Clerate Prakash vs The State Of Madhya Pradesh
2023 Latest Caselaw 2046 MP

                                                             1
                           IN     THE        HIGH COURT OF MADHYA PRADESH
                                                  AT JABALPUR
                                                         BEFORE
                                           HON'BLE SHRI JUSTICE VISHAL MISHRA
                                               ON THE 6 th OF FEBRUARY, 2023
                                           MISC. CRIMINAL CASE No. 2477 of 2023

                          BETWEEN:-
                          CLERATE PRAKASH S/O SHRI S.B. NETHAN, AGED
                          ABOUT 43 YEARS, OCCUPATION: BUSINESS, R/O
                          JHONSON COMPOUND, NARMADA ROAD, DISTRICT
                          JABALPUR (MADHYA PRADESH)

                                                                                           .....APPLICANT
                          (BY SHRI MADHUR SHUKLA - ADVOCATE)

                          AND
                          THE STATE OF MADHYA PRADESH THROUGH STATION
                          HOUSE OFFICER, POLICE STATION OMTI, DISTRICT
                          JABALPUR (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                          (SHRI S.S. CHOUHAN - GOVERNMENT ADVOCATE AND SHRI SANKALP
                          KOCHAR - ADVOCATE FOR THE OBJECTOR)

                                This application coming on for admission this day, the Court passed
                          the following:
                                                              ORDER

Heard on I.A.No.24871 of 2023 which is an application for permission to assist the public prosecutor.

For the reasons stated in the application, the same is allowed. Shri Sankalp Kochar, learned counsel is permitted to assist the Panel Lawyer in the matter.

This is the first bail application under Section 439 of Cr.P.C filed by the applicant for grant of bail.

The applicant has been arrested on 11.11.2022 by Police Station Omti, Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 2/10/2023 11:05:52 AM

District-Jabalpur (M.P.) in connection with Crime No.110/2022 for the offence punishable under Sections 406, 420, 467, 468, 471 and 120-B of Indian Penal Code and Section 292 C of Municipal Corporation Act.

It is submitted that the applicant has been falsely implicated in the case and he has not committed any offence in any manner. The F.I.R. has wrongly been registered against the present applicant. There were some civil transactions, which took place between the parties, but could not be materialized due to some problem with the Revenue papers and looking to he Covid Pandemic-2019, therefore, the entire amount could not be refunded back. It is pointed out that a written complaint was made by one Mahendra Gujral

mentioning the fact that he is a partner for firm Anil Sethi Company which has sold a land to HW Infra via its Promoters. The terms and conditions of the agreement which have been entered into between the parties were very clear and they were supposed to pay an amount of Rs.1.62 Crore at the time of execution of sale-deed and the remaining in the form of Duplexes in the ratio of 40:60 for which the post dated eight cheques to the tune of Rs.30 lakhs was given, but subsequently it was found that there is some orders passed by the Revenue Authority and the land was shown to be under the ceiling proceedings, therefore, for correction of same, application was preferred before the authorities and an order has been passed by the authorities on 11.10.2019, therefore, no development could have been done over the land in question. It is submitted that subsequently a new agreement i.e. sale-deed was executed in favour of the applicant by the complaint and the entire amount of sale consideration was paid to him. It is submitted that once a new agreement was entered into between the parties, the earlier agreement has lost his existence.

Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 2/10/2023 11:05:52 AM

Therefore, the allegation made against the present applicant is that they have not complied with the terms and conditions of the earlier agreement and by manipulating the documents have cheated the complainant. But looking to the overall facts and circumstances of the case, it is clearly a civil dispute which ought to have been resolved by filing appropriate proceedings before the civil Court, but the complainant is trying to convert a civil proceedings in to a criminal proceedings as he being an influential person has got registered an F.I.R. against the present applicant. Certain documents are also being filed along with an application to demonstrate that substantial amount has already been paid to the complainant, which is reflected from the account statements which are filed along with this application. It is submitted that for recovery of an amount the proper course would have been to file a civil suit for recovery of the amount or for implementation of an agreement entered into between the parties the suit for specific performance should have been filed, but the complainant is trying to take advantage of the fact that earlier a cheques which were handed over to him has not been returned back and new cheques have already been issued in pursuance to the sale agreement. He wants to take advantage and get encashed both the cheques, therefore, such criminal proceedings have been initiated. He has placed reliance upon the judgment passed by the Hon'ble Supreme Court in various cases to point out that such proceedings are virtually

amounting to abuse of the process of law. Placing reliance upon judgments in the case of Mohammad Ibrahim and others Vs. State of Bihar and another, reported in (2009) 8 SCC 751 and in the case of Ramesh Dutt and others Vs. State of Punjab and others reported in (2009) 15 SCC 429; wherein, the Hon'ble Supreme Court has considered the similar aspects of the case and has virtually quashed the proceedings of F.I.R. holding the transactions between the parties Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 2/10/2023 11:05:52 AM

to be of civil nature.

Per contra, counsel appearing for the State as well as complainant has vehemently opposed the application stating that the correct facts could not be placed before this Court by the counsel appearing for the applicant. He has drawn attention of this Court to the agreement which was entered into between the parties in the year 2018 for which an amount of Rs.1.62 Crores was required to be paid to the complainant and remaining in the form of 40:60 ratio on the constructions of Duplexes. It is argued that the actual cost of land is more than Rs.4.00 Crores and the only total amount of approximately Rs.60.00 lakhs has been paid to him. On one hand, the land of the petitioner is being sold to the applicants, who have subsequently sold a part of land by executing 11 sale-deeds in favour of the subsequent purchasers; thereby, they have violated the terms and conditions of the agreement. They were supposed to develop the land and construct duplexes and the duplexes were acquire to be distributed amongst the partners in terms of the agreement in the 40:60 ratio, but they have n o t constructed any duplexes and has sold the plots to the subsequent purchasers and has collected money from them without even making payments towards the consideration amount to the complainant. It is submitted that the subsequent sale-deeds was executed on the very next day when the agreement was executed into between the parties. It is beyond imagination that the actual land costing to Rs.4 Crores can be sold out at such a meager amount of Rs.1.62 Crores to the applicants in full and final settlement despite of the fact that in terms of the earlier agreement ten cheques of Rs.30 lacs each total amounting to Rs.3 Crores was handed over to the complainant in lieu of the construction of duplex. All the cheques which have been presented before the

Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 2/10/2023 11:05:52 AM

Bank were dishonored. It is argued that certain other documents are yet to be collected and investigation is pending in the matter. Placing reliance upon the judgment passed by the Supreme Court in the case of Neeru Yadav Vs. State of Uttar Pradesh and another (2016) 15SCC 422, Ash Mohammad Vs. Shiv Raj Singh alias Lalla Banbu and another (2012) 9 SCC 446, M.S. Sheriff and P.C. Damodaran Nair Vs. State of Madras, AIR 1954 SC 397 and K.G. Premshanker Vs. Inspector of Police and another (2002) 8 SCC 87, he has prayed for dismissal of the application.

Looking to the overall facts and circumstances of the case and the fact that bail of other co-accused has already been rejected on merit, this Court does not deem it appropriate to allow this application at this stage.

Application is hereby rejected.

(VISHAL MISHRA) JUDGE irfan

Signature Not Verified Signed by: MOHD IRFAN SIDDIQUI Signing time: 2/10/2023 11:05:52 AM