IN THE HIGH COURT OF DELHI AT NEW DELHI
BAIL APPLICATION No. Bail application number OF 20Year of bail application
IN THE MATTER OF :-
Applicant's name: APPLICANT
VERSUS
THE STATE OF (NCT OF DELHI): RESPONDENT
FIR No. FIR number
U/s.: 406 IPC
Sec. 4/11/76 Chit Fund Act
3/4/5/6 PC&MC Act
P.S.: Police station
INDEX
| S.NO. | PARTICULARS | | | PAGES | C.FEE |
|---|
| 1. | Notice of Motion | | | | |
| 5. | Bail Application under Section 438 read with Section 482 Cr.P.C. for grant of anticipatory bail, with affidavit | | | | |
| 6. | ANNEXURE A-1 – True typed copy of F.I.R. bearing No. FIR number | | | | |
| 7. | Application under Section 482 Cr.P.C. for exemption from filing certified copies, with affidavit | | | | |
APPLICANT
THROUGH
Filed by:
Place: New Delhi
Dated:
ADVOCATE
IN THE HIGH COURT OF DELHI AT NEW DELHI
BAIL APPLICATION No. Bail application number OF 20Year of bail application
IN THE MATTER OF :-
Applicant's name: APPLICANT
VERSUS
THE STATE OF (NCT OF DELHI): RESPONDENT
FIR No. FIR number
U/s.: 406 IPC
Sec. 4/11/76 Chit Fund Act
3/4/5/6 PC&MC Act
P.S.: Police station
URGENT APPLICATION
TO,
THE HON'BLE JOINT REGISTRAR,
HON'BLE HIGH COURT OF DELHI,
NEW DELHI.
SIR,
It is most respectfully prayed that the accompanying application may kindly be treated as urgent, in accordance with the Sessions Court Rules and Regulations. The ground of urgency is that bail is prayed for in the said application.
APPLICANT
PlaceTHROUGH
Dated:
ADVOCATE
IN THE HIGH COURT OF DELHI AT NEW DELHI
BAIL APPLICATION No. Bail application number OF 20Year of bail application
IN THE MATTER OF :-
Applicant's name: APPLICANT
VERSUS
THE STATE OF (NCT OF DELHI): RESPONDENT
FIR No. FIR number
U/s.: 406 IPC
Sec. 4/11/76 Chit Fund Act
3/4/5/6 PC&MC Act
P.S.: Police station
MEMO OF PARTIES
MR. Applicant's name
S/o Sh. Applicant's father's name,
R/o Applicant's address (line 1),
Applicant's address (line 2),
Delhi-1100Pin code last digits: APPLICANT
VERSUS
THE STATE OF
(NCT OF DELHI): RESPONDENT
---
APPLICANT
PlaceTHROUGH
Dated:
ADVOCATE
IN THE HIGH COURT OF DELHI AT NEW DELHI
BAIL APPLICATION No. Bail application number OF 20Year of bail application
IN THE MATTER OF :-
MR. Applicant's name
S/o Sh. Applicant's father's name,
R/o Applicant's address (line 1),
Applicant's address (line 2),
Delhi-1100Pin code last digits: APPLICANT
VERSUS
THE STATE OF
(NCT OF DELHI): RESPONDENT
FIR No. FIR number
U/s.: 406 IPC
Sec. 4/11/76 Chit Fund Act
3/4/5/6 PC&MC Act
P.S.: Police station
ANTICIPATORY BAIL APPLICATION UNDER SECTION 438 OF THE CODE OF CRIMINAL PROCEDURE ON BEHALF OF THE APPLICANT, NAMELY MR. Applicant's first name Applicant's surname, FOR GRANT OF ANTICIPATORY BAIL IN F.I.R. No. FIR number UNDER SECTION 406 OF THE I.P.C., READ WITH SECTIONS 4/11/76 OF THE CHIT FUNDS ACT AND SECTIONS 3/4/5/6 OF THE PRIZE CHITS AND MONEY CIRCULATION SCHEMES (BANNING) ACT, 1978, REGISTERED AT POLICE STATION Police station, DELHI.
TO,
---
THE CHIEF JUSTICE OF THE DELHI HIGH COURT AND HIS COMPANION JUDGES OF THE SAID HON'BLE COURT.
The humble application of the above-named Applicant
MOST RESPECTFULLY SHOWETH:-
1.That the Applicant is a reputed businessman, the proprietor of M/s Applicant's firm name Jewellers, and a law-abiding citizen having deep roots in society. He is filing the present application for anticipatory bail under Section 438 read with Section 482 Cr.P.C.
2.That the Applicant has been constrained to file the present application seeking grant of anticipatory bail in F.I.R. No. FIR number under Section 406 IPC, Sections 4/11/76 of the Chit Fund Act and Sections 3/4/5/6 of the Prize Chits & Money Circulation Act, registered at P.S. Police station, Delhi. A copy of F.I.R. No. FIR number is annexed as Annexure P-1. Pertinently, the complainant filed a complaint under Section 156(3) Cr.P.C. before the Ld. M.M.-Metropolitan magistrate number, District name District, Court complex name Courts, Delhi, and the same was allowed vide order dated Date of the Magistrate's order allowing the complaint, whereby the said complaint was converted into the present FIR, wherein the name of the Applicant was mentioned. A copy of the order dated Date of the Magistrate's order allowing the complaint passed by the Ld. M.M.-Metropolitan magistrate number, Delhi, is annexed as Annexure P-2.
3.That the brief facts of the prosecution case are as under:
A.It is the case of the prosecution that Complainant No. 1, Mr. Complainant no. 1's name, and Complainant No. 2, Mr. Complainant no. 2's name, proprietors of M/s Complainant's firm name Jewellery House at Complainant's shop address, Delhi-1100Pin code last digits, lodged the F.I.R. against the Applicant on Date and time of registration of the FIR, in respect of non-delivery of items purchased on Date of purchase of the items, and against the amount of Rs. Cash payment amount in rupees invested by Complainant No. 1 and his relatives in the chit funds which were run by the Applicant's husband.
B.It is further the case of the complainant that he was engaged in the business of jewellery as a goldsmith and was running his shop under the name and style of M/s Complainant's firm name Jewellery House, and that Mr. Applicant's name (father) was also engaged in the same business of goldsmith and had business relations with the complainant.
C.It is further the case of the complainant that, during the course of the business relations between Applicant's name and the complainant, payments were made through RTGS/NEFT, cheques and other modes for the orders placed.
D.It is further the case of the complainant that Mr. Applicant's name (father) supplied gold jewellery of Weight of gold jewellery supplied grams to the complainant vide Invoice No. Invoice number dated Date of the invoice for Rs. Invoice amount including SGST and CGST, inclusive of SGST and CGST. The complainant made payment of a sum of Rs. Amount paid by RTGS on the payment date on Date of RTGS payment of the invoice amount through RTGS to Bank A/c No. Bank account number of Bank name Bank Ltd., Bank branch Branch, Delhi. Thereafter, the complainant placed a further order for jewellery with the Applicant and deposited an advance payment of Rs. Advance payment amount through RTGS with the same bank on Date of advance payment, by means of which the complainant made a total payment of Rs. Total payment made to Mr. Applicant's name (father). Thereafter, according to the complainant, the jewellery was not delivered, and after deducting the jewellery amount of Rs. Invoice amount including SGST and CGST from the total payment of Rs. Total payment made, a sum of Rs. Outstanding amount remained outstanding against the Applicant's father. The complainant accordingly seeks recovery of the said remaining amount together with interest at the rate of Rate of interest per annum claimed per annum from the date of payment, i.e., Date of advance payment, till date.
E.It is further the case of the complainant that, meanwhile, Complainant No. 1 and Complainant No. 2 also invested a substantial amount in the chit fund being run by M/s Applicant's firm name Jewellers (the Applicant's office), having its office at Firm's office address, Delhi-1100Pin code last digits, as they were assured high returns on their investment.
F.It is further the case of the complainant that, being aware of the risks involved but on the strength of the assurances provided, they invested a large amount after due inquiry, as they found no ground for suspicion regarding the said chits.
G.It is further the case of the complainant that Complainant No. 1 and Complainant No. 2, in addition to Rs. Advance payment amount paid by RTGS, also made a cash payment amounting to Rs. Cash payment amount in rupees (Rupees Cash payment amount in words Only) towards the chit funds, pursuant to the representation made by Mr. Applicant's name (father), in the following manner:
(a)Payment made under Scheme No. 29, deposited in the name of Complainant No. 2, i.e. Mr. Complainant no. 2's name.
| S.No. | Prize Money | Date | Amount |
|---|
| 1. | 1,00,000 | 25/02/2016 | 20,000/- |
| 2. | 1,00,000 | 25/03/2016 | 20,000/- |
| 3. | 1,00,000 | 25/04/2016 | 20,000/- |
| 4. | 1,00,000 | 25/05/2016 | 20,000/- |
| 5. | 1,30,000 | 25/06/2016 | 20,000/- |
| 6. | 2,10,000 | 25/7/2016 | 20,000/- |
| 7. | 2,10,000 | 25/8/2016 | 20,000/- |
| 8. | 2,10,000 | 25/09/2016 | 20,000/- |
| 9. | 2,10,000 | 25/10/2016 | 20,000/- |
| 10. | 2,40,000 | 25/01/2017 | 20,000/- |
| 11. | 3,20,000 | 25/2/2017 | 20,000/- |
| 12. | 3,20,000 | 25/03/2017 | 20,000/- |
| 13. | 3,20,000 | 25/04/2017 | 20,000/- |
| 14. | 3,20,000 | 25/05/2017 | 20,000/- |
| 15. | 3,50,000 | 25/06/2017 | 20,000/- |
| 16. | 4,30,000 | 25/07/2017 | 20,000/- |
| 17. | 4,30,000 | 25/08/2017 | 20,000/- |
| 18. | 4,30,000 | 25/09/2017 | 20,000/- |
| 19. | 4,30,000 | 25/10/2017 | 20,000/- |
| 20. | 4,60,000 | 25/11/2017 | 20,000/- |
| 21. | 5,40,000 | 25/12/2017 | 20,000/- |
| 22. | 5,40,000 | 25/01/2018 | 20,000/- |
| 23. | 5,40,000 | 25/02/2018 | 20,000/- |
| 24. | 5,40,000 | 25/03/2018 | 20,000/- |
(b)Payment made under Scheme No. 31, deposited in the name of Complainant No. 2, i.e. Complainant no. 2's name.
| S.No. | Prize Money | Date | Amount |
|---|
| 1. | 1,00,000 | 25/02/2016 | 20,000/- |
| 2. | 1,00,000 | 25/03/2016 | 20,000/- |
| 3. | 1,00,000 | 25/04/2016 | 20,000/- |
| 4. | 1,00,000 | 25/05/2016 | 20,000/- |
| 5. | 1,30,000 | 25/06/2016 | 20,000/- |
| 6. | 2,10,000 | 25/7/2016 | 20,000/- |
| 7. | 2,10,000 | 25/8/2016 | 20,000/- |
| 8. | 2,10,000 | 25/09/2016 | 20,000/- |
| 9. | 2,10,000 | 25/10/2016 | 20,000/- |
| 10. | 2,40,000 | 25/01/2017 | 20,000/- |
| 11. | 3,20,000 | 25/2/2017 | 20,000/- |
| 12. | 3,20,000 | 25/03/2017 | 20,000/- |
| 13. | 3,20,000 | 25/04/2017 | 20,000/- |
| 14. | 3,20,000 | 25/05/2017 | 20,000/- |
| 15. | 3,50,000 | 25/06/2017 | 20,000/- |
| 16. | 4,30,000 | 25/07/2017 | 20,000/- |
| 17. | 4,30,000 | 25/08/2017 | 20,000/- |
| 18. | 4,30,000 | 25/09/2017 | 20,000/- |
| 19. | 4,30,000 | 25/10/2017 | 20,000/- |
| 20. | 4,60,000 | 25/11/2017 | 20,000/- |
| 21. | 5,40,000 | 25/12/2017 | 20,000/- |
| 22. | 5,40,000 | 25/01/2018 | 20,000/- |
| 23. | 5,40,000 | 25/02/2018 | 20,000/- |
| 24. | 5,40,000 | 25/03/2018 | 20,000/- |
H.It is further the case of the complainant that payments were made through RTGS into the account of M/s Applicant's firm name Jewellers, as follows: an amount of Rs. 4,55,000/- on 06/09/2017 and Rs. 3,50,000/- on 27/12/2017, totalling Rs. 8,05,000/-. Out of the said total amount, bills and gold amounting to Rs. 4,49,000/- were received, leaving a balance of Rs. 3,55,000/- due.
I.It is further the case of the complainant that Shri Applicant's name (father) and his son commenced a committee/chit amounting to Rs. 30,00,000/- (Rupees Thirty Lakh only) for a total period of 15 months, and induced the complainants to invest their money therein with an assurance that it would fetch huge profits.
J.It is further the case of the complainant that, accordingly, the complainants invested in the said committee, and an amount of Rs. 2,00,000/- (Rupees Two Lakh only) per month was invested by both the complainants from 1st August, 2017 to 1st March, 2018, i.e. for a period of 15 months (8 months × Rs. 2,00,000/- = Rs. 16,00,000/-). The entire payment of Rs. 16,00,000/- was made in cash.
K.It is further the case of the complainant that, upon coming to know that the aforesaid committees were illegal and unregistered, they stopped making further payments in the month of April and demanded the return of the amounts already paid by them. However, the said amounts are being illegally retained by Shri Applicant's name (father), his wife and their son.
L.It is further the case of the complainant that Shri Applicant's name (father) and his son commenced another committee/chit amounting to Rs. 18,00,000/- (Rupees Eighteen Lakh only) for a total period of 15 months, and again lured the complainants to invest money therein. The inducement extended to bringing in their relatives as well, to invest money in the said chit.
M.It is further the case of the complainant that, accordingly, the complainants approached their other relatives, namely Shri Relative investor's name and Shri Second relative investor's name, to invest money in the said chit. Thus, both the complainants invested Rs. 1,20,000/- each (Rupees One Lakh Twenty Thousand only) from 12th April, 2017 to 13th March, 2018, i.e. for a period of 12 months (12 months × Rs. 1,20,000/- × 2 = Rs. 28,80,000/-), whereas Shri Relative investor's name and Shri Second relative investor's name jointly paid Rs. 1,20,000/- per month from 12th April, 2017 to 13th March, 2018, totalling Rs. 14,40,000/-.
N.It is further the case of the complainant that the complainants, along with their two relatives, namely Shri Relative investor's name and Shri Second relative investor's name, invested in the said scheme a sum of Rs. 43,20,000/- (Rs. 28,80,000/- + Rs. 14,40,000/- = Rs. 43,20,000/-), which payment was made in cash.
O.It is further the case of the complainant that, upon coming to know that the aforesaid committees were illegal and unregistered, they stopped making further payments in the month of April and demanded the return of the amounts already paid by them. However, the said amounts are being illegally retained by Shri Applicant's name, his wife and their son.
P.It is further the case of the complainant that Shri Applicant's name (father) and his son commenced another committee/chit amounting to Rs. 9,00,000/- (Rupees Nine Lakh only) for a total period of 9 months.
Q.It is further the case of the complainant that the complainants were once again induced, and they invested in the third chit fund amounts of Rs. 60,000/- (Rupees Sixty Thousand only) from 5th May, 2017 to 5th March, 2018, i.e. for a period of 11 months (11 months × Rs. 60,000/- = Rs. 6,60,000/-).
R.It is further the case of the complainant that the complainants invested in the said scheme, wherein Rs. 6,60,000/- each, totalling Rs. 13,20,000/-, was paid by the complainants in cash.
S.It is further the case of the complainant that, upon coming to know that the aforesaid committees were illegal and unregistered, they stopped making further payments in the month of April and demanded the return of the amounts already paid by them.
T.It is further the case of the complainant that the said amounts have also not been paid, and that, on the contrary, the applicant threatened the complainants that they would be implicated in false cases should they dare to demand the amounts from him.
4.That when the Applicant came to know of the registration of the present FIR, the Applicant immediately moved an application for grant of anticipatory bail before the Learned Sessions Court, Rohini, Delhi; however, the same was declined, and the application of the Applicant was dismissed vide order dated 29.04.2022. A copy of the order dated 29.04.2022 passed by the Learned Sessions Judge is annexed hereto as Annexure P-3.
5.That the Applicant is filing the present bail application before this Hon'ble Court on the following grounds, amongst others, which are taken without prejudice to one another:
-: GROUNDS :-
A.That the transactions referred to in the FIR were made in cash by Complainant No. 1 and Complainant No. 2, and that no such payments were made, nor is there any proof of any of the transactions falsely alleged in the present FIR.
B.That the Applicant is a reputed businessman and is not involved in any chit fund business of the kind alleged in the FIR.
C.That the Applicant is the owner of M/s Applicant's firm name Jewellers, and the entire control of the firm was with him; it is accordingly submitted that no chit fund scheme was conducted by Shri Applicant's name (father).
D.That the complainant is a business rival of the Applicant, and the present FIR is a motivated one.
E.That the complainant has failed to prove the payment of the alleged huge amount of Rs. 83.25 Lakhs towards the chit funds.
F.That the facts stated in the FIR against the Applicant are civil in nature and do not constitute any criminal offence whatsoever.
G.That the Applicant is ready and willing to undertake to assist in the investigation and shall make himself available before the Court and to its custody at all relevant times.
H.That, on the facts and circumstances of the present case, no case whatsoever is made out against the Applicant. It is well-settled law that even where a prima facie case is established, the approach of the Court in matters of anticipatory bail is not to detain the accused in jail by way of punishment, but to consider whether the presence of the accused is readily available for investigation, or whether he is likely to abuse the concession of bail by hampering the evidence. The discretion conferred upon this Hon'ble Court under Section 438 of the Code of Criminal Procedure, 1973 is wide, and is to be exercised in accordance with the established principles of law.
I.That the allegations levelled against the Applicant are absurd and inherently improbable, and on their basis no prudent person could ever arrive at a just conclusion that there are sufficient grounds for proceeding against the Applicant. Viewed from any angle, the vague accusations against the Applicant constitute a sheer and complete misuse and abuse of the process of law.
J.That it is pertinent to note that in the case of Arnesh Kumar vs. State of Bihar, reported as MANU/SC/0559/2014 : 2014 (3) Bom C.R. (Cri) 262, the Hon'ble Apex Court laid down certain guidelines to be followed by the police and the courts, holding that under Section 41-D of the Code of Criminal Procedure, 1973, the police are bound to issue a notice, and categorically observing that the police ought not to arrest accused persons without due notice or summons. The Apex Court held: "Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrates do not authorise detention casually and mechanically." In view of the said binding pronouncement, the Applicant is entitled to pre-arrest bail.
K.That it is well to note that the intention to commit an offence is the main ingredient constituting an offence under any statute prescribing punishment therefor. In legal parlance, such intention is regarded as mens rea, which is further elucidated by the Latin maxim "actus non facit reum nisi mens sit rea", signifying that a criminal act cannot render a person guilty without a guilty mind. In the present matter, the prosecution has failed to point out that the Applicant acted in furtherance of any common intention or object as alleged. The Applicant therefore not only lacks mens rea but also the ulterior object in the alleged commission of the offence, commonly known as "motive".
L.That the manner of the Applicant's alleged involvement in the commission of the offence has not been made out by the prosecution, and the material collected during investigation by the Investigating Officer itself casts doubt upon the prosecution's version.
M.That the custodial interrogation of the Applicant in respect of the alleged false, concocted and frivolous complaint is not required. Further, the prosecution has nowhere spelled out any wrong committed by the Applicant, and hence the custody of the Applicant is not warranted.
N.That it is a basic principle of criminal jurisprudence that the Applicant is deemed innocent until held guilty.
O.That the Hon'ble Supreme Court has recently held, in the following terms:
"The law of bail dovetails two conflicting interests, namely, on the one hand, the requirement of shielding society from the hazards of those committing crimes and the potentiality of repeating the same crime while on bail, and on the other, absolute adherence to the fundamental principle of criminal jurisprudence regarding the presumption of innocence of an accused until he is found guilty, and the sanctity of individual liberty." The principles which may be culled out, for the purposes of the present case, may be stated as under:
(i)The complaint filed against the accused needs to be thoroughly examined, including the aspect as to whether the complainant has filed a false or frivolous complaint on an earlier occasion. The Court should also examine whether there is any family dispute between the accused and the complainant, and the complainant must be clearly apprised that if the complaint is found to be false or frivolous, strict action will be taken against him in accordance with law. If connivance between the complainant and the investigating officer is established, action shall be taken against the investigating officer in accordance with law.
(ii)The gravity of the charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record in the case diary the valid reasons which have led to the arrest of the accused. In exceptional cases, the reasons may be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can be properly evaluated by the Court.
(iii)It is imperative for the courts to evaluate the facts of the case carefully and with meticulous precision. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the Court is of the considered view that the accused has joined the investigation, is fully cooperating with the investigating agency, and is not likely to abscond, custodial interrogation ought to be avoided. Great ignominy, humiliation and disgrace attach to arrest. Arrest leads to many serious consequences, not only for the accused but also for his entire family and, at times, for the entire community. Most people do not distinguish between arrest at the pre-conviction stage and arrest at the post-conviction stage.
(iv)There is no justification for reading into Section 438 of the Code of Criminal Procedure, 1973 the limitations mentioned in Section 437 thereof. The plenitude of Section 438 must be given its full play. There is no requirement that the accused must make out a "special case" for the exercise of the power to grant anticipatory bail; such a requirement would virtually reduce the salutary power conferred by Section 438 of the Code of Criminal Procedure, 1973 to a dead letter. A person seeking anticipatory bail is still a free man, entitled to the presumption of innocence, and is willing to submit to restraints and conditions upon his freedom by accepting such conditions as the Court may deem fit to impose, in consideration of the assurance that, if arrested, he shall be enlarged on bail.
(v)The proper course of action upon an application for anticipatory bail is that, after evaluating the averments and accusations available on record, if the Court is inclined to grant anticipatory bail, an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor, the Court may either reject the anticipatory bail application or confirm the initial order granting bail. The Court would certainly be entitled to impose conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same Court for cancellation or modification of the conditions of anticipatory bail at any time, if the liberty granted by the Court is misused. The anticipatory bail granted by the Court should ordinarily be continued till the conclusion of the trial.
(vi)It is a settled legal position that the Court which grants bail also has the power to cancel it. The discretion to grant or cancel bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, upon the finding of new material or circumstances, at any point of time.
(vii)In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, it would be unreasonable to compel the accused to surrender before the trial court and to apply afresh for regular bail.
(viii)The discretion vested in the Court in all matters should be exercised with care and circumspection, depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested in the Court under Section 438 of the Code of Criminal Procedure, 1973 should be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.
(ix)No inflexible guidelines or straitjacket formula can be laid down for the grant or refusal of anticipatory bail, since all circumstances and situations of the future cannot be clearly visualised while considering the grant or refusal of anticipatory bail. In consonance with the legislative intent, the grant or refusal of anticipatory bail must necessarily depend upon the facts and circumstances of each case.
(x)We may also usefully reproduce paragraph 112 of the said judgment, wherein the Court delineated the following factors and parameters which must be taken into consideration while dealing with an application for anticipatory bail:
(a)the nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(b)the antecedents of the applicant, including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(c)the possibility of the applicant fleeing from justice;
(d)the possibility of the accused's likelihood to repeat similar or other offences;
(e)whether the accusations have been made only with the object of injuring or humiliating the applicant by having him or her arrested;
(f)the impact of the grant of anticipatory bail, particularly in cases of large magnitude affecting a very large number of people;
(g)the courts must evaluate the entire available material against the accused very carefully, and must also clearly comprehend the exact role of the accused in the case. In cases where the accused is implicated with the aid of [Sections 34](https://indiankanoon.org/doc/37788/) and [149](https://indiankanoon.org/doc/999134/) of the Penal Code, 1860, the court should consider the matter with even greater care and caution, as over-implication in such cases is a matter of common knowledge and concern;
(h)while considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, that no prejudice should be caused to a free, fair and full investigation, and that there should be prevention of harassment, humiliation and unjustified detention of the accused;
(i)the court should consider any reasonable apprehension of tampering with witnesses or apprehension of threat to the complainant;
(j)frivolity in prosecution should always be considered, and it is only the element of genuineness that must be considered in the matter of grant of bail; and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
P.That the Applicant / accused is a permanent resident of Place of permanent residence, having deep roots in society, and is residing at the address mentioned hereinabove. There is, therefore, no chance of the Applicant / accused absconding or tampering with the prosecution evidence.
Q.It is further submitted that the alleged offence being, at best, an act of an individual, the Applicant cannot be roped into the present matter under the garb of Section 406 of the IPC, Sections 4/11/76 of the Chit Fund Act, and Sections 3/4/5/6 of the Prize Chits and Money Circulation Schemes (Banning) Act, which are reproduced hereunder:—
Section 406 of the IPC
Punishment for criminal breach of trust. Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Section 4 of the Chit Funds Act, 1982
4. Prohibition of chits not sanctioned or registered under the Act.—
(1) No chit shall be commenced or conducted without obtaining the previous sanction of the State Government within whose jurisdiction the chit is to be commenced or conducted, or of such officer as may be empowered by that Government in this behalf, and unless the chit is registered in that State in accordance with the provisions of this Act: Provided that a sanction obtained under this sub-section shall lapse if the chit is not registered within twelve months from the date of such sanction, or within such further period or periods, not exceeding six months in the aggregate, as the State Government may, on application made to it in this behalf, allow.
(2) An application for the purpose of obtaining a sanction under sub-section (1) shall be made by the foreman in such form and in such manner as may be prescribed.
(3) The previous sanction referred to in sub-section (1) may be refused if the foreman,—
(a) had been convicted of any offence under this Act or under any other Act regulating chit business and sentenced to imprisonment for any such offence; or
(b) had defaulted in the payment of fees or the filing of any statement or record required to be paid or filed under this Act, or had violated any of the provisions of this Act or the rules made thereunder; or
(c) had been convicted of any offence involving moral turpitude and sentenced to imprisonment for any such offence, unless a period of five years has elapsed since his release: Provided that before refusing any such sanction, the foreman shall be given a reasonable opportunity of being heard.
(4) The order of the State Government, and, subject to the provisions of sub-section (5), the order of the officer empowered under sub-section (1), issuing or refusing previous sanction under this section, shall be final.
(5) Any person aggrieved by the refusal to issue previous sanction by any officer empowered under sub-section (1) may appeal to the State Government within thirty days of the date of communication to him of such refusal, and the decision of that Government on such appeal shall be final.
Section 11 of the Chit Funds Act, 1982
11. Use of the words "chit", "chit fund", "chitty" or "kuri".—
(1) No person shall carry on chit business unless he uses as part of his name any of the words "chit", "chit fund", "chitty" or "kuri", and no person other than a person carrying on chit business shall use as part of his name any such word.
(2) Where at the commencement of this Act,—
(a) any person carrying on chit business without using as part of his name any of the words specified in sub-section (1); or
(b) any person not carrying on chit business is using any such word as part of his name, he shall, within a period of one year from such commencement, add as part of his name any such word or, as the case may be, delete such words from his name: Provided that the State Government may, if it considers it necessary in the public interest or for avoiding any hardship, extend the said period of one year by such further period or periods, not exceeding one year in the aggregate.
Section 76 of the Chit Funds Act, 1982
76. Penalties.—
(1) Whoever contravenes or abets the contravention of any of the provisions of sections 4, 5, 8, 9, 11, 12, 13, 14, 19, 20, 22, 24, 30, 31, sub-section (4) of section 33, sections 46, 47 or sub-section (5) of section 61 shall, on conviction, be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to five thousand rupees, or with both.
(2) Any foreman,—
(a) who fails to file any document required to be filed under this Act within the period specified therefor or within such further time as may be allowed; or
(b) who fails to comply with the requirements of the chit agreement regarding the date, time and place at which the chit is to be drawn, or who fails to comply with the requirements of any direction given under sub-section (3) of section 38; or
(c) who contravenes or fails to comply with any other requirement under this Act, shall, on conviction, be punishable with fine which may extend to three thousand rupees.
(3) Whoever wilfully makes a statement in any document required to be filed under this Act which is false in any material particular shall, on conviction, be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to five thousand rupees, or with both.
Section 3 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978
3. Banning of prize chits and money circulation schemes or enrolment as members or participation therein.—No person shall promote or conduct any prize chit or money circulation scheme, or enrol as a member to any such chit or scheme, or participate in it otherwise, or receive or remit any money in pursuance of such chit or scheme.
Section 4 of The Prize Chits and Money Circulation Schemes (Banning) Act, 1978
4. Penalty for contravening the provisions of section 3.—Whoever contravenes the provisions of section 3 shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both: Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, the imprisonment shall not be less than one year and the fine shall not be less than one thousand rupees.
Section 5 in The Prize Chits and Money Circulation Schemes (Banning) Act, 1978
5. Penalty for other offences in connection with prize chits or money circulation schemes.—Whoever, with a view to the promotion or conduct of any prize chit or money circulation scheme in contravention of the provisions of this Act, or in connection with any chit or scheme promoted or conducted as aforesaid,—
(a) prints or publishes any ticket, coupon or other document for use in the prize chit or money circulation scheme; or
(b) sells or distributes, or offers or advertises for sale or distribution, or has in his possession for the purpose of sale or distribution, any ticket, coupon or other document for use in the prize chit or money circulation scheme; or
(c) prints, publishes or distributes, or has in his possession for the purpose of publication or distribution—
(i) any advertisement of the prize chit or money circulation scheme; or
(ii) any list, whether complete or not, of members in the prize chit or money circulation scheme; or
(iii) any matter descriptive of, or otherwise relating to, the prize chit or money circulation scheme, which is calculated to act as an inducement to persons to participate in that prize chit or money circulation scheme or any other prize chit or money circulation scheme; or
(d) brings, or invites any person to send, for the purpose of sale or distribution, any ticket, coupon or other document for use in a prize chit or money circulation scheme, or any advertisement of such prize chit or money circulation scheme; or
(e) uses any premises, or causes or knowingly permits any premises to be used, for purposes connected with the promotion or conduct of the prize chit or money circulation scheme; or
(f) causes or procures, or attempts to procure, any person to do any of the above-mentioned acts,—shall be punishable with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both: Provided that in the absence of special and adequate reasons to the contrary to be mentioned in the judgment of the court, the imprisonment shall not be less than one year and the fine shall not be less than one thousand rupees.
Section 6 in The Prize Chits and Money Circulation Schemes (Banning) Act, 1978
6. Offences by companies.—
(1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of its business, as well as the company itself, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any such person liable to any punishment provided in this Act, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.
(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation.—For the purposes of this section—
(a) "company" means any body corporate and includes a firm or other association of individuals; and
(b) "director", in relation to a firm, means a partner in the firm.
Since the alleged offence is punishable only when committed by a company, and the acts alleged hereinabove pertain to an individual, no liability under the said provisions can be fastened upon the Applicant.
R.It is further submitted that there is no evidence whatsoever against the Applicant establishing his complicity in the alleged offence. There is likewise no material pointing to the involvement of the Applicant in the present case; the Applicant is therefore entitled to be granted anticipatory bail.
S.That the Applicant cannot be roped into the present case on the principle of vicarious liability, and there is no evidence against the Applicant suggesting that he aided, instigated or engaged in the commission of the alleged offence.
T.That the Applicant cannot be arraigned as an accused in the present case on the basis of mere presumption, which is false to the knowledge of the complainant.
U.That, in view of the guidelines laid down by the Hon'ble Supreme Court in the matters of Satender Kumar Antil v. CBI and Ryan Augustine Pinto v. State of Haryana, (2017) SCC OnLine P&H 3063, the Applicant is entitled to the grant of anticipatory bail.
V.That sending the Applicant to jail would serve no meaningful purpose and would be in defiance of every known notion of justice. It is submitted that the Applicant is honest and innocent, and has been falsely implicated in the present FIR with mala fide, dishonest and contrived intentions to extort money from the Applicant. It is submitted that the Applicant ought to be enlarged on anticipatory bail so as to enable him to live a respectful and dignified life in society.
W.Because, if the initial action is not in consonance with law, the principle laid down in a catena of judgments of the Hon'ble Supreme Court applies.
X.That it is settled law that "bail is the rule and jail is an exception". The object of bail is neither punitive nor preventive; it is meant to secure the presence of the accused during the trial.
Y.That it is settled law that bail is a rule and jail is an exception. This principle has been recognised since the days of the Magna Carta. The provision for bail is, therefore, age-old, and a liberal interpretation of the provisions relating to bail is almost a century old, going back to colonial days.
Z.That it may not be out of context to point out that the Hon'ble Supreme Court in the matter of Sanjay Chandra v. CBI, (2012) 1 SCC 40, has once again affirmed the fundamental principle of criminal jurisprudence of "bail and not jail", and has observed that it has stated time and again that bail is the rule and committal to jail an exception. It was further observed that the refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.
AA.That in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, the Hon'ble Court observed:
"Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case."
BB.That the Hon'ble Apex Court in the case of Vaman Narain Ghiya v. State of Rajasthan, Citation of Vaman Narain Ghiya case, held as under:
"8. The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An applicant is not detained in custody with the object of punishing him on the assumption of his guilt."
CC.That the grant or refusal of bail lies within the discretion of the Court, regulated to a large extent by the facts and circumstances of each particular case. At the same time, the right to bail is not to be denied merely on account of the sentiments of the community against the Applicant. The primary purposes of bail in a criminal case are to relieve the Applicant of imprisonment, to relieve the State of the burden of keeping him in custody pending trial, and, at the same time, to keep the Applicant constructively in the custody of the Court, whether before or after conviction, so as to assure that he will submit to the jurisdiction of the Court and remain in attendance whenever his presence is required.
DD.That there is no good reason to detain the accused in custody, particularly after the completion of the investigation. That the Hon'ble Supreme Court, in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784, has held that:
“in deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail.”
EE.That in the case of [State of Rajasthan v. Balchand,](http://indiankanoon.org/doc/8258/) (1977) 4 SCC 308, the Hon'ble Supreme Court observed:
“That the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the Applicant who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative.
It is true that the gravity of the offence involved is likely to induce the Applicant to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the Applicant in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavorable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the Applicant being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the Applicant will report himself before the police station at Baren once every fortnight.”
FF.That the Applicant is a reputed businessman with clean antecedents, has no influence over the prosecution witnesses, and there is no likelihood of his tampering with the said witnesses.
GG.That as per the jurisprudence of bail, the aim must be to achieve a balance between personal liberty and social security. A first-time offender having no criminal antecedents is to be considered separately. Further, where the Applicant has deep roots in society, his detention ought to be avoided.
HH.That the Applicant has not committed any offence. The present case is the outcome of the sheer vengeance and vendetta of the complainant against the Applicant, and on that basis false statements have been made regarding the Applicant, who has been falsely implicated in the present case.
5.That the Applicant is ready and willing to furnish surety to the entire satisfaction of this Hon'ble Court.
6.That Section 438 Cr.P.C. itself provides that the Court may, while granting anticipatory bail, impose the condition that such person shall not commit an offence similar to the offence of which he is accused or suspected of the commission of which he is suspected.
7.That it is respectfully submitted that the Applicant has a clean record. The Applicant has never been convicted in any case in the past. It cannot, under any circumstances, be construed that the Applicant has a bad record suggesting that he is likely to commit similar or serious offences while on bail.
8.That the Applicant has deep roots in society and there is absolutely no chance of the Applicant absconding from the course of justice or tampering with the evidence.
NON-FILING PARA :-
9.That no similar petition has been filed before this Hon'ble Court, the Hon'ble Supreme Court, or any other court.
10.That the annexures to the petition are true copies of their respective originals.
P R A Y E R
It is, therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to:-
a)Grant anticipatory bail to the Applicant in the event of arrest in FIR No. FIR number under Section 406 IPC, 4/11/76 Chit Fund Act & 3/4/5/6 Prize Chits & Money Circulating Act registered at P.S. Police station, Delhi, in the interest of justice, on such terms and conditions as this Hon'ble Court may deem fit and proper; and
b)Pass any other order as this Hon'ble Court may deem necessary in the circumstances of the present case.
FOR THIS ACT OF KINDNESS THE APPLICANT SHALL, AS IN DUTY BOUND, EVER PRAY.
DELHIAPPLICANT
THROUGH
DATEDADVOCATE
IN THE HIGH COURT OF DELHI AT NEW DELHI
IN
BAIL APPLICATION No. Bail application number OF 20Year of bail application.
IN THE MATTER OF :-
Applicant's name: APPLICANT
VERSUS
THE STATE (NCT OF DELHI): RESPONDENT
FIR No. FIR number
U/s.: 406 IPC
Sec. 4/11/76 Chit Fund Act
3/4/5/6 PC&MC Act
P.S.: Police station
APPLICATION UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE FOR EXEMPTION FROM FILING CERTIFIED COPIES OF THE ANNEXURES.
MOST RESPECTFULLY SHOWETH :-
1.That the Applicant has filed the annexures along with the main petition in support of the application, and the Documents filed filed are true, correct and compared copies of the originals.
2.That the Applicant shall apply for obtaining the certified copies of the Documents pending certification and undertakes to file the same as soon as they are made available by the concerned copying agency.
It is, therefore, most respectfully prayed that this Hon'ble Court may kindly exempt the Applicant from filing the certified copies of the Documents for exemption, in the interest of justice.
APPLICANT
THROUGH
Filed by:
Place: New Delhi
DatedADVOCATE
IN THE HIGH COURT OF DELHI AT NEW DELHI
IN
BAIL APPLICATION No. Bail application number OF 20Year of bail application.
IN THE MATTER OF :-
Mr. Applicant's name: APPLICANT
VERSUS
THE STATE (NCT OF DELHI): RESPONDENT
AFFIDAVIT
I, Deponent's name (wife), aged about Deponent's age years, W/o Sh. Deponent's husband's name, R/o Deponent's address, Delhi-1100Pin code last digits, do hereby solemnly affirm and declare as under :-
1.That I am the Applicant in the above-noted case and am well conversant with the facts and circumstances of the case, and as such am competent to swear this affidavit.
2.That I have gone through the averments made in the accompanying application filed under Section 482 Cr.P.C. seeking exemption from filing certified copies, and I submit that the said application has been drafted by my counsel on my instructions and on the facts as briefed by me.
DEPONENT
VERIFICATION :-
Verified at Delhi on this Date of verification (affidavit of wife) day of Month and year of verification (affidavit of wife), that the contents of the above affidavit are true and correct to my knowledge, no part of it is false and nothing material has been concealed therefrom.
DEPONENT
IN THE HIGH COURT OF DELHI AT NEW DELHI
BAIL APPLICATION No. Bail application number OF 20Year of bail application.
IN THE MATTER OF :-
Mr. Applicant's name: APPLICANT
VERSUS
THE STATE (NCT OF DELHI): RESPONDENT
AFFIDAVIT
I, Deponent's name (applicant), aged about Deponent's age years, S/o Sh. Deponent's father's name, R/o Deponent's address, Delhi-1100Pin code last digits, do hereby solemnly affirm and declare as under :-
1.That I am the Applicant in the above-noted case and I am well conversant with the facts and circumstances of the case, and as such am competent to swear this affidavit.
2.That the contents of the accompanying application under Section 482 Cr.P.C. read with Section 438 Cr.P.C. have been read over and explained to me in the vernacular language, and having understood the same, I state that the facts set out therein are true to the best of my knowledge and belief, and that nothing material has been concealed therefrom.
3.That the annexures are true copies, or true translations, of their respective originals.
DEPONENT
VERIFICATION :-
Verified at Place of verification (affidavit of applicant) on this Date of verification (affidavit of applicant) that the facts stated in the above Affidavit are true to my knowledge, that no part of the same is false, and that nothing material has been concealed therefrom.
DEPONENT