DAMODAR KUMAR KASHERA Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) Heard both the sides.

(2.) The petitioners were running an unauthorized and unregistered lottery house, functioning under the name and style of Gumla Enterprises. Annexure 1 shows the terms and conditions by which every member has to pay monthly instalments. According to the informant, he was a member of that Enterprises and his son was also a member of that Enterprises who had paid two and three instalments and thereafter had not made payment as per the scheme. The allegation was that the petitioners along with their partners were carrying illegal lottery and they were also given some awards but the amounts were misappropriate by them; therefore F.I.R. was lodged under Sections 294-A; 406, 420/34 of the I.P.C. The learned Court below found that the petitioner's company collected Rs. 99 lakhs out of which Rs. 27 lakhs has been spent and rest amount i.e. Rs. 72 lakhs has not been deposited with the UCO Bank rather only two lakhs were deposited in the UCO Bank in the account of this Enterprises. Learned Counsel for the petitioners heavily relied on supervision note of the Supdt. of Police annexed with the supplementary affidavit. As per the supervision note not a single witness has come before S. P. regarding misappropriation of fund and fraud on the part of the petitioners' Company. The Supdt. of Police further held that there was no intention on the part of the petitioners to misappropriate the amount and commit fraud, otherwise, even after closure of the institution, they would not have returned the amount, deposited by its members. The Supdt. of Police also found that the accused persons have started unauthorized lottery business and they have committed the aforesaid offence along with offences under Section 34 of the I.P.C. On the strength of this supervision note, the petitioners seek anticipatory bail.

(3.) Learned Counsel for the State argued that the Dy. S. P. has earlier supervised the case and he found that a case under Section 420, I.P.C. was also made out against the petitioners. His argument was that if it is held that this is not a case under Section 420, I.P.C. as argued by the learned Counsel for the petitioner then this case is under Section 294A of the I.P.C. which is bailable and therefore this anticipatory bail is not maintainable. One relevant thing is that after the case has been instituted, the amount has been calculated and the list for repayment of the amount had been prepared. Learned Counsel for the petitioners says that after the institution of the case the amount has been calculated and the list for repayment of the amount has been prepared. If the intention of the petitioner would have been there to misappropriate the amount then the calculation would not have been made for repayment of the amount and the S. P. did not consider this aspect of the matter in his supervision note and held that the offence under the aforesaid Section has been made out against the petitioner.