IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.852 of 2009. Date of decision: 3.11.2009. Mukesh Sharma …… Petitioner Vs. State of H.P. …. Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Ajay Kochhar, Advocate. For the Respondent : Mr. Anshul Bansal, Addl. Additional Advocate General with Mr. R.P. Singh, Assistant Advocate General Kuldip Singh, Judge. (Oral) The petitioner has filed this application under Section 438 Cr.P.C. for grant of bail in FIR No.3 registered on 21.10.2008 at P.S. SV & ACB, Una, Distt Una under Sections 420, 467, 468, 471, 120-B, 409, 201 IPC and Section 13(2) of the Prevention of Corruption Act. The reply has been filed. 2. Heard and perused the record. It has been submitted on behalf of the petitioner that petitioner had earlier filed Cr.MP(M) No.266 of 2009 for grant of bail which was dismissed by this Court on Whether the reporters of the local papers may be allowed to see the Judgment?Yes 9.7.2009. It has been alleged that Investigating Agency had colleted details of 29 VAT Declaration Forms No.26. The Investigating Agency doubted that 6 trucks had not crossed the tax barrier because the details of corresponding VAT Declaration forms No.26 were not forthcoming from the concerned Excise & Taxation Officer. In all 35 trucks had crossed the tax barrier and the Investigating Agency claimed to have only 29 VAT Declaration forms No.26. It has been pointed out that in Cr.MP(M) No. 266 of 2009, DSP, Una by way of affidavit dated 7.7.2009 had submitted that 6 GR Nos. 2236, 2265, 2165, 2662, 4154 and 4177 have not been entered at multiple barrier at Mehatpur. It was stated in the affidavit that details submitted by the petitioner had been sent to the Commissioner, Excise and Taxation, Shimla for verification on 22.4.2009 and verification was still awaited. It has been submitted that investigating agency with malafide intentions suppressed vital information and are guilty of twisting the investigation inasmuch as the investigating agency was always in knowledge of the details of aforesaid 6 VAT declaration forms No. 26 but DSP, Una had filed false affidavit on 7.7.2009. 3. It has been submitted that after the decision dated 9.7.2009 there is a change of circumstance. The petitioner has received details of 6 VAT declaration forms No. 26 in question under RTI Act which was available with the Excise and Taxation Commissioner, Shimla and the investigating agency had deliberately filed a false affidavit dated 7.7.2009 through DSP (Vigilance), Una. The petitioner had already sent the information with regard to 6 VAT declaration forms to the investigating agency vide letter dated 2.9.2009. The 6 VAT declaration forms indicate that the petitioner is not guilty of any offence which has been attributed to him. It has been submitted that in similar circumstances High Court had granted bail in FIR No. 8 of 2008 in Cr.MP (M) No. 277 of 2009 dated 29.4.2009. It has been submitted that the petitioner is ready to join the investigation. The petitioner has been falsely implicated in the case. The learned counsel for the petitioner has prayed for grant of bail to petitioner under Section 438 Cr.P.C. 4. The learned Additional Advocate General has opposed the bail application. He has reiterated the stand taken by respondent in reply filed along with affidavit dated 14.10.2009. It has been submitted that the petitioner is not cooperating in the investigation. In the earlier bail application the petitioner joined investigation for some time but on 24.6.2009 and 3.7.2009 he did not join the investigation. This Court had earlier rejected the bail application of the petitioner under Section 438 Cr.P.C. on 9.7.2009. The petitioner thereafter had gone underground and has not turned up. The non-bailable warrants were obtained against the petitioner from learned Special Judge, Una but he could not be traced. The investigating agency has filed application on 17.9.2009 for initiation of proceedings under Sections 82 Cr.P.C. which is pending before learned Special Judge, Una and fixed for 12.11.2009. The petitioner in order to escape from said proceedings has filed the present bail application. 5. It has been submitted that the petitioner in conspiracy with other accused persons had prepared false fabricated record and supplied less quantity of bitumen and thereby caused loss of about Rs. 57,00,000/- to the state exchequer. It has been submitted that the details of alleged vat forms is not tallying with the record collected by the investigating agency. It has been denied that affidavit dated 7.7.2009 filed in the earlier Cr.MP(M) No. 266 of 2009 was false, rather it was true. It has been submitted by Mr. A.K.Bansal, learned Additional Advocate General that there is no change of circumstance after the decision of this Court in Cr.MP(M) No. 266 of 2009 and therefore, he prayed for the dismissal of the bail application. 6. I have considered the rival contentions of the learned counsel for the parties. Mr. Ajay Kochhar, learned counsel appearing on behalf of the petitioner has vehemently submitted that after the decision dated 9.7.2009 the petitioner had obtained information under the RTI and supplied the same to the investigating agency vide letter dated 2.9.2009. He has submitted that now the entire supply of bitumen has been explained to the investigating agency and therefore, custodial interrogation of the petitioner is not necessary. Mr. Ajay Kochhar on the query of this Court has stated that quantity of about 500 bitumen drums is covered in 6 VAT declaration forms. The allegation against the petitioner is that he in connivance with other co-accused has pilfered about 1057 bitumen drums. The market value of about 1057 bitumen drums is about Rs.57,00,000/-/. Therefore, even if contention of Mr. Ajay Kochhar for argument sake is taken into consideration still 6 VAT declaration forms, which the petitioner has allegedly supplied to the investigating agency along with letter dated 2.9.2009, at the most explains about 500 bitumen drums but not the entire pilferage. In these circumstances there is no change of circumstance after 9.7.2009 when the bail application of the petitioner was rejected by this Court. The learned counsel for the petitioner except for relying on 6 VAT declaration forms has placed nothing new material on record so as to support the case of the petitioner for bail application under Section 438 Cr.P.C. On the contrary, learned Additional Advocate General has submitted that the petitioner is not cooperating in the investigation. He is not available. The investigating agency has taken steps to proceed against the petitioner under Section 82 Cr.P.C. There are serious allegations against the petitioner with respect to pilferage of public property. The petitioner has failed to point out any substantive change of circumstance after 9.7.2009 so as to grant bail under Section 438 Cr.P.C. No case for grant of bail under Section 438 Cr.P.C. is made out. Accordingly, the application is dismissed. 7. The observations made in this order are for disposal of this application and these shall not be treated as expression of opinion on the merits of the case. ( Kuldip Singh) Judge November 03, 2009. (sks)