POONAM SRIVASTAVA, J. - (1.) HEARD Sri Satish Kumar Tyagi, learned counsel for the applicant and learned A. G. A. for the State.
(2.) THE applicant is in jail in connection with offences under Sections 379, 420, 467, 468, 471, I. P. C. The allegation against the applicant is that he had opened a current account on 18. 3. 2004 in the name of Security Corporation India vide Account No. 412955806 (current) Indian Bank Greater Kailash I, Delhi. The complainant alleged that the applicant used to steel cheques from the office of complainant, C First Mahadeo Market Nayabas Sector 15 Noida. The said cheques were deposited in the fictitious account opened by the applicant and money was withdrawn, which was utilized for his personal use. The complainant suspected involvement of some employees of his office as well. A list of various cheques of different banks for different amount has been detailed in the first information report. The amount for which the complainant is alleged to have been cheated, was initially Rs. 87,000 and odd but subsequently the amount escalated to Rs. 11,61,810. The total amount came to light at'subsequent stages and, therefore, initially the total amount was not correctly mentioned in the first information report. Learned counsel has claimed bail on the basis of Section 437(6), Cr. P. C. which reads as under: "(6) If, in any case triable by a Magistrate, the trial of a person accused of . any non -bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. " Bail application was moved the Judicial Magistrate which was rejected on 14. 9. 2007 on the ground that the offence appears to be grave in nature. Learned counsel has placed a certified copy of the order sheet on record. On perusal of which, it transpires that charge was framed on 12. 6. 2007. After framing the charge, the statement of the complainant was recorded on 31. 7. 2007 but due to paucity bf time, his cross -examination was deferred, thereafter the complainant has not turned up for cross -examination despite several dates have been fixed. After expiry of 60 days from the first date fixed for taking evidence in the case, the bail application was moved the Magistrate under Section 437 (6), Cr. P. C. which was rejected. Perusal of the order dated 14. 9. 2007, it is evident that the Magistrate has rejected the bail application on prior occasion on merits and the second bail application moved under Section 437(6), Cr. P. C. was rejected only because the first bail application was rejected on the ground that offence appeared to be grave in nature. Thereafter on the same ground a second bail application was moved the learned Sessions Judge which was rejected for the same reasons, vide order dated 22. 10. 2007. Learned counsel has tried to impress on the Court the ground for bail under Section 437 (6), Cr. P. C. and also on merits as well. This is first bail application and the applicant is in jail since the submission of charge -sheet on 17. 3. 2007. The applicant was working as Security Supervisor in the Company and the allegation against him is that he has cheated the company by forging and opening a fictitious account in the name of company without any authority and thereby misappropriated the various amounts deposited in the fake account, which was liable to be credited in the name of the company. The fact that the trial has commenced, charge has been framed and one of the witnesses has been examined in chief, is not disputed by the State. The certified copy of the order sheet confirms the submissions of the learned counsel that more than 60 days have lapsed after commencement of the trial. The offence is admittedly triable by a Magistrate, the applicant has continued in custody for more than the prescribed period and he is entitled for bail in exercise of jurisdiction under Section 437(6), Cr. P. C. On perusal of the order of the Magistrate and learned Sessions Judge, it is apparent that no specific reason for declining bail under Section 437(6), Cr. P. C. has been given but for the fact that this was the second bail application and first bail application was rejected on the ground that the offence appears to be grave in nature. The relevant considerations as laid down by the Apex Court for grant of bail is the enormity of the charge, severity of punishment, danger of absconding if he is released on bail as well as tampering of the witnesses as well as there are several other considerations enumerated in a number of decisions, Ramesh Chandra v. State of Himanchal Pradesh, 2002 Cri LJ 1031, Kalyan Chandra Sarkarv. . Rajesh Ranjan alias Pappu Yadav, AIR 2004 SC1866 and MansabAliv. Irsan, (2003)1 SCC 632.
(3.) TAKING into consideration all the aspects and submissions of the learned counsel and also on perusal of the order sheet, it is correct that the applicant is in custody which exceeds the period of 60 days after the first date of evidence had commenced and the case is triable by a Magistrate, besides there is no criminal history of the applicant, I am of the considered view that the applicant be released on bail subject to an undertaking filed by the applicant the Chief Judicial Magistrate concerned with an unequivocal assertion that he will fulfill following conditions: (a)The applicant Shall not tamper with evidence or intimidate the witnesses. (b)The applicant will appear on every 15 days the C. J. M. and also at the concerned police station where his presence shall be recorded. (c)The applicant shall co -operate in the trial pending the Sessions Judge concerned. He shall not be absent on any date during the trial. In default, the bail granted to the applicant shall be deemed cancelled. ;