The Allahabad High Court while granting bail to a woman accused of cheating, said that the bail application of an unconvicted person should not be rejected for the purpose of giving him a taste of imprisonment as a lesson or as a mark of disapproval of his conduct.
A Single Bench of Justice Arun Kumar Singh Deshwal passed this order while hearing a Criminal Misc Bail Application filed by Maya Tiwari.
The bail application has been filed on behalf of the applicant – Maya Tiwari with a prayer to release her on bail in Case under Sections -406, 420, 419, 467, 468, 471, & 120-B I.P.C, Section-66-D of I.T Act, Police Station – Sarai Khwaja, District – Jaunpur, during pendency of the trial.
Contention of the counsel for the applicant is that as per the allegation in the FIR as well as statement of first informant, amount about Rs 10,00,000/- was transferred in the account of the applicant as well as her husband and daughter, but major part of that amount, amounting to Rs 8,70,000/- had already been transferred in the account of the first informant.
It is further submitted that though in the agreement between the applicant and the first informant, the total amount of four cheques is about Rs 5,20,500/- but the applicant has transferred more than the amount of cheque.
It is further submitted that applicant was herself cheated by co-accused Santosh Kumar Semwal, who during investigation was found to be main accused and who had prepared the forged work order alleged to be issued from PMO and sent to the Whatsapp number of the applicant which applicant bonafidely forwarded to the first informant.
Further, it has been submitted that applicant is a lady and she has been in jail since 12.10.2023 and in support of his contention, applicant has submitted that the Apex Court in the case of Manish Sisodia Vs Directorate of Enforcement reported in 2024 SCC OnLine SC 1920 observed that object of bail is to secure the attendance of prisoner at trial and the bail is not to be withheld as a punishment.
Lastly, it has been submitted that the co-accused Santosh Kumar Semwal, Abhishek Tiwari and Brijesh Srivastava, have already been released on bail by the Court, therefore, she is also entitled to be released on bail.
However, counsel for the opposite party no.2 as well as AGA have vehemently opposed the prayer and submitted that it is undisputed that the forged work order was sent from the Whatsapp number of the applicant and amount of Rs 10,00,000/- was transferred in her account as well as in the account of her husband and her daughter and she misrepresented the applicant as Higher Officer in PMO.
The Court observed that,
Considering the rival submission of parties and on perusal of record, it appears that an amount of about Rs 8,70,000/- has already been transferred in the account of first informant prior to lodging the FIR and in the agreement entered into between the applicant and the first informant, the amount of cheque is only Rs 5,20,500/- against which the applicant transferred more than Rs 8,70,000/- in the account of first informant.
The innocence of a person, accused of an offence, is presumed through a legal fiction, pressing the onus on the prosecution to prove the guilt before the court and presumption of innocence has been acknowledged throughout the world. The Apex court also observed in the number of cases that bail is the rule and jail is the exception.
From perusal of above legal position, it is clear, while considering the bail application then apart from seriousness of the charges and severity of punishment, paramount consideration should be given to whether there are chances of absconding or tampering with the witnesses or intimidation to victim or witnesses on the part of the accused, the Court said.
“Reverting to the case, there is no averment from prosecution’s side that there are chances of absconding or tampering with the witnesses or intimidation of victim or witnesses on the part of the applicant who is a lady and she is also in jail since 12.10.2023 and till date charge has not been framed and there is no likelihood for early conclusion of trial and co accused persons have already been granted bail by the court. In such circumstances, refusing the bail will amount to travesty of justice and will also be in violation of Article 21 of the Constitution of India.
In view of the above, without expressing any detailed opinion on the merit of the case, the court is of the view that the applicant is entitled to be released on bail”, the Court further observed.
The Court ordered that,
Let the applicant- Maya Tiwari involved in the aforementioned crime be released on bail, on her furnishing a personal bond and two sureties each in the like amount, to the satisfaction of the court concerned, with the following conditions:-
i. The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.
ii. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
iii. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail