Naheed Ara Moonis, J.Since counter and rejoinder affidavits have already been exchanged, this court is proceeding to decide the bail application finally.

2. The instant bail application has been filed by the applicant with the prayer to enlarge him on bail in case Crime No. 16 of 2016 and Case No. 18 of 2017, under Sections 419, 420, 406 and 506 I.P.C. and under Section 138 N.I. Act, police station Sahjanawa, district Gorakhpur.

3. Heard Sri Amit Saxena, learned counsel appearing on behalf of the applicant and Sri V.M. Zaidi, leaned Senior Counsel assisted by Sri Vishwanath Mishra, learned counsel for the complainant, the learned A.G.A. for the State and have gone through the record.

4. The prosecution case in short conspectus is that the first information report was lodged by Rustam Shahi on 13.1.2016 against the applicant, his two sons and one Prakash Mishra in respect of the incident dated 24.9.2014 (wrongly transcribed as 24.9.2015) regarding the fraudulent act done by the accused applicant and others. The applicant, his two sons, namely, Ashwani Singh and Bittu Singh had taken advance money in cash in the presence of various persons and the applicant had asked the complainant to make arrangement of the rest amount and get the sale deed executed within a week. When the complainant met with the applicant for the registration of the sale deed of the plot the applicant started avoiding and had paid no heed to the request of the complainant then the complainant approached the higher authorities of Gorakhpur Industrial Authority Development and the Station House Officer of the concerned police station. The concerned police station called both the parties and an agreement was made that the applicant shall return the amount and in this regard the applicant had given a cheque No. 213375 of State Bank of India of Rs. 18 lacs dated 31.12.2015 and assured that the rest of the amount will be paid within a month but when the money was not paid by the applicant even after the expiry of one month the applicant and his two sons Ashwani Singh and Bittu Singh threatened him that he will be implicated falsely in some case, thus the applicant had usurped the amount of Rs. 37,76,000/-, hence the first information report was lodged to take appropriate action against him, which was lodged under Sections 406, 419, 420, 467, 468, 471 and 506 I.P.C. as case Crime No. 16 of 2016.

5. The submission of the learned counsel for the applicant is that the applicant and his sons and one Shri Prakash Mishra have been falsely implicated in the present case. The applicant is the President of Chamber of Commerce & Industries of Gorakhpur Industrial Development Authority, which is a registered body. In the election one Gyan Prakash Yadav was elected as Secretary while the complainant was elected as a Member. Later on the complainant and other persons who are the members of the society had started distributing plots to their own relatives, hence a meeting was convened and the applicant being the President of the Chamber of Commerce & Industries of Gorakhpur Industrial Development Authority had removed the Secretary Prakash Mishra, the Joint Secretary Gyan Prakash Yadav and the complainant Rustam Shahi who was the member and on account of this the complainant was bearing grudge against the applicant and his sons who had threatened that the applicant will face dire consequences. The complainant was indulging in selling the plot, for which enquiry is going on and the present first information report has been lodged with absolutely false allegation that the applicant has taken advance sum of Rs. 27,76,000/- as cash against the plot situated in Sector- 15, Gorakhpur Industrial Development Authority, Gorakhpur. The applicants hand bag misplaced while he was returning from Lucknow to Gorakhpur in which certain cheque books, pass book, medical card test report of Sanjay Gandhi Post Graduate Institute of Medical Sciences were kept and in this regard an information was given to Police In-charge, G.R.P., Gorakhpur on 19.9.2015. The applicant had also informed about the loss of cheque books and A.T.M. to the Branch Manager, Alinagar Branch and has asked to cancel the same.

6. A complaint was also made to the Branch Manager, Alinagar, Gorakhpur that loss Cheque No. 213375 has been presented by the complainant in his account, hence appropriate action be taken against him. The complainant has set up a case against the applicant that the applicant had taken advance sum of Rs. 37,76,000/- and Rs. 18 lacs has been returned by the applicant by means of the cheque, which was when presented was dishonoured by the Bank as a consequence thereof a frivolous case under Section 138 N.I. Act has also registered against the applicant by filing a complaint under Section 138 N.I. Act. The court below on the basis of frivolous complaint proceeded to summon the applicant to face trial under Section 138 N. I. Act. The Investigating Officer without conducting proper enquiry in a fair and impartial manner submitted the charge sheet by adding Section 138 N. I. Act also, which is not permissible under the eye of law as there is a provision of filing of a complaint. The applicant is an old person. The two sons of the applicant, namely, Ashwani Singh and Bittu Singh have already released on bail by the court below but the applicants bail application has been rejected erroneously when prima facie no offence has been committed by the applicant. The applicant is languishing in jail since 24.7.2017. He is not a previous convict, hence deserves to be enlarged on bail.

7. Per contra learned counsel for the complainant as well as the learned A.G.A. have vehemently opposed the prayer for bail and have contended that when the complainant wanted to set a plant of Ice cream and bakery he intended to purchase a plot, so he went to the office of Gorakhpur Industrial Development Authority where he met with the applicant and Shri Prakash Mishra who had disclosed themselves as the members and Secretary of the Gorakhpur Industrial Development Authority and had lured him that he will be provided a descent plot. The applicant had shown two plots to the complainant, which was not liked by the complainant, hence another plot was shown to him situated in Sector-15, Plot A-1/28 area 4948 square meter and has asked that the plot is his own and has given all the money to one Radhey Shyam and he can transfer this plot to the complainant. Reposing trust upon the applicant the complainant accepted the offer of the applicant and paid Rs. 37,76,000/- cash to the applicant and his two sons Ashwani Singh and Bittu Singh in the presence of the various persons. The applicant had asked the complainant that rest of the money may be arranged by him and when the complainant asked to give a receipt of the payment the applicant has asked that when the rest of the amount will be paid he will get the registered sale deed.

8. Later on the applicant has taken u turn and did not fulfil his promise and hence the first information report was lodged by the complainant. After investigation the charge sheet has also been submitted pursuant to which the learned Magistrate has taken cognizance. At the police station Shahjanwa a cheque of Rs. 18 lacs was given by the applicant to the complainant and had assured that the rest of the amount will be paid within a month but when the amount was not paid and the same was demanded the applicant had extended threat that he will be implicated in any case. The cheque of Rs. 18 lacs when presented was dishonoured and hence a complaint was also filed under Section 138 N. I. Act against the applicant in which the court below has also taken cognizance against the applicant by order dated 21.7.2016 under Section 138 N.I. Act. The court below has committed manifest error in allowing the bail application of the sons of the applicant who were involved in playing fraud with the complainant along with his father. The present applicant who had also extended threat that the complainant will be falsely implicated in any case. The applicant has usurped huge amount, which was neither refunded nor any sale deed was executed and the money, which was given by means of cheque could not be encashed as the cheque was dishonoured causing wrongful loss to the complainant and wrongful gain to the applicant. Mere long incarceration in jail is not a ground to enlarge the applicant on bail who is actively involved along with his sons in the commission of offence, hence the applicant does not deserve any leniency.

9. I have given anxious consideration to the submission advanced by the learned counsel for the parties and have also gone through the various affidavits filed on behalf of the applicant in support of the bail application and those affidavits have been sworn by the sons of the applicant who are themselves accused in the present case, which is highly disdainful and contemptible. The judicial propriety demands that filing of affidavit by an accused on behalf of other accused not only dehors the judicial propriety but also creates doubt about the probity of the affidavit hence the bail application itself deserves to be dismissed on this count alone. The applicant and his two sons are involved in the commission of fraud and misappropriation of huge amount of hard earned money of the complainant does not entitle the applicant to be enlarged on bail more so when the bail applications of the sons of the applicant have been allowed by distinguishing their role with the applicant that neither any money was received by them nor they had compelled the complainant for getting the registered sale deed executed. Thus the role of the applicant becomes crystal clear that the applicant had received the amount from the complainant in the presence of his sons on the pretext of executing a sale deed of a particular plot as such the applicant cannot claim parity.

10. Looking to the nature of allegations, gravamen of offence and the complicity of the applicant, this court does not see any justifiable ground to release the applicant on bail. The bail application sans any merit and is accordingly rejected.