Priyanka Juneja vs State Of Upthru Prin.Secy. Home ...
2023 Latest Caselaw 14675 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 12
 
Case :- CRIMINAL MISC. ANTICIPATORY BAIL APPLICATION NO. - 58 of 2022 Petitioner :- Priyanka Juneja
 
Respondent :- State of UP through Prin.Secy.Home and another
 
Counsel for Petitioner :- Prashant Kumar
 
Counsel for Respondent :- G.A., Ratnesh Tripathi, Rupendra Kumar Porwal, 
 

 
Hon'ble Karunesh Singh Pawar,J.

1. The present bail application has been filed by the applicant under Section 438 Cr.P.C. apprehending his arrest in Case Crime No. 574/2021, under sections 409/420/506 IPC, P.S. Gomti Nagar, Lucknow.

2. Heard Ms. Devika Singh, learned Advocate holding brief of Prashant Kumar, learned counsel for the applicant and learned A.G.A. for the State as well as Shri Vivek B Rai, learned counsel for the complainant.

3. Vide order dated 17.01.2022, the coordinate Bench of this Court has passed the following order granting interim protection to the applicant:-

"Heard Mr. Sarvesh Tiwari, Advocate holding brief of Mr. Prashant Kumar, Advocate, learned counsel for the applicant, Mr. Himanshu Suryavanshi, Advocate learned counsel appearing on behalf of the State and Mr. Samir Agrawal, Advocate, learned counsel for the opposite party no.2.

By means of the instant application under Section 438 Cr.P.C., the applicant has prayed for being granted anticipatory bail in F.I.R. No.0574 of 2021, under Sections 409, 420, 506 IPC, Police Station Gomti Nagar, District Lucknow.

On 21.08.2021 an F.I.R. No.0574 of 2021 was lodged against (1) Swapnil Juneja, Promoter and Director of the Company and (2) Priyanka Juneja-the applicant, by a Company-Indian Institute of Educators Private Limited, through its Director Anupam Prakash, Advocate alleging that the informant had entered into some agreement with Neelkanth Infratech India Private Limited (which is now known as Neelkanth Surgical Industries Private Limited) in presence of Swapnil Juneja, Promoter and Director of the Company and his wife Priyanka Juneja-the applicant and as per the agreement a sum of Rs.1,15,00,000/- only was paid to Neelkanth Infratech India Private Limited through an account payee cheque no.106501 dated 15.11.2011, drawn of State Bank of India. Under the agreement, the property-B-102, Vibhuti Khand, Gomti Nagar, Lucknow was kept as security. As per the agreement the amount was to be refunded in 18 months along with interest at the rate of 15 % per annum. However, when the time came, Swapnil Juneja expressed his inability to repay the amount and said that he would repay the amount by 31.03.2016. With the passage of time the intention of Swapnil Juneja turned bad and he did not pay any interest or refund the principal amount and he sold away the property B-102, Vibhuti Khand, Gomti Nagar, Lucknow. The F.I.R. further alleges that Swapnil Juneja and his wife Priyanka Juneja used to take loans from various companies/institutiuons and persons for business and they used to utilize the money either in acquiring the luxurious items or withdraw the amount in their own names and in the name of their firms and thus they used to misappropriate the money.

Learned counsel for the applicant has drawn attention of this court to a copy of the sale deed dated 08.12.2011, through which the property B-102, Vibhuti Khand, Gomti Nagar, Lucknow was purchased by the applicant and her husband Swapnil Juneja and on the strength of the sale deed he submitted that on the date of payment of the amount through cheque dated 15.11.2011, the applicant and her husband had not acquired the aforesaid property and, therefore, the allegation that the aforesaid property had been furnished by them as security for the loan amount is false. He has also placed reliance on the term sheet alleged to have been executed between the parties and has submitted that firstly this term sheet does not bear the date of execution thereof and secondly in Clause-4 thereof, the number of the property "B-102" has been inserted by making interpolation by hand apparently for the reason that on 15.11.2011 the aforesaid property was not owned by the applicant. Learned counsel for the applicant further submitted that the signature of the applicant and her husband on this term sheet have been forged and this term sheet is a fabricated document and in support of his contention he has place reliance on the report dated 10.09.2021 of Sonam Verma, Forensic Expert, in which she has opined against the genuineness of those signatures.

Learned counsel for the applicant further submitted that the informant has lodged three F.I.R.s against the applicant on similar allegations. In F.I.R. No.0720 of 2019 under Sections 420, 409 IPC, Police Station Gomti Nagar, Lucknow this court has already granted anticipatory bail to the applicant by means of an order dated 16.07.2021, passed in Criminal Misc. Anticipatory Bail Application No.6651 of 2021. Regarding another F.I.R. she has filed Anticipatory Bail Application No.1526 of 2021,which is pending consideration in this Court.

Learned counsel for the applicant has submitted that even as per the allegations made in the F.I.R., it arises out of a monetary dispute between two companies-Indian Institute of Educators Private Limited and Neelkanth Infratech India Private Limited (presently known as Neelkanth Surgical Industries Private Limited), for which the informant Indian Institute of Educators Private Limited has already filed an Insolvency & Bankruptcy Application No.470 of 2019 before the National Company Law Tribunal, Allahabad on 4.10.2019. The aforesaid insolvency petition has been admitted by National Company Law Tribunal by means of an order dated 27.02.2020. The National Company Law Tribunal has appointed an interim resolution professional and has directed him to take appropriate steps under the statute and file his report. The aforesaid order also states that "A Moratorium in terms of Section 14 of the Code comes into existing forthwith stating:

(1) (a) the institution of suits or continuation of pending suits or proceedings against the corporate debtor including execution of any judgement, decree or order in any court of law, tribunal, arbitration panel or other authority:

(b) transferring, encumbering, alienating or disposing off by the corporate debtor any of its assets or any legal right or beneficial interest therein;

(c) any action to foreclose, recover or enforce any security interest created by the corporate debtor in respect of its property including any action under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002);

(d) the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor."

Learned counsel for the applicant has submitted that the F.I.R. lodged on 21.08.2021 after expiry of about ten years from the date of payment of amount and after expiry of more than eight years from the alleged date of default in repayment of the amount, when the informant has already initiated insolvency proceedings and his application has already been admitted and appropriate steps in furtherance thereof are underway, is nothing but an abuse of the process of law by giving a colour of criminality to a dispute which is essentially of a civil nature. In support of this contention, learned counsel for the applicant has place reliance on a legal notice dated 11.09.2019 sent by the informant Indian Institute of Educators Private Limited through its Advocate to Neelkanth Surgical Industries Private Limited, the applicant Priyanka Juneja and her husband Swapnil Juneja and the reference of the aforesaid legal notice states that "your letters confirming acknowledgement of debt as on 31.03.2016, 31.03.2017 and 31.03.2018" and has submitted that the alleged dispute is merely of non-repayment of debt amount.

Learned counsel for the applicant has further submitted that the applicant's husband Swapnil Juneja, against whom it is alleged in the F.I.R. that with the passage of time his intention turned bad and he did not pay the amount of interest or refund the principle amount and it is alleged that he sold away the property B-102, Vibhuti Khand, Gomti Nagar, Lucknow, has already been enlarged on bail in FIR/Case Crime No.0574 of 2021, under Sections 409, 420, 506 IPC, Police Station Gomti Nagar, District Lucknow by means of an order dated 02.11.2021, passed by the Additional Sessions Judge, Court No.1, Lucknow in Bail Application No.8003 of 2021.

Mr. Samir Agarwal, learned counsel appearing on behalf of the informant/opposite party no.2 has submitted that the pendency of the insolvency proceedings would not be a bar against the lodging of the F.I.R. as both civil and criminal proceedings can go on simultaneously. He has submitted that till the year 2018-19, the applicant and her husband wrote letters admitting their liability but they have not cleared their liability till date and therefore this F.I.R. has been filed.

In the light of the aforesaid submissions, prima-facie it appears that the informant alleged to have given a sum of Rs.1,15,00,000/- to the Neelkanth Infratech India Private Limited through a cheque dated 15.11.2011, which was to be repaid within a period of 18 months along with interest. Aggrieved by the non-fulfillment of the promise to repay the amount with interest, the informant-company has already initiated insolvency and bankruptcy proceedings before the National Company Law Tribunal and its application has already been admitted and the Interim Resolution Professional is already taking appropriate steps as provided under the law. The F.I.R. dated 21.08.2021 has been lodged after more than 8 years of the alleged date of repayment of the amount and after initiation of insolvency and bankruptcy proceedings and after appointment of Interim Resolution Professional and there is no explanation for the delay. Prima facie it appears that the F.I.R. has been lodged with a view to create undue pressure on the applicant by giving a colour of criminality to a dispute which is essentially of a civil nature. The co-accused Swapnil Juneja has already been enlarged on bail by the learned Sessions Judge, Lucknow.

Considering the aforesaid facts, I am of the view that pending disposal of the application, the applicant deserves to be granted an ad-interim protection. Therefore, it is provided that in the event of arrest of the applicant, namely, Priyanka Juneja in the aforesaid case, she shall be released forthwith by the Station House Officer of the police station concerned, on her furnishing personal bond of Rs.1,00,000/- with the following condition:-

(i) That the accused-applicant shall make herself available for interrogation by police authorities as and when required and will cooperate with the investigation;

(ii) That the accused-applicant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; and

(iii) That the accused-applicant shall not leave India without the previous permission of the Court.

However, it is directed that the applicant will join and participate in each and every aspect of Investigation and will lend full assistance to the Investigating Agency, even with regard to 'discovery of fact' if and when required so by the Investigating Agency.

Learned Additional Government Advocate as well as learned counsel for the complainant may file their counter affidavits within three weeks from today. In case counter affidavit is filed, the applicant shall file her rejoinder affidavit, if any, within one week thereafter.

List immediately thereafter. "

4. Learned counsel for the applicant submits that the applicant has not misused the liberty granted by the Court. She has cooperated in the trial. Charge sheet has been filed in the case. Offences are triable by magistrate. The applicant has no previous criminal history.

5. Learned A.G.A. as well as learned counsel for the complainant has vehemently opposed the bail application, however, could not dispute the fact that two civil proceedings are going on between the parties at Commercial Court, Lucknow.

6. On due consideration to the submissions advanced, perusal of the record so also the fact that prima facie the dispute appears to be civil in nature; insolvency petition is pending before the competent court; she has cooperated in the investigation and she will cooperate in the trial, so also the observation made by this Court in judgment and order dated 04.10.2021 passed in bail No. 3666 of 2021, it would be expedient in the interest of justice that the liberty of the applicant may be protected in view of dictum of Apex Court in re: Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98.

7. In view of the above, since, charge-sheet in the matter has been filed, the accused applicant is directed to surrender before trial court, if he is summoned to face trial for offence in question. The accused applicant shall be released on bail by the trial court on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the trial court concerned with the following conditions:-

(i) The applicant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or tamper with the evidence;

(ii) The applicant shall not leave India without the previous permission of the court;

(iii) The applicant shall not pressurize/ intimidate the prosecution witness;

(iv) The applicant shall appear before the trial court on each date fixed unless personal presence is exempted;

(v) In case of breach of any of the above conditions the court below shall have the liberty to cancel the bail;

Any other reasonable restrictions/conditions which the trial court may deem fit and proper can be imposed.

It is made clear that the observations made in granting bail to the applicant shall not in any way affect the trial Judge in forming his independent opinion based on the testimony of the witnesses.

In view of the aforesaid, the application is allowed.

Order Date :- 08.05.2023

R.C.