Surendra Singh Rathore @ Sonu vs State Of Rajasthan
2021 Latest Caselaw 16804 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 10988/2020

Surendra Singh Rathore @ Sonu S/o Shri Ramesh Kumar, Aged About 36 Years, R/o Opposite Shiv Mandir , Luniyapura , Abu Road, Distt. Sirohi , Raj.

                                                                    ----Petitioner
                                     Versus
State Of Rajasthan, Through Pp
                                                                  ----Respondent


For Petitioner(s)          :     Ms. Nupur Bhati
                                 Mr. Sandeep Soni
For Respondent(s)          :     Mr. Mohd. Javed Gauri, P.P.
                                 Mr. Shambhoo Singh, for the
                                 complainant



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                      Order

11/11/2021

Heard the learned counsel for the petitioner as well as the

learned Public Prosecutor and perused the material available on

record.

The petitioner, who apprehends his arrest in connection with

FIR No.22/2020 of Police Station Anandpuri, District Banswara for

the offence punishable under Sections 420, 120-B, 467, 468 and

471 of IPC has filed this application for anticipatory bail under

Section 438 Cr.P.C.

In the present case, after hearing both the parties and

considering the documents available on record, it appears that

petitioner Surendra Singh Rathore made an assurance to the

complainant along with other persons about establishing and

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starting a hotel in Thailand and under such assurance, the

petitioner received a huge amount from the complainant. It

further transpires that when the petitioner neither honoured his

assurance nor refunded the aforesaid amount, then the

complainant made inquiry and came to know that the petitioner

made a false assurance just to grab the amount from him. The

present FIR was lodged on 19.02.2020.

Learned counsel for the petitioner has submitted that the

complainant and other person namely Dilip jointly entered into an

agreement with the petitioner to start a hotel business at

Thialand. It is further submitted that a written agreement to this

effect was also executed between them. It is also submitted that

the petitioner was already running a restaurant at Thialand and

indulged in the similar nature of businesses. It is submitted that

petitioner assured only to deal with the management and working

of the hotel set up of hotel was to be done by complainant and

others and not by petitioner. It is submitted by counsel for the

petitioner that the amount received by him from the complainant,

was later on, assured to be refunded by Dilip Savot vide document

dated 01.08.2019. It is submitted that this is a case of breach of

agreement and may not be treated as a case of criminal breach of

trust and cheating. It is submitted that the dispute in the present

FIR is of civil nature and, therefore, he may be granted benefit of

pre-arrest bail.

Learned Public Prosecutor has opposed the bail application.

Learned counsel for the complainant has put in appearance and

opposed the bail application contending that the petitioner made

an assurance to establish and start a hotel at Thialand and

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received huge amount of Rs.74 lacs time to time from the

complainant. It is submitted that the petitioner has not taken a

single step regarding the establishment and start of the hotel

business for which he took the amount. It is submitted that the

petitioner cheated the complainant deliberately and grabbed his

money in pre-planned manner. It is submitted that by the

transaction of messages and other documents send by the

petitioner, it is a matter of investigation as to whether the

petitioner has accepted his mistake and gave assurance many a

time to refund the amount but later on did not repay the amount.

Thus, as per the complainant this is a clear case of cheating and

criminal breach of trust. During the course of investigation, no

case for grant of pre-arrest of bail is made out.

Having heard learned counsel for the parties, this Court is of

the opinion that the truthfulness of allegations levelled in the FIR

may not be examined at this stage. It may not be stated at this

stage that the petitioner has wrongly been implicated in the

present case and no custodial investigation is required from him.

The Sessions Court in the order dated 26.08.2020 has observed

that this is a case of grabbing an amount of Rs.74 lacs and

cheating with the complainant.

The Constitutional Bench of Hon'ble Supreme Court in case

of Sushila Aggarwal and Ors. vs. State (NCT) & Anr. (2020)

5 SCC 1 has affirmed and reiterated principal governing the law of

grant/refusal of pre-arrest bail as propounded in case of

Gurbaksh Singh Sibbia vs. State of Punjab (1980) 2 SCC

565. The relevant paragraph No.11 of the said judgment reads as

follows:- "The power under Section 438 Criminal Procedure

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Code, is of an extraordinary character and must be exercised

springy in exceptional cases only."

Having regard to the totality of the facts and circumstances

of the case and looking to the nature of accusation and

seriousness of the offence and the fact that investigation in the

present case is pending, without expressing any opinion on the

merits of the case, this Court is not inclined to grant anticipatory

bail under Section 438 Cr.P.C. to the petitioner.

Accordingly, the application preferred by the petitioner under

Section 438 Cr.P.C. is rejected.

(SUDESH BANSAL),J

149-Taruna/-

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