Chattisgarh High Court

Sajju Sonwani vs The State Of Chhattisgarh on 17 February, 2023

                                                                        NAFR
              HIGH COURT OF CHHATTISGARH, BILASPUR
                             MCRCA No.1499 of 2022
      Ritesh Gajbhaiye S/o Rajkumar Gajbhaiye Aged About 32 Years R/o
      Mahadev Nagar Ward Number 13, Gaurinagar, Police Chowki Chikhli,
      District- Rajnandgaon, Chhattisgarh.
                                                                ---- Applicant
                                   Versus
      State Of Chhattisgarh Through Aarkshi Kendra Kotwali, District-
      Rajnandgaon, Chhattisgarh.
                                                             ---- Respondent

MCRCA No. 1551 of 2022 Sajju Sonwani S/o Mahesh Sonwani Aged About 35 Years R/o 158, Near Solah Kholi, Station Para, Police Station Kotwali, Rajnandgaon, District Rajnandgaon (C.G.) --Applicant Versus The State Of Chhattisgarh Through Aarkshi Kendra Kotwali District Rajnandgaon, Chhattisgarh

---- Respondent MCRCA No. 1641 of 2022 Ritesh Gajbhiye S/o Rajkumar Gajbhiye Aged About 32 Years R/o Gauri Nagar, Mahadev Nagar, Rajnandgaon, Tahsil / District Rajnandgaon Chhattisgarh ---- Applicant Versus The State Of Chhattisgarh Through Incharge Of Police Station - Kotwali, District Rajnandgaon Chhattisgarh ---- Respondent

For Respective Applicants : Mr. Pankaj Singh and Mr. S.S.Baghel, Advocates For State : Mr. Avinash K. Mishra, G.A.

For Complainant in all the cases : Ms. Renu Kochar, Advocate

Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

17.02.2023

1. MCRCA No.1499/2022 and MCRCA No.1551/2022 are arising out

of same Crime No.840/2022 for commission of offence punishable

under Section 120-B, 365, 386, 420 & 506 read with Section 34 of

IPC, whereas, MCRCA No.1641/2022 has been filed in connection

with Crime No.918/2022 registered at Police Station-Kotwali,

District Rajnandgaon for the commission of offence punishable

under Section 195-A, 294,341/34, 506 Part II of IPC.

2. The case, in nutshell, is that, a written complaint was lodged by

complainant-Rama Sahu to the police, making allegation that he

was owner of Survey No.394/27, 394/28, 394/29, admeasuring

1.20 acres and a written agreement to sell was executed between

complainant and Ritesh Gajbhaiye for a consideration of

Rs.1,81,00,000/- on 08.12.2021. Thereafter, registered sale deed

was executed on 21.02.2022 showing consideration amount of

Rs.20,00,000/- only. In sale deed, four cheque numbers were

mentioned but according to complainant he has not received a

single penny from the cheques mentioned in the sale deed. He has

further made allegation that on the very day i.e. 21.02.2022, he

was kidnapped by the present applicants and some cheques were

looted from his possession on gun point. On 09.10.2022, he

lodged complaint before police and consequently, FIR was

registered for offence punishable under Section 120-B, 365, 386,

420, 506 read with Section 34 of IPC.

3. Learned counsel for the applicants in MCRCA No.1499/2022 and

MCRCA No.1551/2022 would submit that both the applicants have

not committed any offence; they are innocent; they are bonafide

purchasers; they have paid the entire consideration amount

through cheques and the complainant was never abducted by

them. They would further submit that there is delay of 8 months in

registration of FIR and same has not been explained. They would further submit that according to the decision of the Supreme Court

in the case of Lalita Kumari vs Government of Uttar

Pradesh and Others, 2014(2) SCC 1, where their Lordships

have held in para 120.6 as under:-

"120.6 As to what type and in which cases preliminary inquiry is to be conducted will depend on 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 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.

The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry.

In cases of economic offences, there must be preliminary

enquiry, whereas, same has not been conducted by the police. They

would also submit that a civil suit has been filed by the sons of the

complainant for cancellation of sale deed, which is pending before

the Competent Court. Their next submission is that the nature of

dispute between the parties is civil, whereas, with intent to grab the

money a synthetic method has been adopted by the complainant,

thus, they would pray to allow both the applications.

4. On the other hand, learned counsel for the State would submit

that on 21.02.2022, the complainant was abducted and on gun

point, cheques were looted from his possession. He would read

the statements of Rajbahadur Singh and Ashish Tiwari, who are

witnesses to the incident, which had taken place on

21.02.2022. He would further submit that apart from two crime

numbers, other cases are registered against Ritesh Gajbhaiye.

He has placed reliance upon the judgment in the case of Prem

Shankar Prasad Vs. State of Bihar reported in 2021 SCC

Online SC 955, which reads thus :-

22. Even the observations made by the High Court while granting the anticipatory bail to respondent No.2- accused that the nature of accusation is arising out of a business transaction and therefore the accused is entitled to the anticipatory bail is concerned, the same cannot be accepted. Even in the case of a business transaction also there may be offences under the IPC more particularly sections 406, 420, 467, 468, etc. what is required to be considered is the nature of allegation and the accusation and not that the nature of accusation is arising out of a business transaction. At this stage, it is required to be noted that respondent No.2- accused has been charged sheeted for the offences punishable under Section 406 and 420, etc. and a charge- sheet has been filed in the court of learned Magistrate Court.

5. Learned counsel for the Complainant would submit that old

aged person has been harassed and cheated by the present

applicants. She would further submit that the complainant has

lost his land as well as the consideration amount. She would

further submit that consideration amount in the agreement to

sell was fixed as Rs.1,81,00,000/- whereas, in the sale deed,

same has been reduced to Rs.20,00,000/- but he has not

received a single penny from the applicants. She would pray for

dismissal of both the bail applications i.e. MCRCA No.1499/2022

and MCRCA No.1551/2022.

6. I have heard learned counsel for the parties and perused the

case diary with utmost circumspection.

7. In the case of Bhadresh Bipinbhai Sheth Vs. State of Gujrat and another, 2016 (1) SCC 152, the Hon'ble

Supreme Court has detailed following grounds to consider while

granting bail to the accused persons, as held thus :

25.10. We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:

(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(d) The possibility of the accused's likelihood to repeat similar or other offences;

(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication in the cases is a matter of common knowledge and concern;

(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.

8. In the present case, an agreement to sell was entered into

between the complainant and Ritesh Gajbhaiye and amount of

consideration was Rs.1,81,00,000/-. The number of cheques

which has been shown in the sale deed, does not describe the

amount of consideration and there is no material to

substantiate that the amount of consideration was transferred

in the account of the complainant. The complainant is old aged

person and on 21.02.2022, he was abducted by the present

applicants and this incident was witnessed by two independent

witnesses namely-Rajbahadur Singh and Ashish Tiwari. A Civil

Suit has been filed by the sons of the complainant, in which,

the complainant has been arrayed as defendant, therefore, it is