MANU/RH/1622/2019

Equivalent Citation: 2019(200)AIC 844, 2019(4)RLW3365(Raj.)

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Criminal Misc. Petition No. 7718 of 2018
Decided On: 10.01.2019
Appellants: Sona Goyal
Vs.
Respondent: Vipul Nagpal
Hon'ble Judges/Coram:
Kanwaljit Singh Ahluwalia, J.
Counsels:
For Appellant/Petitioner/Plaintiff: S.S. Hora, Advocate
For Respondents/Defendant: Mahendra Goyal, Advocate and N.S. Dhakad, P.P.
Case Note:
Negotiable Instruments Act, 1881, Sec. 138 - Dishonour of cheque--Prayer
that the condition imposed by trial Court to accept bail bond qua bailable
offence be modified and the petitioner be released upon furnishing personal
bail bond--petitioner failed to produce surety--Held--Petitioner to furnish two
FDRs of Rupees Ten Lakhs each on furnishing the undertaking trial court shall
release the petitioner--That the petitioner shall give an undertaking that she
will not leave the country without permission of the Court. [17] to [19]
Petition disposed of.

DECISION
Kanwaljit Singh Ahluwalia, J.
1 . 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

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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:-

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 ' 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 ' 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 "

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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 one week accused is not able to furnish bonds by the sureties
in respect of bailable offences, the court as per Explanation added to Section 436(1)
has to presume the accused to be an indigent person and Court is bound to release the
accused upon furnishing personal bond. Learned counsel for the petitioner with force
urged that Section 436 Cr.P.C. is mandatory and the command of the legislature has to
be obeyed in case of under-trial in respect of bailable offences is unable to furnish
bonds by the sureties.
9. This Court, yesterday i.e. on 9.1.2019 passed the following order:-
"The learned counsel appearing for the parties pray for an adjournment to
advance the arguments in the light of the proviso to Section 436 Cr.P.C.
List this case tomorrow i.e. on 10.01.2019."
10. Today, learned counsel for the parties have ably assisted this Court by referring to
various judgments.
1 1 . The celebrated judgment rendered by Supreme Court in Rasiklal vs. Kishore,
MANU/SC/0255/2009 : (2009) 4 SCC 446, is required to be referred to, as this
judgment has been relied by the various High Courts of the country. It will be apposite
here to refer to Para 9, 10, 11 and 12 of the judgment in case of Rasiklal (supra) as
under:-
"9. As is evident, the appellant is being tried for alleged commission of offences
punishable under Sections 499 and 500 of the Indian Penal Code. Admittedly,
both the offences are bailable. The grant of bail to a person accused of bailable
offence is governed by the provisions of Section 436 of the Code of Criminal
Procedure, 1973. The said section reads as under:-
"436 - In what cases bail to be taken - (1) When any person other than
a person accused of a non bailable offence is arrested or detained
without warrant by an officer in charge of a police station, or appears
or is brought before a Court, and is prepared at any time while in the
custody of such officer or at any stage of the proceeding before such
Court to give bail, such person shall be released on bail:
Provided that such officer or Court, if he or it thinks fit, may,

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 and shall, if such person is indigent and is unable to furnish
surety, instead of taking bail from such person, discharge him
on his executing a bond without sureties for his appearance as
hereinafter provided:
Explanation. - Where a person is unable to give bail within a
week of the date of his arrest, it shall be a sufficient ground for
the officer or the Court to presume that he is an indigent
person for the purposes of this proviso.
Provided further that nothing in this section shall be deemed to
affect the provisions of sub- section (3) of section 116 or
section 446A.
(2) Notwithstanding anything contained in sub- section (1), where a
person has failed to comply with the conditions of the bail-bond as
regards the time and place of attendance, the Court may refuse to
release him on bail, when on a subsequent occasion in the same case
he appears before the Court or is brought in custody and any such
refusal shall be without prejudice to the powers of the Court to call
upon any person bound by such bond to pay the penalty thereof under
section 446."
There is no doubt that under Section 436 of the Code of Criminal Procedure a
person accused of a bailable offence is entitled to be released on bail pending
his trial. As soon as it appears that the accused person is prepared to give bail,
the police officer or the court before whom he offers to give bail, is bound to
release him on such terms as to bail as may appear to the officer or the court to
be reasonable. It would even be open to the officer or the court to discharge
such person on his executing a bond as provided in the Section instead of
taking bail from him.
1 0 . The position of persons accused of non-bailable offence is entirely
different. The right to claim bail granted by Section 436 of the Code in a
bailable offence is an absolute and indefeasible right. In bailable offences there
is no question of discretion in granting bail as the words of Section 436 are
imperative. The only choice available to the officer or the court is as between
taking a simple recognizance of the accused and demanding security with
surety. The persons contemplated by Section 436 cannot be taken into custody
unless they are unable or willing (sic unwilling) to offer bail or to execute
personal bonds. There is no manner of doubt that bail in a bailable offence can
be claimed by accused as of right and the officer or the court, as the case may
be, is bound to release the accused on bail if he is willing to abide by
reasonable conditions which may be imposed on him.
11. There is no express provision in the Code prohibiting the court from rear
resting an accused released on bail under Section 436 of the Code. However,
the settled judicial trend is that the High Court can cancel the bail bond while
exercising inherent powers under Section 482 of the Code.
12. According to this Court a person accused of a bailable offence is entitled to
be released on bail pending his trial, but he forfeits his right to be released on
bail if his conduct subsequent to his release is found to be prejudicial to a fair
trial and this forfeiture can be made effective by invoking the inherent powers

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 of the High Court under Section 482 of the Code. [See: Talab Haji Hussain vs.
Madhukar Purshottam Mondkar reiterated by a Constitution Bench in Ratilal
Bhanji Mithani vs. Collector of Customs.)"
12. A Single Judge of Punjab and Haryana High Court in Bhupinder Singh Chhabra vs.
State of Punjab & Anr., MANU/PH/2717/2011 : 2011 (3) RCR (Criminal) 418, very aptly
summed up the law qua bailable offences relying upon the case of Rasiklal (supra). The
Para 13 of the judgment in case of Bhupinder Singh Chhabra vs. State of Punjab & Anr.
reads as under:-
"13. After the perusal of Sections 436, 436-A and 437(6) of the Code, this
Court opines that:-
(i) Every accused of an bailable offence has legal right to be enlarged
on bail and if he fails to furnish the bail within a week is entitled to be
released on personal bond;
(ii) No accused ordinarily shall be detained for the period more than
one half period of the maximum sentence provided for the offence for
which accused is facing trial unless Court directs otherwise for the
sufficient reasons;
(iii) No accused shall be kept in detention for more than the maximum
punishment provided for the offence.
(iv) Even in the non-bailable offence triable by the Magistrate if
accused is in judicial custody and trial of an accused of non-bailable
offence is not concluded within a period of 60 days from the first day
for taking evidence in the case, he shall be released on bail to the
satisfaction of the Magistrate unless for reasons to be recorded in
writing the Magistrate otherwise directs as per Sec. 436(6) of the Code.
(v) If an accused does not appear before the Court in breach of the
terms of the bail on the date fixed, on his subsequent appearance or
arrest, he shall not be kept in judicial custody for unreasonable period
and in any case for more than period as opined under clauses (ii), (iii)
or (iv) hereinbefore as the case may be. Ordinarily accused should be
released on bail soon after his arrest or appearance before the Court if
he furnishes proper explanation for his nonappearance on the previous
date with more surety ensuring the appearance before the trial Court
facilitating the disposal of the trial.
(vi) However, Court shall be at liberty to pass appropriate orders,
pertaining to the bail bonds, surety bonds and personal bonds
submitted before the Court while enlarging the accused on bail on his
failure to appear on the date fixed, in accordance with law. "
1 3 . A Single Bench of this Court also in the cases of Karan @ Babu vs. State of
Rajasthan, MANU/RH/0303/2009 : 2009(3) ILR (Raj.) 689 and Ramvilas @ Billu vs.
State of Rajasthan, MANU/RH/0444/2009, relying upon the judgment of Rasiklal (supra)
held that it is imperative for the court to release accused of bailable offence on bail, as
the right of the accused to be released on bail is absolute and indefeasible and the
courts have no discretion except to grant bail to the accused.

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14. It is undeniable fact that the offence under Section 138 of Negotiable Instruments
Act is bailable offence as maximum punishment prescribed is two years and as per First
Schedule regarding classification of offences, since punishment prescribed is less than
three years, offence under Section 138 of Negotiable Instruments Act is bailable.
15. To controvert, the argument raised by Mr. Mahendra Goyal, learned counsel for the
respondent that the bail order be modified and condition be imposed that the petitioner
should surrender her Passport, Mr. S.S. Hora, learned counsel for the petitioner has
relied upon the judgment rendered by Single Judge of Bombay High Court in Sultan
Kamruddin Dharani vs. The Union of India (UOI) and Ors., MANU/MH/0887/2008.
16. In the case of Sultan Kamruddin Dharani vs. The Union of India (UOI) and Ors.
(supra), it was held as under:-
"16. Perusal of section 436 of the Code of 1973 shows that there is no
provision therein which gives power to the Court to impose any condition while
enlarging an accused on bail in a case where bailable offence is alleged. In fact,
the first proviso of the said section lays down that if an accused is indigent and
is unable to furnish surety, the Court is under an obligation to discharge him on
his executing a bond without sureties for his appearance. The explanation to
sub-section (1) of section 436 provides that when a person is unable to give
bail within a week of his arrest, it shall be a sufficient ground for the Officer or
a Court to presume that he is an indigent person for the purposes of this
proviso. Thus, the law makes it clear that when an accused who is alleged of
commission of a bailable offence is unable to furnish bail in the form of surety
within a week from his arrest, he has to be discharged on his executing a bond.
Thus, not only sub-section (1) but the first proviso and the explanation thereto
clearly show that an unfettered right is granted to be enlarged on bail to a
person other than a person accused of non-bailable offence arrested or detained
without any warrant by an Officer in charge of a police station or when such a
person appears or is brought before a Court. Such a person has to be enlarged
on bail provided he is prepared to give bail. If such person is indigent and is
unable to furnish surety, by dispensing with the requirement of furnishing bail
or surety, he has to be discharged on his executing a personal bond without
sureties. If such a person is unable to give bail within a period of one week
from the date of his arrest, by legal fiction, the law presumes that the person is
an indigent person and thus he will have to be discharged on executing a
personal bond without sureties. The decision of the Apex Court in the case of
Talab Haji Hussain (supra) deals with a case where bail of an accused is
cancelled and he is arrested and committed to the custody. In such a case, the
Apex Court observed that the commitment of the accused to the custody is as a
result of the judicial order passed on the ground that he has forfeited his bail
and that his subsequent conduct shows that he cannot be at large. The Apex
Court held that in such a case when the accused seeks bail, he cannot take
benefit of section 496 of the old Code and claim unqualified and absolute right
to be released on bail. The same is the principle incorporated in sub-section (2)
of section 436 of the Code of 1973. Therefore, the law laid down in the said
case operates at a stage when bail granted to an accused of bailable offence is
cancelled and he is taken in custody.
1 7 . The decision in the case of Hajarilal (supra) does not support the
contentions raised by the learned Counsel appearing for the Respondent No. 1.
This was a case where the Appellant before the Apex Court was arrested for the

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 offence under sections 406 and 420 of the Indian Penal Code. He was ordered
to be enlarged on bail by imposing a condition that he will not leave India
without the permission of the Court. On a Petition filed under section 561A of
the old Code by the original Complainant, the High Court directed the Sessions
Court to ensure that the Appellant was ordered to surrender his passport. This
was not a case where the offence was a bailable offence.
18. In the case of the State of Gujrat (supra), the Apex Court again held that
when offences alleged against the accused were bailable, the Commissioner of
Police or the Police Officer who has authority to investigate such offences is
under a legal obligation to release the accused on bail under section 496 of the
old Code.
1 9 . Thus, the position of the law is that a person who is alleged to have
committed a bailable offence has an unfettered and absolute right to be
enlarged on bail and the Court or the Police Officer concerned, as the case may
be, has no discretion to grant or refuse bail. Subject to first proviso to sub-
section (1) of section 436 of the Code of 1973, the Court may modulate the
condition of bail as regards the bail amount and the number of sureties.
However, the Court cannot impose a condition which is not a term as to the
bail. The condition of requiring a person accused of a bailable offence to
surrender his passport to the Court is not a term as to bail. If in such a case a
condition is imposed that bail is granted subject to condition of deposit of
passport, such a condition will defeat the absolute right of the accused under
section 436(1) of the said Code to be set at liberty. In the circumstances, while
enlarging the Petitioner on bail in a bailable offence, the learned Magistrate has
no jurisdiction to direct deposit of the passport. The Magistrate cannot impose a
condition while granting bail in a bailable offence of not leaving India without
the permission of the Court. Whenever the Petitioner is enlarged on bail, he is
bound to attend the concerned Court on the date fixed or whenever he is called
upon to do so. This obligation is created by the bail bond. If he desires to
remain absent, he will have to seek an exemption from the Court. In a given
case if there is an apprehension that the accused is likely to abscond, steps can
also to be taken under the appropriate provisions of law. Steps can be also
taken for impounding the passport."
17. Unable to cite contrary judgment, learned counsel for the respondent has prayed
that the petitioner be directed to undertake before the trial court that she will not leave
India without permission of the court. It is further prayed by counsel for the respondent
that liberty be granted to the respondent to approach appropriate authority for
impounding the Passport of the petitioner.
18. To the above submission made by the learned counsel for the respondent, learned
counsel for the petitioner has no quarrel.
19. Considering that the petitioner is ready and willing to furnish two FDRs amounting
to Rupees Ten Lakhs each, before the trial court, the present petition is disposed of by
issuing following directions:
a) That the petitioner shall furnish two FDRs of Rupees Ten Lakhs each drawn
on the name of court.
b) That upon submission of two FDRs and undertaking in terms noted above,
the trial court shall release the petitioner on furnishing personal bail bond of

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sum of Rupees Ten Lakhs.
c) That the petitioner shall also file an undertaking before the trial court that in
case she fail to appear before the trial court on the date fixed, the FDRs
furnished by her be forfeited.
d) That the petitioner shall be at liberty to pray in advance for exemption of her
personal appearance before the trial court.
e) That the petitioner shall also specifically state in the undertaking that she
will no leave the country without permission of the court.
f) That the complainant shall be at liberty to approach appropriate authority by
taking recourse to lawful remedy if available to seek impounding of Passport of
the petitioner.
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