Case Law Details
Veronica Andrew Annika Lethabo Vs State of Gujarat (Gujarat High Court)
Gujarat High Court has denied regular bail to Veronica Andrew Annika Lethabo, an accused in a ₹14 lakh cybercrime case involving impersonation of Income Tax and Customs Department officials and the use of forged documents. The court cited the seriousness of the offence, the applicant’s prior withdrawal of a bail application, and concerns about her absconding given her possession of multiple foreign passports.
The application for regular bail was filed under Section 483 of the Bharatiya Nyaya Suraksha Sanhita, 2023 (BNSS), in connection with an FIR registered with the Cyber Crime Police Station, Amreli. The charges include offences under Sections 406 (criminal breach of trust), 420 (cheating), 467 (forgery of valuable security), 468 (forgery for purpose of cheating), 471 (using as genuine a forged document) of the Indian Penal Code, 1860 (IPC), and Section 66(d) of the Information Technology Act.
Allegations Against the Accused
The prosecution contended that the accused, Veronica Andrew Annika Lethabo, repeatedly sent messages to the complainant using specific mobile numbers, gaining trust through false promises of valuable gifts. With intent to deceive, she allegedly prepared fake government securities as bail sureties from various government departments. She also created fraudulent accounts on social media platforms like WhatsApp and Instagram under false identities.
Under the pretext of a gift parcel requiring tax payments to the Income Tax Department and charges to the Customs Department, the accused fraudulently obtained a total of ₹14,09,000/- from the complainant’s bank account through multiple transactions. This constituted serious offences of cheating and criminal breach of trust.
During the investigation, mobile phones and SIM cards used by the accused were recovered, with prima facie evidence from chats and emails linking her to the crime. It was also revealed that the accused possesses two different fake passports and visas from Nigeria and South Africa, leading to another case being registered against her. The prosecution expressed strong apprehension that if released on bail, the applicant, being a non-Indian citizen, might abscond or tamper with evidence, and potentially commit similar offences again.
Court’s Rationale for Denying Bail
The Gujarat High Court, after hearing both sides and reviewing the case records, highlighted several critical points:
1. Successive Bail Application: The current application was a successive bail plea. The applicant had previously withdrawn a bail application after extensive arguments, with liberty reserved to file a fresh one only after material witnesses were examined. The court noted that out of 14 witnesses, only five had been examined, and one was dropped. The court found no significant change in circumstances to warrant entertaining a successive bail application at this stage.
2. Lack of Cooperation and Absconding Risk: The court observed that the applicant was “trying to evade the trial and is not cooperating in the proceedings.” The possession of two foreign passports (Nigerian and South African) raised a significant concern that she might abscond if granted bail, hindering the trial process.
3. Nature and Seriousness of Offence: The court emphasized the gravity of the cybercrime, which involved impersonation of government departments, forgery, and significant financial fraud. The potential for the accused to commit similar offences if released was also a factor.
Judicial Precedents Cited
The court referred to several Supreme Court judgments regarding the principles governing successive bail applications and the grant of bail:
- Virupakshappa Gouda & Anr. Vs. The State of Karnataka & Anr. (2017 (5) SCC 406) and Navin Singh Vs. State of U.P. (2021 (2) SCC (Cri.) 809): These cases underscore that while successive bail applications are permissible, the court must provide specific reasons for granting bail if an earlier application was withdrawn or dismissed on merits, especially if there’s no significant change in circumstances. The mere filing of a chargesheet does not automatically weaken the allegations.
- CBI vs. V. Vijay Sai Reddy (2013) 7 SCC 452): This judgment outlines various factors to consider while granting bail, including the nature of accusations, the evidence, severity of punishment, character of the accused, possibility of securing the accused’s presence, apprehension of witness tampering, and larger public interest. It states that the court needs to satisfy itself if there’s a “genuine case” against the accused, not necessarily proof beyond reasonable doubt at the bail stage.
- Ash Mohammad vs. Shiv Raj Singh alias Lalla Babu and Another (2012) 9 SCC 446): This decision stresses that the concept of liberty is not absolute and cannot jeopardize the life or liberty of others.
- Ram Govind Upadhyay vs. Sudarshan (2002 (3) SCC 598): This reinforces the duty of the court, when entertaining a subsequent bail application, to consider the reasons that persuade it to take a different view from the earlier application.
Considering the maximum punishment for the offence (up to life imprisonment or ten years with fine), the serious nature of the crime, the role and conduct of the applicant, and the absence of any substantial change in circumstances since the previous withdrawal of bail, the Gujarat High Court concluded that it was not a fit case to exercise discretion in favor of the applicant.
The court directed the trial court to expedite the trial on a day-to-day basis and ensure legal aid to the applicant if she fails to engage an advocate.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
1. Learned APP waives service of rule for the respondent-State.
2. The present application is filed under Section 483 of the Bharatiya Nyaya Suraksha Sanhita, 2023 (for short “BNSS”) for regular bail in connection with FIR being R. No.11193063230010 of 2023 registered with Cyber Crime Police Station, Amreli, for the offence punishable under Sections 406, 420, 467, 468, 471 of the Indian Penal Code, 1860 (for short “IPC”) and Section 66(d) of the IT Act.
3. Learned advocate appearing on behalf of the applicant submits that the applicant is innocent and has been falsely implicated in the offence. The applicant is a lady accused, and the offence is triable by the Magistrate. The applicant is ready and willing to furnish solvent surety, and undertakes that until the trial is over, she will not leave the country. It is further submitted that the commencement of the trial will take its own time. He, therefore, submits that considering the nature of the offence, the applicant may be enlarged on regular bail by imposing suitable conditions.
4. Learned APP appearing on behalf of the respondent-State has opposed the present application and submitted that the applicant is very much involved in the offence. It is submitted that this is a successive bail application and the earlier application was withdrawn by the applicant. The present application has been filed without there being any change in circumstances. It is further submitted that the applicant is trying to evade the trial and is not cooperating in the proceedings. The applicant has committed fraud under the pretext of a gift. The applicant sent messages in the name of the Income Tax Department and Customs Department to get a parcel worth Rs. 14,09,000/- released into her account, thereby committing forgery by using forged documents. She is also in possession of two different fake passports from two different countries, one from Nigeria and another from South Africa, and in this regard, another case has already been registered against the applicant. If the present applicant is released on bail, there is every possibility that she may tamper with the evidence or abscond from the trial. Therefore, present application may be dismissed.
5. Having heard the learned advocates for the respective parties and having perused the record, it is worth mentioning that the earlier bail application, after being argued at length, was withdrawn by the applicant with liberty reserved to file a fresh application once material witnesses were examined during the trial. It appears that there are a total of 14 witnesses in the present case, out of which five witnesses have been examined, and one witness has been dropped by the learned APP. There is no possibility of delay in the trial. However, without there being any change in circumstances, the present successive bail application has been filed, and the learned advocate for the applicant has failed to explain any change in circumstances.
6. Coming to the facts of the case, it appears that the accused, using her financial means through M. No. 6909639361 and M. No. 6909220245, repeatedly sent messages to the complainant, gained the complainant’s trust, and with the intention to deceive, prepared false documents of government securities as bail sureties from two different departments of the Government of India. The accused also created fake accounts on social media applications such as WhatsApp and Instagram using false identities, and by giving false promises of valuable gifts, made the complainant believe that a gift had arrived and that, to release it, the complainant would need to pay taxes to the Income Tax Department and charges to the Customs Department. On this pretext, the accused fraudulently and dishonestly obtained a total amount of Rs. 14,09,000/- from the complainant’s bank account through various transactions, thereby committing a serious offence of cheating and criminal breach of trust.
7. It further appears that mobile phones and SIM cards used by the accused have been recovered, and there is prima facie evidence indicating that the accused committed the offence through chats and emails. It appears that the accused holds two different passports and visas from two different countries, namely Nigerian Passport No. A07644089 and South African Passport No. 103966925, and that information has been sought through the IB (Intelligence Bureau). It also appears that the applicant/accused is not a citizen of India, and if released on bail, there is a high possibility that she may abscond from the trial. Furthermore, if the applicant/accused is released on regular bail, there is a strong likelihood that she may commit similar offences again and may pose a threat to the life and property of the general public.
8. It appears that the present application came to be filed on the same ground and there is no change in circumstances. Once, the matter was withdrawn or dismissed on merit and there is no change in circumstances, present successive application by the appellant on the same ground is not permissible only on a specific ground that a considerable time have been passed or chargesheet has been filed. Even otherwise, there is no bar to entertain successive bail appeal, but the Court has to assign the grounds to entertain the appeal and to exercise the jurisdiction. Here in the instant case, the applicant has failed to make out any case.It is required to be mentioned that the appellant may file successive bail application, but it does not mean that the Court is taken for granted as and when bail application preferred, it should be allowed. Further, there is no change in circumstances. In this regard, reference is made to the decisions of the Apex Court in the case of Virupakshappa Gouda & Anr. Vs. The State of Karnataka & Anr. reported in 2017 (5) SCC 406 and Navin Singh Vs. State of U.P. reported in 2021 (2) SCC (Cri.) 809 as filing of the chargesheet does not any manner lesser the allegation, in which, the Apex Court discussed the scope of successive bail application. Therefore, the onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected. After such consideration, if Court is of the opinion that bail has to be gratned, then Court will have to give specific reason why instead of such earlier rejection, subsequent application for bail should be granted.
9. Further, in the case of CBI vs. V. Vijay Sai Reddy reported in (2013)7 SCC 452, the Hon’ble Supreme Court observed in paragraph 34 as under:
“34. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.”
10. At this stage, decision of the Hon’ble Supreme Court in the case of Ash Mohammad vs. Shiv Raj Singh alias Lalla Babu and Another reported in (2012) 9 SCC 446 is also required to be referred to wherein it has been held that the concept of liberty is not in the realm of absolutism but is a restricted one and no element in the society can act in a manner by consequence of which the life or liberty of others is jeopardized. Even, in view of the decision of the Hon’ble Supreme Court in the case of Sushanta Kumar Dhalasamanta vs. State of Odisha rendered in Petition for Special Leave to Appeal (Cri.) No.17256/2024, it would not be in the interest of justice to enlarge the applicant on bail.
11. The Hon’ble Supreme Court has observed in the case of Ram Govind Upadhyay vs. Sudarshan reported in 2002 (3) SCC 598 held that, “the accused has right to make successive application for grant of bail, but while entertaining a subsequent bail application, it is the duty of Court to consider the reasons and grounds, which persuade to take a view different from the one taken in the earlier application”. Thus, the offence against the applicant is very serious in nature and considering the role and conduct of the applicant, earlier application has also been withdrawn.
12. Considering the provisions for punishment in the present offence, which provide for a maximum punishment of life imprisonment or imprisonment up to ten years with fine, and considering the nature and seriousness of the offence, this Court is of the considered opinion that it is not a fit case to exercise the discretion in favour of the applicant. Accordingly, the present application stands dismissed. Rule is discharged.
13. The learned trial Court is directed to expedite the trial on a day-to-day basis, and in the event the applicant fails to engage an advocate, the trial Court shall provide legal aid to the applicant through the office of the Chief Defence Counsel.
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