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RAJASTHAN HIGH COURT
Kanwaljit Singh Ahluwalia, J.
Sona Goyal —Petitioner
versus
Vipul Nagpal —Respondent
S.B. Criminal Miscellaneous (Petition) No.7718 of 2018
Decided on 10.1.2019
Counsel for the Parties:
For the Petitioner:Mr. S.S. Hora, Advocate
For the Respondent: Mr. Mahendra Goyal, N.S. Dhakad, PP
IMPORTANT POINT
Offence under Section 138 of Negotiable Instruments Act is bailable. Bail in a bailable offence can be claimed by accused as of right.
Headnote:(A) Criminal Procedure Code, 1973 – Section 436 – Grant of bail – Imposition of conditions – Position of persons accused of non-bailable offence is entirely different – Right to claim bail granted by Section 436 of Code in a bailable offence is an absolute and indefeasible right – In bailable offences there is no question of discretion in granting bail as words of Section 436 are imperative – Only choice available to officer or court is as between taking a simple recognizance of accused and demanding security with surety – Persons contemplated by Section 436 cannot be taken into custody unless they are unable or unwilling to offer bail or to execute personal bonds – Bail in a bailable offence can be claimed by accused as of right and officer or court, is bound to release accused on bail if he is willing to abide by reasonable conditions which may be imposed on him. (Para 10)
(B) Negotiable Instruments Act, 1881 – Section 138 – Criminal Procedure Code, 1973 – Sections 436 and 482 – Grant of bail – Offence under Section 138 of Negotiable Instruments Act is bailable – High Court can cancel bail bond while exercising inherent powers under Section 482 of Code – Bail granted to petitioner against conditions. (Paras 11, 14 and 18)
Result: Petition disposed of with directions.
Kanwaljit Singh Ahluwalia, J.—The present petition has been filed under Section 482 Cr.P.C. praying that the condition imposed by the trial court to accept bail bond qua bailable offence since defeat the very object, be modified and the petitioner be released upon furnishing personal bail bond.
2. Briefly stated, M/s. Shakthi Sona Solar Electric Limited (hereinafter called as ‘the Company’) had issued two cheques in favour of the respondent Vipul Nagpal. The petitioner Sona Goyal is stated to be the Director of the Company. The cheques issued by the petitioner company, on presentation bounced. The amount of two cheques issued by the Company comes to Rupees Twenty Two Crores and Eighty Lakhs. The complainant/respondent on return of the cheques instituted Criminal Complaint No.1525/2017 for prosecution of the petitioner and another co-accused of the petitioner for offence under Section 138 of Negotiable Instruments Act.
3. Upon appearance of the petitioner, the trial court on 13.11.2018 ordered that the petitioner should furnish personal bail bond of Rupees Four Crores alongwith duly verified surety of the similar amount. The relevant portion of the order dated 13.11.2018 passed by the trial court reads as under:—
“(Matter in Other Language)“
4. The petitioner failed to produce surety, who could furnish surety bond amounting to Rupees Four Crores, hence, on 13.11.2018 she was taken into custody. Since the petitioner could not meet stringent condition imposed by the trial court, while in custody she filed the present petition through counsel.
5. This Court on 5.12.2018 had passed the following order:—
“Counsel for the petitioner submitted that for offence under Section 138 of the N.I. Act which is a bailable offence, onerous condition was imposed by the trial Court directing that petitioner should furnish a personal bail bond of Rs. 4 crores and also bond of the same amount by a surety. Counsel for the petitioner contends that petitioner is unable to furnish surety solvent to the above extent. It is submitted that condition imposed by the trial Court is onerous and for a bailable offence petitioner is in custody since 30.11.2018.
Mr. C.P. Sharma has caused appearance on behalf of Mr. Mahendra Goyal for complainant-respondent. He prays for an adjournment to file ‘Vakalatnama’ of the respondent in the Registry.
Let ‘Vakalatnama’ be filed by the respondent in the Registry within one week from today.
List for arguments on 04.01.2019.
Meanwhile, petitioner shall be released on interim bail upon furnishing personal bail bond to the tune of Rs. 10 lacs with bonds by two solvent sureties of the same amount. The sureties to be produced by the petitioner shall be registered sureties and the bonds to be furnished by them shall be verified by a Revenue Officer not below the rank of Tehsildar “
6. Mr. S.S. Hora, the learned counsel for the petitioner has submitted that the petitioner could not arrange two solvent sureties amounting to Rupees Ten Lakhs each, therefore, the petitioner made a request to the trial court that instead of two solvent sureties, the petitioner be permitted to furnish two FDRs of Rupees Ten Lakhs each.
7. Yesterday, when the case was taken up, prayer of the petitioner that she be permitted to furnish two FDRs of Rupees Ten Lakhs each, was opposed tooth and nail by Mr. Mahendra Goyal, learned counsel for the respondent. Learned counsel for the respondent insisted that the petitioner should be directed to produce her Passport before the trial court. Shri Goyal, further informed this Court that the petitioner is not residing at the address given by her. Today, learned counsel for the respondent has informed that the petitioner was arrested from Taj Hotel, Mumbai where she was residing from the last six months.
8. Yesterday, during the course of arguments, learned counsel for the petitioner raised an interesting arguments and referred to Explanation to proviso of Section 436 Cr.P.C. to contend that if within on
