CRM No. M-17789 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No. M-17789 2010 (O&M) Date of decision: 15.03.2011 Mukesh Kumar ....Petitioner Versus State of Haryana ....Respondent CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present: - Mr. R.S. Cheema, Sr. Advocate, with Mr. R.K. Trikha, Advocate, for the petitioner. Mr. Gaurav Dhir, DAG, Haryana. 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? ***** ALOK SINGH, J (ORAL) This is an application seeking anticipatory bail in case FIR No.111 dated 7.5.2010 under Sections 420/467/468/471/120-B of the Indian Penal Code, Police Station Sector 10, Gurgaon. This Court vide order dated 28.6.2010 has directed to release the petitioner on interim bail. Mr. R.S. Cheema, learned senior counsel, assisted by Mr. R.K. Trikha, learned counsel for the petitioner, has vehemently argued that the only case, as per the prosecution story, against the petitioner is that petitioner has identified Vijay Kumar, the main accused, in the bank to open the account in the name of S.K. Trading Company Proprietor Vijay Kumar. Mr. Cheema has further argued that, as per prosecution story, cheque of Rs.28 lac was deposited in the newly opened account of M/s CRM No. M-17789 2010 (O&M) -2- S.K. Trading Company, which was issued by C.C.S. Computers Pvt. Ltd. Mr. Cheema has further argued that after four days, different four cheques were issued to withdraw Rs.26 lac from the account of S.K. Trading Company; however, bank manager did not clear those cheques and wanted to enquire from Vijay Kumar, the proprietor of S.K. Trading Company, as to whether he has issued those cheques, but mobile phone of Vijay Kumar was switched off, therefore, all the four cheques were stopped. Mr. Cheema has further argued that even if it is found to be correct that S.K. Trading Company was not the real firm and Vijay Kumar has opened fictitious account in the bank in the name of S.K. Trading Company, it would not amount to cheating or fraud on the part of the petitioner. Mr. Cheema has further argued that petitioner has identified Vijay Kumar and petitioner is not supposed to know as to whether Vijay Kumar was running a proprietorship firm in the name of S.K. Trading Company. Mr. Cheema has further argued that admittedly cheque of Rs.28 lac was issued by C.C.S. Computers Pvt. Ltd. and was got deposited in the account of S.K. Trading Company Proprietor Vijay Kumar. What was the purpose of that transaction, petitioner has absolutely no concern. Mr. Cheema has further argued that petitioner shall participate in the investigation as and when he is required to do so by the Investigating Officer. Mr. Cheema, while relying on the judgment of the Hon'ble Apex Court in the matter of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others, 2011(1) RCR(Criminal) 126, has argued that irrational and indiscriminate arrest must be avoided. He has further placed reliance on the judgment of Hon'ble Apex Court in the matter of State of Kerala Vs. Raneef, 2011 CRM No. M-17789 2010 (O&M) -3- (1) RCR (Criminal) 381 and argued that in the event of rejection of the bail application, time spent in jail during the trial cannot be restored to the accused in the event of his acquittal. As per Mr. Gaurav Dhir, learned Deputy Advocate General, Haryana, on the instructions of ASI Atma Ram, Investigating Officer, has stated that petitioner has participated in the investigation, however, he is not providing full co-operation and avoiding the questions, therefore, order dated 28.6.2010, granting interim bail may be revoked and petition may be dismissed. He has further submitted that purpose of deposit of Rs.28 lac and attempt to withdraw huge amount of Rs.26 lac is to be investigated, therefore, custodial interrogation is required. He has further stated that Vijay Kumar has furnished forged I.D. proof and to know the source of forged I.D. proof custodial interrogation is must. From the perusal of entire record, it reveals that petitioner has identified Vijay Kumar facilitating him to open the account in the name and style of M/s S.K. Trading Company through proprietor Vijay Kumar. Petitioner neither deposited any amount in the account of M/s S.K. Trading Company nor has issued any cheque to withdraw any amount from the account of M/s S.K. Trading Company. Undisputedly, cheque of Rs.28 lac was issued by M/s C.C.S. Computers Pvt. Ltd and four cheques to withdraw Rs.26 lac out of Rs.28 lac were issued by Vijay Kumar. Petitioner is not supposed to know purpose of transaction. Prosecution is not suggesting that petitioner is any how involved in the transaction. Vijay Kumar, who is identified by the petitioner, is living personality. Petitioner has not identified any impostor. Bank has suffered no loss in any transaction of M/s S.K. Trading Company. M/s CRM No. M-17789 2010 (O&M) -4- C.C.S. Computers Pvt. Ltd. has not filed any complaint that their cheque of Rs.28 lac is forged one or is stolen one. There seems to be no mens rea on the part of present petitioner to act fraudulently or dishonestly to defraud the bank. Prosecution is not suggesting that transaction in question was for anti-national activities or smuggling of narcotic. Prosecution is not suggesting that forged I.D. proof was ever manufactured by the petitioner to defraud the bank or M/s C.C.S. Computers Pvt. Ltd. Considering totality of the facts and circumstances of the case, and without expressing any opinion of the merits of the case, petition is allowed. Order dated 28.6.2010 is made absolute, subject to the conditions mentioned under Section 438(2) Cr.P.C. However, it is clarified that petitioner shall keep on co-operating in the investigation and if he fails to do so, Investigating Officer shall be at liberty to get the bail cancelled. Any observation made hereinbefore is purely for the purpose of deciding bail application and shall have no binding effect during the trial, if any. (Alok Singh) Judge March 15, 2011 R.S.