Amit Digvijay Singh vs State Of U.P.Thru. Prin. Secy. ...
2022 Latest Caselaw 20621 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 27
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12444 of 2022
 

 
Applicant :- Amit Digvijay Singh
 
Opposite Party :- State Of U.P.Thru. Prin. Secy. Home Lko.
 
Counsel for Applicant :- Ranjana Agnihotri,Ishan Baghel,Ranjana Agnihotri,Sudha Sharma
 
Counsel for Opposite Party :- G.A.,Sunil Kumar Singh
 

 
Hon'ble Shree Prakash Singh,J.

1. Heard Sri I.B. Singh, Senior Advocate assisted by Sri Ishan Baghel, learned counsel for the applicant, Sri Sunil Kumar Singh, learned counsel for the informant and Sri Aniruddh Kumar Singh, learned AGA-I for the State and perused the record.

2. Instant bail application has been filed with a prayer to release the applicant on bail during the trial in Case Crime No. 308 of 2020, under Sections 406, 420 and 423 IPC, Police Station- Vibhuti Khand, District Lucknow.

3. As per the version of the first information report, one Anand Kumar Singh resident of Chitrakoot, Guru of the complainant introduced him to the applicant and they met at Hotel Jupiter at Nasik and entered into a business deal and thereafter Memorandum of Understanding was signed on 03.06.2011 and later on, when the complainant acted upon as per the business deal, he was cheated by the applicant and amount in crores were duped.

4. Learned counsel appearing for the applicant contends that the applicant is innocent and he has falsely been implicated in the instant matter. He submits that the instant FIR has been lodged after passing of 5 years as the date of incident is of 7th July, 2011 and the FIR has been lodged on 31st May, 2016. He added that an agreement was signed in between the present applicant and the informant on 03.06.2011 for a business deal which was with respect to the property. While executing the aforesaid agreement, there was an arbitration Clause i.e. Clause No.7 which says that in case of any dispute between the parties, the matter shall be referred to the arbitrator. He submits that if the complainant feels that there is dispute and he is aggrieved with any act of the present applicant, he has remedy to approach the arbitrator as per Clause 7 of the agreement. On the place of approaching the arbitrator, the complainant with a view to mount pressure, has lodged the instant FIR and has given a colour of criminality to the instant matter, which is purely civil in nature. Adding his argument, he submits that it is not a case where the parties were not acquainted with each other but they knowing fully well, had entered into an agreement and it seems that informant had some problem and thus, he lodged the instant FIR rather proceeding in the civil mode.

5. He further contends that initially the charge sheet was submitted by the Investigating Officer on 7th February, 2017, under Section 423 IPC. Later on, on 22nd May, 2017, the new Investigating Officer, while rejecting the first charge sheet, filed another charge sheet under Sections 406, 420 and 467 IPC. Since the charge sheet has been filed, there is no possibility of his fleeing away from investigation proceedings and tampering with the evidence. He next submits that ingredients of Sections 406, 420 IPC do not attract in the instant matter.

6. He next submits that the Clause-1 of the MoU/Agreement is evident that the property in question does not belong to the applicant and the applicant had agreed to purchase the land on the joint ventures suggested by the informant and the share was also determined as per the ratio of 75:25. Out of agreed payable amount Rs.6.50 crores, the informant allegedly paid Rs. 1.55 crore and thus, prima facie violated the terms and conditions of the MoU/ agreement. He further submits that it is an admitted fact that in the supplementary affidavit filed by the informant, loan which was taken by the company could not be paid well within time due to unwillingness of the two directors namely Kavya Amit Singh and Sundok Agrawal. He also added that this fact has also not been denied that the loss was incurred in the business and thereafter, the dispute arose and now the fact is that bank has initiated proceedings under SARFAESI Act at DRT, Mumbai. He added that with a view to escape himself from the financial liability, the informant has shifted the burden upon the present applicant. He next added that the applicant initially moved an application for discharge before the CJM, Lucknow which was rejected and thereafter filed an Application 482 Cr.P.C. No. 3485 of 2021 before this Court, wherein this Court has passed the order and given liberty to the present applicant to approach the lower court and the court concerned was directed to consider his case in the light of the ratio of the judgment of Statendra Kumar Antil vs Central Bureau of Investigation and others; SLP(Crl) No. 5191 of 2021. He submits that without considering the guidelines framed in the Satendra Kumar Antil's case, the learned trial court rejected the bail application of the applicant and sent him to jail.

7. Adding his argument, he submits that the conduct of the informant is very dubious and he is notorious person, as there are several criminal history against the informant including the charge of Section 307 IPC, Arms Act and duping the amount of innocent persons.

8. He also added that the applicant is a law abiding citizen and he is languishing in jail since 18.10.2022. He further undertakes that in case he is granted bail, he will not misuse the liberty of bail and will co-operate in the trial proceedings.

9. On the other hand, learned counsel for the informant has vehemently opposed the contentions aforesaid and submits that the applicant has committed cheat and fraud with the informant and has duped the amount in crores of rupees. He added that false statement has been made in para 19 of the bail application that there is no previous criminal history of the applicant though it is evident from the affidavit filed by the applicant that there are several cases instituted against the applicant and the applicant is an accused in those cases. He further added that the applicant had taken advance from the first informant and then executed the agreement. He submits that huge money has been paid to the applicant as the applicant at the first hand had won the trust of the informant and thereafter, he committed cheat with the informant and has not only duped money of the informant but has also got fasten the liability of loan over the informant. He further submits that the memorandum of understanding is not tenable and illegal as the same was executed not with the fair hands as the land which was shown free from all encumbrances was not so as stated. He next added that the present applicant is highly influential person and there are every chances that after being released on bail, he will abscond and tamper with the evidence and shall harass the witnesses. In view of the aforesaid submissions, the applicant is not entitled for bail.

10. Per contra, learned AGA for the State has also vehemently opposed the contentions of counsel for the applicant and supported the versions of counsel for the informant and submits that the present applicant is involved in committing the offence which itself evident from narration of the FIR as such the applicant is not entitled for any relief.

11. Considering the submission of learned counsel for the parties and after perusal of record, it is evident that an MoU/ agreement was signed between the parties on 03.06.2011 and the applicant and informant undertake that the applicant and informant were well known with each other and as such they had entered into an agreement for running a business. Further from bare perusal of the MoU/ agreement dated 3.06.2011 is evident that there is an arbitration clause i.e. Clause no.7 which clearly speaks that in case of any dispute between the parties either party shall approach the arbitrator. The contents of the FIR indicate that the dispute arose between the parties with respect to the land in question which was subject matter of the agreement and it prima facie indicates that the instant matter is a dispute of civil in nature and the informant is trying to give colour of criminality. Further this Court has noticed that the date of incident as per the averment is 7th July, 2011 and the instant FIR has been lodged after passing of about 5 years i.e. on 1st May, 2016 which shows that same has been lodged afterthought and it also indicates that once the informant could not succeed to decide his dispute by a court of civil competence, he lodged the instant FIR with a view to mount pressure over the applicant. It has also borne out from the argument of counsel for the parties that initially charge sheet was submitted on 7th February, 2017, under Section 423 IPC but later on, on 22nd May, 2017, a new Investigating Officer came and he rejected the earlier charge sheet and filed a charge sheet under Sections 406, 420 and 407 IPC.

12. Prima facie, this Court does not find any cogent piece of evidence and other substantial evidence which could show any criminal intent of the present applicant for committing the offence as has been alleged in the first information report. He next submits that charge sheet has been filed in the instant matter and there is no possibility of his fleeing away from trial proceedings and tampering with the evidence. The applicant is languishing in jail since 18.10.2022. This court also feels that the civil dispute, if any, can be raised before the court of civil competence and that cannot be dealt with by lodging the first information report.

13. This Court has further noticed that there is a growing tendency in the business circles to convert purely civil disputes into criminal cases so as to unnecessary harass the common man by giving a criminal colour to civil dispute(s). In this context, Hon'ble Supreme Court in the case reported in (2014)10 SCC 663 Binod Kumar and others versus State of Bihar and another while relying on Indian Oil Corporation versus NEPC India Limited (2006) 6 SCC 736 held in paras 10 and 11 as under :

"10. In Indian Oil Corporation versus NEPC India Limited, this Court has summarized the principles relating to exercise of jurisdiction under Section 482Cr.P.C. to quash complaints and criminal proceedings as under:-(SCC pp. 747-48, para 12)

"12.The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by this Court in several decisions. To mention a few- Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre(1988) 1 SCC 692,State of Haryana v. Bhajan Lal,1992 Supp (1) SCC 335;Rupan Deol Bajaj v. Kanwar Pal Singh Gill(1995) 6 SCC 194,Central Bureau of Investigation v. Duncans Agro Industries Ltd(1996) 5 SCC 591;State of Bihar v. Rajendra Agrawalla(1996) 8 SCC 164,Rajesh Bajaj v. State NCT of Delhi,(1999) 3 SCC 259;Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd(2000) 3 SCC 269 [pic]Hridaya Ranjan Prasad Verma v. State of Bihar(2000) 4 SCC 168,M. Krishnan v. Vijay Singh(2001) 8 SCC 645 andZandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque( 2005) 1 SCC 122. The principles, relevant to our purpose are:

(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out: (a) purely a civil wrong; or

(b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

"11. Referring to the growing tendency in business circles to convert purely civil disputes into criminal cases, in paragraphs (13) and (14) of the Indian Oil Corporation's case (supra), it was held as under:-

"13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, [pic]leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sugar Suri v. State of U.P., this Court observed : (SCC p. 643. para 8)

''8....It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.'

14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."

(Emphasised by me)

14. Thus, considering the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and without expressing any view on the merits of the case, I find it to be a fit case for bail.

15. Let the applicant- Amit Digvijay Singh involved in the aforementioned crime be released on bail, on his furnishing a personal bond and two sureties each in the like amount, to the satisfaction of the court concerned, with the following conditions:-

(1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial;

(2) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. He shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code;

(3) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C.; and

(4) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code.

The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.

It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case.

Order Date :- 12.12.2022

A.Kr*