IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR (1) S.B. CRIMINAL MISC. PETITION NO. 2133/2008 Sita Ram Meena vs. State of Raj. (2) S.B. CRIMINAL MISC. PETITION NO. 2135/2008 Suresh Kumar & Ors. vs. State of Raj. Date of Order: 02/02/2009 HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Mr. Ashok Mishra) Mr. Manish Acharya), for the petitioner(s). Mr. L.N.Boss, Public Prosecutor. REPORTABLE Both these petitions arise out of same FIR and against a common order, therefore, they are being disposed of together. 2. These misc. petitions have been filed by the accused petitioners challenging the order dated 7th November, 2008, whereby the learned Additional Sessions Judge No.4, Jaipur City, Jaipur has granted bail to the petitioners under Sec.439 Cr.P.C., with the condition that apart from furnishing bail bonds to the tune of Rs. 25,000/-, the accused persons shall deposit in the trial Court a sum of rupees 11 lacs within 7 days and the said amount shall be returned to the complainant. Further, it has been ordered that on failure to deposit the amount within the time granted then the order of bail shall stand cancelled. 3. A criminal complaint was filed by Gopal Dhakar in the Court of ACJM No.17, Japiur City, Jaipur, with the averments that he had given an advance payment of rupees eleven lacs as a part payment for purchase of a land. The complaint was sent to the police under Sec.156(3) Cr.P.C., and an FIR (176/08) was registered under section 406 and 420 IPC, against six persons. Thereafter, the petitioners were arrested and by the order impugned the application for bail was allowed. 4. The learned counsel for the petitioners submitted that the condition imposed by the learned court below is onerous and it tantamounts to abuse of the process of the Court. He has further submitted that accused petitioners are ready and willing to abide by the condition in respect of bail bonds and sureties but the condition to deposit the entire amount in dispute, to the tune of Rs. 11 lacs, would also preempt the trial. In support of his contention, the learned counsel for the petitioner has relied upon the judgment of the Apex Court in the case of Sheikh Ayub Vs. State of M.P. , (2004) 13 SCC 457. 5. On the other hand, the learned counsel for the respondents has submitted that this application under Sec.482 Cr.P.C., is not maintainable. In support of the said contention, he has placed reliance upon the judgment of Shri Phool Chand & Anr. Vs. State of Raj., reported in 1983 RCC 190. He has further relied upon the judgment in the case of C.R.Patil Vs. State of Gujarat & ors., reported in (2005) 11 SCC 119. 6. I have carefully considered the rival submission made by the counsels for the parties. 7. The learned trial Court while granting bail to the petitioners under Sec.439 Cr.P.C., vide the order impugned, has ordered that the accused petitioners will be released on bail on their furnishing bail bonds of Rs. 25,000/- each and a surety of the like amount. Besides, the other conditions are that the accused petitioners shall appear before the learned trial Court on every date of hearing and they shall not threaten the witnesses. Above this, the learned trial Court has ordered that all the accused persons shall jointly deposit an amount of rupees 11 lacs in the trial Court within a period of 7 days, and the said amount shall be returned to the complainant. It is also submitted that in case the said amount is not deposited within 7 days then the order of bail shall stand cancelled. 8. In the case of Sheikh Ayub (supra), the appellant therein was granted bail with the direction to deposit Rs. 2,50,000/- which was the alleged amount misappropriated by the appellant. There was also a condition for furnishing surety bond for Rs. 50,000/-. It was in these circumstances that the Hon'ble Supreme Court held that the direction to deposit Rs. 2,50,000/- was not warranted as a part of the condition for granting bail. Consequently, it was ordered that the direction to deposit Rs. 2,50,000/- be deleted and subject to this modification the order passed by the learned Single Judge of the Court granting bail was confirmed. 9. So far as the judgment of Shri Phool Chand (supra) is concerned, in my considered view, was decided in a different fact-situation. There the case of the petitioner was that if they were granted interim bail for two months they would be able to arrange for the entire payment to State Bank of India and that the Court may make a conditional order to the effect that if the amount is not paid as undertaken, the interim bail would stand cancelled automatically. In view of the undertaking given by the accused, the Court allowed the bail application of the petitioner vide order dated 10th June, 1982. Therefore, it is abundantly clear that it was in the aforesaid circumstances, as an undertaking was given by the accused, that the interim bail was granted and it was rather on his request and willingness that it was ordered that the amount would also be paid by him to the Bank. 10. In the case of C.R.Patil (supra) relied upon by learned counsel for the respondents, the facts and circumstances were entirely different, so much so, that in that case the Apex Court had granted temporary bail earlier and the petitioner was also willing to pay the misappropriated amount. 11. It is to be noted that in the instant case, the learned court below, by his impugned order dated 7th November, 2008, had itself imposed a condition and there was neither any willingness nor any undertaking/ willingness from the side of the accused. As a matter of fact, the condition imposed by the trial Court of depositing rupees 11 lacs was in the term that if the said amount is not deposited then the order of bail shall itself stand cancelled automatically. 12. In view of the aforesaid facts and circumstances of the case and the principle of law laid down by the Hon'ble Apex Court in the case of Sheikh Ayub (supra), which was passed by the Honb'le Supreme Court in identical facts and circumstances, I am of the considered opinion that the impugned order dated 7th November, 2008 needs to be modified. 13. Accordingly, these Misc. Petitions stand partly allowed to the extent that the condition imposed by court below for depositing rupees 11 lacs within 7 days for granting the bail, shall stand deleted. Subject to the said modification, the order passed by the court below is hereby confirmed. (RAGHUVENDRA S. RATHORE),J. Gandhi/-P.A. Item no. 46/47