Point of Law: Section 438 is a procedural provision which is concerned with personal liberty of individual, who is entitled to benefit of presumption of innocence since he is not, on date of his application for anticipatory bail, convicted of offence in respect of which he seeks bail.

JUDGMENT :

Satyen Vaidya, J.

By way of instant petition, a prayer has been made for grant of pre-arrest bail to petitioner in case FIR No. 94 of 2022, dated 19.11.2022, registered at Police Station, Kotkhai, District Shimla, H.P. under Sections 408 and 34 of IPC.

2. The case has been registered on the basis of a complaint received by the police from Proprietor “Stan H.P. Enterprises” Gumma, which is a retail sale outlet for petroleum products, alleging inter alia that his four employees including the petitioner have misappropriated an amount to the tune of Rs.28,57,022/-. He further alleged that all the accused had absconded.

3. During investigation, the police is stated to have taken into possession the records maintained at “Stan H.P. Enterprises”. The investigation also discovered that the petitioner is maintaining five different bank accounts in his name and between February, 2022 to November, 2022, a total sum of Rs.17,57,014/- was deposited in his account with the Punjab National Bank. Out of such amount, a sum of Rs.3,26,372/- is stated to have been transferred to the account of another co-accused and Rs.2,45,645/- in the account of the complainant. The balance of the amount of Rs.11,84,997/- is stated to be withdrawn by the petitioner, from time to time and some part of it is stated to be transferred through UPI to other persons.

4. The respondent-State has opposed the grant of pre-arrest bail to the petitioner on the ground that the petitioner is not disclosing the name of persons in whose account he has transferred the money in addition to the co-accused and complainant. It has also been submitted that petitioner has been avoiding the questions in this behalf and has also been providing evasive answers.

5. On the other hand, it has been submitted on behalf of the petitioner that the petitioner is innocent. The transactions in his bank account were being made at the instance and with the consent of the complainant as also the Manager of the establishment named Surender Singh Pathania, who was looking after the accounts. It has further been contended on behalf of the petitioner that during investigation, he has fully associated himself and has provided entire detail of accounts to the police. The petitioner is stated to be permanent resident of Village Gumma, Post Office, Gumma, Tehsil Kotkhai, District Shimla, H.P. He has also undertaken to abide by all the terms and conditions as may be imposed while disposing of this application.

6. The case was registered on 19.11.2022. Petitioner was admitted to interim bail on 23.11.2022. More than a month has elapsed thereafter. Petitioner has joined the investigation as and when required. The Investigating Agency already had sufficient time at its disposal to complete the investigation atleast substantially especially keeping in view the facts of the case.

7. It is alleged that petitioner instead of crediting the amount received from retail sale in the account of Petrol Station, had been directly crediting to his account. The allegations against petitioner are subject to proof. Mere fact that huge transaction has been found in the bank account of petitioner does not necessarily lead to the conclusion of his guilt. As per the investigation report, a sum of Rs.2,45,645/- stands transferred from the account of the petitioner to the account of “Stan H.P. Enterprises”. From this fact, it can be inferred, atleast prima-facie, that the bank account of “Stan H.P. Enterprises” was receiving payments from the account of petitioner. How and why there was no re-conciliation of the account of the Petrol Station, has not been explained. Had the petitioner intended to misappropriate the amount by depositing the same to his account, he would not have remitted any amount to the account of the Petrol Station.

8. The observations as above, have been made only to prima-facie assess the seriousness and gravity of allegations against petitioner.

9. The respondent has not been able to justify the reasons for s