A.F.R.
Neutral Citation No. - 2023:AHC-LKO:50394
Court No. - 16
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION
U/S 438 CR.P.C. No. - 57 of 2023
Applicant :- Vijay Pal Prajapati
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.
Counsel for Applicant :- Purnendu Chakravarty,Pranjal Jain
Counsel for Opposite Party :- G.A.,Digvijay Nath Dubey
Hon’ble Subhash Vidyarthi J.
1. Heard Sri Purnendu Chakravarty Advocate, the learned counsel for
the applicant, Sri Arvind Kumar Pandey, the learned AGA for the
State and Sri Digvijay Nath Dubey, the learned counsel for the
informant.
2. By means of the present application, the applicant is seeking
anticipatory bail in case crime No. 363/2021, under Sections
323/504/506/406/420/467/468/471 I.PC., P.S. Vibhuti Khand, District
Lucknow.
3. The aforesaid case has been registered on the basis of an FIR lodged
by the informant Deepak Sharma on 23.07.2021 against four named
persons, including the applicant, and an unknown person, alleging that
in December, 2018, co-accused Anand Kumar Singh alias Baba
Trikaldarshi met the informant at Mumbai and projected that he had a
good understanding of mining of sand and had a sound grip on the
market in Banda. The informant visited Lucknow thrice in December,
2018, January, 2019 and February, 2019 where the co-accused Anand
Kumar Singh met him in a hospital and at the residence of co-accused
Rajiv Porwal and the applicant and the co-accused Navneet Singh
Bhadauria also used to sit in the meetings and they claimed
themselves to be established businessmen of Morang (a minor mineral
used in construction activities). Co-accused Anand Kumar Singh
demanded Rs. 1 crore from the informant for a government tender and
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he asked the informant to sign some documents which had been
prepared by the applicant. The applicant had shown some documents
purportedly relating to registration of the company in the tender
process but the documents turned out to be forged. On 11.02.2019, a
notice inviting tenders for excavation of sand was published wherein
the applicant had made a bid without knowledge of the informant and
co-accused Anand Kumar Singh had told the informant that only the
applicant’s name will be used and the actual control of the work will
be given to the informant. The informant alleged that he had
transferred a sum of Rs. 1,60,00,000/- in the account of M/s V. P.
Constructions towards earnest money for the tender. On 08.03.2019,
another contract was allotted to M/s V. P. Constructions, which is a
firm of the applicant. The informant claims that it was mutually
settled between him and the accused persons that the investments and
profit in the tender allotted to M/s V. P. Constructions will be
distributed amongst all the persons and on 05.12.2020, a joint venture
agreement was executed between the informant, the applicant and one
Pramod Tiwari. On the same day, another agreement for sale and
marketing was executed between the informant and the applicant but
after sometime, the accused persons started sale and marketing of
excavated sand through M/s V. P. Constructions and they committed a
breach of the agreement dated 05.12.2020. The informant alleged that
when he objected against it, the accused persons abused and
threatened him.
4. The applicant was granted interim anticipatory bail by means of an
order dated 16.01.2023, after taking into consideration the fact that
co-accused namely Rajiv Lochan Paliwal has been granted interim
protection vide order dated 20.10.2022 passed in Criminal Misc.
Anticipatory Bail Application U/S 438 Cr.P.C. No. 1750/2022 "Rajiv
Lochan Paliwal Vs. State of U.P. and others". Another co-accused
Navneet Bhadauria has also been granted bail by the coordinate Bench
of this Court passed in Criminal Misc. Anticipatory Bail Application
U/S 438 Cr.P.C. No. 1841/2022 "Navneet Bhadauria Vs. State of U.P.
and others".
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5. The State and the informant have filed counter affidavits opposing the
anticipatory bail application.
6. The learned counsel for the informant has vehemently opposed the
application and he has submitted that while granting anticipatory bail
to the co-accused Navneet Bhadauria, it was specifically recorded in
the order dated 18.11.2022 passed by this Court in Anticipatory Bail
Application No. 1841 of 2022 that the case of the aforesaid co-
accused is distinguishable from the case of Anand Kumar Singh @
Baba Trikaldarshi and Vijay Pal Prajapati (the applicant) and he has
submitted that the applicant is not entitled to be granted anticipatory
bail on the ground of parity.
7. The learned counsel for the informant has next submitted that the
applicant had earlier filed an application under Section 482 Cr.P.C.
No. 6044 of 2022 and in the order passed on 06.09.2022, this Court
had noted the submission of the learned counsel for the applicant that
the applicant intended to pay the entire amount to the informant to
show his bona fide and it was recorded in the order that the learned
counsel for the applicant would bring a bank draft of Rs. 2 crores on
the next date. In the order passed in the aforesaid case on 14.09.2022,
it was recorded that the applicant made excuses from which the Court
gathered that the applicant had no intention to pay any amount to the
respondent no. 2 whose money was admittedly taken. In view of the
aforesaid conduct of the applicant, the application under Section 482
Cr.P.C. was dismissed. Sri. Dubey has submitted that the aforesaid
conduct of the applicant disentitles him to be granted anticipatory bail.
8. Replying to the aforesaid submission, Sri. Purnendu Chakravarty, the
learned Counsel for the applicant submitted that the applicant had
challenged the order dated 14.09.2022 dismissing the application
under Section 482 Cr.P.C. by filing Special Leave Petition (Crl.) No.
9397 of 2022, which was dismissed as withdrawn by means of an
order dated 10.10.2022, but the Hon’ble Supreme Court had clarified
that the trial court may not be influenced by the observations made by
the High Court while dismissing the application under Section 482
Cr.P.C.
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9. Therefore, it is clear that the application under Section 482 Cr.P.C.
was not dismissed on merits and it was dismissed for the mere reason
that the applicant had not returned the money to the informant. The
complaint of the informant is that non-payment of money is in breach
of an agreement. The learned counsel for the applicant has pointed out
that the informant has already initiated proceedings before the
Commercial Court, Gwalior for recovery of the money, which
proceedings are pending. Therefore, the issue of payment of money to
the applicant and the informant’s entitlement for recovery thereof will
be decided in those proceedings and it will not be appropriate for this
Court to make any observation in this regard. However, mere non-
payment of money cannot be a ground for initiation of criminal
proceedings and it certainly cannot be a ground for rejection of the
application for grant of anticipatory bail.
10. In Kamlesh and another versus State of Rajasthan and another,
2019 SCC OnLine SC 1822, the Hon’ble Supreme Court was deciding
a Criminal Appeal filed against an order passed by Rajasthan High
Court whereby an application for grant of anticipatory bail was
rejected by the High Court only on the ground that petition under
Section 482 Cr.P.C. praying for quashing of FIR, has already been
rejected. The Hon’ble Supreme Court held that: -
“5. We are of the view that the order of the High Court cannot be
sustained. High Court ought to have considered the application
on merits. The fact that petition under Section 482 Cr.P.C. was
dismissed for quashing was not conclusive and could not be the
reason for rejecting the application.”
11. Therefore, the law is clear that the dismissal of the applicant’s
application under Section 482 Cr.P.C. would not be a bar against
consideration of the merits of his application for anticipatory bail.
12. The learned counsel for the applicant has submitted that the FIR
alleges that the informant was induced into entering into a joint
venture agreement on the basis of a letter of intent dated 08.03.2019
purportedly issued by the Additional District Magistrate (Finance &
Revenue), on behalf of the District Magistrate, Banda, which letter
was forged. However, there is no categorical assertion as to who had
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forged the letter and, in any case, there is no allegation that the letter
had been forged by the applicant.
13. The Investigating Officer has already submitted a charge-sheet and
besides the informant, all the witnesses mentioned in the charge sheet
are police personnel. No officer or official from the office of the
District Magistrate, Banda has been mentioned to be a witness in the
charge-sheet.
14. The learned counsel for the applicant has submitted that even the
specimen of the applicant’s handwriting has not been taken for
comparing the same with the signatures made on the letter in question,
which could have been used as an evidence to prove commission of
forgery by the applicant.
15. Sri Digvijay Nath Dubey, the learned counsel for the informant has
next submitted that the money has admittedly been transferred to the
applicant’s bank account and he is the beneficiary of the offence
committed.
16. In this regard, firstly it is to be seen that the applicant has not been
charged with commission of offence under Section 120 B I.P.C. and
merely because the applicant is the beneficiary of an offence will not
ipso facto make the applicant guilty of the offence of forgery, when
there is no allegation of commission of the offence by him.
17. Secondly, the money was transferred to the applicant in furtherance of
an agreement to carry out business of mining of minor minerals and
the informant claims that the accused persons have committed a
breach of the agreement, which dispute prima facie appears to be a
dispute which is inherently of the civil nature.
18. Nowadays it is becoming a general practice to set the criminal law
into motion for putting pressure on the parties to commercial
transactions. Instead of initiating civil proceedings for specific
performance of contracts, accounting or recovery of money, where the
plaintiff / claimant has to pay Court fee and where the decision of the
dispute consumes a very long time, F.I.Rs. are filed with the object of
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getting the other party incarcerated to put pressure on him so as to
make him redress the grievances of the informant. However, the
Courts cannot shut their eyes in such matters so as not to ascertain
whether there is sufficient material to warrant incarceration of the
accused person and to examine whether the criminal proceedings are
being used for prosecution of a person who has committed an offence
or the same are being misused for persecution of a person who has
committed a breach of an agreement by giving the disputes a color of
criminality.
19. As proceedings between the parties for recovery of the money paid
under the agreement are pending before the Commercial Court,
Gwalior, the issue of the informant’s entitlement for recovery thereof
will be decided in those proceedings and it will not be appropriate for
this Court to make any observation in this regard.
20. The learned counsel for the informant has next submitted that the bail
application of co-accused Anand Kumar Singh Alias Baba
Trikaldarshi has been rejected by means of an order dated 03.03.2023
passed by this Court. In this regard, suffice it to say that parity is a
relevant consideration while granting bail to persons accused of
similar charges but the principle of parity is not attracted to rejection
of bail applications.
21. Moreover, the order dated 03.03.2023 rejecting the bail application of
co-accused Anand Kumar Singh merely mentions that the bail
application was being rejected keeping in view the submission of the
learned counsel for the informant that a complaint was made to the
District Magistrate as well as the Mining Officer where the accused
persons had assured that they would refund the money to the
informant but still they have not refunded the same.
22. As has already been stated in the preceding paragraphs, mere non-
payment of money paid under a contract cannot be a ground for
criminal prosecution of a party to the agreement and, in any case, that
cannot be a ground for rejection of the anticipatory bail application of
the accused person. Therefore, I am of the view that the application
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for grant of anticipatory bail to the applicant cannot be rejected on this
ground.
23. Regarding the applicant, it is mentioned in the F.I.R. that co-accused
Anand Kumar Singh alias Baba Trikaldarshi had asked the informant
to put his signature on some documents which documents had been
prepared by the applicant. Obviously, the informant would not be
required to sign the letter dated 08.03.2019 issued by the Additional
District Magistrate on behalf of the District Magistrate and, therefore,
the aforesaid allegation would not lead to an inference that the
applicant had forged the letter dated 08.03.2019. The F.I.R. contains
no allegation that the letter dated 08.03.2019 had been forged or
fabricated by the applicant.
24. The learned Counsel for the applicant has informed that the applicant
has submitted bail bonds in terms of the order dated 16.01.2023
passed by this Court. The learned A.G.A. could not point out any
violation of the conditions of anticipatory bail or misuse thereof by
the applicant.
25. In the aforesaid circumstances, I find no good ground to take a view
different from the view taken by this Court while passing the order
dated 16.01.2023. Therefore, the order dated 16.01.2023 is made
absolute and the application is allowed in terms of the aforesaid
order.
(Subhash Vidyarthi J)
Order Date - 31.07.2023
Pradeep/-
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Digitally signed by :-
PRADEEP SINGH
High Court of Judicature at Allahabad,
Lucknow Bench
