Ambika Prasad Sharma vs The State Of Madhya Pradesh
2023 Latest Caselaw 6278 MP

                                                           1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                 AT GWALIOR
                                                    BEFORE
                                 HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                                ON THE 19 th OF APRIL, 2023
                                        MISC. CRIMINAL CASE No. 47681 of 2022

                          BETWEEN:-
                          AMBIKA PRASAD SHARMA S/O LATE SHRI BAHADUR
                          PRASAD SHARMA, AGED ABOUT 60 YEARS, RESIDENT
                          OF NAYAK SAHAB KI BAZARIYA NAYA BAZAR
                          LASHKAR, DISTRICT GWALIOR (MADHYA PRADESH)

                                                                                       .....PETITIONER
                          (SHRI RAJIV SHARMA, LEARNED COUNSEL FOR THE PETITIONER-
                          COMPLAINANT)

                          AND
                          1.    THE STATE OF MADHYA PRADESH INCHARGE
                                POLICE STATION THROUGH P.S. KAMPOO,
                                DISTRICT GWALIOR (MADHYA PRADESH)

                          2.    ASHISH GUPTA S/O NATHULAL GUPTA RESIDENT
                                OF NAL WALI GALI CHUTMAL KI BAJARIA DAL
                                BAZAR LASHKAR, DISTRICT GWALIOR (MADHYA
                                PRADESH)

                                                                                    .....RESPONDENTS
                          ( SHRI LOKENDRA SHRIVASTAVA- LEARNED COUNSEL FOR THE
                          RESPONDENT NO.1- STATE, SHRI PRASHANT SHARMA, LEARNED
                          COUNSEL FOR THE INTERVENOR AND SHRI SACHIN GUPTA, LEARNED
                          COUNSEL FOR THE RESPONDENT NO.2- ACCUSED)


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

By way of this petition filed under Section 439(2) read with Section 482 of CrPC, the petitioner complainant seeking cancellation of order dated 05-09- 2022 passed by this Court in MCRC No.42423 of 2022 whereby respondent Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 6:18:25 PM

no.2 was granted bail.

(2) It is contended by learned counsel for the petitioner that except filing of charge sheet, some other documents were annexed with bail application by the respondent no.2- accused and mislead the Court while obtaining the bail order stating therein that he took money and executed a hundi in favour of complainant and will pay amount by 14th December, 2023 is totally wrong and it is a forged document created by him. By suppressing the fact that Crime No. 01 of 2022 has been registered against him on the ground that several promissory notes or hundis have been prepared by him and by affixing seal of another firm took money from complainant. The complainant produced a hundi

receipt of obtaining loan before the IT Department during investigation whereas any such amount is never taken by the complainant nor any receipt was executed. Respondent no.2 is the main accused and document Annexre A-3 filed by him is not a part of charge-sheet and in reality, it is a forged or created document. Document Anexure A4 has no relevancy as well as no concern with the complainant which creates a doubt on the part of IO that the investigation is yet pending after lapse of more than three months whereby this Court vide order dated 23-06-2022 directed the IO to complete investigation as soon as possible. It is further contended that not a single penny has been recovered and from statement recorded under Section 161 of CrPC, it is clear that amount received by accused is a black money. Complainant had also given whole amount of Rs.2 crore 75 lac through RTGS. There is full possibility of tampering with the prosecution evidence as well as for creation of forged document. Accused has a criminal history and several criminal cases have been registered against him. In support of contention, counsel for the petitioner has relied on the judgments of Hon'ble Supreme Court in the case of Deepak Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 6:18:25 PM

Yadav vs. State of UP AIR 2022 SC 2514, Mahipal vs. Rajesh Kumara alias Polia and another (2020) 2 SCC 118. It is also contended that this Court while granting bail to respondent no.2 did not impose some adequate condition on the accused for furnishing proper cash surety. To buttress the contention, he has relied on the judgment of Smt. Sheeba Khan vs. State of MP 2009 Cri. LJ 4276. Hence, prayed for cancellation of bail granted to respondent no.2- accused.

(3) In compliance of Court order dated 18-04-2023, Shri Deepak Yadav, Town Inspector, Police Station Kampoo, District Gwalior is present in person.

(4) Pursuant to the Court order dated 29-03-2023, the police has filed its report dated 10th April, 2023.

(5) By filing an objection through document no. 3064 of 2023, it is contended on behalf of respondent no.2 that no notice demanding any kind of amount or demanding of cloves as goods is on record and important fact is that respondent no.2 never did business of cloves in his lifetime and the investigating officer did not found any proof in his present report and submitted charge sheet. It is further contended that there has been no malice on the part of respondent no.2 to grab said alleged amount. At this stage, it is also important that the complainant said to have given amount in the account of respondent no.2 voluntarily in the course of business and it is also explicit from it that the

said amount had never entrusted to the respondent no.2 by complainant and respondent no.2 has not committed any breach of trust. Similarly, it is explicit from the FIR that respondent no.2 had never instigated to complainant to provide any immovable property but according to complainant itself the said amount had been given during the course of business. Even otherwise, if

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 6:18:25 PM

allegations made in the FIR are accepted in its entirety, then it is clear that the said transaction is of civil liability, not in the precinct of Sections 420, 406 of IPC. Police had neither conducted any investigation in respect of clove business nor any such document or agreement was seized from him whereby it might be prima facie proved that respondent no.2 allegedly runs business of cloves. In Crime No.01 of 2022 respondent no.2 has been shown as hundi businessman which is available on record also. No agreement in respect of business of cloves is available. It is not clear in the present report filed by the IO that the investigation which was conducted in respect of agreement and stamp enclosed therein, how they are connected with crime. The complainant also deals with business of hundi and has taken Rs.40 lac as hundi so that in this manner the complainant has received from the respondent no.2. The police has not conducted any enquiry in respect of said hundi receipts nor any interrogation was conducted from complainant which casts doubt on impartiality of IO. At this stage, it is also remarkable that the stamp vendor Ashok Agrawal has given reply to the notice sent to him through advocate which is also enclosed with the document wherein the said stamp vendor has been shown to execute the said sale deed between respondent no.2 and other party. Respondent no.2 has transferred money to other persons as alleged to be given by the complainant to respondent No.2, therefore, the police has produced a concocted report whereas the police should have impartial investigation. It is further contended that the dispute between complainant and respondent no.2 is prima facie of civil nature in respect of which complainant should have done the civil proceedings but complainant in connivance with police authorities has lodged FIR falsely. It is not proved that as to how criminal breach of trust and cheating has been committed by respondent no.2 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 6:18:25 PM

and how this case falls within the nature of criminal. The complainant had voluntarily invested money with respondent no.2 with an assurance that he will get money back with interest as per written on hundi. This Court had granted bail to the respondent after considering the materials produced with case diary as well as charge sheet. Neither respondent no.2 has violated any condition imposed by this Court nor has tampered with prosecution evidence. (5) As per case diary, the prosecution case is that complainant- Ambika Prasad Sharma made a complaint that Ashish Gupta and his father co-accused Nathulal Gupta deal in Garam Masala and they cheated the complainant and misappropriated an amount of Rs.2,75,00,000/-. In the said trade, Parag Bijpuriya, Santosh Gupta, Sanjay Kumar, Rajkumar Gupta, Neetu, Sangeeta Gupta, Ramkumar Gupta are indulged. Respondent no.2 and his father co- accused Nathulal Gupta allured for purchasing cloves from Indonesia through his relative and Ashish Gupta got deposited amount of Rs.2,75,00,000/- from the complainant through RTGS in his IDBI Bank Account Number 0056104000319867 and said that amount so deposited by him, has been credited in different partners' accounts for order of cloves and assured that complainant that 50 tonne cloves would be delivered to him in Gwalior and remaining amount would be paid on delivery. Thereafter, neither cloves were delivered to complainant nor said amount was refunded to complainant till now by respondent no.2- accused and his father co-accused- Nathulal Gupta. On the basis of aforesaid, crime has been registered against respndent and co-accused under Sections 420, 406, 34 of IPC. After completion of investigation, charge sheet has already been filed.

(6) This Court had granted bail to respondent no.2 after considering

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 6:18:25 PM

contents of case diary as well as materials available in the charge sheet and the submissions advanced on behalf of accused. As the grounds made by petitioner complainant in the present petition for cancellation of bail were not raised at the time of consideration of bail, therefore, no case is made out for cancellation of bail of respondent no.2. Accordingly, this petition fails and is hereby rejected.

(DEEPAK KUMAR AGARWAL) JUDGE MKB

Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 6:18:25 PM