Bharat @ Gabbu vs The State Of Madhya Pradesh
2022 Latest Caselaw 10281 MP

                                                             1
                                       IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT INDORE
                                                            BEFORE
                                                HON'BLE SHRI JUSTICE ANIL VERMA
                                                     ON THE 29th OF JULY, 2022

                                            MISC. CRIMINAL CASE No. 33054 of 2022

                                   Between:-
                           1.      BHARAT @ GABBU S/O SHRI UMASHANKAR,
                                   AGED   ABOUT   48  YEARS, OCCUPATION:
                                   BUSINESS  J/1,  RADHAKUNJ     COLONY,
                                   KHAJRANA   MARG,INDORE       (MADHYA
                                   PRADESH)

                           2.      SHYAMCHARAN SHARMA S/O UMASHANKAR
                                   SHARMA,   AGED    ABOUT    58  YEARS,
                                   OCCUPATION: BUSINESS R/O 77 RAVINDRA
                                   NAGAR OLD PALASIYA, INDORE (MADHYA
                                   PRADESH)

                                                                                          .....PETITIONER
                                   (SENIOR ADVOCATE SHRI V.K.JAIN WITH MS. VAISHALI JAIN,
                                   LEARNED COUNSEL FOR THE APPLICANT.)

                                   AND

                                   THE STATE OF MADHYA PRADESH STATION
                                   HOUSE OFFICER THROUGH POLICE STATION
                                   LASUDIYA, INDORE (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                                   (SENIOR ADVOCATE SHRI VINAY SARAF WITH SHRI AYUSH
                                   JAIN, LEARNED COUNSEL FOR THE RESPONDENT/ OBJECTOR.)
                                   (SHRI PRANAY JOSHI, LEARNED PANEL LAWYER FOR THE
                                   STATE.)

                                 This application coming on for hearing on this day, the court passed
                           the following:
                                                              ORDER

The applicants have filed this first bail application under Section 439 of the Code of Criminal Procedure, 1973. They are in Jail since 14/06/2022 in connection with Crime No.924/2022 registered at Police Station Lasudia,

Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 30-07-2022 11:37:27

District Indore (M.P.) for commission of offence punishable under Sections 406, 420 and 34 of the IPC.

A s per the prosecution story, accused persons/applicants approached the objector Girish Wadhwani in the month of December, 2018 with an offer to sell a part of their land situated at survey no.30/1 and survey no.31/2/2 situated at village Mayakhedi, District- Indore. The area agreed upon to be sold by the applicants to the objector was 40000 sq. ft. land out of survey no.30/1 and 20000 sq.ft. land out of survey no.31/2/2 to the third party named Nivedita for total 60000 sq.ft. of land and consideration was determined at Rs.4,60,40,000/-. On 09.01.2019 applicants entered into the agreement with the objector for

selling of the aforementioned land for a total consideration of Rs.4,60,40,000/- and towards the part payment Objector-Sagar Wadhwani through his firm Wadhwani Realty made a payment of Rs.15,00,000/- on 29.12.2018 and Rs.10,00,000/- on 31.12.2018. Remaining consideration towards the purchased land was to be given by the objector upon the fulfillment of certain documents by the applicants as specifically laid down in the agreement. Applicants after the agreement continuously failed to fulfill the conditions as required but insisted the payment towards the land. The objector in good will and placing trust over the applicants continuously made payment towards the agreement. He has paid Rs.1,40,00,000/- to the applicants though Wadwani Realty and through his mothers account. He has also paid cash amount of Rs.65,00,000/- to the applicant.

As per further prosecution story, applicants forged and fraudulently made NOC and accordingly objector paid Rs.35,00,000/- to the applicants. The objector had paid in total Rs.2,74,00,000/- to the applicants for the purchase of land as mentioned in the agreement. When objector kept on asking applicants to Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 30-07-2022 11:37:27

fulfill the remaining conditions of the agreement and execute a sale deed in favour of the objector, but applicants willfully and with intention to cheat lingering the registry. Thereafter, applicants on 25.08.2021 sent a legal notice to the objector with a new story that only a sum of Rs.25,00,000/- was received by them towards the consideration of land and the rest of the amount was received through loan. The act of the applicants in not admitting the huge amount of the money received by them itself a fraud against the objector. Applicants have denied the receipt of the said amount therefore, objector/ complainant Sagar Wadhwani lodged against the applicants. Accordingly offence has been registered under under Sections 406, 420 and 34 of the IPC and later on sections 467, 468 and 471 of the IPC has been also added.

Learned senior counsel for the applicant contended that both applicants are innocent and they have been falsely implicated in this matter. They are in custody since 14/06/2022. Applicants have paid and cleared the loan of the Bank of India and resolved the dispute with Vikas Chouhan. It was agreed between both the parties that Applicants and Nivedita shall leave and keep 24 meters wide strip as common road but complainant not gave his consent. If the 24 meters wide strip will not kept as a common road then Nivedita and applicants shall not have access to the road and shall not be able to get site approval and development permission. Complainant is a influential person and

in pursuance to the ill intention complainant sent a counter reply on 28.10.2021. Complainant has filed a civil suit against them for specific performance but after termination of the agreement the petitioner neither sold the land nor have agreed to sell the land till today. Complainant is at fault and also committed breach of the agreement. Counsel has placed reliance over the Apex Court judgment in

Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 30-07-2022 11:37:27

case of Murari Lal Gupta Vs. Gopi Singh reported in 2005 (1) SCC 699 and in case of Mohammad Ibrahim and others Vs. State of Bihar and another reported in the year 2009 (8) SCC 751 and in case of Satender Kumar Antil Vs. Central Bureau of Investigation and another reported in the year 2022 SCC Online SC 825 and in case of Ajay Kumar Keshwani and another Vs. Helena D'Souza and others reported in 2003 (5) M.P.L.J. 557 . The applicants are permanent resident of Indore. Hence, he prays that applicants be enlarged on bail.

Per-contra, learned senior counsel for the Objector Sagar Wadhwani submits that objector had paid Rs.2,74,00,000/- to the applicants for the purpose of purchasing the land in question, but applicants willfully and with intention to cheat, lingering the proceedings and they never fulfilled their part. They have prepared forged document of said NOC in the name of Nivedita. The matter involved in this case is huge amount of Rs.2,74,00,000/-. If applicants be released on bail it would be a huge tragedy against the objector and hence applicants are not deserve for bail.

Per- Contra learned Panel Lawyer for the respondent/State also opposes the bail application and prays for its rejection.

Considering all the facts and circumstances of the case, arguments advanced by counsel for the parties, nature and gravity of allegation as also taking note of the fact that both the applicants have stated that they get Rs.70,00,000/- from the mother of the objector Amrita Wadwania as a loan. Similarly, they have obtained Rs.1,84,00,000/- from the objector's firm Ambitech Lifestyle Ltd. as a loan but applicants did not filed any relevant documents regarding the aforesaid loan transaction therefore, primia facie it appears that the said amount was obtained by the applicants as a sale amount of Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 30-07-2022 11:37:27

the land in question. In public notice dated 25.08.2021 published in the newspaper Dainik Bhaskar issue dated 27.08.2021 (Annexure-A/11), it was mentioned by the applicants that they have cancelled the agreement to sale and refund all the advance amount, but actually they have not paid the entire amount which was more than Rs.2,74,00,000/- to the objector. It is alleged that applicants has given photo copy of the NOC signed by Nivedita, but Nivedita herself denied for execution of the such NOC. Therefore, prima facie it appears to be forged and fabricated document. On the basis of the aforesaid evidence later on section 467, 468 and 471 of the IPC was added. Prima facie it is gathered that both the applicants have received amount of Rs.2,74,00,000/- from the objector and did not execute the sale deed in favour of the objector as per the sale agreement. It is not merely a civil dispute. Therefore, citation relied by the applicants is not applicable in the instant case.

In view of the above without commenting on the merits of the case at this stage this court is not incline to grant bail to the applicants. Accordingly, bail application u/s 439 of Cr.P.C. is dismissed.

ANIL VERMA) JUDGE ajit

Signature Not Verified Signed by: AJIT KAMALASANAN Signing time: 30-07-2022 11:37:27