JUDGMENT
Mahmood Ali Khan, J.
1. Mukesh Singh petitioner in CRLMM No. 343/02 ands Sampat Mukherjee petitioner in CRLMM No. 1863/02 have applied for grant of bail under Section 439 of the Cr.P.C.
2. Both these petitioners are accused in one case therefore, their applications may be conveniently decided by a common order.
3. The case was registered on the complainant of one R.N. Govil on 2.9.1998 on the allegation, briefly stated, the cheating of the complainant of a big sum of money by directors and management of M/s. Naturoworth Artificial Energy and Fuels Ltd. The company started its operation around June, 1997, with chairman cum managing director R.S. Chauhan, M.D. Dr. Rajesh Harsh and Sanjay Singh, Mukesh Singh, Sampat Mukherjee, Smt. Anita Harsh and Smt. Indu Singh as directors. All of them entered into a criminal conspiracy to cheat the complainant and in furtherance of their objective they started visiting the house of the complainant in December, 1997. They painted a rosy picture of their company and the group of companies and allured him to advance a loan of Rs. 5 lakhs on 2.1.1998 and Rs. 2,50,000/- on 1.2.1998 repayable on 31.5.1998 with 24% per annum interest. They also issued 24 post dated cheques of Rs. 20,000/- each on the total sum of Rs. 5 lakhs drawn on their bank. Their company also issued 10 post dated cheques of Rs. 25,000/- each. They further fraudulently induced him by depositing some original land papers as security with him for the repayment. Believing their assurances and on depositing the land papers as security the complainant further advanced a loan of Rs. 4 lakhs on 1.4.1998 for a period of one year which repayable with 24% per annum interest in 12 monthly Installments from 1.5.1998. In order to discharge this liability they issued 12 post dated cheques of Rs. 37,500/- each. Since May, 1998 the MD R.S. Chauhan, Director Dr. Rajesh Harsh continuously requested him not to present the cheques in the bank for encashment as they were facing some financial crisis but they repeatedly assured that the amount would be paid in 10 days. But the promise was not kept. On 30.6.1998 they assured that the cheques would be cleared on presentation in the bank. The complainant accordingly deposited them in the bank for encashment on 3.7.1998. On 7,7,1998 when all the cheques of the total value of Rs. 5 lakhs, 2,50,000/- and 1,12,500/- i.e. in total Rs. 8,62,500/- were dishonoured by the bank and returned with the remark insufficient fund. The complainant approached R.S. Chauhan and Rajesh Harsh but they started hurling abuses when the complainant asked them to return the money. They also gave threats. The company and its directors named above had committed fraud upon him and they cheated him of this money. They have also closed down their office on 5.8.1998 and have run away leaving their houses and offices. Only one of the director Yashwant Kumar was available and he refused to pay.
4. During the investigation it was found that the accused had collected in all Rs. 3.91 crores from the different investors and out of it they had withdrawn Rs. 1.02 crores in cash and that the bank had informed that 1123 cheques of the amount of Rs. 1.21 crores have been dishonoured. The bank also informed that out of 12730 cheque leaf issued cheques numbering 4682 were presented in the bank and that the remaining cheque leaf 5803 were still with the account holder. Investigation also revealed that the NMPL had collected Rs. 3.23 crores till 31.3.1998 and a sum of Rs. 19.5 lakhs was spent on the land and Rs. 48.08 lakhs was spent on the land development. It was also revealed that the accused had misrepresented to SEBI about the image of the company through company brochures and medico bond, medico gift forms as mentioned in the FIR. It was also found that SEBI had directed the directors of the company not to mobilize any money from the public/investors by letter dated 24.2.1998 unless their scheme carry a rating from one of the recognized rating agencies. Though the company submitted a compliance certificate dated 15.5.1998 regarding the compliance of the directors to the SEBI but continued to mobilize the deposits in violation of these directions and a show cause notice was issued by SEBI to the accused for reply by 31.7.1998. From the documents it also appeared to DCR India Ltd. for obtaining credit rating agency wrong information was submitted like the company owned 81 acres of land at Shivepuri, company had 425 acres of land in joint venture at Talbehat, Sambhawali, Burari and 175 acres was under cultivation at Talbehat. It was not found correct during investigation except for the agricultural land area 7.87 hectares in village Dhauhagarh Distt. Shivpuri. CMD Mr. Ranjan Singh Chauhan admitted that the company had collected Rs. 2.49 crores from 1452 investors under different schemes out of which Rs. 1.47 crores was to be paid during 1998-99 and total promised liability of the company towards investors was Rs. 4.70 crores. The claim and representation made by the petitioners were not found true.
5. As regards petitioner Mukesh Singh Chauhan it was found that he was cousin of CMD Ranjan Singh. He was director with ROC since inception of the company in September, 1996. He was acting as Director and had signatory authority with two banks i.e. Allahabad Bank, MSEA Patna, Allahabad Bank, Muzaffarpur. He also issued cheques in lieu of investment at Patna and Muzaffarpur to investors under his signature at Patna and Muzaffarpur. He also withdrew cash of Rs. 5.7 lakhs from Allahabad Bank, Patna and Rs. 1 lakhs from Allahabad Bank, Muzaffarpur. 57 cheques of the value of Rs. 3.31 lakhs were dishonoured at Allahabad Bank, Patna and 60 cheques of the value of Rs. 4,35,483/- were dishonoured at Allahabad Bank, Muzaffarpur where he was signatory authority Along with CMD Ranjan Singh. This petitioner had entered into a criminal conspiracy with his cousin and had floated the company for the purpose of collecting public deposits and also provided wrong information to ROC, Delhi and Haryana about his father’s name as R.D. Singh whereas his father’s name is Sita Ram Singh. He is absconding Along with Ranjan CMD and his wife Smt. Indu Singh director of the company.
6. As regards the petitioner Sampat Mukherjee it was alleged that he was director of the company since the inception in September, 1996. The ROC and statement of employees and statement of investors had confirmed that he was an active director. He was signatory authority Along with Ranjan Singh in one bank Allahabad Bank, Chandigarh where 34 cheques amounting to Rs. 1,91,642/- were dishonoured. He also submitted documents of the company to SEBI and DCR India Ltd. which also confirmed that he was an active director and has conspired with other directors to cheat the public. He is also absconding Along with other directors since August, 1998.
7. The counsel for the petitioner Mukesh Singh has argued that there was no evidence as to whether the petitioner was a party to the criminal conspiracy. He was in charge of a particular region. He is being falsely implicated in this case on account of his being a relative of the main accused Ranjan Singh. He was in judicial custody since 10.5.1999. The charge-sheet has already been filed and the case is now at the trial stage. It is contended that there is inordinate delay in the trial of the case and this petitioner deserves to be granted bail as no useful purpose would be served by keeping him behind bars. According to him the maximum punishment awardable to him is three years and out of 72 witnesses only one of them has been examined. He cited P. Ramchandra Rao v. State of Karnataka, 2002(3) SCALE 497; R.D. Upadhyay v. State of A.P. and Ors., & Sunil Shakt v. State, 2001(2) CCC HC 232 in support of his arguments. The counsel for the petitioner also referred to Babu Singh and Ors. v. State of U.P. and Rajender Singh Sethia v. State, 1988 Crl.Law Journal 749. In Sunil Shakt (Supra) the court granted bail to an accused who was in jail for two and half years, was married having two daughters and the trial was to take time. In R.D. Upadhyay (Supra) Supreme Court had granted bail to accused languishing in jail for a long period. In P. Ram Ramchandra Rao (Supra) the Supreme Court held that the accused had right to speedy trial but did not deal with grant of bail by court since the courts while dealing with bail take into account different considerations.
8. Petitioner Sampat Mukherjee on the other hand contended that this petitioner was only an employee and the allegation is that he had issued 34 cheques of the value of Rs. 1,34,000/-. It is also contended that he had not signed any cheque. It is submitted that he is in jail for about 3 an a half years and that this petitioner has never signed any cheque. It was submitted that only one prosecution witness has been examined and his cross examination is still not completed and there are 71 prosecution witnesses, therefore the trial is bound to be delayed. He adopted other arguments advanced by the counsel for Mukesh Singh petitioner and has requested for grant of bail to this petitioner also.
9. APP has strongly opposed the grant of bail to both these petitioners. It is argued that both of them were active directors and that they have cheated large number of poor and small investors and had collected 3.91 crores and as per information which has been received 1123 cheques issued by them for repayment amounting to Rs. 1.21 crores have bounced. It was also argued that the petitioner Mukesh Singh had the authority to collect the money and that he had the authority to sign the cheques and he also acted as Chairman of the Board of Directors. It was further submitted that the IO has already filed an affidavit which showed that the prosecution has not taken any adjournment for producing prosecution witnesses and that the IO in his affidavit has given the datewise proceedings conducted in the trial court. In the case of Sampat Mukherjee it was further contended that he also played an active role as has been stated in the charge-sheet. The role assigned to this petitioner has already been mentioned in the foregoing paragraphs. According to him the bail application of the co accused Ranjan has since been dismissed. She has also referred to the judgment of the Supreme Court in Mahesh Kumar Bhawsinghka v. State of Delhi, in which the charge against the accused was under Section 120B, 468, 477A of the IPC and it was alleged that the accused entered into a criminal conspiracy for cheating and falsification of the accounts. The embezzlement of the amount was to the extent of crores of rupees and that the accused was in jail for a long time. The Apex Court found force in the contention of both the sides and, therefore, directed the trial court to commence taking of the evidence within one month from the date of the order. If it is not already started on day to day basis and complete the trial before the expiry of three months from the date of the order and that if it was not done the accused should be released on bail on executing a bail bond with two solvent sureties to the satisfaction but it was made clear that if the inability to complete the trial is attributable to the appellant, he will not get the benefit indicated in the order. APP has requested that the court may consider passing of a similar order in this case.
10. The allegation against the petitioner is of a very grave and serious nature. They are alleged to have entered into a criminal conspiracy and have played a fraud upon the innocent small investors depriving them of their small savings and causing great financial hardship to them. Both the petitioners named above have played active role in inducing the public by advancing loan or investing money in their company making false promises and giving false assurances in their brochures and representations. It is now well settled that while considering a bail application the court has to bear in mind the seriousness of the offence, the character of evidence, circumstances which are peculiar to the accused, a reasonable apprehension of the witnesses being tampered with, the larger interest of the public or the State and similar other considerations. Applying these considerations on the facts of this case I am constrained to hold that the petitioners do not deserve bail. However these petitioners are in jail for quite a long time. Out of 71 witnesses one witness has been examined. The affidavit field by the IO does show that the blame for the delay in recording of the evidence cannot be put only on the prosecution but still if the trial proceeds at the pace at which it is proceeding it will take years to in finish the case. Therefore, following the judgment of the Supreme Court in Mahesh Kumar (Supra) it will be appropriate that a direction is given to the trial court to complete the recording to the prosecution evidence within a time bound schedule.
11. Keeping in view of the total number of the witnesses which is quite large and heavy pendency before the court I find it appropriate that a direction is given to the trial court to complete the prosecution evidence within six months by fixing the schedule of trial either on day to day basis or giving very short dates and fixing responsibility on the IO/SHO of the concerned police station to get the witnesses served and produced before the court. I give liberty to the petitioners to approach this court for grant of bail if the evidence of the prosecution is not finished within the above said schedule of period. But the accused shall ensure that the delay in recording the evidence is not be attributable on their part. With this observation both the applications are dismissed.