Vidhan Vyas vs State Of U.P.
2021 Latest Caselaw 5253 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

1.                     
 
                                                            Reserved on 6.4.2021
 
                                                            Delivered on 13.5.2021
 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 892 of 2021
 

 
Applicant :- Vidhan Vyas
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Shad Khan,Shishir Prakash­
 

 
Counsel for Opposite Party :- G.A.,Ramesh Kumar Pandey
 

 
Hon'ble Siddharth,J.

Heard Shri Amit Krishna and Shri Shad Khan, learned counsels for the applicant; Shri Arun Adlkha and Sri Ramesh Kumar Pandey, learned counsels appearing for the informant and learned A.G.A. for the State.

The instant anticipatory bail application has been filed with a prayer to grant anticipatory bail to the applicant, Vidhan Vyas, in Case Crime No. 133 of 2020, under Sections- 376,323,504,506 I.P.C., Police Station- Phase-3, Noida District- Gautam Budh Nagar.

In the First Information Report dated 28.2.2020 there is allegation that informant was employed in a software company and she engaged the applicant, who is an advocate, for working in her company. He gained her

confidence and got some share certificates transferred in his name and became director of her company despite being a lawyer. From February 2018 he started frequenting her house and office and they used to meet outside also. In April 2018 they stayed at Taj Hotel,Chandigarh. The applicant started claiming his personal expenses also from the company. The father of the applicant is a senior journalist and applicant started doing entire work of company from his website. The applicant entered into one sided agreements and caused loss of crores of rupees to the company. Applicant gained confidence of informant on the promise of marriage and sexually exploited her and when she asked him to marry her he avoided. She went to Mumbai,Nepal and Dubai with him .In Nepal he accepted her as his wife at Pashupati Nath temple. When she asked the applicant to talk about the money due to her company from his father , co-accused, Hari Shanker, he used to say that now she is member of his family and how she can talk about the money from his father .Applicant started beating and harassing her and in August ,2019 she broke all ties with

him. When she did not got payment of her company from his father she had to stop working from website of his father, and co-accused, Hari Shankar. Applicant was so annoyed then he threatened her of life. He sent recovery notice of Rs. 2.5 corers to her company and started loose talk against her in the society. He adulterated her drink with some material which effected her ability to understand. He got her pregnancy aborted. On account of influence of his father no help was given to her by her acquaintances. It was finally alleged that applicant has sexually exploited her and made obscene video and threatened her to make it and her photograph viral on internet.

Learned counsel fore the applicant has submitted that First Information Report has been lodged after delay of about two years. In the last week of January,2020 applicant received telephonic call from the Noida Police that a complaint has been made by one Pooja (fictitious name of informant.)The applicant cooperated with investigation and police found that parties have settled their dispute and it appears that both the parties have

some business dispute and report was submitted on 13.2.2020 and matter was closed. The applicant being an advocate was engaged by the company of the informant,namely, Refundme India Services Private Limited, Noida as legal consultant in January 2018.The decision was taken by the informant on behalf of the company being its Managing Director. She is managing director of two more companies namely,Quantumsoftech R &D Private Limited, New Delhi and AVLM Private Limited , New Delhi.The informant is an engineer aged about 32 years and has worked earlier as Business Development Executive in another company and is managing director of the aforesaid two companies and managed huge staff of company and withdrawn handsome salary.The company of the informant entered into an agreement on 19.12.2017 with regard to assistance in business in Civil Aviation Sector. The informant also entered into an agreement with his father, and co-accused, Hari Shanker, on 1.7.2018 regarding presentation on the web portal developer and server manager of City Khabhar mobile application for

consideration of Rs. 40 lacs..The company failed to comply the agreement and closed the website and demand exhorbitant amount of money from his father . On account of default on her part in execution of agreement, applicant's father sent two legal notices and then instituted Civil suit at Kolkata. The applicant was appointed as Additional Director in the company of the informant,namely, Quantumsoftech R &D Private Limited, New Delhi on 31.8.2018 without any salary and he purchased 526 shares by making payment of due consideration. Due to efforts of applicant, informant's company gained huge profits. When applicant realized that informant has causing huge loss to his father by advertising on portal of his father, he tried to extricate himself from the company which was resisted by the informant but ultimately on 13.8.2019 he resigned from the company. The informant did not acted upon his resignation sent by E-mail and behaviour on the part sent an E-mail asking him to return the shares of company. Thereafter present First Information Report was lodged falsely implicating the applicant.

Learned counsel for the applicant has submitted that applicant has been falsely implicated in this case on account of business dispute of the informant with him and his father, co-accused.In the statement of the victim under section 164 Cr.P.c. she has only stated that her name is Akansha alias Ashu but she has changed her name in January. Now her name is Pooja Mathur .She claims that she met applicant on 18.12.2017 for the first time. Thereafter they kept meeting and entered into physical relationship. Applicant married her in Pashupati Nath Temple,Nepal in August 2019.The applicant and his father are threatening her.She became pregnant in 2019 and was given medicine which resulted in abortion. He has submitted that statement of the victim under section 164 Cr.P.c. does not proves any other allegations made in the First Information Report, except that since the year 2017-18 till August 2019, applicant entered into physical relationship with her on the promise of marriage and has refused to live with her.He has further submitted that applicant has already been granted interim anticipatory bail by this court vide order dated 21.1.2021 and he has

not violated the conditions of the order.

Counter affidavit has been filed on behalf of the informant wherein paragraphs of the affidavit in support of the anticipatory bail application have mostly being denied and stated to be based on record but no documentary evidence have been annexed in support of averments.The documents filed on behalf of the applicant annexures to the bail application have been only baldly denied. The allegations in the First Information Report have been reaffirmed and specific objection has been taken regarding non disclosure of source from which applicant received copy of the statement of the victim under 164 Cr.P.c. It is further submitted that custodial interrogation of the applicant is required by the police.He has not cooperated with investigation and therefore interim anticipatory bail granted to the applicant may be cancelled. In the counter affidavit there is no mention in the swearing clause on what basis the averments have been made in different paragraphs. Which paragraph is based on personal knowledge which are on the basis of record and which are on legal advice are not clear. The

swearing clause of counter affidavit is blank. it is defective and not in accordance with law,therefore it can be ignored.

Learned A.G.A has filed counter affidavit in the same manner without filing documents in support of the averments. However counter affidavit has been properly sworn.

After considering rival contentions, this court finds that applicant has been implicated in this case on the basis of business and personal dispute both by the informant. It requires clear investigation by the investigating officer regarding the correctness of the allegation made in the First Information Report. Neither informant nor learned A.G.A. have brought on record any progress report of the investigation. Parties have admitted that investigation is still going on.

The Apex Court in the case of Dhruvaram Murlidhar Sonar Vs. State of Maharastra(2019) 18 SCC,191 has held that conscious decision of the victim to be involved in sexual relationship with accused without pressure or misconception on the part of the accused and

their relationship not involving passive submissions of the victim, offence of rape is not made out.In the case of Shiv Shanker Vs. State of Karnataka(2019) 18 SCC,204,the Apex Court had held that long physical relationship and living with accused informant as husband and wife and subsequent breach of promise of marry will not make out offence of rape.

In the present case victim clearly got involved in sexual relationship with applicant and she also admitted that applicant had married her later in Pashupati Nath temple, Nepal.The allegation of marriage is admitted ,the allegation of rape against the applicant becomes false once marriage is admitted .In case dispute arose between the parties after marriage it cannot be covered by allegation of rape. The allegations regarding offence under sections 323,504,506 I.P.C. are not proved from any documentary evidence.The allegations regarding business dispute between the parties is borne out from the material on record of the anticipatory bail application in the form of more than 15 annexures and there is no documentary evidence on record in rebuttal of the

same.The informant is older in age as compared to the applicant by about five years. From the allegations in the First Information Report itself the applicant did not committed any physical violation of informant against her will and without her consent.Therefore allegation of rape is not made out against the applicant.

In view of the above, interim anticipatory bail granted to the applicant vide order dated 21.1.2021 is confirmed. Applicant will remain on anticipatory bail on same terms and conditions as given in the order dated 21.1.2021 till the cognizance is taken by the court on the police report submitted under section 173(2) Cr.P.C. and summons issued by the court are served on him or till 3.1.2022 whichever is later, in view of the judgment of this Court in Anticipatory Bail Application No.4002 of 2021,Prateek Jain Vs. State of U.P.

The investigating officer of the case is directed to conclude the investigation of this case within a period of three months positively. The findings recorded in this order shall not be relevant for further proceedings and are only tentative.

The anticipatory bail application is allowed to the extent stated above.

Order Date :- 13.5.2021

Atul kr. sri.