2018 (9) TMI 2053 - HC - Indian Laws

Grant of regular bail - vicariously liability on petitioner - non-payment of amount to the complainant party - criminal liability can be fastened upon the petitioner or not - allegations of cheating and misappropriation of amount - period of custody undergone by the petitioner is less or what? - HELD THAT - In case, there is a delay in the trial, the bail should be granted to the accused. The Court, while granting bail, is to consider the circumstances, the factors such as the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge are to be taken into consideration. It has also been held in various judgment of Hon'ble the Apex Court as well as of this Court that criminal prosecution is not a proceeding for recovery of the dues of the investors but is meant for punishing the guilty. In case of economic offences, the object of criminal prosecution is to protect the investors and help them in recovery of the money. It can be a presumption but the detention of accused in the jail would not aid the recovery. It has also been held that the purpose is not to recover the amount but to punish the accused persons. The offence is triable by Magistrate; the custody which is more than 11 months; even a single witness has not been examined; the delay is there on the part of the complainant himself as alternative remedy has already been availed and no useful purpose would be served by keeping the petitioner in custody - Giri Raj is directed to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the trial Court - Petition allowed.

Issues Involved:
1. Grant of regular bail under Section 439 of the Code of Criminal Procedure, 1973.
2. Allegations of non-payment or underpayment of bills and misappropriation of funds.
3. Vicarious liability of the petitioner as an agent.
4. Consideration of alternative remedies and ongoing insolvency proceedings.
5. Judicial precedents and principles governing the grant of bail.

Issue-Wise Detailed Analysis:

1. Grant of Regular Bail under Section 439 of Cr.P.C.:
The petitioner sought regular bail under Section 439 of the Cr.P.C. during the pendency of the trial. The court considered the arguments presented by both the petitioner and the State counsel. The petitioner had been in custody since 01.10.2017, and the investigation was completed with charges framed. The court noted that the offence was triable by a Magistrate, and there were 66 witnesses, none of whom had been examined yet. The court emphasized that no useful purpose would be served by keeping the petitioner in custody.

2. Allegations of Non-Payment or Underpayment of Bills and Misappropriation of Funds:
The FIR initially registered under Sections 420, 467, 468, 471, and 120-B IPC was later presented under Sections 406 and 420 IPC read with Section 120-B IPC. The allegations involved non-payment or underpayment of bills raised by the complainant party. The petitioner, as an agent of Ram Dev International Limited, was accused of procuring paddy and not forwarding the payment to commission agents, leading to misappropriation of funds. The petitioner argued that the amount was disbursed to various commission agents, as evidenced by bank statements and witness statements recorded under Section 161 of Cr.P.C.

3. Vicarious Liability of the Petitioner as an Agent:
The petitioner contended that any lapse on behalf of the principal (Ram Dev International Limited) could not make the agent (petitioner) vicariously liable for criminal prosecution. The court considered this argument and noted that the petitioner acted as an agent and could not be held vicariously liable for the principal's actions.

4. Consideration of Alternative Remedies and Ongoing Insolvency Proceedings:
The complainants had incorporated themselves as operational creditors of Ram Dev International Limited, and insolvency proceedings were pending before the National Company Law Tribunal, Delhi. The court acknowledged that the complainants were availing remedies to recover the amount due through insolvency proceedings. This was considered an alternative remedy, and the court noted that the detention of the petitioner would not aid in the recovery of the amount.

5. Judicial Precedents and Principles Governing the Grant of Bail:
The court referred to several judicial precedents, including Sanjay Chandra v. CBI, Dipak Shubhashchandra Mehta v. C.B.I., and others, to emphasize the principles governing the grant of bail. The object of bail is to secure the appearance of the accused at trial, and it should not be punitive or preventative. The court highlighted that pre-conviction detention should not be resorted to except in cases of necessity to secure attendance at trial or to prevent tampering with witnesses. The court also considered the delay in the trial, the seriousness of the offence, and the likelihood of the accused tampering with evidence or fleeing from justice.

Conclusion:
The court, considering the facts and circumstances, the custody period of more than 11 months, the offence being triable by a Magistrate, and the alternative remedy availed by the complainants, allowed the petition. The petitioner was directed to be released on regular bail on furnishing bail/surety bonds to the satisfaction of the trial court. The judgment emphasized the principles of personal liberty, the object of bail, and the need for judicial discretion in granting bail.

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