Prakash Modi vs The State Of Madhya Pradesh
2023 Latest Caselaw 793 MP

                                                             1
                           IN     THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                     BEFORE
                                       HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                               ON THE 13 th OF JANUARY, 2023
                                         MISC. CRIMINAL CASE No. 50242 of 2022

                          BETWEEN:-
                          PRAKASH MODI S/O SHRI DILIP MODI, AGED ABOUT 36
                          YEARS, OCCUPATION: BUSINESS R/O BEHIND BRAHMA
                          KUMARI ASHRAM, BARAPATHAR, C.V. RAMAN WARD,
                          SEONI POLICE STATION SEONI, DISTRICT SEONI
                          (MADHYA PRADESH)

                                                                                            .....APPLICANT
                          (BY SHRI P.SHANDILYA - ADVOCATE WITH SHRI SHOEB H.KHAN-
                          ADVOCATE)

                          AND
                          THE STATE OF MADHYA PRADESH THROUGH POLICE
                          STATION LAKHANWADA DISTRICT SEONI (MADHYA
                          PRADESH)

                                                                                        .....RESPONDENTS
                          (BY SHRI PIYUSH JAIN - GOVERNMENT ADVOCATE )
                          (SHRI SUNIL KUMAR PANDEY - ADVOCATE FOR OBJECTOR)

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

                          following:
                                                              ORDER

This is the first application filed under Section 438 of the Code of Criminal Procedure on behalf of the applicant for grant of anticipatory bail.

The applicant is apprehending his arrest in connection with Crime No.257/2022 registered at Police Station - Lakhanwada District Seoni for the offence punishable under Sections 420, 406, 409, 467, 471 and 120-B of IPC.

It is submitted by counsel for the applicant that criminal case for committing fraud has been registered against the applicant on the basis of a Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 1/19/2023 12:59:17 PM

complaint made by the complainant/objector under Section 156(3) of Cr.P.C which is pending before the Judicial Magistrate First Class, Seoni. It is submitted that the dispute is purely of civil nature. It is alleged by the complainant that she is share holder in the company i.e DEPCL (Deepkiran Engineering and Contractors Pvt.Ltd) and applicant who is Director has deliberately put the company at loss. He purchased a property in the year 2015 on a higher rate but sold it after five years on a throw away price. It is alleged that company has suffered a huge loss because of conduct of Director of the company and as such he has committed fraud and put not only the company at loss but complainant being a share holder is also at loss. It is submitted that this

Court had granted interim protection in favour of the applicant vide order dated 10/11/2022 which is still continued. He has placed reliance upon the judgments of the Supreme Court reported in (1975) 2 SCC 791 (Carew and company Ltd Vs. Union of India) and (2012) 6 SCC 613 (Vodafone International Holdings BV Vs. Union of India and another) and submitted that Supreme Court in these cases have determined right of share holders and very categorically observed that right of share holders is only to get dividend and not more than that. He submits that share holders have nothing to do with the transaction made by the Directors of the company in respect of the property belongs to it because share holders are not the owner of the property, it is the company which owns the property. He submits that there is monetary dispute between the applicant party and complainant party and as such they are trying to create pressure upon the present applicant by lodging complaint and initiating criminal prosecution.

In contrary, counsel for State has opposed the submissions made by

Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 1/19/2023 12:59:17 PM

counsel for the applicant alleging that applicant being a Director of the company had purchased the property in the year 2015 on a higher rate and sold it after five years on a throw away price. He further submits that applicant has committed fraud with the company and offence has rightly been registered against him.

Counsel for objector has also supported the submissions made by counsel for State and drawn attention of this Court towards the documents filed along with his objection. He submits that applicant and his family members have deliberately entered into transaction which caused loss to the company, in which complainant is having the maximum share. The Directors have no right to enter into such transaction which is nothing but a fraud and as such they are not entitled to be granted bail or protection under Section 438 of Cr.P.C. To substantiate his submission, he has placed reliance upon a judgment passed by the Supreme Court in Criminal Appeal No.694/2017 (Balakram Vs. State of Uttrakhand & others) and (2008) 1 SCC 632 (Naresh Kumar Yadav Vs. Ravindra Kumar and others).

I have heard counsel for parties at length, perused the case diary and the documents available on record.

However, applicant is a Director in the Company and if any transaction is made by him which relates to the property of the company the complainant

being a share holder having no right to allege fraud against him because share holder has no right to interfere in the transaction made by the Board of Director in relation to the property of the company.

Considering the overall facts and circumstances of the case, this Court deems it appropriate to grant benefit of Section 438 of Cr.P.C to the applicant. Therefore, without commenting anything on the merits of the case, this Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 1/19/2023 12:59:17 PM

application is allowed.

It is directed that in the event of arrest, the applicant be released on bail upon his furnishing a bail bond in the sum of Rs.1,00,000/- (Rupees One Lac) with one solvent surety of the like amount to the satisfaction of Station House Officer/Arresting Officer of the Police Station concerned.

This order shall remain operative subject to compliance of following conditions by the applicant:-

1. The applicant will comply with all the terms and conditions of the bond executed by him;

2. The applicant will cooperate in the investigation/trial, as the case may be;

3. The applicant will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the Police Officer, as the case may be;

4. The applicant shall not commit an offence similar to the offence of which he is accused;

5. The applicant will not seek unnecessary adjournments during the trial; and

6. The applicant will not leave India without prior permission of the trial Court/Investigating Officer, as the case may be.

Certified copy as per rules.

(SANJAY DWIVEDI) JUDGE sushma Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 1/19/2023 12:59:17 PM

Signature Not Verified Signed by: SUSHMA KUSHWAHA Signing time: 1/19/2023 12:59:17 PM