IN THE COURT OF LD. DISTRICT & SESSIONS JUDGE; XXXXXX COURTS, NEW DELHI.

BAIL APPLICATION No. _______ OF 20___.

IN THE MATTER OF :-

XXXXXXX                                                          ​: APPLICANT

VERSUS

THE STATE OF (NCT OF DELHI)                     ​: RESPONDENT

                                                                             FIR No. _________

                                                U/S: 420/406/506/120B IPC

                   P.S.: ____________

In J.C. Since ___________

INDEX

          APPLICANT

Through

Place: New Delhi

Dated:                                                                           ADVOCATE

IN THE COURT OF LD. DISTRICT & SESSIONS JUDGE; XXXXXX COURTS, NEW DELHI.

BAIL APPLICATION No. _______ OF 20___.

IN THE MATTER OF :-

MRS. XXXXXX                                                            ​: APPLICANT

VERSUS

THE STATE OF (NCT OF DELHI)                          ​: RESPONDENT

                                                                             FIR No. _______

                                                U/S: 420/406/506/120B IPC

                   P.S.: XXXXXXXX

In J.C. Since ___________

BAIL APPLICATION UNDER SECTION 439 OF THE CODE OF CRIMINAL PROCEDURE ON BEHALF OF THE APPLICANT / ACCUSED NAMELY MRS. XXXXXX IN F.I.R No. XXXXX  UNDER SECTIONS 420/406/506/120B OF I.P.C. REGISTERED WITH THE POLICE STATION DWARKA NORTH, NEW DELHI.

The humble application of

the above named Applicant

MOST RESPECTFULLY SHOWETH:-

1.           That the applicant is a peace loving and law-abiding citizen of India. That it is submitted that the applicant has full faith in the administration of justice and therefore has approached this Hon’ble Court with hopes of attaining justice.

2.           That the applicant is filing the present application under Section 439 Cr.P.C. in a FIR bearing no. FIR No XXXXX under Section 420/406/506/120B of IPC registered at Police Station XXXXX on 02.10.2020. Hence the applicant is judicial custody since 28.02.2022.

Copy of FIR No. XXXX under Section 420/406/506/120B of IPC registered at Police Station XXXX is annexed as Annexure P-1.

3.           That the applicant has been arrayed as an accused in the above-mentioned FIR, without any allegations against her. It is submitted that the above-mentioned FIR has been registered based on a false, baseless and frivolous complaint made by the Complainant.

4.           That the brief facts of the case are as under:-

A.      It is the case of the prosecution that the complainant had started a Consultancy Business in March, 2015 along with one Mr. S in the name and style of M/s. XXXX & Developers” at XXXXXXX, New Delhi-1100__.

B.      It is further case of the complainant that in March, 2015 Mr. A husband of the Applicant approached the complainant in the present of Mr. S and requested for a sum of Rs.25 Lakhs as he was in urgent need of the same. It is further alleged that Mr. A returned the said borrowed amount in the month of June, 2015.

C.      It is further stated by the complainant that in August, 2015 Mr. A came along with Mr. SH.  to the office of the complainant and they requested for a sum of Rs.25 Lakhs stating to be in urgent need of the said amount. It is further alleged that the said amount was given to Sh. S upon his assurance. It is further alleged that the said amount was returned by the accused person in Dec. 2015. It is further alleged that the said amounts were returned to him only to gain the confidence and trust of the complainant.

D.      It is further stated by the complainant that in April, 2016, Mr. A called the complainant and informed him that they got the said project and that he would be required to come to XXXX Hotel, along with a sum of Rs.20 Lakhs. It is further alleged that the complainant reached the said hotel where he met the applicant along with other accused, who asked the complainant to initially pay a sum of Rs.One Crore towards his share of investment for which the complainant asked for some time and in good faith handed over Rs.20 Lakhs to the Applicant / accused no.2 Ms. X

5.           That the applicant has been filed the first bail application before the Ld. Trial Court of Sh. XXXXXXX Ld. M.M; XXXX Courts, New Delhi, but the Ld. Trial Court was not granted bail on the ground that investigation is still going on. True copy of order dated 02.03.2022 of the Ld. Trial Court, XXXXX , is annexed as Annexure P-2. The Ld. Trial Court specifically stated in the ordersheet that “the present matter admittedly involves huge amount of cash as such the trail of money is required to be traced. Needless to state that misdoing, if any on the part of complainant is found out during the course of investigation it would also be dealt with and the culpability if any is discovered then the law would take its course against him as well”.

6.           It is submitted that the Applicant again moved the second bail application before the Ld. Trial Court of Sh. XXXXXX Ld. M.M; XXXXX Courts, New Delhi, the same was dismissed vide order dated 26.03.2022 whereas the IO till date he has not been able to collect the proof from the complainant regarding the payments allegedly made to the accused persons.

Copy of orders dated 02.03.2022 and 26.03.2022 passed by the Ld. Trial Court are annexed as Annexure P-3.

7.           It is further submitted that the said offence being an act of individual and the applicant cannot be roped in the present matter under the garb of Section 120B/34 of IPC which is reproduced hereunder;-

“[120B. Punishment of criminal conspiracy.—

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]

[34. Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]”

Since, this is individual act as stated hereinabove, the applicant cannot be imposed liability of any kind of this offence.

8.           It is further submitted that there is no evidence against the applicant about the complicity in the alleged offence. Furthermore, there is no pointer of involvement of the applicant in the present case, as such applicant is entitled for grant of bail.

9.           That the applicant cannot be made an accused in the present case only on the basis of probabilities and presumption.

10.        That the Applicant did not commit any of the crimes as alleged in the FIR filed by the victim. It is sheer out of vengeance and connivance resulting in the applicant being falsely implicated in the present case. Even prima facie there is nothing to show the commission of alleged offenses as in fact, the present FIR does not disclose any participation of the applicant in this case.

11.        That there is not even an iota of evidence collected by the police to show that the Applicant committed any offence. Even prima facie there is nothing to show commission of offence U/s 420/406/506/120B of IPC. 

12.        That the investigation has been completed and the charge sheet yet to be filed by the police officials in the present FIR.

13.        That applicant is filing present bail application before this Hon’ble Court on the following amongst other grounds which are taken without prejudice to each other:-

-: GROUNDS: -

A.          Because the applicant / accused has been falsely implicated in the above noted case and the allegations made therein are false, fabricated, malafide and unfounded and shall have no legs to stand at the time of completion of trial as the accused /applicant is an innocent person and has not committed any offence whatsoever.

B.          Because the investigation has been filed in this case by the prosecution. Except the belated and untrustworthy statement of the complainant there is nothing else to show that the applicant has committed the alleged offence.

C.          Because the applicant did not even know the complainant at the alleged time of incidents. It is submitted that there was no communication between the applicant and Complainant during the entire alleged period.

D.          Because the present FIR does not disclose any participation of the applicant in this case and no case is made out against the applicant.

E.          Because the complainant has alleged that he had paid a wholesome amount of Rs.25 Lakhs in Dec. 2016 in cash, 1^st week to the applicant and a further sum of Rs.25 Lakhs in cash in last week of Dec. 2016 to the co-accused Mr. SH and Mr.V. It is most respectfully submitted that on 08^th of Nov. 2016, the Hon’ble Prime Minister of the Country had announced Demonetization of old currency, and that thereafter the entire country faced hardship in procuring new currency notes. It is however, surprising that the complainant paid an amount to the tune of Rs.50 Lakhs in CASH in the month of Dec. 2016, which is a month after the said demonetization, wherein the new currency notes were not even available. It is pertinent to mention here that the said factum casts serious doubts on the allegation of the complainant.  

F.           Because the Hon'ble Supreme Court has held that the source of income and the means to advance such huge amounts need to be proved and stated in cases pertaining to advances and payments. It is imperative to point out that Hon'ble Supreme Court in the case of K. Prakashan v. P.K. Surenderan case held that if a huge amount of money is advanced as a loan then the person who has purportedly advanced the loan must also show the solvency to the extent of the loan either through the bank account or through other means.

G.          Because on 23.11.2020, the Applicant was never served a notice under Section 41-A Cr.P.C by the Investigating Officer to join in investigation and the Applicant is living at Jaipur since more than two years.

H.          Because there is huge unexplained delay of four years in lodging the FIR as the transaction took place in the year 2016 and the FIR got registered in the year 2020.

I.             Because that the Applicant was arrested vide kalandra bearing DD No.XXXXXX, dated-28.02.2022 and thereafter, the investigating officer in FIR No.XXXXXX, filed the application for interrogation and formal arrest of the Applicant and Ld. M.M was pleased to grant two days police custody to the I.O of the present FIR and at present, the Applicant is in police custody.

J.           Because the Applicant was never aware about the present FIR pending against her and no notice has been served upon her and the Applicant having two minor children i.e. one daughter of 9 years and one son of 5 years and there is no one to look after in the absence of Applicant.

K.          Because the complaint under Section 138 N.I. Act filed by the complainant against the Applicant against the cheques issued by the Applicant and other, till date wherein the complainant didn’t appear as the complainant still not filed any single documents to prove the huge cash transactions during country-wide imposition of demonetization, it is shows the conduct of the complainant who filed the false and frivolous complaint against the innocent person for duping them which is evident from the ordersheets.

L.           Because the Complainant has levied false, baseless and frivolous allegations and there are no specific allegations against the Applicant in the said FIR. It is submitted that the ingredients required to constitute a criminal offence are not made out from a bare reading of the complaint.

M.         Because without there being any material on record to establish even a semblance of any offence as alleged against the Applicant.

N.          Because the police officials has not taken any action as the main accused persons namely Mr. SH and Mr.S and the applicant has been falsely implicated in the present FIR.

O.          That it may not be out of context to point out that the Hon’ble Supreme Court in the matter of Sanjay Chandra Vs. CBI (2012) 1 SCC 40 has again upheld the fundamental principle of criminal jurisprudence “bail and not jail” and has observed that time and again is has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.

P.          That in the case of Siddharam Satlingoppa Meheto Vs. State of Maharashtra (2011) 1SCC 694 Hon’ble Court observed

“Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.”

Q.          Hon'ble the Apex Court in the case of VamanNarainGhiya Vs. State of Rajasthan [reported in (2009)2 SCC 281], which reads as under:-

"8. The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An applicant is not detained in custody with the object of punishing him on the assumption of his guilt."

R.          That the grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the applicant. The primary purposes of bail in a criminal case are to relieve the applicant of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the applicant constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.

S.          That there is no good reason to detain the accused in custody, that too, after the completion of the investigation. That Hon’ble Supreme Court, in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784, has stated that

“in deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail.”

T.         In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, Hon’ble Supreme Court opined:

“That the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement n bail from the Court. We do not intend to be exhaustive but only illustrative.

It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavorable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren once every fortnight.”

U.          That, it is the basic criminal jurisprudence that the applicant is considered innocent until held guilty.

V.          That Section 439Cr.P.C. itself provides that the court can impose the condition while granting bail that such person shall not commit an offence similar to the offence of which he is accused or suspected, of the commission of which he is suspected.

W.         That applicant / applicant is an honest manand has got clean antecedents and also has got no influence over the prosecution witnesses and there is no likelihood of tempering with the same as the prosecution.

X.          That as per the jurisprudence of bail, aim is to be kept for achieving a balance between personal liberty and social security. The first time offender having no criminal antecedence is to be considered separately. However, where the applicant has deep roots in the society her detention should be avoided.

Y.          That the applicant / accused did not commit any crime. It is sheer out of vengeance by the complainant who has vendetta with the applicant and prevailed to make false statement regarding the applicant / accused has also been falsely implicated in the present case.

14.    That the applicant is ready to furnish the surety to the entire satisfaction of this Hon’ble court.

15.    That it may be submitted that the applicant has a completely clean record. The applicant/applicant has never been convicted in past in any case. It cannot be construed under any circumstances that the applicant has a bad record which suggests that she is likely to commit, similar or serious offenses while on bail.

16.    That the applicant has deep roots in the society and there is absolutely no chance of the applicant running away from the course of justice or tampering with evidence.

P R A Y E R

       It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:-

a)           Grant bail to the applicant and to release the applicant on bail in the FIR No. XXXX under Section 420/406/506/120B of IPC registered at Police Station XXXX , New Delhi the interest of justice and on any terms and condition that the Hon’ble Court may deem fit and proper.

b)           Any other order as this Hon’ble Court may deem necessary in the circumstances of the present case.

FOR THIS ACT OF KINDNESS THE APPLICANT SHALL ALWAYS PRAY.

          APPLICANT

Through

Place: New Delhi

Dated:

Advocate

IN THE COURT OF LD. DISTRICT & SESSIONS JUDGE; DWARKA COURTS, NEW DELHI.

BAIL APPLICATION No. _______ OF 2022.

IN THE MATTER OF :-

MEENAKSHI AGARWAL                                 ​: APPLICANT

VERSUS

THE STATE OF (NCT OF DELHI)                     ​: RESPONDENT

AFFIDAVIT

I, __________S/o Sh. ______________R/o at____________________________,  presently at New Delhi, do hereby solemnly affirm and states as under:

1.      That the deponent is the parokar and the brother of applicant in the above bail matter and well conversant with the facts and circumstances of the present case, and am competent to swear this affidavit.

2.      That the accompanying Bail Application U/s 439 Cr.P.C has been drafted under by counsel of applicant under my instructions. I say, that I have perused the same, and I say that except for the contents of the legal averments contained therein, the contents thereof are true and correct to the best of my knowledge and belief.

3.      That no part of this affidavit is false and nothing material has been concealed therefrom.

                                                                                       DEPONENT

VERIFICATION:-

          I, the deponent named hereinabove, do hereby solemnly affirm and verify that the contents of the above affidavit are true and correct to the best of my knowledge. No part of it is false, and nothing material has been concealed therefrom. Verified at Delhi on this   day of March, 2022.

                                                                   DEPONENT