Vipin Chandra Mishra vs The State Of Madhya Pradesh
2022 Latest Caselaw 808 MP

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                             The High Court Of Madhya Pradesh
                                     MCRC No. 39438 of 2021
                              (VIPIN CHANDRA MISHRA AND OTHERS Vs THE STATE OF MADHYA PRADESH)

                      Jabalpur, Dated : 18-01-2022
                            Heard through Video Conferencing.

                            Ms.Indu Pandey, learned counsel for applicant No.1 Vipin
                      Chandra Mishra S/o.Late Shri Prakash Chandra Mishra, applicant
                      No.2 Manish Bansal S/o. Late Shri Preetam Bansal & applicant No.3
                      Smt.Neelu Mishra W/o. Vipin Chandra Mishra.

                            Shri Pramod Saxena, learned Government Advocate for non-
                      applicant/State.
                            Shri Aditya Adhikari, learned Senior Counsel assisted by Shri
                      K.S.Jha, Advocate for the objector.
                            This is first application under Section 438 of the Code of
                      Criminal Procedure, 1973 (for brevity "Cr.P.C") for grant of
                      anticipatory bail to the applicants, who are apprehending their arrest
                      in connection with Crime No.347/2020 registered at Police Station

                      Jaithari, District Anuppur for the offence under Sections 406, 407,
                      409, 109, 120B, 420 read with Section 34 of the Indian Penal Code,
                      1860 (for brevity "I.P.C").
                            Present petition is listed for final hearing today. Vide order
                      dated 6.9.2021, a Coordinate Bench of this Court had directed the
                      applicants to appear before the Investigating Officer Anuppur on
                      13.9.2021 and had further directed that no coercive action shall be
                      taken against the applicants till next date of hearing.
                            Learned counsel for the applicants submits that applicants are
                      businessmen of repute. They are stationed at Jharkhand. There was an
                      agreement for transport of Coal between the complainant and
Signature Not
 SAN
Verified              Company of present applicants. On account of certain disputes arising
Digitally signed by
AMIT JAIN
Date: 2022.01.25
18:16:59 IST
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out of payment, a false report has been lodged against the present
applicant. M/s.M.B.Power Limited had purchased One Lakh Metric
Ton Coal from Central Coalfields Limited, which is a subsidiary of
Coal India Limited having its Office at Darbhanga House Ranchi and
for transportation of said Coal from Amrapali Mines to Madhya

Bharat Power Limited, a contract was executed so as to lift the Coal
and deliver it at its destination inasmuch as the applicants are in
business of transportation to various reputed Companies.
     Learned counsel for the applicants also submits that out of One
Lakh Metric Ton Coal, 84918 Metric Ton Coal was supplied till
25.8.2019

through 22 rakes. The dispute is that the applicants have defrauded the complainant by not supplying 16453.18 Metric Ton Coal worth Rs.3,21,30,757/-. Since the applicants are reputed persons and Directors of the Company, namely, Pranav Naman Private Limited, which is a registered Company under the Companies Act and have a reputation of their own, are not going to run away and the business dispute can be sorted out through negotiation & conciliation for which resort to criminal proceeding is not required.

Learned counsel for the applicants further submits that the complainant had not made payment for handling charges & freight charges, therefore, Coal could not be loaded in time and for such acts of deficiencies on the part of the complainant, no element of commission of fraud/forgery can be attributed. She submits that the applicant No.3 Smt.Neelu Mishra W/o.Vipin Chandra Mishra is a lady and she should not be subjected to any coercive action.

Learned counsel for the applicants then submits that a mail was sent by applicant No.1 Vipin Chandra Mishra S/o. Late Shri Prakash

Chandra Mishra to the Officer of the complainant on 25.3.2019 that as per Central Coalfields Limited instructions, there was a negative balance of Rs.44677.74/- and on account of such negative balance, Central Coalfields Limited ignored to issue next Sale Order, therefore, the request was made to deposit the amount as Central Coalfields Limited had refused to make any adjustment. Thereafter, another communication was sent on April 15, 2019 informing the dispatch situation of different rakes. It was informed in all 15 rakes will be moved and the complainant was informed to look into the aspect regarding payment of handling charges, which was crossing

Rs.5 Crores after receiving Rs.50 Lakhs so that further lifting is continued.

Attention is also drawn by learned counsel for the applicants to another mail, which was sent on 3.5.2019 informing that only Rs.1.74 Crores was received towards handling charges. 12 days were remaining for validity. 34000 Metric Ton is balance and balance payment due to the accused is Rs.5.25 Crores. The accused insisted on holdilng Rs.1 Crore towards Bank Guarantee and Rs.1.5 Crores against the quality but demanded release of rest of the amount. Placing reliance on such mails, it is submitted that since payment was not released, work was not completed and, therefore, the material was not transported for which the accused cannot be blamed as there was deficiency on the part of the complainant in not making payment. In this relation, the communication dated 9.3.2021 made to the Station House Officer, Police Station Jaithari, District Anuppur is also brought on record.

Shri Aditya Adhikhari, learned Senior Counsel assisted by Shri

K.S.Jha, learned counsel for the objector in his turn submits that the stand taken by the accused is frivolous and that on 21.8.2020, Bipin Chandra Mishra had sent a mail to Mukesh Kapoor, which is part of objection on behalf of the complainant where Bipin Chandra Mishra had admitted in the following terms "since we were loading the rakes of other Power Houses as well, we have utilized the Demand Drafts (for Railway Freight) of Rs.2.96 Crores (mail attached of Shri Baninder Singh) for them in expectation that their Demand Drafts will be utilized for you, which is a normal business activity or we will arrange when rake will be placed. But unfortunately our entire fund of Rs.26-27 Crores struck up in different Power Houses from where outstanding due is yet to be clear. In the light of above adverse situation, I could not fulfill my commitment for delivery of Coal on time for which we are know in the market. This has also been tested by you when we had dispatched 15 rakes in single trench in the past when we had started the work. I assured you that I will return the Demand Draft of Rs.2.96 Crores in one month and will restart the delivery of 16,000.00 Metric Ton Coal laying with us since long. We have no intention to hold your Coal for which we have to manage local administration and face villager's agitation in the name of pollution. The all situation arises because of several financial crunch at our end due to non-payment by our customers."

Reading the aforesaid communication, it is pointed out by learned Senior Counsel for the objector that the story of non-payment as has been cleverly built by learned counsel for the applicants is a cock & bull story having no foundation of its own. It is submitted that the offence under Sections 406, 407, 409, 109, 120B, 420 read with

Section 34 of the I.P.C is clearly made out and, therefore, no indulgence should be shown as the applicants are influential persons representing Coal Mafias in Jharkhand & Bihar having high-political connections and they will be able to manipulate evidence if they are allowed to continue on interim anticipatory bail. Applicants have a criminal record as has been discovered by him from the website of Jharkhand High Court and the connected network i.e. case Crime No.197/2017 for the offence under Sections 420, 467, 468, 471 & 120B of the I.P.C etc. Reliance is placed by learned Senior Counsel for the objector on the judgment of the Supreme Court in the case of Kamal Shivaji Pokarnekar versus State of Maharashtra & Others (2019) 14 SCC 350 wherein it is held that criminal complaint cannot be quashed only on the ground that the allegations made therein appear to be of a civil nature. If ingredients of offence alleged against the accused are prima facie made out in complaint, criminal proceeding ought not to be interdicted.

Reliance is also placed by learned Senior Counsel for the objector on the judgment of the Supreme Court in the case of Lavesh versus State (NCT of Delhi) (2012) 8 SCC 730 wherein it is held

that for grant of anticipatory bail & proper exercise of discretionary jurisdiction, the Court is required to consider the nature & gravity of accusation, antecedents, possibility of abscondence of accused, conduct of accused and it is further held that normally the Court should not exercise its discretion to grant anticipatory bail in disregard of magnitude & seriousness of matter.

Shri Pramod Saxena, learned Government Advocate for the non-

applicant/State in his turn submits that on 24.3.2021, the arrest warrants were issued against the applicants inasmuch as criminal case was registered in the year 2020 and they were not cooperating with the process of the Court but due to COVID-19 situation, the arrest warrants could not be served and warrants were again issued seeking arrest of the applicants and their production on 17.7.2021. Steps have been taken to obtain a Proclamation under Section 82 of the Cr.P.C but Shri Pramod Saxena, learned Government Advocate fairly submits that no Proclamation has been issued under Section 82 of Cr.P.C till date. It is also submitted that the Proclamation could not be issued due to the order passed by a Coordinate Bench of this Court on 6.9.2021 asking the authorities to not to take any coercive action against the applicants. A Coordinate Bench of this Court while granting interim order did not consider the aspect of conduct of the applicants in not appearing before the Court despite issuance of arrest warrants against them.

After hearing learned counsel for the parties and going through the record, it is evident that there is an admission of misappropriation of a sum of Rs.3,21,30,757/- and not supplying the Coal. Prima facie, the ingredients of offence appear to be made out.

In the case of Pokar Ram versus State of Rajasthan & Others (1985) 2 SCC 597, the Supreme Court has held that considerations for granting anticipatory bail under Section 438 of Cr.P.C are materially different from those when an application for bail by a person, who is arrested in the course of investigation as also by a person, who is convicted and his bail is pending before the Higher Court. Some of the relevant considerations for granting

anticipatory bail are the nature & seriousness of the proposed charges, the context of events likely to lead to the making of the charges, a reasonable possibility of the applicants' presence not being secured at the trial, a reasonable apprehension that the witnesses will be tempered with and the larger interest of the public or the State. Status in life, affluence or otherwise, are hardly relevant considerations while examining the request for granting anticipatory bail. In the case o f Pokar Ram versus State of Rajasthan & Others (supra), it is also held by the Supreme Court that the anticipatory bail to some extent intrudes in the sphere of investigation of crime and the Court must be cautious and circumspect in exercising such power of a discretionary nature. Some very compelling circumstances must be made out for granting bail to a person.

In the case of Shri Gurbaksh Singh Sibbia & Others versus State of Punjab (1980) 2 SCC 565, the Supreme Court has held that application for invoking Section 438 of Cr.P.C should disclose specific facts & events and should not be vague. In Paragraph No.31, Hon'ble the Chief Justice Shri Y.V.Chandrachud (as he was then) has clearly demarcated the distinction between relevant considerations while examining an application for anticipatory bail and an application for bail after arrest in the course of investigation. 'In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for release of the applicant on bail in the event of his arrest would generally be made. It was observed that it cannot be laid down as an inexorable rule that anticipatory bail

cannot be granted unless the proposed accusation appears to be actuated by malafides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond.' It is further held that the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the State" are some of the considerations which the Court has to keep in mind while deciding an application for anticipatory bail.

In Paragraph No.19 of Adri Dharan Das versus State of West Bengal (2005) 4 SCC 303, it is held by the Supreme Court that "ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance, to maintain law and order in the locality. For these or other reasons, arrest may become an inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well defined and the jurisdictional scope of interference by the Court in the process of investigation is limited.

The Court ordinarily will not interfere with the investigation of a crime or with the arrest of the accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 opf the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code."

When all these aspects are taken into consideration then looking to the fact that there is an admission of misappropriation of freight charges to the tune of Rs.2.96 Crores, criminal antecedents of the applicants and also keeping in view the ratio of law laid down by the Supreme Court in the cases of Shri Gurbaksh Singh Sibbia & Others versus State of Punjab (supra), Pokar Ram versus State of Rajasthan & Others (supra), Adri Dharan Das versus State of West Bengal (supra), Kamal Shivaji Pokarnekar versus State of Maharashtra & Others (supra), though learned counsel for the applicants has tried to make out a case that a civil dispute is sought to be converted into a criminal case but prima facie that is not made out and, therefore, grant of anticipatory bail being an extraordinary remedy available to the applicants, this Court is of the opinion that no case is made out to extend benefit of anticipatory bail to the applicants and, therefore, the interim protection granted earlier shall stand withdrawn on expiry of ten days from the date of passing of this order and the applicants will be free to surrender before the Trial Court & apply for regular bail.

In above terms, this anticipatory bail application stands dismissed.

(VIVEK AGARWAL)

JUDGE amit