Sh. Hira Lal Sharma vs State of Himachal Pradesh

Kuldip Singh, J.—This judgment shall dispose of Cr.MP(M) No. 1100 of 2011 and Cr.MP(M) No. 1138 of 2011, both having arisen out of FIR No.177/11 dated 21.8.2011 under Sections 403 and 379 IPC registered at Police Station, Sadar Shimla. Cr.MP(M) No. 1100 of 2011 has been filed by Hira Lal Sharma and Cr.MP(M) No. 1138 of 2011 by Kalpna Sharma. The status report has been filed in Cr.MP(M) No. 1100 of 2011.

The petitioners are husband and wife. It has been stated that one Ashok Sood lodged an FIR No. 177/11 dated 21.8.2011 alleging therein that some unknown person had withdrawn money through ATM card from his account. It has been alleged that during investigation it has come that daughter of complainant made a statement before police that she had given loan to her friend Kalpna alias Poonam. It has been stated that daughter of complainant herself had given ATM card to Kalpna alias Poonam for withdrawal of loan amount with the consent of complainant as the security code was with the complainant who authorized the same to be used by his daughter.

It has been submitted that no offence punishable under Sections 379 and 403 IPC is made out against the petitioners. The daughter of the complainant accompanied the petitioners to the ATMs situated at Solan and Shimla. The complainant knew the withdrawals which were made from his account from time to time.

The complainant demanded exorbitant interest at the rate of 30% on the loan amount and in order to harass the petitioners he has lodged the FIR. The petitioners are innocent. They have been falsely implicated in the case. The complainant is an influential person. The petitioners are ready to join the investigation and furnish bail bonds in accordance with the directions of this Court. The prayer has been made for releasing the petitioners on bail.

The bail application has been opposed on the basis of status report. It has been stated that the case has been registered on the basis of written complaint of Ashok Sood who came for registration of the case in the Police Station. It has been stated that from the bank account of Ashok Sood, Kalpna alias Neenu wife of Hira Lal and Hira Lal Sharma after using the ATM card of Ashok Sood had withdrawn different amounts from different ATMs and they in all withdrew Rs. 72,700/-. The amount of Rs. 72,700/- has been recovered. However, the petitioners are not got recovered ATM card which is required in the case. The petitioners are not co-operating in the investigation. The prayer has been made for rejection of bail application.

I have heard both the sides and perused the police file. It appears from the bail applications that the petitioners have not denied that they have not withdrawn the various amounts from the account of the complainant through his ATM card. The petitioners have submitted that daughter of complainant was the friend of petitioner Kalpna who helped for giving the loan to the petitioners from the account of complainant through his ATM card with his consent. The petitioners have projected the case that the dispute has arisen as the complainant has demanded exorbitant interest on the amount. It is not understandable why alleged loan, if any, was not given directly by the complainant. This apart, the amount allegedly withdrawn by the petitioners from the account of the complainant has been recovered. However, the ATM card which the petitioners have used for withdrawing the amount has not been got recovered till now during investigation.

The investigating agency has not come out with the plea that except the ATM card any other item is to be recovered from the petitioners. On the contrary, it has been stated that investigation in the case is almost complete. In the facts and circumstances of the case, both the bail applications being Cr.MP(M) No. 1100 of 2011 and Cr.MP(M) No. 1138 of 2011 are allowed, both the petitioners in the event of arrest are ordered to be released on bail in FIR No. 177/11 dated 21.8.2011 under Sections 403 and 379 IPC registered at Police Station, Sadar Shimla on furnishing their personal bonds in the sum of Rs. 25,000/- each with one surety each of the like amount to the satisfaction of Arresting Officer, with the condition that the petitioners shall not hamper the investigation and tamper with the prosecution evidence in any manner. The petitioner shall co-operate for recovery of ATM card within a week, failing which the investigating agency shall be at liberty to approach this Court for cancellation of bail.

The observations made in the judgment are for disposal of the bail applications and it shall not be construed as expression of opinion on the merits of the case.