) That the applicant will join the investigation of the case, as and when, called for, by the Investigating Officer, in accordance with law;

b) That the applicant will not leave India, without prior permission of the Court;

c) That the applicant will not, directly or indirectly, make any inducement, threat or promise to any person, acquainted with the facts of the case, so as to dissuade him/her from disclosing such facts to the Investigating Officer or the Court; and

d) That the applicant shall regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so seek exemption from appearance by filing appropriate application;

Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application.

The applicant is directed to move regular bail application, when charge sheet will be filed in the learned trial Court.

It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found violated by the applicant.

Applicant may produce a downloaded copy of the order, passed by the Court, before the concerned authority/ police/Investigating Officer and the said authority/police/ Investigating Officer shall not insist for the certified copy of order, rather, passing of order can be verified from the web-page of this Court.