NARESH KHARAB Vs. STATE

JUDGEMENT

(1.) BY these bail applications, the petitioners/applicants seek bail in case FIRNo.152/2011, P.S.Moti Nagar u/s 406 /409/420 /467/468/471 /120B and 34 IPC and Section 3, 4 & 5 of Prize Chits & Money Circulation Schemes (Banning) Act, 1978. Petitioner - Nitin Sinha also seeks bail in FIR No.84/2011, Police Station Moti Nagar under Sections 406/420 of Indian Penal Code.

(2.) MS . Geeta Luthra, learned senior counsel for the petitioner Naresh Kharab submitted that the charge sheet has been submitted on 16th August, 2013. A bare perusal of the charge sheet filed by the prosecution reflects that the money siphoned by the petitioner herein is not more than Rs.1,10,21,816/ -. There is no allegation of the prosecution that the aforesaid amount has been transferred to the account of the petitioner or has been misappropriated by him. The two directors, namely, Lokeshwar Dev @ Ullas Prabhakar Khare and Raksha J Urs @ Priyanka Saraswat Dev incorporated and started a company under the name and style of M/s. Stock Guru India. The said company was a non -banking financial company. These two main accused floated various active plans to dupe innocent investors. The petitioner himself is a victim and his family members are bonafide investors. He has been duped of his hard earned money. Pursuant thereto he had filed a complaint under Section 200 Cr. P.C. and sent a legal notice.

(3.) THE prosecution has filed the alleged bank statement of the petitioner and that of his brother which establishes that the entire allegations made by the prosecution with respect to money siphoning are false. Present is a classical example where everyone including the petitioner has been duped by the said two directors. Petitioner himself was induced by the said two directors to invest his and his family's hard earned money with SGI. Petitioner fell prey to the stratagem adopted by the said two directors. Several people were induced by the said two directors to not only invest but they in turn brought several other investors. In fact, the complainant Sunil Kumar himself was introduced by a person, namely, Vinod who had himself invested with SGI. Sunil Kumar himself introduced several other people to invest in SGI. The list of investors which has been filed along with the charge sheet will reflect that every investor has introduced other people to invest their money. The guiding greed behind these investors was that they were going to receive unprecedented return of 20% per month. When the entire criminal conspiracy hatched by the said two directors came to the knowledge of the petitioner, he lodged several complaints against the SGI and two directors. In fact, many investors have lodged complaint against Sunil Kumar wherein it was alleged that Sunil Kumar was one of the persons who introduced them to invest money with SGI. Petitioner along with 25 other investors filed a complaint under Section 200 Cr.P.C. r/w Section 156(3) Cr.P.C. for registration of FIR against Sunil Kumar and others including two directors. In the said complaint, the complainant Sunil Kumar filed an application under Section 340 Cr.P.C. which was dismissed being not maintainable. However, the Court held that since the petitioner is one of the accused in the complaint lodged by Sunil Kumar, hence no direction was given in the complaint filed by him. It was further submitted that prosecution has made allegations that the petitioner has two PAN Cards. No investigation has been done by the prosecution in this respect. There was no criminal motive behind taking the second PAN Card. It was inadvertent act of third person which led to the issuance of the PAN Cards. Moreover, at best, it is an offence under the Income Tax Act for which the penalty is fine only. The petitioner did not earn any financial benefit. The complainant/investors are also responsible for the crime. They invested money in SGI without due diligence. The petitioner, who had been supporting the prosecution case throughout by lodging complaints; by moving to the Court seeking appropriate direction, has been made an accused in the present case because of faulty investigation conducted by the police. The petitioner and other persons did not receive cash or money in the form of demand draft, pay orders etc. for their alleged commission. The said two directors had crafted the concept of e -wallet. Under e -wallet scheme, the money was to be deposited in the e -account allegedly maintained in the name of these investors because they brought investment but these e wallets were never encashed and converted into actual money. The net result is that the said two directors siphoned most of the funds. It was further submitted that the charge sheet is running into more than 25000 pages with more than 2300 witnesses. The charge has yet not been framed. Hence, after framing of the charge, the trial is going to take long time. Almost a year has elapsed since the filing of the charge sheet. It will take several years to complete the trial. The petitioner is in custody since 13th May, 2013. The incarceration of the petitioner in jail is like a pre -conviction punishment with sole intention to punish the petitioner before actually being convicted. The petitioner has not tampered with evidence. He has never tried to flee from trial. He has roots in the society and is living with his family which constitutes daughter, wife and parents. The petitioner is suffering from medical problems like enlargement of liver, spinal cord pain, extremely hyper thyroid and is suffering from psychiatric disorder and has also been advised conservative treatment of his medical condition. The jail hospital is not equipped to provide proper medical care to the applicant.