Uttarakhand High CourtIndu Thakur vs State Of Uttarakhand And Others on 12 January, 2023Author:Ravindra MaithaniBench:Ravindra MaithaniIN THE HIGH COURT OF UTTARAKHAND AT\n                  NAINITAL\n     Bail Cancellation Application No. 9 of 2021\n\n\nIndu Thakur                                 ...... Applicant\n\n                             Vs.\n\nState of Uttarakhand and Others           ..... Respondents\n\n    Bail Cancellation Application No. 10 of 2021\n\n\nPoonam Negi                                 ...... Applicant\n\n                             Vs.\n\nState of Uttarakhand and Others           ..... Respondents\n\n\n\nPresent:\nMr. Harshpal Sekhon, Advocate for the applicant-informant.\nMr. Lalit Miglani, A.G.A. for the State of Uttarakhand.\nMr. Karan Anand and Mr. Ravi Bisht, Advocates for the private\nrespondents-accused.\n\n\nHon'ble Ravindra Maithani, J. (Oral)The respondent nos. 2 & 3, namely, Ajay\n\nKumar     Sharma       and    Smt.     Bhawna      Sharma,\n\nrespectively (hereinafter referred to as "the accused")\n\nwere granted bail in FIR No.127 of 2019, underSections 420,406IPC, Police Station Rajpur, District\n\nDehradun ("the case"), by this Court on 09.12.2020,\n\nby an order passed in BA1 No.2793 of 2019. The bail\n\nwas conditional. Now, the applicants have filed the\n\ninstant bail cancellation applications on the ground2that the accused did not comply with the condition\n\nsubject to which, they were granted bail.2.        Heard learned counsel for the parties and\n\nperused the record.3.        While arguing bail, on behalf of the accused,\n\na submission was made that the accused were ready\n\nto settle the dispute with the aggrieved persons within\n\ntwo months from the date of their release. The Court,\n\nin its order dated 09.12.2020, noted the submission\n\nand granted bail to the accused, subject to the\n\ncondition that they would refund the money within two\n\nmonths from the date of their release, to the aggrieved\n\npersons. The order dated 09.12.2020 is as hereunder:-"Since the accused are ready to refund the\n         money within a period of two months, accordingly,\n         their bail application is allowed and the applicants\n         are directed to be released on bail on their executing\n         personal bond(s) and furnishing to-two reliable\n         sureties each of the like amount, to the satisfaction\n         of the Court concerned.        This bail order shall\n         exclusively be subject to the condition that the\n         accused will refund the money within two months\n         from the date of their release to the aggrieved\n         person.In case of non-compliance of this order, the\n         State as well as the aggrieved person will have a\n         right to move the bail cancellation application before\n         this Court.Pending application, if any, stands disposed\n         of."4.        It appears that the accused did not refund\n\nthe money to the aggrieved persons, therefore, the3applicants, who are the informants in the case, filed\n\nthe instant bail cancellation application.5.          Learned counsel for the applicants would\n\nsubmit that the accused were granted bail subject to\n\nthe condition that they would refund the money within\n\ntwo months from the date of their release, which they\n\nhave not done. Therefore, the bail granted to the\n\naccused is liable to be cancelled.6.          During     the    course     of   hearing,     on\n\n05.01.2023, an argument was made on behalf of the\n\naccused that the accused had visited the house of the\n\napplicants, but they refused to take the money. The\n\nCourt, while noting this submission made on behalf of\n\nthe accused, had directed the applicants to file a short\n\naffidavit categorically revealing the names of the\n\naggrieved persons, with the amount due to them along\n\nwith their bank details, IFSC Code and their account\n\nnumbers. The Court had further directed the accused\n\nto deposit the money in the accounts of the aggrieved\n\npersons and produce a sheet mentioning as to what\n\namount was deposited in which of the aggrieved\n\npersons' account for the perusal of the Court. It was to\n\nbe placed today. The order dated 05.01.2013 is as\n\nfollows:-"Let the applicant file a short affidavit\n            categorically revealing the names of the aggrieved4persons with the amount due to them along with\n          their bank details, IFSC Code and account numbers.\n          It shall be done within next two days. After filing of\n          it by 11.01.2023, the private respondents shall\n          remit the amounts in the accounts of aggrieved\n          persons and shall produce a sheet mentioning what\n          amount was deposited in which of the aggrieved\n          persons' account for perusal of the Court on\n          12.01.2023.List this case on 12.01.2023, as a first case."7.         The applicants have filed the short affidavit\n\npursuant to the order dated 05.01.2023, of the Court,\n\nwhich was duly served on the accused. The affidavit\n\nreveals the names and account numbers of the\n\naggrieved persons along with the amount, which is due\n\nto them, as per the applicants.8.         The accused did not place for perusal of the\n\nCourt any document revealing that any amount was\n\ndeposited in any of the aggrieved persons.9.         Learned counsel appearing for the accused\n\nwould submit that the amount, as disclosed in the\n\naffidavit filed by the applicants, is huge, which cannot\n\nbe deposited within two days. Therefore, some time\n\nmay be given and the matter may be fixed in the last\n\nweek of February, 2023 so that the accused may take\n\nsteps to settle the refunds.10.        Learned counsel for the accused would also\n\nsubmit that, in fact, in the garb of the bail order, what\n\nthe applicants seek is recovery of the money, which, it5is argued, has never been due to the applicants and\n\nothers.11.       Learned counsel for the accused would\n\nfurther submit that the bail order is being treated as a\n\nmoney recovery suit; if any money is due to the\n\napplicants and any other person, they could have filed\n\nmoney recovery suit, which they have not filed; what is\n\ndue to any person, including the applicants and the\n\naggrieved, may, it is argued, would be determined after\n\nthe witnesses are examined and the accused are given\n\nopportunity to cross-examine them, but before that,\n\nthe accused may not be pressured to pay any amount\n\nto the applicants or to any other person.12.       On behalf of the accused, reference has\n\nbeen made to the judgment of the Gauhati High Court\n\npassed in the case ofPuja Sharma Vs. State of Assam\n\nand Another, in I.A. (Crl.) No.124 of 2021.In the case\n\nofPuja Sharma(supra), the Hon'ble Supreme Court\n\nobserved as hereunder:-"15. Coming to the facts of the present case,\n          it is to be noted that there was no specific\n          undertaking by the accused/opposite party no.2 to\n          pay the remaining amount at the time of granting\n          the privilege of pre-arrest bail and considering his\n          earlier conduct that he paid the 50% of the amount\n          after filing of the bail application as per direction of\n          this Court and considering his willingness to pay the\n          remaining amount, this Court made the interim bail\n          absolute.     The    accused/petitioner     has     also\n          contended that due to financial constraint, he is\n          unable to pay the remaining amount.616. The devastating pandemic under COVID-\n            19 has affected the livelihood of millions of people\n            and due to closure of day-to-day activities during\n            lockdown, sufferings of persons engaged in business\n            cannot be denuded. Only because of inability to pay\n            the amount, the same cannot be taken as a fraud\n            upon the court and a design to hoodwink the court\n            and it is a case of inability of a person to fulfil his\n            commitment. In the given facts and circumstances\n            and the plausible explanation given by the\n            accused/opposite party no.2, this court is of the\n            opinion that it is not a fit case for cancellation of\n            bail."13.          A bare perusal of the judgment in the case\n\nofPuja Sharma(supra) reveals that, in fact, 50 per\n\ncent of the amount had already been paidin that case.\n\nThe Court took notice of the fact that the accused,in\n\nthat case, was unable to pay the remaining amount\n\nand the Court observed that, in fact, the accusedin\n\nthat casedid not play any fraud upon the Court.14.          Undoubtedly,          generally,   orders    of   bail\n\nshould not be made conditional on payment of any\n\nmoney, which is in dispute. But, it has been done in\n\nthe instant case. This bail order was passed on\n\n09.12.2020. The Court, on its own, did not require the\n\naccused to pay the dues to the applicants or the\n\naggrieved        persons.    The    order   dated   09.12.2020,\n\npassed      in     BA1      No.2793    of   2019,    as    quoted\n\nhereinabove, reflects that, in fact, the conditional order7was made based on the submission made on behalf of\n\nthe accused.15.In the case ofBhupinder Singh Vs. Unitech\n\nLimited, (2020) 18 SCC 406, a conditional bail order\n\nwas passed subject to deposition of some money,\n\nwhich was not deposited. The Hon'ble Supreme Court,\n\nunder such facts, observed that the bail granted may\n\nnot be enlarged because the accusedin that casedid\n\nnot comply with the conditions on which he was\n\ngranted bail. In Para 12, the Hon'ble Supreme Court\n\nobserved as hereunder:-"12. By the order of this Court dated 30-10-\n         2017,Sanjay Chandra v. State (NCT of Delhi), 2017\n         SCC OnLine SC 1260, the petitioners were admitted\n         to bail, subject to the deposit of an amount of Rs\n         750 crores. The order in that regard was passed by a\n         three-Judge Bench of this Court. At this stage, the\n         admitted facts before the Court indicate that the\n         order for the deposit of Rs 750 crores has not been\n         complied with. The prayer for enlargement on bail\n         is misconceived because the petitioners have\n         been admitted to bail, subject to the condition of\n         deposit which is not fulfilled. The two Directors\n         have been arrested following the orders passed by\n         the ACMM. They failed to obtain any order from the\n         Delhi High Court."(emphasis supplied)16.       In the instant case, the accused did not pay\n\neven a single paisa either to the informant or to any\n\nother aggrieved persons. An excuse was taken on\n\n05.01.2023 that the applicants are not receiving the\n\nmoney. But, when the entire account details were8given to the accused persons, now, on behalf of the\n\naccused, time is being sought. The bail order, in the\n\ninstant case, is not being taken by this Court as\n\nmoney recovery suit. The bail order was subject to a\n\ncondition that the accused would refund the money\n\nwithin two months. It is more than 2 years, the money\n\nhas not been refunded. Apparently, the accused has\n\nviolated the condition subject to which they were\n\ngranted bail. Therefore, this Court has no other option\n\nbut to cancel the bail granted to the accused persons.17.          The   bail   cancellation    applications   are\n\nallowed.18.          The bail granted to accused- Ajay Kumar\n\nSharma and Smt. Bhawna Sharma in FIR No.127 of\n\n2019 in BA1 No.2793 of 2019, is hereby cancelled. Let\n\nthem surrender to custody within three days from\n\ntoday. If they fail to do so, the concerned court is\n\ndirected to issue coercive processes so that they may\n\nbe arrested and remanded to judicial custody.19.          Let a copy of this order be immediately sent\n\nto the court concerned.(Ravindra Maithani, J.)\n                                         12.01.2023\nRavi Bisht