Chattisgarh High Court

Ku. Urja Jain vs State Of Chhattisgarh on 21 March, 2022

                                                        NAFR

      HIGH COURT OF CHHATTISGARH, BILASPUR
              MCRCA No. 235 of 2022
Ajay Jain, S/o Late Anoop Chand Jain, aged about 58 years,
R/o 5B/C, 109, Marlin Jaishree Vihar, Pandri Tarai, Devendra
Nagar, Raipur, CG
                                               ---- Applicant
                        Versus
State of Chhattisgarh through the Station House Officer,
Police station Telibandha, District Raipur, CG.
                                            ---- Respondent

MCRCA No. 340 of 2022

Sidharth Munat, S/o Rajkumar Munat, aged about 36 years, R/o House No. 7/A, Sudha Hospital Road, Talwandi, IL Colony, Kota, Rajsthan - 324005

---- Applicant Versus State of Chhattisgarh through the Station House Officer, Police station Telibandha, District Raipur, CG.

---- Respondent

MCRCA No. 197 of 2022

Ku. Urja Jain, D/o Shri Ajay Jain, aged about 25 years, R/o 5- B/C 109, Merlin Jaishree Vihar, Pandri Tarai, Devendra Nagar, Raipur, District Raipur, CG

---- Applicant Versus State of Chhattisgarh through the Station House Officer, Police station Telibandha, District Raipur, CG.

---- Respondent MCRCA No. 257 of 2022

Ashok Jain, S/o Late Anoop Chand Jain, aged about 61 years, R/o DL-53, Sector -II, Kolkata - 700091, District North 24 - Parganas, West Bengal

---- Applicant Versus State of Chhattisgarh through the Station House Officer, Police station Telibandha, District Raipur, CG.

---- Respondent

For Applicants - Shri Kishore Bhaduri Sr. Advocate with Shri Ishan Verma Advocate, Shri Prafulla Bharat Sr. Advocate with Shri Akash Pandey Advocate

For State - Shri Ali Asgar Dy. AG and Shri B.P.

Banjare, Dy. GA

For Objector - Shri Pushpendra Patel, Adv.

Order on Board by Hon'ble Shri Justice Deepak Kumar Tiwari

21/03/2022

Since all the four aforesaid applications under Section 438 of

the Code of Criminal Procedure arise out of same Crime No.

36/2022 registered at Police Station Telibandha, Raipur for the of-

fence punishable under Sections 120-B, 409 and 420 IPC, they are

disposed of by this common order.

2. Case of the prosecution in brief is that the complainant

lodged an FIR on 23.1.2022 alleging that the accused/applicants

are the Directors and Shareholders of the Company in the name

and style of Seirra Infraventure Pvt. Ltd (henceforth referred to as

"SIPL" for brevity). The Directors and Shareholders of SIPL, those of

Seirra Mining Pvt. Ltd. and those of Padmavati Abasan Pvt. Ltd, the

witness to Memorandum of Understanding (MoU for convenience)

and the applicants are closely related to each other. They all

together are alleged to have proposed to sell out all the aforesaid

three Companies to the Objector/Complainant for a tentative

consideration of Rs. 50 Crores and for that a MoU was signed on

21.2.2020. As per the said MoU the complainant was to pay Rs. 1.5

Crore as initial capital assistance either to SIPL or any of its debtors by 31.3.2021 whereas he had paid an amount of Rs. 1.36 Crores in

between 24.2.2020 and 12.3.2020. It is alleged that the

complainant demanded relevant financial documents and transfer

of share certificate of the aforesaid companies which however was

delayed by the accused persons. Subsequently, on an information

obtained by the complainant regarding financial documents

pertaining to sale of the afoesaid three companies, it is alleged to

have been revealed that SIPL had the liability of 95 Crores and that

all its shares were already under pledge with Srei Equipment

Finance Ltd since 2017. It is alleged that the only intention of the

accused persons behind not disclosing this information was to

cheat him for the invested sum, and therefore, the offences

referred to above were registered against them. It is further alleged

that on persistent demands made by the complainant, the accused

persons have paid only Rs. 37 lakhs but the remainder met with

refusal by them.

3. Counsel appearing for the applicants submit that the

applicants are innocent and have been roped in a false and

fabricated case, and that the elements as appear from the

documents on record only form a case not beyond the one of civil

nature. They submit that the complainant himself has not adhered

to the terms of the MoU which says that in case of any dispute

having arisen, the same shall be referred to arbitration by a sole

arbitrator to be appointed jointly by the parties. According to the

counsel for the applicants, every transparency has been taken care

of in the dealings. It is submitted that clause 6 of the MoU provides

to every party a right to access to the information that is

confidential and/or commercially valuable, and thus there is no

question of any suppression or otherwise. Even the debts of the company have been explained to the proposed buyer i.e. the

complainant, and in clause 5 of the MoU it has been mentioned that

from the date of first capital infusion of Rs. 1.5 Crores all payments

received from Adani Enterprises Ltd., Adani Capital Ltd. will either

be paid to SIPL or/and to its vendors or/and any company/entity

decided by the complainant, and in pursuance thereof the

complainant himself has paid Rs. 01 Crore to Srei Equipment

Finance Ltd., and thus intention of the parties has been very clear

that they are interested to work together for the purposes

described in the MoU. They submit that in terms of clause 10 (a) (I),

in the event of termination of MoU, neither party will incur any

financial liability to the other party under the MoU. They further

submit that as the commercial dispute is involved in the case, in

view of the guidelines provided by the Apex Court in the matter of

Lalita Kumari v. Government of Uttar Pradesh and others reported

in (2014) 2 SCC 1, a preliminary inquiry is mandatory but in this

case nothing like this has been done, and straightaway the FIR has

been registered, and in all this view of the matter the applicants

are entilted for anticipatory bail.

4. Counsel for the State however opposes the applications for

anticipatory bail and submits that looking to the serious

ramifications of the case, such a pre-arrest relief cannot be granted

to the applicants.

5. Counsel for the objector/complainant submits that the

applicants had hatched a conspiracy to sell out the three

companies to the complainant by suppressing the material facts

and obtained Rs. 1,36,00,000/- dishonestly though shares of the

companies were pledged. He submits that the applicants are the habitual offenders and one more similar case is pending against

them vide FIR No. 0164 registered at police station Sirgitti, Bilaspur

for the offence punishable under Sections 409, 420, 34 IPC.

6. Answering to this objection, counsel for the applicants

submits that in CrMP No. 441/2020 the matter has been stayed in

which the complainant - RK Automotives has already obtained a

decree from MSME vide judgment dated 14.9.2021 and now in

stead of applying for execution of the same, he has wrongly lodged

the FIR.

7. After hearing counsel for the parties and going through the

documents on record including the MoU signed on 21.2.2020, it is

manifest that the complainant had deputed Mr. Amit Kumar as his

representative who was also given several rights for change of the

management, and even on behalf of SIPL Mr. Ashok Jain had sent

an e-mail to Srei informing about the negotiations with the

proposed buyer/interested investor for necessary clearance and an

amount has been paid by the complaint himself to the tune of Rs.

01 Crore. In (2006) 6 SCC 736 - Indian Oil Corporation v. NEPC India

Ltd. Apex Court has observed the tendency of the litigant to adopt

the shortcut of converting civil dispute to criminal one. Relevant

portion of the said decision reads as under:

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, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangles in a criminal prosecution , there is 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.

8. In another case of Mridaya Ranjan Prasad Verma and others

v. State of Bihar and another reported in (2000) 4 SCC 168, it has

been held that the distinction between mere breach of contract and

cheating which is a criminal offence, is a fine one. While breach of

contract cannot give rise to criminal prosecution for cheating,

fraudulent or dishonest intention is the basis of the offence of

cheating. In this case, in the FIR, there were allegations of

fraudulent and dishonest intention including allegations of

fabrication of documents, the correctness or otherwise whereof can

be determined only during trial when evidence is adduced.

9. Further, in the matters like the present one where the dispute

involved appears to be a commercial one, a preliminary inquiry

should have been conducted before directly registering the FIR, as

has been held by the Apex Court in the matter of Lalita Kumari

(supra). Relevant portion reads as under:

"As to what type and in which cases preliminary inquiry is to be conducted will dependon the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:

      (a)      Matrimonial disputes/family disputes
      (b)      Commercial offences
      (c)      Medical negligence cases
      (d)      Corruption cases
      (e)      Cases where there is abnormal delay/laches in
     initiating      criminal prosecution, for example, over three
     months'        delay   in    reporting      the   matter     wihtout
     satisfactorily explaining the          reasons for delay."

Thus keeping in view the aforesaid factual and legal proposition,

this Court is of the considered opinion that it is a fit case where the

applications for anticipatory bail filed by the applicants can be

allowed. Accordingly, the applications are allowed. It is directed

that in the event of arrest of the applicants in connection with

aforesaid crime number, they shall be released on bail on each of

them furnishing a personal bond in the sum of Rs. 50,000/- (Fifty

thousand) with one surety for the like sum to the satisfaction of the

concerned arresting/investigating officer, with the following terms

and conditions:

(I) that the applicants shall make themselves available for

interrogation before the concerned investigating officer as and

when required;

(ii) that the applicants 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/her from disclosing such

facts to the Court or to any police officer;