Saturday, April 10, 2021

application under Section 439 of Cr. P. C.

District : South 24 Parganas

IN THE HIGH COURT AT CALCUTTA

CRIMINAL MISCELLANEOUS JURISDICTION

CRM No. of 2020

IN THE MATTER OF :

An application under Section 439, of Code of Criminal Procedure’ 1973, for Bail ;

A N D

In the matter of :

SPL S.T. no. 11(3) 2019 { SPL Case no. 289 of 2018 ), arising out of Nodakhali Police Station Case no. 326 of 2018, dated 27-11-2018, under Section 376 (2) (i), & 365 of the Indian Penal Code’ 1860, and Section 4 & 6 of POCSO Act’ 2012;

A N D

In the matter of :

Shri Gokul Adhikari @ Gokul Adhikary, Son of Late Adhar Chandra Adhikari, residing at Village – Purba Nischintapur, Post Office & Police Station – Budge Budge, District – South 24 Parganas. { in Jail since 27-11-2018 }.

_______Petitioner

- Versus -

The State of West Bengal

______Opposite Party

To,

The Hon’ble Thottathil B. Radhakrishnan, Chief Justice and His Companion Justices of the said Hon’ble Court.

The humble petition of the petitioner above named most respectfully;

S H E W E T H :

1. That the Petitioner has been arrested as on 27-11-2018, and consequently produced before the Learned Special Court 2^nd Additional District Session Judge, at Alipore, South 24 Parganas, and since then the petitioner is in Jail Custody. The Learned Court below lastly on 17-12-2019, has rejected Bail Application. This is the Second Time Bail application filed before the Hon’ble High Court, by the Petitioner. The Hon’ble High Court lastly rejected the First Bail Application on 24-02-2020, in CRM no. 2039 of 2020.

2. That the FIR has been registered as FIR no. 326 of 2018, by the Officer in Charge of the Nodakhali Police Station as on 27/11/2018, following the arrest of the petitioner, and the said FIR registered for the alleged offences committed to be punishable under Section 376 (2) (i), & 365 of the Indian Penal Code’ 1860, and Section 4 & 6 of POCSO Act, the said FIR registered upon the Complaint of One Gita Samanta, solely against her Son in Law Basudev Das, whereas the victim is her allegedly minor girl and sister in law of the said Basudev Das. The said FIR did not name the present petitioner, Shri Gokul Adhikary @ Gokul Adhikari.

3. That in Nodakhali Police Station Case no. 326 of 2018, dated 27-11-2018, under Section 376 (2) (i), & 365 of the Indian Penal Code’ 1860, and Section 4 & 6 of POCSO Act, the Police submitted Charge Sheet being no. 07 of 2019, dated 22/01/2019, and wherein the Police Charge sheeted the petitioner Gokul Adhikari @ Gokul Adhikari, and Basudeb Das, and Ganesh Das, charged under Section 376 (2) (i), & 365 of the Indian Penal Code’ 1860, and Section 4 & 6 of POCSO Act, which has not been in the FIR, initially.

4. That the Petitioner time and again seeks to release on Bail before the Learned Special Court 2^nd Additional District & Session Judge, alipore, South 24 Parganas, in the said Nodakhali Police Station Case no. 326 of 2018, dated 27-11-2018, under Section 376 (2) (i), & 365 of the Indian Penal Code’ 1860, and Section 4 & 6 of POCSO Act, but denied and therefore the petitioner continuously is in Jail Custody, since the date of his arrest by the Police, i.e. 27-11-2018.

5. That it is pertinent to states that the Petitioner’s bail application has been lastly denied on 17-12-2019. However on another accused namely Ganesh Das is on Bail. The principle accused Basudeb Das has recently granted bail by this Hon’ble Court on 01-07-2020, in CRM no. 4676 of 2020. Photocopy of Certified copy of Order dated 17-12-2019, passed in Special ST no. 11(03) 2019, is enclosing herewith this application, and Website copy of the Order dated 01-07-2020, in CRM no. 4676 of 2020, is enclosing herewith, and Collectively marked as Annexure as “P-1”.

Petitioner crave leave of the Hon’ble Court to produce copy as served by the Learned Court below, at the time of hearing, if require.

6. That it is pertinent to states that the Charged against this petitioner has been framed under Section 365 of Indian Penal Code’ 1860, and under Section 4 & 17 of POCSO Act’ 2012.

7. That the alleged allegation of the defacto complainant as has been canvassed in the letter of complaint, is false and fabricated one, though the defacto complainant in arm twisting trying to put Criminal recourses of Law into motion against your Petitioner.

8. That your Petitioner most humbly submits that he is no way connected with the alleged commission of offence and it is also most humbly submits that if there is any disputes, the disputes is outcome of a political interest and issues thereof and as such no criminal element is there for which your petitioner could be kept behind the bar.

9. That your Petitioner specifically denies the statements and allegations contained in the complaint and states that he is innocent and he did not commit any offence as alleged by the complainant.

10. That Your Petitioner states that he has been falsely implicated by the complainant. Your petitioner is an old aged citizen, presently suffering from different old aged ailment, and in the circumstances of spread of pandemic of COVID – 19 at its highest in the State, he seeks to get release on bail at any terms and conditions, in the necessity to save his life from COVID-19.

11. That Your petitioner states that there is no chance of ascendance and / or tampering with evidences, if Your petitioner released on bail at any terms and conditions, thereof.

12. That the petitioner states that the Charge of offences are groundless and it has been leveled against him with a mala fide intention for humiliating him.

13. That Your petitioner states that the accusation leveled by the complainant stem not from motive of furthering the ends of justice but from some ulterior motive and as such if the petitioner is not released on bail, the very object of release on bail, will become in fructuous.

14. That your petitioner belongs from a mediocre family, who run his family with his meager income.

15. That your petitioner states that the content of complaint of the defacto complainant, does not disclose and or describe any particular offence or cause of offence against your petitioner.

16. That your petitioner is innocent and committed no offence and have been falsely implicated in this case.

17. That the allegations made against your petitioner is totally false, fabricated and motivated one.

18. That Since the Charge Sheet submitted by Police, the Investigation over by conducting every possible search, and seizure thereof thus the detention of your petitioner become unwarranted and not necessary.

19. That your Petitioner undertake to comply with all such direction as may be determine by the Hon’ble Court in the event of releasing him on bail at any terms and conditions, thereof in the interest of administration of justice.

20. That your petitioner is a peaceful person in his locality having his permanent resident and no chance of his absconding and or evading the due process of Law.

21. Unless the order as prayed for is passed your petitioner will suffer irreparable loss and injury.

22. That this application is made bona fide and for the ends of justice.

In the circumstances stated herein above your petitioner most humbly pray that your Lordships would graciously be pleased to direct the release on bail to your petitioner in connection with SPL S.T. no. 11(3) 2019 { SPL Case no. 289 of 2018 ), arising out of Nodakhali Police Station Case no. 326 of 2018, dated 27-11-2018, under Section 376 (2) (i), & 365 of the Indian Penal Code’ 1860, and Section 4 & 6 of POCSO Act’ 2012, pending before the Learned Special Court of 2^nd Additional District Session Judge, alipore, South 24 Parganas, and or pass such other order or orders as to your Lordship may deem fit and proper for the end of justice.

And the Petitioner, as in duty bound shall ever pray.

A F F I D A V I T

I, Shri Ramen Adhikary, Son of Shri Gokul Adhikari @ Gokul Adhikary, aged about 33 year, by Occupation Service, sresiding at Village – Purba Nischintapur, Post Office & Police Station – Budge Budge, District – South 24 Parganas, West Bengal, do hereby solemnly affirm and say as follows:

1) That I am younger Son of the petitioner, I am well-acquainted with the facts and circumstances of the case and as such I am competent to affirm this affidavit on behalf the petitioner.

2) That the statements made in the foregoing Paragraphs no. 1 to 16 of this petition are true to my information derived from the petitioner and the records of the case, which I verily believe to be true and the rests are my humble submissions before the Hon’ble Court.

Prepared in my Office The Deponent is known to me

Advocate Identified by me,

Advocate

DISTRICT: South 24 Parganas

IN THE HIGH COURT AT CALCUTTA

CRIMINAL MISCELLANEOUS JURISDICTION

C. R. M. No. of 2020

In the Matter of

An application for bail under Section 439 of the Code of Criminal Procedure 1973 ;

And

In the Matter of

Shri Gokul Adhiakry @ Gokul Adhikari,

….. Petitioner

Versus

State of West Bengal,

……… Opposite Party

Ashok Kumar Singh.

Advocate,

Bar Association, Room No. 15,

High Court, Calcutta,

Mobile No. 9883070666.

Email : aksinghadvocate@rediffmail.com

application for offence under Section 138 of the Negotiable Instrument Act

In the Court of Learned Additional Chief Judicial Magistrate, at Alipore, South 24 Parganas.

COMPLAINT CASE NO: C- ________of 2018

In the matter of:

An Application under Section 200 of Criminal Procedure Code’ 1973;

---AND---

P.S. Netaji Nagar.

In the matter of:

Shri Bapi Chakraborty, Son of Late Subhas Chakraborty, residing at premises being no. 141, Rajpur Road, Netaji Nagar, Kolkata – 700 047.

……COMPLAINANT

- Versus –

Shri Goutam Ghosal, Son of Late Subodh Ghosal, residing at premises being no. 11/1, Bhattacharjee Para Road, Police Station – Thakurpukur, Kolkata – 700 063.

… ACCUSED

OFFENCE COMMITTED TO BE PUNISHABLE UNDER SECTION 138, OF NEGOTIABLE INSTRUMENT ACT, 1881 AS AMENDED UPTO-DATE

The humble petition of the complainant above named, most respectfully;

SHEWETH AS UNDER :-

That the Complainant/Petitioner is a peace loving and law abiding citizen, residing at the address as given in the cause title of this application.

That the accused Shri Goutam Ghosal, Son of Late Subodh Ghosal, residing at premises being no. 11/1, Bhattacharjee Para Road, Police Station – Thakurpukur, Kolkata – 700 063, taken money from the Complainant, on different pretext and manner, with a commitment to return the same at the earliest, within the month of May’ 2018.

3. That the accused person in discharge of his existing legal enforceable debts and or liabilities, a cheque for an amount of Rs. 20,000/- ( Rupees Twenty Thousand ) only, has been issued in the name of the Complainant from the Account of the accused person, the said cheque was duly signed by the accused person.

4. That the details of the said cheque is as follows :

Cheque no.

Date

Drawn on

Amount

870721

10/06/2018

State Bank of India

Sakher Bazar Branch, Kolkata

Rs. 20,000/-

5. That the said cheque was presented for realization within it’s validity period, with the banker of Complainant i.e. State Bank of India, Regent Estate Branch, Kolkata, Police Station – Netaji Nagar, but the same was dishonoured with the remarks “ Funds Insufficient” vide Cheque Return Memo dated 05 / 09 / 2018, which fact came to the knowledge of the Complainant on or about 05 / 09 / 2018, from his Banker along with the banker’s cheque Return Memo dated 05 / 09 / 2018.

6. That the above facts make it abundantly clear that the accused person have mischievously and intentionally issued the aforesaid cheque with ulterior design knowing fully, well that the said cheque would not be honoured on presentation on account of insufficiency of funds in his account.

That the Complainant served one Legal Notice under Section 138 (b) of the Negotiable Instrument Act, 1881, through it’s Learned Advocate Shri Debnath Saha, vide notice dated 3^rd October’ 2018, within prescribed period of the Negotiable Instrument Act, 1881, calling upon the accused person to make the payment of the said cheques total value as Cheque no. 870721, dated 10-06-2018, drawn on State Bank of India, Sakher Bazar Branch, Kolkata, West Bengal, for an amount of Rs. 20,000/- ( Rupees Twenty Thousand ) only, within a period of ( 15 ) fifteen days from the date of receipt of such notice, through Speed Post, as on 03-10-2018.

That the Learned Advocate of the Complainant on getting tracking report of the Indian Postal Authority, found that all the postal services has been duly shown as “delivered” and delivered on 04-10-2018, and the said notice given on the available address of the accused person, and in terms of the provisions of the General Clauses Act, therefore it is well presumed that the accused person is in receipt of the notices served on him.

That the accused person is well within the knowledge of the dishonor of the said cheque and the notices served on him but the accused person did not make any payment towards the value of the said cheque within a period of fifteen days from the date of knowledge which expire latest by 20-10-2018, and therefore the cause of action arose for the present complaint.

That thus the accused has committed an offence punishable under Section 138 of the Negotiable Instrument Act, 1881 as amended upto date.

That the Complainant placed this application before the Learned Court and able to established his case against the accused persons during trial, before the Learned Court and therefore seeks to get justice in terms of the prescribed provisions of Law, thereof.

That this petition of Complaint is made bonafide and for the ends of justice.

In the aforesaid circumstances it is most respectfully prayed that your Honour may graciously be pleased to take cognizance of the matter and issue process against the accused person under section 138, of the Negotiable Instruments Act 1881, as amended upto –date and pass such other order or orders as your Honour may deem fit and proper FOR THE END OF JUSTICE.

And for this act of kindness your petitioner as in duty bound and shall ever pray.

List of Witness: -

Complainant
Accused’s Banker.
Complainant’s Banker.
Document & Others.
other related witnesses.

List of Documents : -

1. Cheque no. 870721, dated 10-06-2018, drawn on State Bank of India, Sakher Bazar Branch, West Bengal, for an amount of Rs. 20,000/- ( Rupees Twenty Thousand ) only,

2. Bank’s Return Memo;

3. Legal Demand Notice;

4. Postal receipts;

5. Track report of postal authority;

6. Other documents.

Verification

I, Shri Bapi Chakraborty, being the Complainant, of this instant application under section 138, of the Negotiable Instrument Act’ 1881, as amended up-to-date, I am well acquainted and conversant with all the material facts and circumstances, as mentioned in the forgoing paragraphs of this instant application filed against the accused person within named, and whereas I am verifying this instant application as on ………the day of …………..2018, at the Alipore Police Court.

Shri Bapi Chakraborty

Identified by me,

Advocate.

Prepared in my office,

Advocate.

Dated :______________2018.

Place : Alipore Police Court.

A F F I D A V I T

I, Shri Bapi Chakraborty, Son of Late Subhas Chakraborty, aged about _____years, by faith Hindu, by Occupation _________________, residing at premises being no. 141, Rajpur Road, Netaji Nagar, Kolkata – 700 047, DO HEREBY SOLEMNLY AFFIRM AND SAYS AS FOLLOWS :

1. That I am Competent to Swear this affidavit.

2. That I am placing this application under Section 200 of Cr.P.C. before the Learned Court, for the first time, and no other application has ever been placed and or filed before the Learned Court, on in any other Court, on the self same set of facts.

3. That the Cause of Action for the present proceedings under Section 200 of Cr.P.C. for the Offences committed to be punishable under Section 138 of the Negotiable Instrument Act’ 1881, has been arisen within the jurisdiction of the Learned Court.

4. That the facts contained in my complaint / application, the contents of which have not been repeated herein for the sake of brevity may be read as an integral part of this affidavit and are true and correct to my knowledge.

That the above statements of my declaration, are true to my knowledge and belief.

Deponent

Identified by me,

Advocate.

Prepared in my Chamber,

Advocate.

Dated : _____________2018.

Place : Alipore Police Court.

N O T A R Y

In the Court of Learned Additional Chief Judicial Magistrate, at Alipore, South 24 Parganas.

COMPLAINT CASE NO: C- ________of 2018

In the matter of:

An Application under Section 200 of Criminal Procedure Code’ 1973;

---AND---

In the matter of:

Shri Bapi Chakraborty,

……COMPLAINANT

- Versus –

Shri Goutam Ghosal … ACCUSED

COURT FEES

In the Court of Learned Additional Chief Judicial Magistrate, at Alipore, South 24 Parganas.

COMPLAINT CASE NO: C- ________of 2018

In the matter of:

An Application under Section 200 of Criminal Procedure Code’ 1973;

---AND---

In the matter of:

Sri Bapi Chakraborty,

……COMPLAINANT

- Versus –

Sri Goutam Ghosal,

… ACCUSED

F I R I S H T I

{ Enclosures }

1. Cheque no. 870721, dated 10-06-2018, drawn on State Bank of India, Sakher Bazar Branch, West Bengal, for an amount of Rs. 20,000/- ( Rupees Twenty Thousand ) only,

2. Bank’s Return Memo;

3. Legal Demand Notice;

4. Postal receipts;

5. Track report of postal authority;

6. Other documents.

Vakalatnama

District : South 24 Parganas.

In the Court of the Learned Additional Chief Judicial Magistrate, at Alipore, South 24 Parganas

Case No. of 2018.

Sri Bapi Chakraborty COMPLAINANT

Versus .

Shri Goutam Ghosal,

ACCUSED

KNOW ALL MEN by this presents that I Shri Bapi Chakraborty, Son of Late Subhas Chakraborty, residing at premises being no. 141, Rajpur Road, Netaji Nagar, Kolkata – 700 047,

do hereby constitute and appoint the undermentioned Advocate, Pleaderes, Vakils, jointly & each of them severally to be pleader of ME / US and on MY / OUR behalf to appear for ME / US in the above cause and to take such steps and proceeding as may be necessary on MY/ OUR behalf and for the purpose to make sign verify and present all necessary petitions, plaints, written statements and other document and do nominate and appoint or retain senior Counsels, Vakils, Advocate and other persons, lodge and deposit moneys and document and other papers in court and the same again to withdraw and to take out of Court and to obtain or grant as the case may be effectual receipts and discharge for the same and for all moneys which may be payable to ME / US in the premises. To enter into compromise with MY / OUR approval and withdraw all moneys from the court: AND GENERALLY to act in the premises and proceeding arising thereout whether by woy of execution, riview appeal or otherwise or in any manner contested therewith as effectually and to all intents and purpose as I / WE could act if personally present and ALSO for all and of the purpose aforesaid to appoint a substitute or substitutes and such substitution and as pleasure to revoke I / WE hereby ratifying and agreeing to confirm whatever may be lawfully done by virtue hereof : IN WITNESS WHEREOF this Vakalatnama has by MY / US.

This_____________ day of __________ 2018 been executed

1. Shri Tirthankar Roy, Advocate;

2. Shri Ashok Kumar Singh, Advocate;

3. Ziauddin Molla, Advocate;

4. Shri Srijit Dey, Advocate;

5. Shri Biplab Som, Advocate;

6. Miss Suchitra Chakraborty, Advocate.

7. Shri Subhrajit Mondal, Advocate.