Chattisgarh High Court

Jaipal Singh Gulati vs State Of Chhattisgarh on 16 September, 2021

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                                                                                        NAFR

                 HIGH COURT OF CHHATTISGARH, BILASPUR
                                 MCRCA No. 1089 of 2021
             Jaipal Singh Gulati S/o Shri Preetam Singh Gulati, aged about
             44 years, R/o Purana Bus Stand, Korba District Korba
             Chhattisgarh (Director of Paynet Brandband Services Private
             Limited).
                                                                             ---- Applicant
                                             Versus
             State of Chhattisgarh through the Station House Officer, Police
             Station Manendragarh, District Koriya Chhattisgarh.
                                                                      ---- Non-applicant
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For Applicant : Shri Abhisek Sinha, Senior Advocate with Shri Aditya Pandey, Advocate For Non-applicant/State : Shri B.P. Banjare, Dy. Govt. Advocate

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Hon'ble Shri Justice Parth Prateem Sahu Order on Board 16.09.2021

1. The applicant has preferred this first bail application under Section

438 of the Cr.P.C. for grant of anticipatory bail, as he is

apprehending his arrest in connection with Crime No.230 of 2020,

registered at Police Station Manendragarh, District Koriya,

Chhattisgarh for offence punishable under Sections 409, 420,

120-B with 34 of Indian Penal Code.

2. Case of the prosecution in brief, is that, complainant lodged a

written report on 04.07.2020 stating therein that complainant

entered into an oral contract with Paynet Broadband Services

Private Limited (Party No.2) for supply of 25,000 set-up box. Each

set-up box having the value of Rs.1,560/-. Contract was oral.

Based on the order of contract, he deposited Rs.1 Lac vide

cheque No.0039/18 with Party No.2. thereafter, as stated by other

co-accused Manoj Ubweja and Santosh Pandey, he has

deposited the amount with Party No.2 and other Company i.e.

Vande Matram Cable Netwrok Company (Party No.3). He has

deposited total amount of Rs.3,86,31,000/- with Party No.2 and

Party No.3. Party No.2 supplied 12,000 set-up box having its

value of Rs.1,87,20,000/-, but have not supplied rest of 13,000

set-up box as agreed even when amount of Rs.1,99,11,000/- is

deposited with Party No.2 and Party No.3. When complainant

asked them to supply the balance set-up box, they gave evasive

reply. He has also contacted with the officials of the Company at

Delhi but they also gave evasive reply to complainant.

Complainant was cheated by applicant and other co-accused

persons, neither supplied the remaining set-up box nor refunded

Rs.1,99,11,000/- to the complainant. Based on the complaint, First

Information Report was registered on 06.07.2020 for the

aforementioned offences against the applicant and other six co-

accused persons.

3. Shri Abhishek Sinha, learned senior counsel for the applicant

would submit that from perusal of contents of First Information

Report itself, it is apparent that allegation levelled against the

applicant and other co-accused persons is that applicant entered

into oral contract with Party No.2. As per oral contract,

complainant deposited certain amount and part of agreed contract

has been complied with by supplying 12,000 set-up box to the

complainant. He further submits that apart from the set-up box,

Party No.2 has supplied other articles like cable, remote etc. and

total material supplied by the Company is more than the amount

as allegedly deposited by the complainant and Company has

made demand of balance of amount outstanding on the

complainant, which was not paid to the Company. He pointed out

that complainant has not filed complaint with clean hands, he has

suppressed material facts that complainant himself is one of the

partner of Party No.3. Complainant entered into new partnership

and executed partnership deed along with three other partners

including applicant as Partner No.4 on 16.04.2019, which is after

the period of commission of alleged crime as stated by the

complainant against the accused persons therein including the

applicant. It is contended that there was no occasion for the

complainant to enter into the fresh partnership deed with the

applicant when in any manner applicant has cheated the

complainant. It is further contended that in the new partnership

deed executed on 16.04.2019, applicant No.4 is the major share

holder of 40% and other three partners are having the share of

20% each, which itself shows that allegation levelled against the

applicant is false and frivolous. He argued that dispute is a

business dispute between the complainant and applicant of

settling of accounts. From the contents of complaint itself, it is

apparent that the dispute is of civil nature. There is no criminality

attached on the action of applicant even there is no specific

allegation levelled against the applicant that he has transferred

any amount to applicant in person and applicant has

misappropriated any amount deposited by complainant with the

Company. He further argued that to constitute the offences

alleged against him, there should be some individual act of

applicant, in the complaint which is lacking. For commission of

cheating, there should be an intention of person against whom the

allegation of cheating is alleged that he has the intention to cheat

the person from inception of the entering into the contract, which

is also not there. Allegations are that complainant deposited

money with Company for supply of goods part of which he

received. Goods supplied to the complainant is of more value then

the amount deposited by him. Amount is outstanding against

complainant. He places reliance upon the judgment rendered by

Hon'ble Supreme Court in case of Uma Shankar Gopalika v.

State of Bihar and Another reported in (2005) 10 SCC 336. He

further submits that as per the allegations levelled in the complaint

and First Information Report, all the deposits is being made in the

account of the Party No.2 and further contract is also with Party

No.2, hence, applicant cannot be prosecuted in individual

capacity. He places reliance upon the judgment passed by

Hon'ble Supreme Court in case of Sushil Sethi and Another v.

State of Arunachal Pradesh and Others reported in (2020) 3

SCC 240 in support of his submission. He lastly pointed out that

one of the co-accused, by name, Randhir Pandey has been

enlarged on regular bail by co-ordinate Bench of this Court in

MCRC No.632 of 2021 vide order dated 02.06.2021.

4. Per contra, Shri B.P. Banjare, learned Deputy Government

Advocate representing the State opposing the submissions made

by learned senior counsel for the applicant, would submit that

period of commission of offence is from 01.01.2015 to 03.06.2018.

Complainant in view of oral contract between complainant with

Party No.2 has deposited huge amount of Rs.3,86,31,000/- and

complainant has supplied the set-up box having value of

Rs.1,87,20,000/- only. Major portion of amount is still lying with

Party No.2, of which, applicant is one of the Director. He further

submits that Party No.2 neither supplied remaining 13,000 set-up

box, nor refunded the money.

5. Upon putting specific query with regard to nature of contract, cost

of material to be supplied and total quantity of material to be

supplied is written and signed by the parties and available in the

case diary or not, learned State counsel submits that no such

document is available in the case diary at present.

6. I have heard learned counsel for the parties.

7. Taking into consideration entire facts and circumstances of the

case, nature of allegations against the applicant, particularly the

fact that as per case of the complainant himself, out of amount

deposited by him, Party No.2 has supplied 12,000 set-up box and

for balance amount of Rs.1,99,11,000/-, Party No.2 has not

supplied the set-up box as orally agreed, whereas case of the

applicant projected is that they have supplied the articles/products

of value more than the amount deposited by the complainant.

Except oral allegation there is no material to show that applicant

has not supplied the articles of the value alleged, further

considering that Party No.2 has supplied the products. In

complaint it is mentioned that part of goods was supplied to

complainant, without commenting anything into the merits of the

case, I am inclined to release the present applicant on anticipatory

bail.

8. Accordingly, bail application is allowed and it is directed that in the

event of arrest of the applicant in connection with the aforesaid

offence, he shall be released on anticipatory bail on his furnishing

a personal bond for a sum of Rs.25,000/- (Rupees Twenty Five

Thousand only) with one surety in the like sum to the satisfaction

of the arresting officer and he shall be abide by the following

conditions :-

(i) he shall make himself available for interrogation by a

police officer as and when required;

(ii) he 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.