Rejoinder affidavits to the counter affidavit of the State as well as of the complainant filed today are taken on record.
Heard learned counsel for the applicant, learned A.G.A. for the State as well as learned counsel for the complainant and perused the record.
The present bail application has been filed by the applicant in Case Crime No. 467 of 2017, under Sections 420, 379, 411 I.P.C. & Section 66-D of the Information Technology Act, 2000, Police Station Itiyathok, District Gonda.
In this case F.I.R. was lodged by the complainant to the effect that he is maintaining a savings bank account in State Bank of India, Itiyathok, Gonda having Account No.30697609980 and in the said account balance of Rs.10,14672/- was there. It is alleged that some hackers changed the ATM card of the applicant and on different dates the money was withdrawn and only Rs.155/- was left. An F.I.R. was lodged under Section 420 IPC and Section 66 D of the Information Technology Act, 2000 against the unknown persons on 06.12.2017. The applicant was arrested on 25.12.2017 and from his possession Rs.1.00 Lac cash was recovered and he confessed that in the month of August, 2017 he was standing near an ATM situated at Bargaon Chauraha. One person came there, applicant assisted him in withdrawing the money and by cheating he changed the ATM card and on different dates he withdrew Rs.10,00,000/- and when the entire money was withdrawn the ATM was destroyed.
It is submitted by learned counsel for the applicant that infact the applicant was arrested on 21.12.2017 itself along with his father but anyhow father was released by taking a sum of Rs.1,36,000/- as bribe. Then father of the applicant had given an application to the higher authorities such as DGP, Chief Minister, Chairman Human Rights Commission etc. which were sent through email on 24.12.2017. It is also stated that in the process ATM card of the applicant was taken by the police and from his own account said amount of Rs.1.00 Lac was withdrawn and a false recovery has been shown. To substantiate the contention, statement of account of the applicant has been filed which shows that from 22.12.2017 onwards continuously an amount was withdrawn from his account.
Opposing the bail, learned A.G.A. and learned counsel for the complainant have stated that after withdrawing the cash from the bank account of the complainant, applicant had made certain purchases and the statement of one cloth merchant and one jeweler was recorded who stated that a person named Rishikesh Pandey had come on the shop and made purchase of heavy amount, if he comes before them he could be recognized.
It is stated by learned counsel for the applicant that in the further statement of the complainant has stated that in exchange the applicant had given ATM card to the complainant, a copy of which has been filed along with counter affidavit. But it is admitted that the said ATM card is not the part of the case diary. At no stage any identification parade was done. Even no CCTV footage was obtained from any of the ATM rooms and shops to show that the applicant was involved in drawing the money. It is also submitted that case is triable by Magistrate. Applicant is in jail since 26.12.2017.
Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and, without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail.
Let applicant (Monu Pandey @ Rishikesh Pandey) be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to following conditions :-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
Order Date :- 5.8.2019 ML/-