The main legal point established in the judgment is the court's discretion in granting bail based on the absence of flight risk, the nature of the alleged offense, and the potential impact on trial proceedings.

JUDGMENT

Asha Menon, J. - These two bail applications under Section 438/439 of Cr.P.C. seeking bail have been moved by the accused in FIR No.261/2018 dated 20th December, 2018 registered under Sections 406/420 IPC by the Economic Offences Wing, Delhi.

2. Mr. Mohit Mathur, learned senior counsel for the applicants submitted that neither of the two applicants had been arrested in respect of the FIR and that they have duly participated in the investigations. It is further submitted that though the charge-sheet had been filed against the applicant/Manindra Jain, he had not been arrested, whereas the applicant/Udipt Mani Jain had been shown in Column No.12. Both accused were however summoned by the learned Chief Metropolitan Magistrate (for short 'CMM') vide order dated 20th December, 2021 directing their appearance on 16th February, 2022. Both the applicants appeared on that date and applied for regular bail. The learned CMM, while adjourning the hearing on the regular bail applications, granted interim bail to both the applicants, till these applications were disposed of.

3. The learned senior counsel submitted that the hearing on the regular bail applications was concluded on 9th March, 2022 and the matter was to be taken up at 3.00 PM on 11th March, 2022 for orders. On 11th March, 2022, due to a misunderstanding, the accused remained absent, as a result of which the learned CMM did not pronounce the bail orders and rather directed the issuance of Non-Bailable Warrants (for short 'NBWs') against both the accused with notices to their sureties.

4. Thereafter, applications for cancellation of NBWs were moved on 14th March, 2022. On 15th March, 2022, the learned CMM dismissed the applications for cancellation of NBWs, and also dismissed the bail applications, and directed the accused to surrender and fresh NBWs were also directed to be issued. The learned senior counsel for the applicants submitted that subsequently, the learned Principal District & Sessions Judge vide order dated 6th April, 2022, cancelled the NBWs. A subsequent order of the learned Trial Court dated 8th April, 2022 issuing fresh NBWs was also set aside vide order dated 18th April, 2022.

5. After the bail applications were dismissed, the applicants moved the Sessions Court for bail under Section 438 Cr.P.C. The learned senior counsel for the applicants submitted that the applicants ought to have moved for bail under Section 439 Cr.P.C. and not under Section 438 Cr.P.C. but the learned Sessions Court could also have read the right provision instead of dismissing the bail applications as not maintainable.

6. It is the submission of the learned senior counsel on behalf of the applicants that the case set up against the applicants is of a civil nature, the main issue being, whether a sum of Rs. 5,40,00,000/- had been paid to the applicant/Manindra Jain for purchase of a land or for production of the film 'Anna'. Since the receipt of the said amount has not been disputed, it would be a question of trial, whether any sum had been misappropriated as alleged, or whether there was any cheating on account of which the complainant paid Rs. 5,40,00,000/- to the accused Manindra Jain. As regards the applicant/Udipt Mani Jain, it is submitted that though a sum of Rs. 6,00,000/- had been transferred into his account, Rs. 5,00,000/- had immediately been transferred into the account of M/s Rise Pictures Pvt. Ltd. Similarly, the sum of Rs. 5,34,00,000/- received by the applicant/Manindra Jain had also been transferred into the account of M/s Rise Pictures Pvt. Ltd. Thus, the mere factum of receipt cannot be held to be a culpable act, till there was proof of such mens rea upon evidence being led against the applicants.

7. The learned senior counsel for the applicants submitted that throughout the conduct of the applicants showed that they were not at flight risk. Even before the learned Trial Court, on summoning, they had appeared on 11th March, 2022, as also represented through counsel. I