Abhishek Tiwari vs The State Of Madhya Pradesh
2023 Latest Caselaw 2927 MP

                                                             1
                            IN        THE    HIGH COURT OF MADHYA PRADESH
                                                   AT INDORE
                                                        BEFORE
                                            HON'BLE SHRI JUSTICE ANIL VERMA
                                              ON THE 17 th OF FEBRUARY, 2023
                                            MISC. CRIMINAL CASE No. 7614 of 2023

                           BETWEEN:-
                           ABHISHEK TIWARI S/O SHRI SANJAY TIWARI, AGED
                           ABOUT 35 YEARS, BA 2 S-6 SCHEME 78 VIJAY NAGAR,
                           INDORE (MADHYA PRADESH)

                                                                                           .....APPLICANT
                           (BY SHRI JAGDISH CHAND DANGI, SHRI PRATIP VISORIYA AND SHRI
                           PRASOON BIRTHARE - ADVOCATES FOR THE APPLICANT)

                           AND
                           THE STATE OF MADHYA PRADESH STATION HOUSE
                           OFFICER THROUGH POLICE STATION KSHIPRA
                           DISTRICT INDORE (MADHYA PRADESH)

                                                                                        .....RESPONDENT
                           (SHRI SANTOSH SINGH THAKUR - GOVERNMENT ADVOCATE FOR
                           RESPONDENT)
                           (SHRI RAVINDRA SINGH CHHABRA - SENIOR ADVOCATE WITH SHRI
                           JERRY LOPEZ - ADVOCATE FOR OBJECTOR)


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

                           following:
                                                              ORDER

Heard on IA No. 2326/2023 which is an application for ignoring the defects.

The defects are formal in nature, therefore, IA No. 2326/2023 is allowed and the formal defects as pointed out by the Registry are hereby ignored.

Applicant has filed this first bail application under Section 439 of the Code of Criminal Procedure, 1973. He is in Jail since 4.2.2023 in connection Signature Not Verified Signed by: BHUVNESHWAR DATT JOSHI Signing time: 17-02-2023 20:29:43

with Crime No. 365/2022 registered at P.S. - Kshipra District Indore (M.P.) for commission of offence punishable under Section 420, 406, 467, 468 of IPC.

As per the prosecution story, the complainant Vishnu Patel had entered into an agreement with co-accused Sanjay Tiwari and Rajesh Choudhary in respect of land of various survey numbers admeasuring 18.023 hectare (72 bighas) situated at village Pharaspur District Indore. It is alleged that the present applicant alongwith co-accused persons have received entire sale amount but they are not willing to execute the sale deed in favour of complainant. After sometime the applicant and other co-accused persons refused to execute the

sale deed and fraudulently grabbed the entire consideration amount. Accordingly a case has been registered against the applicant.

Learned counsel for the applicant submits that applicant is innocent and he has been falsely implicated in this matter. Applicant is in jail since 4.2.2023. The entire controversy is an outcome of non registered agreement to sale. As per agreement the complainant was required to pay complete consideration amount i.e. Rs. 21,63,36,000/- by 25.12.2021 but complainant failed to discharge the fixed part of the contract and had issued notice to Sanjay Tiwari by seeking performance of contract but the complainant has paid only Rs. 5,83,00,000/-. The co-accused had also executed two registered sale deeds in favour of complainant and his family members on 3.8.2021 itself. Since the complainant himself was threatening the present applicant, a written complaint was preferred to the police authorities and FIR has been registered against the complainant. The present applicant is not named in the FIR, he is not party in said agreement and registered sale deed. He has neither executed any agreement nor received any consideration amount. The Hon'ble Apex court vide order Signature Not Verified Signed by: BHUVNESHWAR DATT JOSHI Signing time: 17-02-2023 20:29:43

dated 24.1.2023 has granted interim protection to the co-accused Sanjay Tiwari against his arrest. The applicant is permanent resident of District Indore. In support of his submission, he has placed reliance upon judgment of the Hon'ble Apex court dated 17.3.2015 in the case of Vesa Holdings Pvt Ltd. Vs. State of Kerala passed in Criminal appeal No. 2341 of 2011. Final conclusion of trial will take considerable long time. Hence, he prays that applicant be released on bail.

Per-contra, learned PL for respondent/State opposes the bail application and prays for its rejection by submitting that there is prima facie evidence available on record against the applicant regarding the aforesaid offence, hence he does not deserve for bail.

Learned counsel for objector also opposes the bail application and prays for its rejection by submitting that the applicant in collusion with other co- accused persons has cheated the complainant and received an exorbitant amount of crores of rupees on pretext of selling him land properties. The applicant acknowledged the receipt of money in the said fraudulent transaction in writing. If the applicant is enlarged on bail he will deliberately cause delay in the investigation and trial. In support of his contention he placed reliance upon order dated 29.7.2022 passed in M.Cr.C. No. 33054/2022 in the matter of Bharat @ Gabbu Vs. State of MP. Hence he prays that the applicant does not

deserve for bail.

Perused the case diary as well as the impugned order of the court below. 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 the agreement to sale has been executed between

Signature Not Verified Signed by: BHUVNESHWAR DATT JOSHI Signing time: 17-02-2023 20:29:43

Sanjay Tiwari and Rajesh Tiwari with Vishnu Patel and both of them executed the sale deed in favour of family members of Vishnu Patel, the present applicant is not the signatory of the agreement and registered sale deed, even he is not registered owner of the aforesaid land in question, he has not named in the FIR, as per FIR version whole amount was received by accused Sanjay Tiwari, the Hon'ble Apex court has granted interim protection in favour of said Sanjay Tiwari against his arrest, prima facie it appears that present applicant is not a party of the disputed transaction, therefore, I deem it proper to release the applicant on bail.

Accordingly, without commenting on the merits of the case, the application is allowed. It is directed that the applicant be released on bail upon his furnishing a personal bond in the sum of Rs.75,000/- (Rs. Seventy Five Thousand only) with one solvent surety in the like amount to the satisfaction of the trial Court for his appearance before the trial Court, as and when required. He shall abide by the conditions enumerated u/S. 437(3) Cr.P.C.

Certified copy as per rules.

(ANIL VERMA) JUDGE BDJ

Signature Not Verified Signed by: BHUVNESHWAR DATT JOSHI Signing time: 17-02-2023 20:29:43