Priya Sharma vs Union Territory Of Chandigarh

Arun Kumar Tyagi, J

The petitioner has filed the present (first) petition under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail in case FIR

No. 70 dated 29.07.2020 registered under Sections 408, 420 and 120-B of the Indian Penal Code, 1860 (for short 'the IPC') at Police Station North,

Chandigarh to which Sections 467, 468, 471 and 473 of the IPC were added later on.

Sh. Sushil Singla, Managing Director of M/s Supreme Securities Limited submitted written complaint to the Senior Superintendent of Police,

Chandigarh against Vipin Kumar Dua, Regional Manager; Ankur Moudgill, Assistant Manager; Priya Sharma, Senior Executive (the petitioner) and

Sukhchain Singh, Field Executive - employees of M/s Supreme Securities Limited working in its Sector 8- C Branch. In the complaint, it has been

inter-alia alleged that all the above said four accused persons were responsible for the day to day business of the branch and to maintain the accounts

books in due course of the business. Accused Nos.1 to 4 have misappropriated and embezzled amount of, at least, Rs.4,91,61,424/- which amount was

in their possession as property of the Company as its employees/agents. The breakup of the amount of Rs.4,91,61,424/- is (i) Rs.91,97,400/- as foreign

currency given to Ashu Forex + (ii) Rs.13,71,750/- outstanding in the books of Ashu Forex + (iii) Rs.20,43,880/- as foreign currency given to Jupiter

Forex (net amount receivable as per books of accounts of the company from Jupiter Forex being Rs.20,41,700/-) + (iv) Rs.80,30,692/- withdrawn from

ICICI Bank Account + (v) Rs.2,78,07,425/- equivalent to foreign currencies + (vi) Rs.6,96,616/- available as cash in the Branch + (vii) Rs.15,841/-

withdrawn from Kotak Mahindra Bank. The complainant accordingly requested for registration of FIR against them under the appropriate penal

provisions of law and recovery of the embezzled/misappropriated amount. The police investigated the case and arrested the petitioner on 14.01.2021.

However, no recovery could be made from her. On completion of investigation, the police filed charge-sheet against her.

The petitioner being in custody has filed the present petition for grant of regular bail.

The petition has been opposed by the respondent-U.T., Chandigarh in terms of affidavit of Uday Pal Singh, Deputy Superintendent of Police,

Economic Offences Wing, Chandigarh.

The petition has also been opposed by the complainant in terms of reply dated 04.07.2021 filed by the complainant.

The petitioner has also filed rejoinder to the reply filed by the complainant.

I have heard learned Counsel for the petitioner, learned Public Prosecutor and Additional Public Prosecutor for U.T., Chandigarh and learned

Counsel for the complainant and gone through the relevant record.

Learned Counsel for the petitioner has argued that the petitioner was employed as Senior Executive in the Sector 8-C Branch, Chandigarh of the

complainant company M/s Supreme securities Limited. The work of the petitioner was to see front office for the direct clients visiting the office. The

petitioner was having one key of the locker but one key of the locker was with Sukhchain Singh and second set of keys of the locker was with Manoj

Bhalla and Manoj Bhalla could open the safe without knowledge of the petitioner which makes the allegation of embezzlement by the petitioner

doubtful. All the e- mails were generated in the name of the petitioner due to computer software and the e-mail ID and password were known to

other staff members and e-mails were received and sent by them in the name of the petitioner. The bank statements sent were computer generated

statements and the petitioner could not be attributed responsibility for the same being false. The accounts of the branch were audited as per RBI

guidelines and no irregularities were found at the time of such audits. The head office had the access to the system and the forgery being attributed to

the petitioner is probably the creation of the complainant. Vipin Kumar Dua, Regional Manager made a complaint dated 21.05.2020 to RBI and

present FIR was lodged to silence him and the petitioner was falsely implicated due to internal fighting in the management. As per the case of the

complainant, Vipin Kumar Dua, Regional Manager was responsible for conduct of the business and was operating the bank accounts in the branch

and was the main accused involved in the crime. Vipin Kumar Dua, Regional Manager has been granted regular bail by the Hon'ble Supreme Court

vide order dated 01.07.2021. The petitioner is in custody since 14.01.2021 and the petitioner is also entitled to grant of regular bail on parity with co-

accused Vipin Kumar Dua. Charge-sheet has already been filed but the prosecution evidence of 49 prosecution witnesses is yet to be recorded. The

trial is likely to take long time due to restrictions imposed to prevent spread of infection of Covid-19. No useful purpose will be served by further

detention of the petitioner in custody during trial. Therefore, the petitioner may be granted regular bail.

On the other hand, learned State Counsel and learned Counsel for the complainant have argued that the petitioner was working as a Senior

Executive in Sector 8-C, Chandigarh Branch of M/s Supreme securities Limited. Co-accused Vipin Kumar Dua, Regional Manager was authorised to

operate the bank accounts of the company but all the four accused persons namely Vipin Kumar Dua, Regional Manager; Ankur Moudgill, Assistant

Manager; Priya Sharma, Senior Executive (the petitioner) and Sukhchain Singh, Field Executive were responsible for day to day business of the

branch and to maintain the account books in the due course of the business. All the above said four accused in collusion and conspiracy with each

other and with common intention embezzled the amount which has been found to be approximately Rs.5.50 crores. Prime duty of the petitioner was to

enter sale/purchase transactions in the computer ledger after having seen the sale/purchase invoices. The petitioner had been entering fake

transactions in the computer ledger. The petitioner e-mailed three bank accounts for the financial years 2016-17, 2017-18 and 2018-19 which did not

match with the actual bank statements. Keys of the locker, from which foreign currency was embezzled/stolen, were with the petitioner and

Sukhchain Singh, Field Executive. In view of the involvement of the petitioner in subject offences which fall in the category of economic offences, the

petitioner is not entitled to grant of regular bail. Co- accused Vipin Kumar Dua has claimed his limited role in the entire matter and has attributed the

criminality to other co-accused. The petition filed by co-accused Vipin Kumar Dua for grant of regular bail was dismissed by this Court vide detailed

reasoned order dated 09.02.2021. Hon'ble Supreme Court granted bail to co-accused Vipin Kumar Dua in view of long period of his custody but did

not discuss the merits and did not set aside the reasoned order passed by this Court on merits. The case of the petitioner stands on a different footing

and the petitioner is not entitled to grant of regular bail on the ground of parity with co-accused Vipin Kumar Dua. In view of the nature of accusation

and gravity of offences, the petitioner does not deserve grant of regular bail. Therefore, the petition may be dismissed.

Now, it is well settled that the object of detention during investigation and trial is not punishment but to secure presence of the accused during

investigation and trial. Bail is the rule and committal to jail is an exception as held in Gurbaksh Singh Sibbia and others Vs. State of Punjab : 1980(2)

SCC 565. Accused is presumed to be innocent till proved to be guilty. Detention in custody may be a cause of great hardship to the accused as he

may, besides being subjected to the psychological and physical deprivations of jail life, lose his job, be prevented from contributing to the preparation of

his defence and burden of his detention may fall heavily on the innocent numbers of his family as held by Hon'ble Supreme Court in Moti Ram Vs.

State of M.P. : (1978) 4 SCC 47.

While considering the question of grant of bail, the Court has to keep in mind (i) whether there is any prima facie or reasonable ground to believe

that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv)

danger of the accused absconding if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the

offence being repeated; (vii) reasonable apprehension of tampering with evidence and intimidating witnesses; (viii) danger of course of justice being

thwarted by grant of bail (see State of U.P. Vs. Amarmani Tripathi : (2005)8 SCC 21; Sanjay Chandra Vs. CBI : 2012(1) SCC 40 and Bhadresh

Bipinbhai Sheth Vs. State of Gujarat and another : 2016(1) SCC 152); (ix) seriousness of the offence (see Criminal Appeal No. 320 of 2021 (Arising

out of SLP (Criminal) No. 2545 of 2020 titled Naveen Singh Vs. State of Uttar Pradesh and another decided on 15.03.2021); and (x) whether

offences fall in the category of socio-economic offences (see State of Bihar and another Vs. Amit Kumar @ Bachaha Rai : 2017 (13) SCC 751 and

Rohit Tandon Vs. Directorate of Enforcement : 2018(11) SCC 46).

However, there is another dimension to the matter of consideration of grant of bail. In Malimath Committee Report (March 2003), it was

observed:-

6.7.1 Historically speaking, Criminal Justice System seems to exist to protect the power, the privilege and the values of the elite sections in society.

The way crimes are defined and the system is administered demonstrate that there is an element of truth in the above perception even in modern

times. However, over the years the dominant function of criminal justice is projected to be protecting all citizens from harm to either their person or

property, the assumption being that it is the primary duty of a State under rule of law. The State does this by depriving individuals of the power to take

law into their own hands and using its power to satisfy the sense of revenge through appropriate sanctions. The State (and society), it was argued, is

itself the victim when a citizen commits a crime and thereby questions its norms and authority. In the process of this transformation of torts to crimes,

the focus of attention of the system shifted from the real victim who suffered the injury (as a result of the failure of the state) to the offender and how

he is dealt with by the State. Criminal Justice came to comprehend all about crime, the criminal, the way he is dealt with, the process of proving his

guilt and the ultimate punishment given to him. The civil law was supposed to take care of the monetary and other losses suffered by the victim.

Victims were marginalized and the state stood forth as the victim to prosecute and punish the accused.

6.7.2 What happens to the right of victim to get justice to the harm suffered? Well, he can be satisfied if the state successfully gets the criminal

punished to death, a prison sentence or fine. How does he get justice if the State does not succeed in so doing? Can he ask the State to compensate

him for the injury? In principle, that should be the logical consequence in such a situation; but the State which makes the law absolves itself.

6.8.1 The principle of compensating victims of crime has for long been recognised by the law though it is recognised more as a token relief rather than

part of a punishment or substantial remedy. When the sentence of fine is imposed as the sole punishment or an additional punishment, the whole or

part of it may be directed to be paid to the person having suffered loss or injury as per the discretion of the Court (Section 357 Cr.P.C.).

Compensation can be awarded only if the offender has been convicted of the offence with which he is charged.

XXXX XXXX XXXX XXXX 6.8.7 Sympathising with the plight of victims under Criminal Justice administration and taking advantage of the obligation

to do complete justice under the Indian Constitution in defense of human rights, the Supreme Court and High Courts in India have of late evolved the

practice of awarding compensatory remedies not only in terms of money but also in terms of other appropriate reliefs and remedies. Medical justice

for the Bhagalpur blinded victims, rehabilitative justice to the communal violence victims and compensatory justice to the Union Carbide victims are

examples of this liberal package of reliefs and remedies forged by the apex Court. The recent decisions in Nilabati Behera v. State of Orissa, (19932

SCC 746) and in Chairman, Railway Board v. Chandrima Das are illustrative of this new trend of using Constitutional jurisdiction to do justice to

victims of crime. Substantial monetary compensations have been awarded against the instrumentalities of the state for failure to protect the rights of

the victim.

6.8.8 These decisions have clearly acknowledged the need for compensating victims of violent crimes irrespective of the fact whether offenders are

apprehended or punished. The principle invoked is the obligation of the state to protect basic rights and to deliver justice to victims of crimes fairly and

quickly. It is time that the Criminal Justice System takes note of these principles of Indian Constitution and legislate on the subject suitably.

In Re: State of Assam & 2 Others (PIL (Suo Motu) No. 26/2013) decided vide judgement dated 24. 4.2013, a Division Bench of Gauhati High

Court considered the question whether interim compensation can be ordered to be paid at the earliest to the victim irrespective of stage of enquiry or

trial, either on application of the victim or suo motu by the Court. While referring to judgments of Hon'ble Supreme Court in Savitri Vs. Govind Singh

Rawat : 1986(1) RCR (Criminal) 83 and Shail Kumari Devi Vs. Krishan Bhagwan Pathak : 2008(3) RCR (Criminal) 842 (in which the Magistrate was

held to have the power to direct the payment of interim compensation under Section 125 of the Cr.P.C.) the Division Bench of Guahati High Court

observed as under:-

We are of the view that above observations support the submission that interim compensation ought to be paid at the earliest so that immediate need

of victim can be met. For determining the amount of interim compensation, the Court may have regard to the facts and circumstances of individual

cases including the nature of offence, loss suffered and the requirement of the victim. On an interim order being passed by the Court, the funds

available with the District/State Legal Services Authorities may be disbursed to the victims in the manner directed by the Court, to be adjusted later in

appropriate proceedings. If the funds already allotted get exhausted, the State may place further funds at the disposal of the Legal Services

Authorities.

In Suresh and another Vs. State of Haryana : 2015(1) R.C.R. (Criminal) 148, Hon'ble Supreme Court observed as under:-

We are of the view that it is the duty of the Courts, on taking cognizance of a criminal offence, to ascertain whether there is tangible material to show

commission of crime, whether the victim is identifiable and whether the victim of crime needs immediate financial relief. On being satisfied on an

application or on its own motion, the Court ought to direct grant of interim compensation, subject to final compensation being determined later. Such

duty continues at every stage of a criminal case where compensation ought to be given and has not been given, irrespective of the application by the

victim. At the stage of final hearing it is obligatory on the part of the Court to advert to the provision and record a finding whether a case for grant of

compensation has been made out and, if so, who is entitled to compensation and how much. Award of such compensation can be interim. Gravity of

offence and need of victim are some of the guiding factors to be kept in mind, apart from such other factors as may be found relevant in the facts and

circumstances of an individual case........We also direct that a copy of this judgment be forwarded to National Judicial Academy so that all judicial

officers in the country can be imparted requisite training to make the provision operative and meaningful.

In view of these latest developments in the filed of victimology, the Investigating Officer is, besides making recoveries as may be possible, also

required to collect evidence during investigation regarding liability of the accused to restitution of moveable/immovable property illegally/fraudulently

received or forcibly taken/occupied and also the financial resources/capabilities of the accused to pay compensation to the victim so that the Court can

assess liability of the accused to restitution of such moveable/immovable property and his ability to pay interim/final compensation to the victim of the

offence but due to lack of requisite training generally no such evidence is collected by the Investigating Officer in this regard during investigation.

In cases of embezzlement, fraudulently receiving/forcibly taking possession of moveable/immovable property, restitution to the victim of the benefit

received/property taken away by the accused is an important aspect as the accused cannot be allowed to harvest/reap/retain fruits of his crime. Such

restitution of the benefit illegally received/forcibly obtained by the accused to the victim constitutes an important aspect which cannot be ignored by

the Court even at the time of consideration of the question of grant of bail particularly where the accused admits or there is prima facie unimpeachable

documentary material/video footage etc. regarding the accused having received any such benefit and the accused does not furnish any reasonable

explanation as to his legally enforceable entitlement to the same. It is now well settled that at the time of grant of bail the Court cannot impose any

'onerous condition' which may amount to virtual denial of grant of bail. For judicial precedents in this regard reference may be made to Deepak

Chandratan Pareek Vs. Union of India through CBI (SC) : 2017(4) JT 487: 2017(5) Scale 412 : 2017 Cri. L.R. (SC) 443; Shyam Singh Vs. State

through C.B.I. (SC) : 2006(9) SCC 169 and Runa Pasricha Rajpoot Vs. State of Haryana (PHHC) : 2019(2) R.C.R.(Criminal) 873. There is no

dispute with the proposition of law that the Court cannot impose any onerous condition at the time of grant of bail but the question which arises is that

if the accused admits or there is prima facie unimpeachable documentary material/video footage etc. regarding the accused having

fraudulently/forcibly received a benefit from the victim and fails to show his legal entitlement to the same, then why even at the time of granting bail to

the accused the Court cannot impose the condition of restitution of such benefit by the accused to the victim immediately or in such manner as may be

agreed to by the victim. For example, if there is a video footage coming from authentic source as to snatching of mobile phone and vehicle of the

victim by the accused and the police neglects, fails or is unable to recover the same will it not be just and proper that the Court imposes the condition

of restitution of the same by the accused to the victim at the time of grant of bail or at the initial stage after taking cognizance? If the accused is

granted bail and allowed to face and delay trial without such restitution on the ground that the Court can award compensation at the time of sentencing

the accused after his conviction, will it not amount to allowing the accused to enjoy the fruits of his crime? Will not subjecting the complainant to wait

till payment of compensation on final determination of guilt of the accused by final disposal of his appeal, which may take years or even decades,

amount to illegally depriving the victim of his fundamental right to life and liberty and statutory right to property without any just and proper remedy at

the appropriate time? I am of the considered view that if the accused admits or there is prima facie unimpeachable documentary material/video

footage etc. regarding the accused having fraudulently/forcibly received a benefit/property from the victim and the accused fails to show his legal

entitlement to the same, then even at the time of granting bail to the accused the Court can impose the condition of restitution of such benefit/property

by the accused to the victim immediately or in such manner as may be agreed to by the victim. In the very nature of things imposition of any such

condition for such restitution of the benefit/property as aforesaid by the accused to victim cannot be said to fall in the category of 'impermissible

onerous condition'.

It may be observed here that the jurisdiction now conferred on the Court to award compensation in criminal cases is by way of assumption of the

powers of Civil Court to award compensation on liability under law of torts. Under order XXXVIII of the Code of Civil Procedure, 1908 the Civil

Court has the power to call upon the defendant to furnish security for production of property and order attachment of such property before judgment if

such security is not furnished. Section 53 of the Transfer of Property Act, 1882 makes every transfer of immovable property made with intent to

defeat or delay the creditors of the transferor voidable at the option of any creditor so defeated or delayed. No doubt, in a case where the accused

disputes the prosecution version, the question of grant of interim or final compensation by the Court will generally arise after taking of cognizance by

the Court and not at the stage of consideration of the question of grant of bail to the accused and will also be dependent on interim assessment on the

basis of the material on record or final determination of the questions of guilt or innocence of the accused on the basis of evidence produced during

trial, yet even in criminal cases the accused cannot be allowed to fraudulently transfer his properties to defeat or delay the rights of/payment of

compensation to the victim. Therefore, I am of the considered view that in appropriate cases if the facts and circumstances of the case so warrant

even the Criminal Court can, at the time of considering the question of grant of bail to the accused, direct the accused to disclose his moveable and

immovable properties/assets and also to submit an undertaking that he will not fraudulently transfer the same in order to defeat any order which may

be passed by the Court for restitution/payment of interim/final compensation to the victim of the offence and imposition of any such condition will not

fall in the category of 'impermissible onerous condition'.

In view of the facts and circumstances of the case, nature of accusation and evidence against the petitioner, role attributed to the petitioner, period

of her custody and parity with co-accused Vipin Kumar Dua who has been granted regular bail by the Hon'ble Supreme Court vide order dated 1.

07.2021 and also the fact that the trial, which involves examination of 49 prosecution witnesses besides witnesses to be examined by the accused in

their defence, is likely to take long time particularly due to restrictions imposed to prevent spread of infection of Covid-19, but without commenting on

the merits of the case, I am of the considered view that the petitioner deserves grant of regular bail subject to the condition of the petitioner furnishing

declaration of her immovable properties and also an undertaking that the petitioner will not transfer the same without obtaining permission from the

Court.

In view of the above, the petition is allowed and the petitioner is ordered to be released on regular bail on furnishing of personal and surety bonds

to the satisfaction of the trial Court/Chief Judicial Magistrate/Duty Magistrate concerned and furnishing of declaration of her immovable properties

and also an undertaking that the petitioner will not transfer the same without obtaining permission from the Court.

However, in case the declaration by the petitioner of her immovable properties is at any time found to be false in any material particular or the

petitioner is found to have committed any breach of the undertaking given by her, not only the petitioner shall be liable to be proceeded against for

contempt of Court but also her bail shall be liable to be cancelled on application to be filed in this regard.