Shri Hemant Chodankar vs Respondent: State and The Public Prosecutor, Panaji-Goa

U. V. Bakre, J.—This is an application for bail filed by the applicant who has been arrested on 26/7/2011 by Calangute Police in Calangute Police Station Crime No.157/2011 registered for offence punishable under Sections 489B and 489C read with Section 34 of Indian Penal Code (I.P.C.) The complaint has been lodged by Mr. Tarun Khatter, Executive Director, Atlantis Entertainments, La Calypso, Sautavaddo, Baga Calangute, Bardez-Goa, on 25/7/2011, alleging that on 24/07/2011 at about 18.30 hours, two persons came to the La Calypso Casino, at Sauntavaddo, Calangute, and in furtherance of their common intention, purchased chips from the counter by tendering 30 counterfeit currency notes of Rs. 500/-each, as genuine. It is further alleged that upon checking, it was found that the said notes were counterfeit. When the staff of the said Casino questioned the said persons about the said notes, both of them ran away in a Silver colour Tata Indigo car, with their third accomplice.

It appears from the reply filed by the respondent no. 1 that on 25/7/2011, the third accomplice namely Sudesh Gund was caught when he visited La Calypso Casino to inquire about the keys of the said car. The said co-accused was found in possession of four counterfeit currency notes of Rs. 500/-each. During the course of investigation, said Sudesh Gund disclosed the names of one Chintamani and of the present applicant as the persons who had visited the Casino on the previous date. Both the said co-accused were traced at Vasco-da-Gama and were arrested. The co-accused namely Chintamani Yadav disclosed about involvement of P.S.I Vaibhav Naik of Vasco Police Station as the person who gave counterfeit Indian currency notes amounting to Rs. 3 lakhs to him and that he was told by P.S.I Vaibhav Naik to pay to him Rs.1.50,000/-after exchanging/circulating the said counterfeit notes of Rs. 3 lakhs. It is stated that said Chintamani Yadav also disclosed that few counterfeit notes were given by him to the present applicant namely Hemant Chodankar on 24/7/2011 for circulation and remaining amount was concealed in the flush tank of the toilet in his office. At his instance, u/s 27 of the Evidence Act counterfeit Indian currency notes amounting to Rs. 2,77,500/-were recovered. At the instance of the present applicant, Tata Indigo car bearing registration no. GA-06-A-8222, belonging to the applicant and allegedly used to go to La Calypso Casino for circulation of counterfeit currency notes, was attached.

Chargesheet has been already filed in the present case and as stated in paragraph 9 of the order of the Learned Additional Sessions Judge, Mapusa, in Bail application No.317/2011, even charges are ordered to be framed against the accused persons.

Mr. S. D. Lotlikar, learned Senior Counsel, on behalf of the applicant, submits that the learned Additional Sessions Judge has rejected the bail application on the ground that filing of the charge sheet cannot alter the previous findings and unless some material comes on record later that would benefit the accused there cannot exist any reason for the Court to review its earlier order. According to Mr. Lotlikar, since the charge sheet has been already filed, the circumstances have changed. He contended that offence u/s 489C of I.P.C. is bailable whereas offence u/s 489B, which is non-bailable, is punishable either with imprisonment for life or with imprisonment for a term which may extend to years. He, therefore, contended that the offence cannot be considered to be a serious offence like that of murder, etc. The learned Senior Counsel further pointed out that no counterfeit notes were found on the person of the applicant nor any incriminating material has been recovered at the instance of the applicant. He also argued that there is no material to show that the applicant had used the counterfeit notes as genuine notes. He has relied upon Sanjay Chandra Vs. CBI, . Learned Counsel, therefore, urged that the applicant is now entitled to be released on bail subject to appropriate conditions being imposed on him.

Mr. C. A. Ferreria learned Public Prosecutor, however, is of the view that the offence is of a serious nature and that since there was prima facie evidence, charges have been ordered to be framed against the accused persons. He further submitted that none of the co-accused has been granted bail and that the co-accused namely P.S.I. Vaibhav Naik had filed application for bail before this Court and the same has been dismissed. He resisted the application contending that the applicant may tamper with evidence and may even abscond, if enlarged on bail.

I have perused the case papers.

It is seen that charges are ordered to be framed against the accused persons, which means that the Trial Court has found that there is prima facie evidence against the applicant and the other co-accused. However, one thing is clear that the presence of the applicant is now not required by the police for the purpose of investigation. No doubt, gravity of the offence involved is said to be likely to induce the accused person to flee from justice. The present is not a case of murder or the like wherein upon conviction, if not death, imprisonment for life is compulsory. The offence u/s 489C of I.P.C. is bailable. The offence u/s 489B of I.P.C. is punishable either with imprisonment for life or with imprisonment of either description which may extend to 10 years and also with fine. Hence, even imprisonment of 10 years is not compulsory. No minimum imprisonment is prescribed. In the case of Gurcharan Singh and Others Vs. State (Delhi Administration), , the Apex Court has observed that while considering an application for grant of bail in a non-bailable offence, two paramount considerations, apart from the seriousness of the offence are: the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. No doubt, in the reply filed by the respondent there is a casual statement that if the applicant is released on bail then there is every possibility that he may threaten the witnesses and may tamper with the evidence. However, no material supporting such an allegation has been produced. Necessary conditions to avoid such a situation can be imposed on the applicant.

In the reply, it is further alleged that the applicant has past criminal record and was involved in two murder cases registered at Vasco Police Station vide Crimes No. 23/95 and 154/98. However, admittedly, in both the cases the applicant has been acquitted. Besides the above, the said cases are very old. There is no recent criminal record against the applicant.

In the case of "Babu Singh Vs. State of U.P.1978 1 SCC, 597, the Hon''ble Supreme Court has observed that police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the court into a complacent refusal.

In the case of "Sanjay Chandra" (supra), the Apex Court has held thus:

The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity'' is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.

The contention that mere filing of the chargesheet cannot be said to be change in circumstances does not appear to be sound. In the case of "Sanjay Chandra" (supra), the Hon''ble Apex Court has explained the situation at the stage of pre-charge and post-charge stages. It has been held that the case of the appellants who were co-accused, seeking bail after framing of charges stood on different footing as compared to the connected case where bail was refused before framing of charges. It has been held that the earlier case was not an impediment in granting bail to the appellants.

It is the contention of Mr. Ferreira, learned Public Prosecutor, that the co-accused namely P.S.I. Vaibhav Naik had approached this Court for bail, but his bail application has been rejected. However, records reveal that the case of the co-accused P.S.I., Vaibhav Naik stands on a different footing. First of all, he was a responsible Police Officer. Secondly, there appears to be a very strong prima facie case against P.S.I. Vaibhav Naik since he had investigated Crime No.70/2000 of Vasco Police Station registered under Sections 489B and 489C of I.P.C and during the course of investigation, he had seized counterfeit currency notes of Rs.1000/-and Rs. 500/-in the month of March 2010 and some of the counterfeit currency notes attached in the present case are having similar series and are also notes of Rs.1000/- and Rs. 500/-. The case of P.S.I., Vaibhav Naik cannot be compared with the case of the present applicant.

Be that as it may, it is made clear that the cases of the other co-accused shall be treated on their own merits.

The applicant is a permanent resident of Vasco-da-Gama, Goa residing with his wife, mother and other family members. It is not stated in the reply that the applicant is likely to abscond if the is granted bail. The applicant, in my view, deserves bail, with conditions. In the result, the application is allowed. The applicant shall be released on bail in Calangute Police Station Cr. No.157/2011 registered for offences punishable u/s 489B and 489C read with Section 34 of I.P.C. on execution of Personal Bond in the sum of Rs.50,000/-(Rupees Fifty thousand only) with one solvent surety in the like amount, before the Trial Court, on the following conditions:

(i ) The applicant shall surrender his passport, if he has one, before the Trial Court to remain there until further orders of the Trial Court.

(ii) The applicant shall not, directly or indirectly, make an inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any other police officer

(iii) The applicant shall not leave India without any previous permission of the Trial Court.

(iv) He shall not indulge in any criminal activities during the period of bail.