Rajasthan High Court - Jodhpur

Dharmendra Panwar vs State Of Rajasthan on 10 August, 2023

Bench: Kuldeep Mathur

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Miscellaneous Bail Application No. 2877/2023

Dharmendra Panwar S/o Shri Kuny Singh, Aged About 57 Years, R/o Villa 32 Nandanvan Greens Kheme Ka Kua Pal Road Ps Shastri Nagar Jodhpur Raj. 342008 (Petitioner In J.c. Since 17/11/2022 At Jodhpur Central Jail )

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

----Respondent Connected With S.B. Criminal Miscellaneous Bail Application No. 2058/2023 Dr. Dharmendra Pawar S/o Sh. K.s. Pawar, Aged About 55 Years, R/o Villa 32, Nandanvan Greens, Kheme Ka Kua Pal Road, Pal Road, Ps Shastri Nagar Jodhpur, Rajasthan- 342008. (Petitioner In Judicial Custody Since 17-11-2022 At Jodhpur Central Jail).

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

----Respondent

For Petitioner(s) : Mr. Parvez Khan Moyal Mr. Rakesh Gupta For Respondent(s) : Mr. A.R. Choudhary, P.P.

For Complainant           :    Mr. Falgun Buch


          HON'BLE MR. JUSTICE KULDEEP MATHUR
                                    Order
10/08/2023

These applications for bail under Section 439 Cr.P.C. have

been filed by the petitioner who has been arrested in connection

with F.I.R. Nos.142/2022 and 164/2022 registered at Police

Station Bhagat Ki Kothi, District Jodhpur for the offences under

Sections 420, 406, 467, 468 and 120B IPC.

As per prosecution story, the petitioner and his wife were

directors in Bombay Solar and Wind Power Pvt. Ltd. (hereinafter

(2 of 11) [CRLMB-2877/2023]

referred to as 'company') which was an impanelled vendor for

installing solar plants under supervision of Rajasthan Renewal

Energy Corporation Limited (for short 'Corporation').

The petitioner assured the complainant and many other

persons who were interested in installation of solar energy plants

on rooftops of their houses that since his company is an

impanelled vendor of RRPCL, they would be given subsidies. That

in order to take benefit of the subsidy scheme floated by the

Corporation, they will have to deposit 70% of the cost of the solar

plant to the company while the remaining 30% shall be paid to the

company by the Corporation. Believing upon the false assurance

given by the petitioner, the complainant paid a sum of ₹1,83,020/-

through cheque No.14228 dated 29.06.2021, in the name of the

petitioner's company. However, even after encashing the cheque,

the company did not install solar plant despite commitment given

by the company to the complainant through a written contract.

As per prosecution, in like manner, amount was collected by

the company from large number of people/prospective customers

and even after collecting the amounts, solar plants were not

installed. A fraud of ₹5,38,72,399/- was committed. The details of

the FIRs lodged against petitioner are as under:-

 क.सं.       प्र.सू.रि. संख्या             पलि
                                            ु स थाना                      धारा            वर्तमान स्थिति

  1.     91/24.06.2022                खांडा फलसा             420, 406, 120, 120 ख             लंबित
                                                             भा.दं .सं

  2.     304/12.09.2022               बनाड़                  420, 406 भा.दं .सं               लंबित

  3.     500/27.08.2022               महामंदिर               420, 406, 467, 468,              लंबित
                                                             120, 120 ख भा.दं .सं

  4.     210/08.05.2022               उदयमंदिर               420,        406,     120 ख       लंबित
                                                             भा.दं .सं

  5.     107/06.06.2022               एयरपोर्ट               420, 406, 120 ख                  लंबित



                                      (3 of 11)                         [CRLMB-2877/2023]




                                                 भा.दं .सं

 6.    271/07.09.2022    मण्डोर                  420,        406,      120 ख    लंबित
                                                 भा.दं .सं

 7.    280/09.12.2002    मण्डोर                  420,        406,      120 ख    लंबित
                                                 भा.दं .सं

 8.    129/13.07.2022    भगत की कोठी             420, 406, 467, 478,            लंबित
                                                 120 ख भा.दं .सं

 9.    142/02.08.2022    भगत की कोठी             420, 406 भा.दं .सं             लंबित

 10.   164/06.09.2022    भगत की कोठी             420, 406 भा.दं .सं             लंबित

 11.   233/29.11.2022    भगत की कोठी             420,        406,      120 ख    लंबित
                                                 भा.दं .सं

 12.   166/05.06.2022    दे वनगर                 420, 406 भा.दं .सं             लंबित

 13.   201/07.09.2022    प्रतापनगर               420,        406,      120 ख    लंबित
                                                 भा.दं .सं

 14.   214/19.09.2022    प्रतापनगर               420,        406,      120 ख    लंबित
                                                 भा.दं .सं

 15.   251/03.08.2022    दे वनगर                 420,        406,      120 ख    लंबित
                                                 भा.दं .सं

 16.   297/07.09.2022    दे वनगर                 420, 406, भा.दं .सं            लंबित

 17.   298/07.09.2022    दे वनगर                 420, 406, भा.दं .सं            लंबित

 18.   302/08.09.2022    दे वनगर                 420, 406, भा.दं .सं            लंबित

 19.   303/08.09.2022    दे वनगर                 420, 406, भा.दं .सं            लंबित

 20.   308.10.09.2022    दे वनगर                 420, 406, भा.दं .सं            लंबित

 21.   317/17.09.2022    दे वनगर                 420, 406, भा.दं .सं            लंबित

 22.   276/11.10.2022    सरदारपुरा               420, 406, भा.दं .सं            लंबित

 23.   359/10.10.2022    दे वनगर                 420, 406, भा.दं .सं            लंबित

 24.   380/01.11.2022    दे वनगर                 420, 406, भा.दं .सं            लंबित

 25.   230/08.11.2022    राजीव गांधी नगर         420, 406, भा.दं .सं            लंबित

 26.   627/21.10.2022    कुड़ी भगतासनी           420, 406, भा.दं .सं            लंबित

 27.   232/10.11.2022    राजीव गांधी नगर         420, 406, भा.दं .सं            लंबित

Learned counsel for the petitioner on last occasion when the

instant matter was reserved by this Court on 11.05.2023, had

submitted that the petitioner is desirous and has shown his

willingness to refund the amount collected by him as advance

(4 of 11) [CRLMB-2877/2023]

from consumers/prospective customers for installation of solar

plants.

For the settlement of accounts/ refund of money, two

proposals were submitted by the counsel, which had been made

part of the order dated 16.05.2023 passed by this Court and reads

as follows:-

"Proposal No. 1.

1. Rajasthan High Court directs Rajasthan Renewable Energy Corporation Limited (RRECL) (Nodal Agency for the Scheme) to open an Escrow Account for the amount Rs. 99 lakhs (approx.) as withheld on the grievances of the customers/complainants, same has been commissioned for the projects completed by the petitioner

2. Petitioner would make available all the details i.e. name of customers/complainants. account details, repayment amount. FLR details, etc., to RRECL after which RRECL would issue a certificate/undertaking /compliance receipt regarding the payment made to the customers/complainant, and certifies that grievances of the complainant customers have been redressed.

3. That petitioner be enlarged on bail in all the cases on the filing of Bail application u/s 437 Cr.P.C. with the condition in a time period of 4 to 6 months petitioner would furnish a certificate/undertaking/compliance receipt issued by RRECL to the concerned trial court, may impose other conditions to secure his presence or fulfill the compliance of Hon'ble High Court order, in case of failure, bail became automatically rejected.

4. The certificate/undertaking/compliance receipt to become proof of settlement of the dispute, which required to be presented before the trial court along with an application for the compounding of the offence, and the trial court after examining all the aspects of the matter would close the proceedings against the petitioner.

5. That amount paid to the customer is required to be paid in two instalments of 50%, as some of the customers/complainants received solar plates/ inverters/batteries/stands, which requires to be settled

(5 of 11) [CRLMB-2877/2023]

with the customers to save petitioners from monetary loss, under the supervision of concern trial court, as some of the customers/complainants filed FIR with an ulterior motive to harass petitioners instead of settlement of the dispute amicably.

6. That customers/complainants would withdraw all the civil as well as criminal cases filed against petitioners or his family members.

7. That it is pertinent to mention here that RRECL is ready to resolve the dispute with the permission of the Hon'ble Court.

Proposal no. 2.

1. That all the Bank Accounts of the petitioner have been freezed, so all the funds of the petitioner became immobilized, first requires to unfreeze them by directing the concerned trial court, so that the petitioner could raise funds to settle the dispute.

2. That petitioner be enlarged on conditional bail by making an undertaking to redress the grievances of the customers/complainants with in time period of 4 to 6 months.

3 An amount of Rs 99 Lakhs has been withheld by RRECL, except to this petitioner also has gold amounted to Rs. 75,00,000/- (which mortgaged with Bank) for Rs.32,00,000/- and other items through which he could raise funds, petitioner would make payment to the customers/complainants on a settlement deed, verified by concern trial court, subject to the claims raised by petitioner, as some of the customers/complainants have solar plates/batteries/ Inverters/ stand, etc which require to be determined by the concern trial court.

4. In case the petitioner is not able to keep his promise his conditional bail would require to be cancelled."

When the matter was taken up by this Court for hearing on

03.08.2023, learned counsel for the petitioner submitted that the

petitioner in order to settle the dispute with the complainants of

various FIRs, has voluntarily submitted an undertaking before this

Court, disclosing his willingness to refund the outstanding amount

(6 of 11) [CRLMB-2877/2023]

of the complainants, in case his bank accounts are ordered to be

unfreezed by this Court.

The undertaking voluntarily submitted by the petitioner,

reads as under:-

"UNDERTAKING

I, Dharmendra Pawar, S/o Shri Kune Singh Ji, aged about 58 years, resident of Villa No.32, Nandanvan Greens, Kheme Ka Kuan, Jodhpur at present lodged at Central Jail, Jodhpur do hereby state on oath as under:-

1. I state that an FIR bearing no.164/2022 has been registered against me at P.S. Bhagat Ki Kothi under the Section 420, 406 IPC.

2. I state that I instructed my counsel to give undertaking before the Hon'ble Court showing my willingness to settle the outstanding of the complainant within a period of 90 days from the date of unfreezing of my bank accounts, which are seized by the order of Investigating officer.

3. I state that following bank accounts and gold loan accounts have funds available in them, which are freezed by the bank authorities under the order of the Investigating Officer:-

     Name of the Bank and Account Details                      Available
                                                               balance
     HDFC Bank Ltd.: 1. Narpat Nagar, Pal                       Rs.5,24,049.6
     Road, Jodhpur.                                                  4/-
     Name of Account Holder: M/s.
     HOLYSUN ENERGY
     Account No.50200045536757
     Type of Account - Current A/c
     Gold Loan Account: ICICI Bank, Jaljog                      Rs.12,51,355.
     Circle, Jodhpur.                                               17/-
     Account ID 016705011805
     Gold weight: 624gms. ,
     value - 34,96,896.00
     Dr. Bal. 22,45,540.83
     Name of Account Holder- Shalini
     Dharmendra Pawar
     Gold Loan Account : ICICI Bank, Jaljog                     Rs.9,38,647.9


                             (7 of 11)                    [CRLMB-2877/2023]


Circle, Jodhpur.                                                 3/-
Account ID 016705011806
Gold weight: 427 gms.,
value - 23,92,908.00
Dr. Bal. 14,54,260.07
Name of Account Holder - Dharmendra
Pawar
Funds kept on HOLD by RRECL                   Rs.95,70,948.
                                                   00/-
Total                                         Rs.1,22,83,00
                                                  0.70/-

4. I state that the outstanding amount of the complainant in this FIR No.164/2022 is 1,83,020.00, which would be paid by me within 90 days in two equal installments.

5. I state that I have no objection if the Hon'ble High Court may direct the police authorities to instruct the concerned bank authorities to release an amount of Rs.91,510.00 towards the first installment of the entire outstanding of the complainant.

6. I state that Hon'ble Court may direct the complainant to give his bank details to the Investigating Officer, who would instruct the concerned bank to release the amount of Rs.91,510.00 which would be paid directly in the bank account of the complainant.

7. I state that the second installment of the entire outstanding shall be paid within 60 dyas from the date of release of first installment. The petitioner would undertakin a survey to identify various parts installed at the site of various complainants and the corresponding amount of the parts shall be adjusted against their payment of second installment.

8. I state that I shall get an approval on the amount of second installment after making necessary adjustments from the complainant. Upon his consent, the police authorities may direct the concerned bank to release the agreed amount of second installment and deposit the same in the bank account of the complainant.

9. I state that I undertake to settle all the outstanding customers from the amount of subsidy to be received

(8 of 11) [CRLMB-2877/2023]

by me from RRECL and will take no objection from those customers.

10. I state that I undertake before the Hon'ble Court that the bail granted to me pursuant to this undertaking conditional one and subject to the conditions agreed by me in this undertaking, which may kindly be taken on record and kindly be made part of the bail order.

11. I state that I undertake to surrender my passport before the police authorities as directed by the Hon'ble High Court and I undertake not to go out of country till the proceedings are finally concluded.

12. I state that I undertake to obey and abide by any and all conditions as given by the Hon'ble High Court pursuant to the aforesaid undertaking.

I undertake as stated above.

Dated:- 19.07.23 Dharmendra Pawar S/o Sh. Kune Singh Ji At present lodged at Central Jail, Jodhpur" Learned Public Prosecutor opposed the bail application.

However, learned counsel for the complainant submitted that in

view of the fact that the petitioner has shown his willingness to

settle/refund the amount outstanding, he has no objection, in

case, the petitioner is enlarged on bail.

Learned counsel for the complainant placed reliance on

judgment dated 04th July 2023, rendered by Hon'ble the Supreme

Court in the case of Ramesh Kumar vs. State of NCT of Delhi

[SLP (Crl.) No.2358 of 2021].

The relevant para of the judgment is reproduced herein

below for ready reference of the Court:-

"...However, inclusion of a condition for payment of money by the applicant for bail tends to create an impression that

(9 of 11) [CRLMB-2877/2023]

bail could be secured by depositing money alleged to have been cheated. That is really not the purpose and intent of the provisions for grant of bail. We may, however, not be understood to have laid down the law that in no case should willingness to make payment/deposit by the accused be considered before grant of an order for bail. In exceptional cases such as where an allegation of misappropriation of public money by the accused is levelled and the accused while seeking indulgence of the court to have his liberty secured/restored volunteers to account for the whole or any part of the public money allegedly misappropriated by him, it would be open to the concerned court to consider whether in the larger public interest the money misappropriated should be allowed to be deposited before the application for anticipatory bail/bail is taken up for final consideration. After all, no court should be averse to putting public money back in the system if the situation is conducive therefor. We are minded to think that this approach would be in the larger interest of the community. However, such an approach would not be warranted in cases of private disputes where private parties complain of their money being involved in the offence of cheating."

Having gone through the FIR, challan papers submitted by

the investigating agency before competent criminal court, police

investigation report produced before this Court (C.O. Diary), this

Court finds that allegation against the present petitioner is of

committing financial fraud of high magnitude involving huge public

money. This Court prima facie finds that huge public money is

involved in the present case and the petitioner has shown his

willingness to refund/ settle/ deposit outstanding money of the

complainant within 90 days of grant of bail by this Court, subject

(10 of 11) [CRLMB-2877/2023]

to the condition that his bank accounts freezed by the bank

authorities under the orders of Investigating Officer are unfreezed.

This Court keeping in view the larger public interest deems it

appropriate to extend an opportunity to the petitioner to refund

the money allegedly taken by him from large number of people/

prospective customers and therefore, is inclined to grant interim

bail to the petitioner for a period of 100 days.

Accordingly, instead of granting regular bail to the petitioner,

this Court deems it appropriate to grant interim bail to the

petitioner under Section 439 Cr.P.C. for a period of 100 days and it

is ordered that the accused-petitioner -Dharmendra Panwar

S/o Shri Kuny Singh shall be enlarged on interim bail in

connection with F.I.R. Nos.142/2022 and 164/2022 registered at

Police Station Bhagat Ki Kothi, District Jodhpur, subject to the

condition that he furnishes a personal bond in a sum of

Rs.2,00,000/- with two sound and solvent sureties in the sum of

Rs.1,00,000/- (out of which one surety will be a close relative of

the petitioner and resident of Jodhpur city) each to the satisfaction

of learned trial court for his surrender on completion of 100 days

period from the date of his actual release.

This Court is not supposed to impose conditions upon the

petitioner while granting bail but keeping in view the law laid down

in the case of Ramesh Kumar (supra) and looking to the

seriousness of allegations against the petitioner, the petitioner

shall be released on interim bail subject to the condition that he

shall:-

a. not take undue advantage of liberty or misuse the liberty b. not act in a manner prejudice to the interest of prosecution

(11 of 11) [CRLMB-2877/2023]

c. surrender passport to the competent criminal court within a week.

d. not leave the State of Rajasthan without prior permission of competent criminal court.

e. mark presence before court concerned as may be directed and also mark presence at the concerned police station every month on 1st Monday of English Calendar Month from 11 am to 1pm.

f. not tamper with evidence, nor act in breach of law nor intimidate any witness directly or indirectly.

This Court in order to secure the ends of justice and prevent

abuse of process of law deems it just and proper to exercise

inherent powers under Section 482 CrPC. Consequently, it is

directed that appropriate orders for unfreezing of the bank

accounts will be issued by the competent authorities/

Investigating Officer within a period of three days of this order.

The petitioner immediately after unfreezing of his accounts,

will start making repayment if the money due to the complainant

in terms of the undertaking submitted by him before this Court.

The undertaking submitted by the petitioner is ordered to be made

part of this order.