Amit Sharma, J
1. The present application under Section 439 of the Code of Crminal Procedure, 1973 ('CrPC') seeks regular bail in case FIR No. 60/2022 under Sections 419/420/354A/384/389/509/120B of the Indian Penal Code, 1860 ('IPC'), registered at PS Special Cell.
2. Briefly stated, the facts of the present case are as under:
i. The aforesaid FIR was registered on complaint of Ms. Manaswi, whereby she had stated that she had taken a loan of Rs. 4,660/- (Rupees Four Thousand Six Hundred and Sixty) from an app by the name of 'Agile Loan'. It was stated that she had taken loan earlier from several apps and had made the payments on time. The due date for making the payment pertaining to the loan taken from the aforesaid application was 28.02.2022. It was stated that however, on 27.02.2022, she received a threatening phone call and was made to pay Rs. 8,000/- (Rupees Eight Thousand) instead of the amount due. However, it was stated that even after making the said payment, she continued to receive abusive phone calls and was threatened that since they had access to her contact list, they will send photographs to her relatives and friends.
ii. During technical enquiry conducted on the complaint, it was found that several other complaints had also been registered against the aforesaid app on the National Cyber Reporting Portal.
iii. Initially, the FIR was registered under Sections 419/420/354A/384/385/509/120B of the IPC.
iv. During the course of investigation, the said app was examined at the National Cyber Forensic Laboratory (NCFL). The said examination revealed malicious behavior by the mobile application ‘Agile’ and that it was capable of sending critical user information to remote servers, without the knowledge of the user.
v. Investigation revealed that the loan amount of Rs. 4,660/- (Rupees Four Thousand Six Hundred and Sixty) was credited to the IDFC bank account of the complainant on 23.02.2022 and she was paying the EMI regularly for the same. Further enquiry revealed that the said amount was credited to the complainant's account from an ICICI bank account bearing number 739205500067 opened in the name of M/s PAYTAME INC. with its registered address at B-5, 1/2 Street No. 20, First Floor, Kaushik Enclave, Amrit Vihar Bus Stand, North Delhi, Delhi - 110084, however, no such firm by the name and style of M/s PAYTAME INC. was found at the given address. Financial enquiry revealed that on 27.02.2022, the complainant transferred a sum of Rs. 8,000/- (Rupees Eight Thousand) from her IDFC bank account to a UPI ID – Mark100@ybl, via PhonePe linked with an account opened with YES Bank having account No. 008563400002182 and IFSC Code YESB000085.
vi. On further investigation, it was revealed that the said account with the YES Bank was opened by M/s. Shiv Shankar Enterprises. On further analysis of the said bank account, it was found that an amount of Rs. 35,92,66,662.54/- (Rupees Thirty-Five Croce Ninety-Two Lakh Sixty-Six Thousand Six Hundred and Sixty-Two and Fifty-Four Paise) was credited to the said account of Shiv Shankar Enterprises from its date of opening till March 2022.
vii. Further investigation revealed that the present applicant was the proprietor of M/s Shiv Shankar Enterprises with its address at C-1401, Ajnara Lee Garden, Ghaziabad, Uttar Pradesh. However, the said premises was found locked and the applicant was not found there.
viii. On 13.07.2022, on the basis of secret information, a raid was conducted at the aforesaid address and the applicant was arrested. It is the case of the prosecution that the present applicant helped other Chinese nationals who were responsible for building the loan app. The role of the present applicant was opening the bank accounts and facilitating the transfer of money by showing transactions with other banks.
ix. During interrogation, the applicant allegedly admitted his involvement in the present case. On 14.07.2022, the applicant was remanded to police custody for one day and he has been in judicial custody since 15.07.2022.
x. Upon completion of investigation, chargesheet in the present case was filed under Sections 419/420/354A/384/385/509/120B/34 of the IPC.
3. Learned counsel appearing on behalf of the applicant submits that the case of the prosecution revolves around transactions carried out via the ‘Agile’ loan app and the applicant is not the creator of the said app. Further, he has nothing to do with the said app in any manner whatsoever. It was submitted that investigation itself revealed that one Chinese national was found to be the brain behind the creation of the said app.
4. It was submitted that the applicant got entangled in the present case at the behest of one Rahul Raj, who used to study at the same college. Rahul Raj told the applicant that he requires a bank account in which money could be transferred by persons who had taken loan form a loan application. At his behest, the applicant opened a bank account in the name of Shiv Shankar Enterprises. After money started flowing into the said account, Rahul Raj used to pay him Rs. 5,000/- to Rs. 7,000/- every week for using the account. It was submitted that after some time, the applicant sensed that something wrong was going on and he wanted to snap all business relations with Rahul Raj. For the said purpose, he called Rahul Raj but received no answer. Thereafter, the applicant himself reported the whole matter to Cyber Cell, Saket. Subsequently, the applicant discovered that Rahul Raj had drowned in Rishikesh and passed away.
5. Learned counsel for the applicant further submitted that the applicant did not extend any threat to the complainant, as alleged and that he did not even know about the complainant in the first place. It was also submitted that as per the chargesheet, it is an admitted case of the prosecution that no incriminating documents or mobile phone has been recovered from the applicant.
6. It was further submitted that as per the case of the prosecution itself, only the bank account allegedly opened by the applicant was used to carry out the transactions. There is no evidence on record to show that the applicant himself cheated anyone or was directly involved in the case in any manner. Further, there is nothing on record to show that any monetary benefit accrued to the applicant out of the alleged transactions.
7. Per contra, learned APP for the State opposed grant of bail to the present applicant stating that he had helped the accused persons who had built the aforesaid loan application. It was submitted that investigation revealed that the applicant was also responsible for opening several other bank accounts in the name of fictitious firms which were then used to route money to different bank accounts and make investments in crypto currency.
8. It was submitted that investigation has also revealed that the applicant used to send money to his family members by depositing a sum of money in the bank accounts of different persons.
9. Learned APP further submitted that there were WhatsApp chats which demonstrated that the applicant was providing bank accounts to foreign companies/nationals to deposit money and was facilitating unauthorized transactions.
10. Heard learned counsel for the parties.
11. On a pointed query from this Court with regard to the monetary benefit accruing to the present applicant, an additional status report dated 22.02.2023, authored by Sh. Sanjeev Kumar, Assistant Commissioner of Police, IFSO, Special Cell was filed, wherein it has been stated as under:
"5. That accused/applicant used to sent money to his family member by depositing amount in account of different persons. On 28.02.22 accused applicant sent an amount of Rs. 1,00,000/- in Central Bank of India account no.3672130091 of M/S R V Enterprises, R.C Market, Arya Kumar Road, Dinkar Chowk Patna Bihar, a cosmetic store. The money was taken in cash from Mr. Vijay Prop of M/S R V Enterprises by Ritesh, brother of accused/applicant.
6. That it surfaced during investigation from whatsapp chat of the accused/applicant that he was providing account to foreign companies/national for depositing of money."
12. It is the case of the prosecution that the present applicant is not the ultimate beneficiary of the cheated amount, as the money has been routed to accounts outside India. The role of the applicant, as per the case of the prosecution, is limited to facilitating the opening of bank accounts of non-existent companies for the aforesaid transfer.
13. The Hon’ble Supreme Court, in Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40 has held as under:
“21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
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46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardise the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge-sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.”
(emphasis supplied)
14. The present applicant has been in judicial custody since 15.07.2022. The chargehseet in the present case stands filed. The evidence in the case is primarily documentary in nature and already in possession of the Investigating Officer. The possibility of tampering with the evidence, as also of influencing the witnesses cannot be presumed at this stage, owing to the fact that the evidence, as pointed out in the chargesheet is already in possession of the investigating agency.
15. Further investigation, if any, cannot be a ground for applicant’s continued incarceration. No useful purpose will be served by keeping the present applicant in custody.
16. In view of the facts and circumstances of the present case, the application is allowed.
17. The applicant is admitted to bail upon his furnishing a personal bond in the sum of Rs. 50,000/- alongwith one surety of like amount to the satisfaction of the learned trial Court/Duty Magistrate, further subject to the following conditions:
i. The memo of parties shows that the applicant is residing at Village Labhuani, P.O. Bankat, District Bhojpur, Bihar. In case of any change of address, the applicant is directed to inform the same to the learned Trial Court and the Investigating Officer.
ii. The applicant shall not leave India without the prior permission of the learned Trial Court.
iii. The applicant is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times.
iv. The applicant shall not, directly or indirectly, tamper with evidence or try to influence the witnesses in any manner.
v. The applicant shall join the investigation, as and when required by the Investigating Officer.
vi. In case it is established that the applicant tried to tamper with the evidence, the bail granted to the applicant shall stand cancelled forthwith.
18. Needless to state, nothing mentioned hereinabove is an opinion on the merits of the case.
19. The application stands disposed of along with all the pending application(s), if any.
20. Let a copy of this order be communicated to the concerned Jail Superintendent.
