- (1.) S. K. Verma, J. The applicant is involved in case crime No. 902 of 1992 under Sections 467/468/471/420,1. P. C. Police Station Kotwali District Etawah Sri S. S, Tiwari, Senior Counsel for the applicant and Sri V. C. Tiwari, Senior Counsel for the complainant have been heard at length and counter and rejoinder affidavits has been perused.
(2.) A preliminary objection has been raised by the learned counsel for the complainant thai the applicant is not in jail, hence the bail applications is not maintainable. On 19-12-1992 Incharge Sessions Judge, Etawah had granted interim bail to the applicant which had to continue upto 15-1-1993 vide Annexure-11 to the bail application. Ultimately, the learned Sessions Judge, Etawah rejected the bail application on 2-2-1993 vide Annexure-12 and at that time the applicant was not present before the Court hence there was a direction that he shall be taken into custody forthwith. The notice of the present bail applica tion was given on 10-2-1993 and the heading of the application showed that the applicant was in jail but us per the affidavit filed by Sri S. K. Gupta, Manager, State Bank of India, Etawah on behalf of the complainant, the applicant was not in jail till 18-2- 1 Ide Annexure-1 to the affidavit dated 20-2-1993. Hence it has been argued that the applicant is not in jail. However, in reply the learned counsel for the applicant has relied on the fact that he surrendered in the court of the Chief Judicial Magistrate and was taken into custody before moving the present bail application on 12-4-1993 and the fact that the applicant was in jail was mentioned while preparing the bail application is a rountine. Having consIdered the submissions of the respondentive parties in this respect, I find that the prelkinery objection has little force and the bail application is maintainable.
(3.) THE bail application may now be considered. THE applicant is the sole proprietor of business in the name and style of M/s. Laxmi Chamicals, 38, Jagpura, Etawah for manufacturing/preparing ABRIS (packing paper ). THE complainant State Bank of India, Etawah Main Branch granted three types of cash facilities to the applicant as follows : (1) Cash credit (Mandi type) to the limit of Rs. 8,00,000,00 ; (2) Cash credit (bills) to the limit of Rs. 30,00,000,00 ; (3) Medium term loan for Rs. 2,60,000 for purchase of a truck. Smt. Ram Pyari, Mother and Nawal Kishore Shukla, brother of the applicant who have been made co accused with the applicant, were guarantors of the aforesaid credit facility. THE procedure followed was that the complainant after sending manufactured goods to the purchaser firms, presented transport receipts bills of exchange and invoices before the complainant Bank on such presentation 75, percent of the amount covered by the bills, was to be credited to the account of the applicant. THE balance 25 percent of the payment of the amount of money relating to the goods entrusted to the transport agency and also hypothecated property to the tune of Rs. 70,00,000 to cover the risk of the complainant Bank. It has been further argued on behalf of the applicant that if the bank employees of the complainant Bank gave credit facility to the applicant to the tune of Rs. 40 lakhs and if the transport company committed breach of trust or criminal mis-appropriation of the goods for which the applicant has already given them notices the applicant should not be held responsible for the lapses in payment of money b cause he had been acting in good faith. It has also been argued on behalf of the applicant that a civil suit has been filed by the complainant Bank against the applicant and the alleged buyer firms who had failed to retire the documents as well as the transport agency and the dispute between the parties is of civil nature and therefore, also the applicant is entitled to bail. After having considered the respective pleas of the parties I find that main issue has not been answered in this bail application. The evidence prima facie collected by the investigating agency indicates that fictitious transport receipts, bills of exchange and invoices were presented by the applicant on the basis of which 75 percent payment was made by the complainant Bank and thereafter fictitious advices were also presented oh the basis of which the rent of 25 percent of the money relating to the goods was also paid to the applicant. It is true that prima facie it appears that without the collusion and connivance and active assistance of the officers are and employees of the com plainant Bank, the applicant could not have defrauded/cheated the complainant to the tune of about half crore rupees amount was to be credited after the receipt of the advise of the Bank where these receipt bills and the invoices were retired by the respective buyer firms and the bills were honoured. The complainant alleges that the applicant defrauded the Bank atleast to the turns of Rs. 52,27j460. 48 paise including interest on the amount due by presenting fictitious and false bills of exchange, transport receipts and invoices through which no goods were sent at all. It is alleged that it was for this reason that the bills were not honoured by the buyers when presented. It is also alleged that the applicant had obtained forged and manufactured advises purporting to have been issued by the concerned Banks which, in fact, were never issued the applicant in this manner obtained cent percent payment of the bills to this cash credit account. The complainant Bank has not been able to receive the payment on the basis of the bills and other documents produced by the applicant.;