ZAFAR IQBAL Vs. STATE OF J&K
LAWS(J&K)-2020-2-11
HIGH COURT OF JAMMU AND KASHMIR
Decided on February 13,2020

Zafar Iqbal Appellant
VERSUS
STATE OF JANDK Respondents


Referred Judgements :-

CBI V. ANUPUM J KULKARNI [REFERRED TO]
SATYA NARAIN MUSADI VS. STATE OF BIHAR [REFERRED TO]
ABDUL AZEEZ P V VS. NATIONAL INVESTIGATION AGENCY [REFERRED TO]


JUDGEMENT

- (1.)These are the two bail applications filed by the applicants, namely, Zafar Iqbal and Zaheer Abass seeking bail in FIR No. 04/2019 lodged under Section 420, 120-B of RPC, by police station Mendhar, District Poonch.
(2.)The facts of the two bail applications are identical and are reproduced herein below:-
On 16.05.2019, the complainant namely Sh. Abdul Karim, S/o Sh. Raj Mohd. R/o Pathanateer Mendhar, Poonch and others produced an application at P/S Mendhar duly marked by DIG, R/P Range Hqrs, Rajouri and endorsed by SDPO Mendhar against Tariq Mehmood (Mohd. Tariq), S/o Mohd. Aziz, Imtiaz Ahmed S/o Mohd. Aziz both residents of Village Chhungan and Murtaza Ahmed, S/o Mohd. Bashir, R/o Chak Banola, Tehsil Mendhar and others, alleging therein that the above alleged accused persons were running a private company in the name and style of Hablas Pvt. Ltd. where they have collected money from the people with the motive to double the money within a month's time. The complainants also alleged that the alleged accused doubled the money of various people of the area. The accused were running this fraudulent company from near about 08 months and thereafter have disappeared from Tehsil Mendhar and did not double their money. It was also alleged that the alleged accused persons cheated the complainants and are wandering in Jammu, Delhi and at various places in India. Upon the receipt of this application/complaint a case FIR No. 70/2019 u/s 420/RPC has been registered in P/s Mendhar on 16.05.2019 and the investigation of the case was taken up by Inspector Sajjad Mir, SHO P/s Mendhar. Later on, vide PHQ order No. 1929 of 2019 dated 20.05.2019, the investigation of the case FIR No. 70/2019 u/s 420/RPC P/S Mendhar was transferred to Crime Branch, Jammu and entrusted to Dy. SP, Crime Branch, Jammu for carrying out investigation into the matter and a SIT has been constituted. The investigation of the case has been taken up by Crime Branch, Jammu. During the course of investigation, accused kingpin Tariq Mehmood S/o Mohd. Aziz, R/o Chhungan, Tehsil Mendhar, District Poonch was arrested and was interrogated, where under the accused disclosed that he is a Government employee working as Pharmacist in Health Department and was posted as Pharmacist at Health Sub Centre Bathoi Mahore since 2016. In the year 2018, he along with Murtaza Ahmed, S/o Mohd. Bashir, R/o Chak Banola, Mendhar, Imitiaz Ahmed, S/o Mohd. Aziz, R/o Chhungan, Mendhar, Shazia Kousar, W/o Tariq Mehmood, R/o Chhungan, Mendhar and others planned to launch a company under the name and style Hablas Online Shopping at Mendhar, Poonch. The accused vide No. ROC/J&K/Record/217 dated 27.06.2019 obtained NOC from Registrar of Companies to carry on the business of all kinds of goods, commodities and services as buyers, sellers, traders, wholesalers, distributors, importers, agents, brokers, stockiest, commission agents, dealers and consultants of all kinds of products and services ; accordingly he along with Imtiaz Ahmed, Murtaza Ahmed, Shazia Kousar and others got registered his company under the name and style Hablas-e-Commerce Pvt. Ltd. on 14.08.2018 through Chartered Accountant namely Pankil Malhotra having its office at New Delhi Lodhi Road (542890) under the corporate identity number of the company as U74999JK2018PTC010573, PAN No. as AAECH6222N, TAN No. as AMRH1222001. But the investigation reveals that the accused in connivance with others started collecting money in the month of March, 2018 with the promise to sell them different products on 50% commissions through agent system and opened an account No. 0842010100000089 in the name of Hablas Online Shopping under the proprietorship of accused Shazia Kousar, W/o Tariq Mehmood at J&K Bank Sakhi Maidan, Mendhar and asked the people to deposit their amount in the said account.

The accused also used account No. 32283357074 and CC-77 for purchase of products which are maintained in the name of one of the co-agent namely Mohd. Shafiq and made payments to some of the companies from whom the gift items and other products were purchased. In this process of purchasing and selling the products the accused collected different amounts from different individuals in advance. Some of the individuals were given the products along with gifts, while as, most of the individuals were neither provided any gifts nor any products against their advance deposits and their money was grabbed under the promise of getting the products which the accused was providing and include Blankets, Quilts, Press, Lunch Boxes, Body Messaging machines etc. The accused further disclosed that after sometime, he stopped providing products and he in connivance with other accused and employees of the company started collecting cash deposits with the promise of providing them high rate of interests of 50% and to win over the confidence of the people he provided high interest to some people who spread the rumors in the area to lure the people and in this way, people started depositing the cash amounts with his company which was formed by him in connivance with other accused. Further, the accused also disclosed that he has purchased some properties in Mendhar, Gurgaon and the record/register which contains details of deposits collected by him and other accused employees of the company is lying in his house located at Behara Mendhar which has been occupied by some people. It is stated by the learned counsel for the applicant in Bail App No. 170/2019 that name of Zafar Iqbal never figured in the FIR and that it was only after the investigation that the applicant has been falsely implicated by the respondent without any cogent proof. Grounds of challenge in Bail Application No. 170/2019

(3.)The main grounds in the instant application are that:-
a. No criminal offence is made out from the bare perusal of the Preliminary Charge Sheet against the applicant, but still the applicant has been put behind the bars by the respondent on the basis of a false and frivolous complaint, in which nothing has been said against the applicant. The applicant moved an application for grant of bail before the Court of Judicial Magistrate 1st Class Mendhar which came to be dismissed without considering the merits of the application vide order dated 23.09.2019. The name of applicant does not figure in FIR.

b. The applicant is entitled to benefit of presumption of innocence as he is not guilty of the commission of any non-bailable offence, on account of the fact that neither the FIR makes mention about his name for commission of any offence nor the charge sheet filed by the respondent Crime Branch lays foundation even prima facie to connect the applicant with the commission of alleged offence, therefore, the applicant being an innocent person is entitled to be released on bail.

c. A false and frivolous case has been cooked up by the respondent purely in active connivance with the complainants to implicate the innocent applicant despite the fact that neither he has committed any crime nor he has any knowledge about the commission of the same.

d. The respondent without conducting any proper enquiry and without ascertaining the facts registered an FIR and presented Preliminary Charge Sheet against the applicant which is totally against the factual position and amounts to abuse of process of law.

e. The applicant is a respectable law abiding citizen and an advocate by profession and presentation of Preliminary Charge Sheet against him at the behest of complainants is nothing but a ploy in the hands of the respondent to injure and malign his reputation in the society.

f. The respondent without appreciating the facts and circumstances of the case and without looking into the veracity of allegations presented the Preliminary Charge Sheet, despite the fact that the alleged offences do not connect involvement of the applicant at all.

g. The criminal proceedings initiated against the applicant is manifestly saturated with malafide and maliciously instituted with an ulterior motive for wrecking vengeance on the applicant.

Objections filed in Bail Application No. 170/2019

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