Allahabad High Court
Chetan Arora vs State Of U.P. Thru. Prin. Secy. ... on 27 February, 2023
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 134 of 2023
Applicant :- Chetan Arora
Opposite Party :- State Of U.P. Thru. Prin. Secy. Deptt. Of Home Lko. And Another
Counsel for Applicant :- Vaibhav Upadhyay,Rudra Pratap Singh
Counsel for Opposite Party :- G.A.,Fuhar Gupta,Prashant Kumar
Hon'ble Karunesh Singh Pawar,J.
Heard learned Counsel for the applicant and learned A.G.A. for the State/respondent, learned counsel for the complainant as well as perused the record.
This Court vide order dated 20.1.2023 while granting interim protection has passed the following order:-
"The present bail application under Section 438 Cr.PC. has been filed seeking anticipatory bail in case crime No. 417/2022, under Sections 406/420/467/468/471 I.P.C., P.S. Gomti Nagar, District Lucknow.
Heard learned counsel for the applicant, learned A.G.A. for the State as well as Shri Fuhar Gupta, learned counsel for the complainant at some length.
The prosecution case in the F.I.R. is that some transaction of money amounting to Rs. 1,00,00,000/- took place which is alleged to have been paid to the applicant on 05.12.2018 at the house of Gurmeet Singh Sahni the friend of the complainant. The F.I.R. further alleges that the applicant Chetan Arora was further paid a sum of Rs. 68,00,000/- in presence of the complainant on 10.11.2018 again on resident of Gurmeet Singh Sahni an agreement to sell was entered between the parties on 11.12.2018 wherein a mention is made that Rs. 10,00,000/- was towards part consideration.
Learned counsel for the applicant further submits that first of all the complainant has nothing to do with the present case. It is primarily a civil dispute between the petitioner and one Gurmeet Singh Sahni who is alleged to have entered into an agreement to sell. The actual dispute, even if the entire allegations in the F.I.R. are treated to be correct, is regarding recovery of money and for that a civil suit for recovery could have been filed or a suit for specific performance of contract dated 11.12.2018 would have been filed. The F.I.R. has been lodged only for the purposes of arm twisting so that the applicant may be pressurized.
In support of his contention, he has relied on the judgment of the Apex Court passed in the case of "Bimla Tiwari Vs. State of Bihar and others, SLP (Crl) Nos. 834/835 of 2023".
Learned counsel for the complainant submits that as a security, six sale deeds of some different plots were given by the applicant to Gurmeet Singh Sahni and it was promised by the applicant that when the transaction is complete i.e. when the final sale deed is executed, these documents will be returned. It is also submitted that the applicant has been given money in lieu of executing the agreement which he has not done and has committed the offence by cheating.
Learned counsel for the applicant further submits that he will cooperate in the investigation. The applicant has no criminal history.
Learned A.G.A. as well as learned counsel for the complainant prays for and is granted ten days time file counter affidavit.
List thereafter.
The Apex Court in the case of Bimla Tiwari (supra) in para graph 10 and 11 has observed that F.I.R. for the purposes of recovery of money is not permissible. It has been clearly held that the process of criminal law cannot be utilized for armed twisting and recovering of money. Relevant para No. 10 and 11 are extracted below:-
"10. We would reiterate that the process of criminal law cannot be utilised for arm-twisting and money recovery, particularly while opposing the prayer for bail. The question as to whether pre-arrest bail, or for that matter regular bail, in a given case is to be granted or not is required to be examined and the discretion is required to be exercised by the Court with reference to the material on record and the parameters governing bail considerations. Putting it in other words, in a given case, the concession of pre-arrest bail or regular bail could be declined even if the accused has made payment of the money involved or offers to make any payment; conversely, in a given case, the concession of pre-arrest bail or regular bail could be granted irrespective of any payment or any offer of payment.
11. We would further emphasize that, ordinarily, there is no justification in adopting such a course that for the purpose of being given the concession of pre-arrest bail, the person apprehending arrest ought to make payment. Recovery of money is essentially within the realm of civil proceedings."
Considering the above aspect of the matter, perusal of the record as well as the fact act that the dispute is primarily civil in nature and the judgment of the Apex Court in the case of Bimla Tiwari (supra), so also the fact that the applicant has no criminal antecedents; he is not a previous convict and he will cooperate in the investigation as also the judgment of Apex Court passed in Sushila Aggarwal and others versus State (NCT of Delhi) and another (2020)5 SCC 1, it would be appropriate to grant interim protection to the applicant under Section 438 Cr.P.C.
Till the next date of listing, it is provided that in the event of arrest, the applicant shall be released on bail on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the arresting officer/I.O./S.H.O. concerned.
The applicant shall cooperate in the investigation and he will not influence the witness. The accused-applicant will remain present as and when the arresting officer/I.O./S.H.O. concerned call(s) for investigation/interrogation. The applicant shall not leave India without previous permission of the Court.
In case of default, it would be open for the investigating agency to move application for vacation of this interim protection
Order Date :- 20.1.2023."
Learned counsel for the applicant submits that in compliance of the order passed by this Court, the complainant has appeared before the Investigating Officer. His statement under Section 161 Cr.P.C. has been recorded he has been enlarged on anticipatory bail by the arresting officer/investigation officer. He further undertakes to cooperate in the investigation. The applicant has no criminal history.
Learned A.G.A. as well as learned counsel for the complainant have vehemently opposed the bail prayer.
On due consideration to the arguments advanced; perusal of the record, so also the fact that the applicant has no criminal antecedents and he has cooperated in the investigation and further undertakes to cooperate in the investigation so also considering the judgement of "Bimla Tiwari Vs. State of Bihar and others, SLP (Crl) Nos. 834/835 of 2023 (supra), the anticipatory bail application is liable to be allowed.
In view of the above, as also keeping in view of the fact that the investigation is going on, the interim order dated 20.1.2023 is affirmed. The accused applicant shall continue to remain on anticipatory bail till filing of the police report under Section 173 Cr.P.C., subject to his cooperation in the investigation and fulfillment of the conditions given in the above extracted order dated 20.1.2023.
The application is allowed accordingly.
Order Date :- 27.2.2023
Madhu
