2025:HHC:4131 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.2714 of 2024 with Cr.MP (M) No.2715 of 2024 Date of Decision: 01.03.2025 _____________________________________________________________ 1. Cr.MP(M) No.2714 of 2024 Abhishek Tiwari ……...Petitioner Versus State of Himachal Pradesh …....Respondent _____________________________________________________________ 2. Cr.MP(M) No.2715 of 2024 Himanshu Tiwari ……...Petitioner Versus State of Himachal Pradesh …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioner(s): Mr. Kulwant Singh Gill, Advocate. For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, Deputy Advocate General. Sandeep Sharma, J. (Oral) Bail petitioners namely Abhishek Tiwari and Himanshu Tiwari, who are behind the bars for more than eight months have approached this Court in the instant proceedings, filed under Section 483 of Bharatiya Nagrik 2025:HHC:4131 Suraksha Sanhita, for grant of regular bail in case FIR No. 57 of 2024, dated 29.03.2024, under Sections 420, 120-B, 467, 468, 471 of IPC registered with Police Station, Paonta Sahib, District Sirmour, Himachal Pradesh. 2. Respondent-State has filed status report and SI Ram Nath, PS Paonta Sahib, has come present with record. Record perused and returned. 3. Close scrutiny of status report as well as record made available to this Court reveals that complainants namely, Tarun Kumar and Harjit Kaur lodged the complaints at police Station, detailed hereinabove, alleging therein that bail petitioners, named hereinabove, in connivance with the officials of Finance companies namely, Bajaj Finance and HDB fraudulently prepared the loan papers in their names and unauthorizedly used the same for their own use. In nutshell, complainants alleged that persons namely, Abhishek Tiwari and Himanshu Tiwari, who had been running shop of electronics at Paonta Sahib firstly sold them electronic items on finance basis and subsequently at the time of closure of their loan, fraudulently got their signatures on blank papers and thereafter, used the same for obtaining fresh loans in their names. Complainants alleged that they were neither supplied articles, for which loan was granted by Bajaj Finance and HDB company in their names nor money was paid to financial institutions, which subsequently 2025:HHC:4131 issued them notice of recovery. Taking note of afore complaints, police investigated the matter and found that accused namely, Abhishek Tiwari and Himanshu Tiwari had been running electronic shop at Paonta Sahib and for the purpose of providing loan to the customers, they had tied up with finance company namely Bajaj Finance and HDB. Bajaj Finance Company had deputed person namely, Deepak in the shop of bail petitioners, who at the time of advancement of loan qua electric items, used to complete the KYC of the customers. Allegedly, complainants and other similarly situate persons were provided various electronic items on loan basis and in that regard, they were made to sign on certain papers. Though, at first instance, complainants as well as other similarly situate persons were provided electronic items of their choice on loan basis, but at the time of closure of their loans cases, they were allegedly made to sign blank papers, which were subsequently fraudulently used by persons namely, Abhishek Tiwari and Himanshu Tiwari and co-accused Deepak for getting fresh loan from the finance company, as detailed hereinabove, qua certain electronics items, which admittedly were never supplied to the complainants and other similarly situate persons. 4. As per the status report, bail petitioners herein made approximately 169 loan cases and qua the same, sum of Rs. 1.75 crores was 2025:HHC:4131 received by them from the financial institutions including Bajaj Finance Company. After preparation of false KYC, accused, named in the FIR, received loan amount in their accounts, but qua the same, no electronics item was ever supplied to the loanees, who came to know about factum of advancement of loans in their favour after receiving recovery notice from the financial institutions. Though, after receipt of loan amount in their accounts, accused named in the FIR, paid few installments, but once such installments were not paid, financial institutions started sending notices to the complainants as well as other similarly situate persons. In the afore background, FIR, as detailed hereinabove, came to be lodged against the bail petitioners as well as co-accused Deepak. Since 23.6.2024 bail petitioners are behind the bars, whereas other co-accused, who was allegedly responsible for making KYC stands enlarged on bail. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioners, prayer has been made on behalf of the petitioners for grant of regular bail. 5. While fairly admitting factum with regard to filing of Challan in the competent court of law, Mr. Rajan Kahol, learned Additional Advocate General, states that since amount allegedly received by the bail petitioners in 2025:HHC:4131 the names of the complainants and other similarly situate persons is yet to be recovered, they do not deserve any leniency and their prayer for grant of bail, deserves outright rejection. While making this Court peruse the record, learned Additional Advocate General states that there is ample evidence adduced on record suggestive of the fact that bail petitioners are hard core criminals and they had been cheating number of innocent customers. Learned Additional Advocate General states that since bail petitioners hale from State of UP, it may not be in the interest of justice to enlarge them on bail because in the event of being enlarged on bail, they may not only flee from justice, but may also tamper with the prosecution evidence. 6. Having heard learned counsel representing the parties and perused material available on record, this Court is not persuaded to agree with the submission of learned counsel for the petitioners that petitioners have been falsely implicated, rather this Court finds that there is overwhelming evidence adduced on record by the prosecution suggestive of the fact that bail petitioners in connivance with co-accused Deepak have defrauded a number of innocent persons, who in good faith for the purpose of buying electronic items had made available their particulars, which subsequently came to be misused by the petitioners for procuring fresh loan 2025:HHC:4131 in the names of complainants and other similarly situate persons. As per the case of the prosecution, complainants as well as other similarly situate persons were provided electronic items of their choice on loan basis at first instance, but at the time of closure of their first loan, customers including the complainants were made to sign certain documents, which allegedly petitioners in connivance with co-accused Deepak used for second loan in the names of the complainants, who actually had not applied for second loan, rather had come to the shop of the bail petitioners for closure of earlier loan that too on the askance of the bail petitioners. 7. Interestingly, in the case at hand, person namely, Deepak, who was appointed as salesmen by Bajaj Finance Company never came to be arrested, rather was set free after issuance of notice under Section 41-A. Though, it came to be vehemently argued by learned Additional Advocate General that bail petitioners herein were the masterminds and they misused the personal particulars of the complainants as well as other similarly situate persons, but he was unable to dispute that person namely Deepak was appointed in the shop of the petitioners for taking KYC, meaning thereby papers, if any, for preparation of second loan must have been prepared by Deepak, may be in connivance with the petitioners. If it is so, he was also 2025:HHC:4131 required to be taken into custody. As per the status report, number of loan accounts have been settled/ closed by the petitioners after registration of the FIR. Whether petitioners had fraudulently prepared the documents in the names of the complainants as well as other similarly situate persons and whether they had forced them to sign on blank papers are the questions to be decided by the court below in totality of evidence collected on record by the prosecution. Since guilt, if any, of the petitioners is yet to be ascertained, they cannot be permitted to incarcerate in jail for indefinite period during trial, especially when they have already suffered for more than eight months. 8. No doubt, petitioners herein have been booked under Sections 420, 120-B, 467, 468, 471 IPC, for which they may be sentenced for more than 10 years, but once no plausible explanation has been rendered on record by the investigating agency for not arresting co-accused Deepak, prayer made on behalf of the petitioners cannot be rejected on the ground of registration of case under Section 467 of IPC. 9. Hon’ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. Since in the case at hand also, guilt, if any, of the petitioners is yet to be established on record by the 2025:HHC:4131 prosecution by leading cogent and convincing evidence, this Court sees no reason to curtail their freedom for indefinite period during trial. Apprehension expressed by the learned Additional Advocate General that in the event of petitioners being enlarged on bail, they may flee from justice, can be best met by putting the bail petitioners to stringent conditions as has been fairly stated by the learned counsel for the petitioners. 10. Needless to say, object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 11. Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has 2025:HHC:4131 been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. 12. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 13. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced. 14. Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has 2025:HHC:4131 categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon’ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under: “2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether 2025:HHC:4131 denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons. 15. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioners have carved out a case for grant of bail, accordingly, the petitions are allowed and the bail petitioners are ordered to be enlarged on bail in aforesaid FIR, subject to their furnishing personal bond in the sum of Rs. 5,00,000/- with two local sureties in the like amount to the 2025:HHC:4131 satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions: (a) They shall make themselves available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) They shall not leave the territory of India without the prior permission of the Court. 16. It is clarified that if the bail petitioners misuse the liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 17. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of these petitions alone. The petitions stand accordingly disposed of. 18. The bail petitioners are permitted to produce copy of the order downloaded from the High Court Website and the trial court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise. March 01,2025 (Sandeep Sharma), (shankar) Judge