Himachal Pradesh High Court

Reserved On: 16.9.2024 vs State Of Himachal Pradesh on 1 October, 2024

2024:HHC:9405

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP (M) No. 2061 of 2024

Reserved on: 16.9.2024

Date of Decision: 01.10.2024.

    Anuj Kumar                                                                   ...Petitioner

                                          Versus

    State of Himachal Pradesh


    Coram
                            r                to                                  ...Respondent

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No.

For the Petitioner : Mr. Ganesh Barowalia, Advocate. For the Respondent : Mr Ajit Sharma, Deputy Advocate General, for respondent/State,

with ASI Naresh Kumar, from Police Station Nagrota Bagwan,

District Kangra, H.P. For the complainant : Mr. Parikshit Rathore, Advocate, for the complainant.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

seeking pre-arrest bail. It has been asserted that FIR No. 74 of

2024 was registered at Police Station Nagrota Bagwan, District

Kangra, H.P. for the commission of offences punishable under

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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Sections 420, 120-B and 417 of the Indian Penal Code (IPC). The

informant made a complaint to the police asserting that the

petitioner along with his co-accused grabbed ₹23.00 lacs from

the informant, his family members and his Firm by hatching a

criminal conspiracy. The petitioner visited the informant's

office many times and encouraged him to invest money in the

business entity of accused Sarvdaman Singh. The informant paid

₹13,95,20,000/- w.e.f. March, 2017 till November 2019 by

raising a loan from banks/financial institutions, which was

arranged by the petitioner/accused. The petitioner/accused also

stood as guarantor for some of the loans raised by the

informant. The informant came to know that funds were not

shown as liability in the balance sheet. The petitioner and

Davinder Sharma paid ₹66,89,000/- in cash to the informant

and no other payment was made. The loan obtained by the

informant was declared NPA and the property of the informant

has been marked for auction by the bank for recovering the loan

amount. The police registered the FIR and conducted the

investigation. The informant entered into a registered

partnership deed with the petitioner/accused at Nagrota Bagwan

with the condition that the profit and loss of the partnership

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would be divided between the parties. The petitioner can only be

held liable for 13% of the profit/loss mentioned in the

partnership deed. The matter is to be referred to arbitration in

case of any dispute between the partners. The informant

concealed the partnership deed and lodged a false FIR against

the petitioner. A civil dispute between the parties is being

converted into a criminal case, which is not permissible. The

petitioner had earlier filed a bail petition before learned

Additional Sessions Judge, Kangra at Dharamshala, which was

dismissed on the ground that the investigation was at an initial

stage and custodial interrogation was required. Now the police

have completed the investigation and the custodial

interrogation of the petitioner is not required. The liability of

the petitioner is yet to be ascertained. The petitioner would

abide by all the terms and conditions, which the Court may

impose. Hence, the petition.

2. The petition is opposed by filing a status report

asserting that the informant made a complaint against the

petitioner and other persons stating that the petitioner visited

the informant's office and allured him to invest money in the

business entity of Sarvdaman Singh stating that the petitioner

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had invested ₹5.00 crores with Sarvdaman Singh and he was

earning hefty income from the investment. The informant told

the petitioner that he had no funds. The petitioner assured the

informant to get the loan from various institutions. He also said

that he would earn a hefty amount by investing the money with

his Sarvdaman Singh. The informant discussed the matter with

Chartered Accountant who advised the informant not to invest

the money. However, the informant was allured by the

petitioner to invest money. He paid ₹13,95,20,000/- to

Sarvdaman Singh after taking loans from various institutions

which were arranged by the present petitioner. The petitioner

also stood guarantor in some of the loans. No money was paid to

the informant. The petitioner and Devinder Sharma signed the

affidavits taking personal responsibility for the repayment of

the funds. The informant also found that the funds were not

mentioned as liability in the balance sheet. Petitioner and

Devinder Sharma paid ₹66,89,000/- in cash. No other payment

was made. The loan was declared NPA and the properties were

marked for auction by the bank for recovery. The police

registered the FIR and conducted the investigation. The police

found that the informant had taken loans from KCC Bank and

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PNB Bank and had remitted the money to the account of Sisodia

Fruit Company. The informant had invested the money on the

assurance of the petitioner and Devinder Sharma regarding the

hefty profit. Petitioner, Devinder Sharma and Sarvdaman Singh

Sisodia had handed over blank cheques to the informant.

Petitioner and Devinder Sharma also gave the affidavits to the

informant undertaking responsibility to return his money. The

petitioner and Devinder Sharma had executed a Power of

Attorney in favour of the informant with a stipulation that it

would not be cancelled for three years, however, the Power of

Attorney was got cancelled contrary to the undertaking. The

money invested by the informant in Sisodia Fruit Company in

the year 2017-18 was shown but the money invested in the year

2018-19 was not shown in the balance sheet. Petitioner had

absconded. Sarvdaman Singh Sisodia was found in Chandigarh.

He revealed on inquiry that he had paid some money to Devinder

Sharma and the petitioner. They misappropriated ₹23.00 crores

of the informant's money. The petitioner is to be interrogated.

He could not be apprehended and arrest warrants were obtained

from the court. The record has been seized. Therefore, he prayed

that the present petition be dismissed.

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3. I have heard Mr. Ganesh Barowalia, learned counsel

for the petitioner, Mr. Ajit Sharma, learned Deputy Advocate

General, for the respondent/State and Mr. Parikshit Rathour,

learned counsel for the complainant/informant.

4. Mr. Ganesh Barowalia, learned counsel for the

petitioner submitted that the dispute between the parties is civil

and parties have entered into a partnership deed. The civil

dispute is being converted into a criminal matter. Therefore, he

prayed that the present petition be allowed and the petitioner be

released on pre-arrest bail.

5. Mr. Ajit Sharma, learned Deputy Advocate General,

for the respondent/State submitted that the petitioner

absconded after the registration of the FIR and his custodial

interrogation is required. The petitioner had cheated the

informant by making a false promise of getting hefty returns on

the money invested by the complainant. No money was paid to

the informant and the proceedings under the SARFAESI Act have

been initiated. Therefore, he prayed that the present petition be

dismissed.

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6. Mr. Parikshit Rathour, learned counsel for the

complainant/informant adopted the submissions of Mr. Ajit

Sharma and submitted that the petitioner had cheated the

informant. The petitioner is to be interrogated and the money is

yet to be recovered. Therefore, he prayed that the present

petition be dismissed.

7. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

8. It was laid down by the Hon'ble Supreme Court in P.

Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that

the power of pre-arrest bail is extraordinary and should be

exercised sparingly. It was observed:

"67. Ordinarily, arrest is a part of the procedure of the

investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to

be exercised sparingly. The privilege of pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted

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as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy."

9. This position was reiterated in Srikant Upadhyay v.

State of Bihar, 2024 SCC OnLine SC 282 wherein it was held:

"25. We have already held that the power to grant anticipatory bail is extraordinary. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of the imagination, be said that anticipatory bail is

the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion of the Court depending on the facts and circumstances of each case. While called upon to exercise the said power,

the Court concerned has to be very cautious as the grant

of interim protection or protection to the accused in serious cases may lead to a miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the

evidence. We shall not be understood to have held that the Court shall not pass interim protection pending consideration of such application as the Section is

destined to safeguard the freedom of an individual

against unwarranted arrest and we say that such orders shall be passed in eminently fit cases."

10. It was held in Pratibha Manchanda v. State of Haryana,

(2023) 8 SCC 181: 2023 SCC OnLine SC 785 that the Courts should

balance individual rights, public interest and fair investigation

while considering an application for pre-arrest bail. It was

observed:

"21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial

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tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The

.

tightrope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of

innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of

each case becomes crucial to ensure a just outcome."

11. The status report filed by the police shows that the

petitioner had made a promise to the complainant of getting the

hefty returns by investing the money with Sarvdaman Singh

Sisodia Fruit Company. The informant had transferred the huge

amount taking the loan. The petitioner had also executed a

Power of Attorney and had undertaken not to cancel the Power

of Attorney for three years; however, he cancelled the Power of

Attorney. The status report further shows that the money was

not invested in Sisodia Fruit Company and was divided amongst

the accused. This shows that the promise made by the petitioner

was incorrect and it was made to persuade the informant to

invest money in Sisodia Fruit Company. Hence, the necessary

ingredients of cheating are duly satisfied.

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12. It was submitted that the parties had entered into a

partnership deed and a civil dispute is being converted into a

criminal dispute. Reliance was also placed upon the copy of the

Partnership Deed (Annexure P-2) filed with the petition. This

submission will not help the petitioner. The partnership was to

be carried on in the name of M/s Prem Fruit Traders, Nagrota

Bagwan. The status report does not show that any money was

invested into this partnership; rather, the money was invested

in Sisodia Fruit Traders. Conditions of the Partnership Deed

provide that 100% of capital investment by Mr Pawan Soni

would be paid in advance to M/s Sisodia Fruit Traders. The

petitioner and co-accused would look after the functioning of

this business. The Firm was to carry out the business and export

of Apple. The petitioner has not filed anything on record to show

that any business was commenced by the partnership Firm. Any

apples were imported or these were sold by the Firm. Therefore,

it cannot be said that the dispute is regarding the partnership,

which is being converted into a criminal dispute. The allegations

on the other hand and the material collected by the prosecution

so far show that the money was invested in the Sisodia Fruit

Company and was thereafter divided between the petitioner and

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the co-accused without running any business. Therefore, the

submission that a civil dispute is being given the colour of a

criminal dispute is not acceptable.

13. The status report further shows that the petitioner

had absconded. The warrants of arrest were obtained from the

competent Court of law. This shows that the petitioner is not

likely to join the investigation and the trial. It was laid down by

the Hon'ble Supreme Court in State of Orissa Versus Mahimanand

Mishra (2018) 10 SCC 516 that while considering a bail

application, the Court should also look at the possibility of the

appearance of the accused to face trial. When the accused had

absconded and was arrested after a lookout circular was issued,

he was not entitled to bail. Hence, it would be improper to

release the petitioner on bail at this stage.

14. The police have stated that the custodial

interrogation of the petitioner is required. Keeping in view the

amount of money involved and the manner of the committing

the crime, the prayer of the police regarding the custodial

interrogation of the petitioner appears to be justified.

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15. It was laid down by the Hon'ble Supreme Court in

State Versus Anil Sharma (1997) 7 SCC 187 that where custodial

interrogation is required, pre-arrest bail should not be granted.

It was observed:-

"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation- orientated than questioning a suspect who is well-

ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information and also materials

which would have been concealed. Success in such

interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere

ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for,

such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible

Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as

offender"

16. A similar view was taken by the Delhi High Court in

Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del

1032wherein it was observed:

"13. One of the significant factors in determining this question would be the need for custodial interrogation. Without a doubt, custodial interrogation is more effective to question a suspect. The cocoon of protection, afforded

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by a bail order insulates the suspect and he could thwart interrogation reducing it to futile rituals. But, it must be also kept in mind, that while interrogation of a suspect is one of the basic and effective methods of crime solving,

.