SANJAY BHARGAV Vs. STATE OF HARYANA

JUDGEMENT

(1.) Petitioner Sanjay Bhargav has approached this Court by way of present petition under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail to him in case FIR.No.179 dated 27.09.2017 under Sections 380, 403, 406, 420, 201 of the Indian Penal Code, 1860 and Section 66 of IT Act, 2000 registered at Police Station Sector 53, Gurugram, during pendency of the trial.

(2.) Learned counsel for the petitioner submits that the petitioner has falsely been implicated in the case, whereas he was not involved in the alleged commission of offence. Petitioner was neither named in the FIR.nor any role has been attributed to him. He has been implicated during course of the investigation. As per the allegations in the FIR, it is alleged that the complainant is known as one of the India's leading E-Wallet Companies through its flagship brand namely www.mobiKwik.com (website) and the complainant provided a platform where different consumers can at the same time have access to a variety of services. A mobile application Mobikwik Wallet was developed, whereby consumers of the complainant Company could directly browse through the products listed by different merchants on its platform and can at the same time pay for said product or service using their wallet balance. The complainant came across with some fraudulent transactions during reconciliation of its account and came to know that accused persons have taken benefit of a technical glitch in the complainant's software and thereby transferred the amount to their account without any legal right, which was exceeding the amount lying in their wallet. The present FIR.was registered of allegations of cheating, theft, criminal misappropriation and criminal breach of trust of Rs. 19 crores against many persons including the petitioner. Learned counsel further submits that even the story appears to be concocted by the officials of Mobikwik Wallet Company in order to conceal their own lapse in not maintaining proper Eaccounts of the Company resulting into transfer of certain amount to the account of different persons who are using the Mobikwik application. Learned counsel also submits that except the petitioner and 3/4 other persons, no other person has been arrested or arrayed as accused and no official of the Company has been held liable till date. Learned counsel further submits that the fraud of such level cannot occur without connivance of the officials of the Company. The overall management and maintenance of E-wallet vests with the Company and the petitioner was not in a position to tamper with E-wallet of the Company to transfer such huge amount as alleged in the FIR. There is no other case against the petitioner or his family members and he is not having any criminal background.

(3.) Learned counsel for the petitioner further submits that the challan has been presented before the competent Court and charges have also been framed. All the prosecution witnesses are official witnesses and there is no possibility that the petitioner may tamper with the evidence or influence the witnesses. No purpose would be served by keeping the petitioner in custody. Learned counsel also submits that the petitioner has deposited an amount of Rs. 1,0,00,000/- in the account of the Company just to show his bona fide and Rs. 8,00,000/- stands freezed in his PNB account. Nothing is to be recovered from the petitioner. The case is based on documentary evidence and all the documents are either in the police custody or with the Company. The allegations as levelled in the FIR.are yet to be established by way of scientific evidence by proving that the technical glitch occurred in the software of the Company, of which, unlawful and wrongful benefit was taken by other persons while transferring the amount into their accounts. Even the intention or lapse on the part of officials of the complainant Company can be proved during evidence before the trial Court. Nothing is to be recovered from the petitioner. Learned counsel also submits that one co-accused namely Tara Chand Bhargav has approached this Court by way of filing CRM-M No.3460 of 2018 and he was granted anticipatory bail which was made absolute vide order dated 05.04.2018. The bail petition filed by the petitioner was dismissed by the Court below without mentioning any sufficient reason and by stating that second petition was not maintainable, whereas it was filed after the changed circumstances. Learned counsel also submits that allegations are of economic offences and the offences are triable by Magistrate. Petitioner is in custody since 08.11.2017. The allegations are matter of evidence which shall be tested by the trial Court during course of trial. In support of his arguments, learned counsel for the petitioner has relied upon judgments of Hon'ble Supreme Court in cases Sanjay Chandra Vs. CBI Criminal Appeal No.2178 of 2011 (Arising out of SLP (Crl) No.5650 of 2011) decided on 23.11.2011, Manoranjana Sinh @ Gupta Vs. Central Bureau of Investigation, 2017 1 RCR(Cri) 1025, Sandeep Jain Vs. National Capital Territory of Delhi rep.by Secretary, Home Deptt, 2000 1 RCR(Cri) 517, Sheikh Ayub Vs. State of M. P., 2006 2 RCR(Cri) 63, Shyam Singh Vs. State through C.B.I., 2006 9 SCC 169, judgment of this Court in case Lalit Khurana Vs. State of Punjab CRM-M No.18477 of 2018 decided on 20.07.2018 and judgment of Bombay High Court in case Vyomesh Shah and others Vs. State of Maharashtra, 2018 1 RCR(Cri) 791.