Naresh Kumar vs The State

P. Devadass, J.—Petitioner/accused seeks modification of certain portion of the bail condition imposed by the learned XVIII Metropolitan Magistrate, Saidapet, Chennai in Crl. M.P. No. 1954 of 2014 on 02.08.2014. SSI Cash Service Limited, Chennai provided the service of carrying the cash (currency notes) and filling them in the atm machines installed by various public sector and private sector banks. The company employs several staff. It includes Rajasekar (A-1), Nareshkumar (A-2), Anandan (A-3), Dinesh Babu (A-5). They were alleged to have swindled the cash while transporting it to the ATM Machines. They have filled part of the currency notes in their pockets and the balance in the ATM machines. In this way, it is alleged that totally Rs. 2.40 crores have been misappropriated.

On 2.8.2014, petitioner sought for bail. The learned XVIII Metropolitan Magistrate, Saidapet, Chennai grant him bail directing him to produce two sureties, who shall execute a bond for Rs. 10,000/- each and shall appear before the respondent police daily at 10.30 a.m. until further orders. The learned Magistrate considering the nature and circumstances of the case also directed him to deposit Rs. 10 lakhs in the Court.

Till date, the petitioner is in jail. He says that it is because of the onerous condition, particularly, the direction to deposit Rs. 10 lakhs.

The learned counsel for the petitioner contended that so far as the petitioner is concerned the said condition causes him much hardship. Even as per the prosecution version, the entire amount has been swallowed by A-1 and also by A-5 and petitioner had received a small amount as commission.

The learned counsel for the petitioner contended that the petitioner is languishing in jail. The said condition is onerous, unreasonable, uncalled for, arbitrary and was imposed mechanically.

In support of his submissions, the learned counsel for the petitioner also cited the following decisions.

"(1) N. Sasikala Vs. Enforcement Officer, Enforcement Directorate, Madras,

(2) Sandeep Jain Vs. National Capital Territory of Delhi Rep. by Secretary, Home Deptt., .

(3) Sheikh Ayub Vs. State of M.P., .

(4) Ramathal and Others Vs. Inspector of Police and Another,

(5) Amarjit Singh Vs. State of Haryana,

(6) Sumit Mehta Vs. State of N.C.T. of Delhi, ."

Prosecution filed counter opposing petitioner''s plea.

The learned Government Advocate (crl. side) contended that the petitioner also swallowed huge amount. Considering the facts and circumstances of the case the direction to deposit the amount has been rightly imposed by the learned Magistrate. No valid ground has been made either to scrape it or even to dilute it.

I have anxiously considered the rival submissions, perused the averments in the petition, counter and the decisions cited at the bar.

Whether in the facts and circumstances of the case the direction of the learned Magistrate directing the petitioner to deposit Rs. 10 lakhs is sustainable?

Already sufficient factual matrix has been given. Let us not duplicate it.

Under Section 437 Cr.P.C. in non-bailable offences, the learned Magistrates grants bail to accused persons. Under Section 439 and 438 Cr.P.C. the Sessions Courts and the High Court grants bail and anticipatory bail, as the case may be.

While granting bail, it is not that the Courts have no power to impose conditions. But the object of Imposing condition is to see that the accused shall return to the Court, shall participate in the legal process. He shall not flee away from justice., (See Munish Bhasin and Others Vs. State (Govt. of N.C.T. of Delhi) and Another, ,

As per Section 441 Cr.P.C., while granting bail, the courts can direct production of sureties. In the alternative, in appropriate cases, it can direct payment of cash security either by way of cash or by way of Government promissory notes. Etc. But, both cannot be ordered. It could be either this or that and not both.

In cases like cheating, misappropriation white collar crimes, cyber crimes, forgery, swindling others money, job racketing and economic offences while granting bail in addition to production of sureties, the Court can also direct deposit of amount into the Court to ensure that the swindled amount ultimately should be secured to the victims of crime. (See Sumit Mehta Vs. State of N.C.T. of Delhi, .

But, while doing so, the Court must also taking into account the financial capacity of the accused. (See Badal Pathak Vs. State of U.P. .

In Sasikala (supra) it was held that while issuing direction to deposit the amount the Court should taking into account the individual financial circumstances of the accused, it should be an individualized decision and even if the accused volunteers should not be arbitrarily fixed.

In Sandeep Jain (supra), it was held that while granting bail, the Court should not impose onerous condition and inability of'' the accused to pay the amount cannot be a ground to keep the accused in custody endlessly.

In Sheikh Ayub (supra), the direction to deposit the misappropriated amount has been deleted, (also see I. Glaskasden Grace and Others Vs. Inspector of Police and Another, .

In Ramathal (supra), the Hon''ble Apex Court held that imposing unreasonable and onerous condition as part of the bail order amounts to putting fetter on the right of the accused to go on bail.

In Amarjit Singh (supra), the Hon''ble Apex Court held that while imposing condition with reference to Section 438(2) Cr.P.C. such condition would not be an unreasonable condition, which would be difficult for the accused to comply with and imposition of an unreasonable condition would tantamount to refusal of bail.

Sumit Mehta (supra), a direction to deposit Rs. 1 crore in fixed deposit for six months in the name of complainant and to keep the FDR with the I.O. was held as onerous and unreasonable.

It must be remembered that under the guise of imposing condition, the Court should not act like a collection agent. When the money alleged is bonafidely disputed and it is open to adjudication and there are reasonable grounds for the same a direction to deposit the amount should not be imposed.

The imposition of condition in a bail order is also a judicial function of the court. There shall not be arbitrary imposition of the condition. The discretion so vested in the Courts must be exercised in a manner known to law. It should not be in the nature of imposing onerous conditions. It should not be in the nature of causing hardship to the accused. It should not be in the nature of impossible to perform. It should not be in the nature of giving bail by one hand and taking it way by other hand by imposing onerous conditions. Conditions for the sake of conditions should not be imposed. It should be meaningful, reasonable, understandable and performable.

As already stated, a direction to deposit the amount as part of the bail/anticipatory bail order should be with reference to the accused. It should be an individualized decision and the factors pertaining to the individual accused must be considered before issuing such a direction.

Now, in the case, the main accused is A-1 Rajasekar. The amount swindled is Rs. 2.40 crores. Out of that more amount has gone to A-5 Dinesh Babu. So far as, A-2 to A-4, namely, Anandan, Nareshkumar, Anandan, Roshion are concerned, they were paid a morsel, a pittance by way of commission etc., by A-1 for the services rendered. Even in the counter filed by the Investigation Officer this is the stand of the prosecution.

In the circumstances, the decision of the learned Magistrate that considering the nature and circumstances of the case that the petitioner should deposit Rs. 10 lakhs is uncalled for, unreasonable, onerous and impose mechanically and it has no reference to the role ascribed to the petitioner in this case.

So far as the petitioner is concerned, the said condition is highly excessive. Evidently it is onerous. In fact in spite of granting him bail as early as 2.8.2014, still the petitioner is languishing in jail demonstrate his inability to satisfy the said condition.

In the circumstances, me said direction is required to be deleted from the impugned order of the learned Magistrate, dated 2.8.2014. In the circumstances, from the bail order of the learned XVIII Metropolitan, Saidapet, Chennai passed in Crl. M.P. No. 1954 of 2014, the direction to the petitioner to deposit Rs. 10 lakhs is deleted. Other conditions shall remain as it is.