Hon'ble SHARMA, J. - (1.) SINCE both the bail applications moved by the accused petitioners arise out of common FIR, hence same are being decided by this common order.
(2.) HEARD learned counsel for the accused-petitioners, learned P.P. appearing for the State assisted by learned counsel for the complainant on the second bail application moved under Section 438 Cr.P.C. In brief facts of the case are that the petitioners were working as Sales Executive in a partnership firm M/s. D.B. Distributors having its office at B-525- B, Road No.7, VKI Area, Jaipur. At the relevant time some alleged irregularities took place in the computer software and it was alleged to be committed by he Sales Executives / Sales Team Leaders and also by the accused-petitioners. The said partnership firm is the authorized distributor for the State of Rajasthan M/s. Proctor and Gamble Home Products India Limited, Mumbai for the last 12 years and so far as the accused petitioners are concerned, they were appointed sales executive of M/s. D.B. Distributors. However, the accused-petitioners were assigned to work of sales and order and since then the accused petitioners worked as sales executes in the said firm. On 11.3.2009, Mr. Prakash Nagpal, the alleged partner of the said firm filed a complaint under Section 190 Cr.P.C. before the learned Addl. Chief Judicial Magistrate No.7, Jaipur City, Jaipur for the offences punishable under Sections 408, 420, 467, 468, 471, 120-B IPC and for the offences under Sections 65, 66 and 72 of the Information Technology Act, 2000 not only as against the accused-petitioners but as against the six mother employees of the said firm, namely, Sales Executive, Sales Team Leader and Ex. Sales Manager. On the basis of the allegations made in the said complaint, an FIR came to be loged at Police Station Vishkarma on 25.9.2009 registered at No. 270/2009 for the offence punishable under the above referred provisions. Learned counsel for the accused-petitioners submits that after rejection of the first bail application by this court on 16.11.2009 both the parties i.e. the complainant and the accused persons have already entered into a compromise (Annex.1) on 30.5.2010 which has been duly notarized on 3.6.2010. He submits that co-accused Manish Mathur has already been enlarged on bail by the Co-ordinate Bench of this Court vide order dated 19.7.2010 and the case of the present accused-petitioners is not distinguishable to that of co-accused person who has already been enlarged on bail. He further submits that the petitioners are young persons and except this no criminal case is registered against them. Thus, the case of the accused- petitioners be considered sympathetically and the accused petitioners be enlarged on bail under Section 438 Cr.P.C. in the light of compromise entered in between both the parties. E-contra Mr. Laxman Meena, learned P.P. appearing for the State submits that this Court has already rejected the first bail application of the accused petitioners by passing a detailed order on 16.11.2009. In the instant case the FIR has been lodged against the accused-petitioners for the offence punishable under Sections 408, 420, 467, 468, 471, 120-B IPC and for the offence under Sections 65, 66 and 72 of the Information Technology Act, 2000 which are cognizable, non-bailable and non-compoundable. Thus, the compromise entered in between both the parties is not a compromise in he eye of law. he submits that co-accused Manish Kumar has already been enlarged on bail on 19.7.2010 by the Co-ordinate Bench of this court but this is second bail application moved by the accused-petitioners under Section 438 Cr.P.C. and after deciding the first bail application, no subsequent developments have taken place in the matter. He submits that if the accused- petitioners are enlarged on the basis of the aforesaid compromise, then the accused-persons will temper with the prosecution witnesses.
(3.) HE has drawn attention of the Court to the case of Ganesh Raj vs. State of Rajasthan and others, reported in 2005(2) Page 327 where in HEad Note the Larger Bench of this Court has held as under : "Code of Criminal Procedure, 1973, Sec. 438 - Second or subsequent application under - Maintainable where there is change- (1) in fact situation, or (2) in law- (3) requiring interference with earlier law, or (4) where earlier law has become obsolete." Mr. Ram Swaroop Sharma, I.O. of the case is present in person has made a statement at Bar that the accused-petitioners are absconding for the last several months. Thus, the bail application of the accused-petitioners moved under Section 438 Cr.P.C. be rejected. A bare perusal of the facts of the case clearly reveal that this Court vide order dated 16.11.2010 has rejected the first bail application of the accused petitioners on merits. The amount involved in this case is very huge. The statement of the Investigating officer clearly reveals that the accused- petitioners are not co-operating him in the investigation, which clearly shows the mala fide attitude of the accused-petitioners. At this stage the second bail application of the accused petitioners cannot be entertained. The offence alleged to have been committed by the accused-petitioners is serious in nature. In the result this second bail application moved under Section 438 Cr.P.C. is devoid of merits and stands rejected.;