Allahabad High Court
Arshad Khan vs State Of U.P. on 17 January, 2020
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 73 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2192 of 2020 Applicant :- Arshad Khan Opposite Party :- State of U.P. Counsel for Applicant :- Sarvesh Counsel for Opposite Party :- G.A.,Dinesh Kumar Gupta Hon'ble Sanjay Kumar Singh,J.
Rejoinder affidavit filed on behalf of the applicant is taken on record.
Heard Mr. Sarvesh, learned counsel for the applicant, learned Additional Government Advocate representing the State, Mr. Dinesh Kumar Gupta, learned counsel appearing on behalf of informant and perused the record of the case.
By means of this application, the applicant Arshad Khan, who is involved in Case Crime No. 183 of 2016, under sections 420, 467, 468, 471, 506 IPC, police station Kotwali, district Kanpur Nagar, is seeking enlargement on bail during the trial.
As per prosecution case, in brief, the informant lodged first information report dated 24.06.2016 against Mohd. Arshad Khan, (the applicant), his wife Smt. Salma Khan and his brother Zafar Khan, making allegation inter alias that part of Arazi No. 461/4, private Plot No. 39-A, situated at village Arra, Tehsil and District Kanpur Nagar, area, 83.6 sq. mt. was purchased by the informant in the name of his wife Smt. Bahar Sultana from the applicant after paying sale consideration amount of Rs. 8,10,000/- (rupees eight lac ten thousand only) through registered sale deed dated 05.04.2014, and thereafter, mutation of name of wife of informant was made pursuant to the said sale deed. On 25.02.2016, the informant came to know that the applicant in collusion with his wife Smt. Salma Khan had already taken a loan on the said property from the State Bank of India, Rail Bazar, Kanpur Nagar in the year 2004, and on account of non-payment of said loan, same has become N.P.A. On the said allegation, it is submitted by the learned counsel for the applicant that in fact, it is the applicant, who has been cheated by the informant and his wife because the applicant had purchased the plot in the year 2004, and thereafter, got the house constructed over the said plot in the year 2005. Since, the applicant was seriously ill and he was mentally sick, therefore, the informant taking advantage of unfavourable circumstances of the applicant, assured the applicant that he will pay the loan amount of the applicant due on the Bank, in case the said house is sold by him in favour of wife of the informant. The applicant believing the words of informant executed sale deed of his house in favour of wife of the informant, but the informant very cleverly instead of word "house" succeeded in getting the word "plot" mentioned in the sale deed and did not pay the loan amount, which was due upon the applicant, therefore, the Bank has filed a suit for recovery of loan amount as Case no. 05-273 of 2009 in the Small Causes Court 2A/JSCC, Kanpur Nagar against the applicant, in which the informant is not party. It is further submitted that the applicant has been falsely implicated by the informant in order to save his skin, because he has cheated the applicant by misleading him that he would pay off the loan of the Bank. It is next submitted that the dispute between the parties is of civil in nature. It is also submitted that the applicant has no criminal antecedent to his credit and is facing detention since 13.12.2019. It is next contended that there is no chance of the applicant of fleeing away from the judicial process or tampering with the prosecution evidence. Learned counsel for the applicant lastly submitted that if the applicant is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case. It is also submitted that after decision of the civil court, the applicant will pay the said amount to Bank as per direction of the court.
Per contra, learned Additional Government Advocate as well as learned counsel appearing on behalf of informant have vehemently opposed the bail prayer of the applicant by contending that in fact, the applicant had purchased the plot, and thereafter, construction was made over the said land by the informant. The applicant had executed sale deed in favour of wife of the informant concealing the fact of taking loan from the Bank by the applicant. After submission of charge sheet, the applicant has filed application under section 482 Cr.P.C. Nos. 21005 of 2019 and 22967 of 2019, but the same were disposed of vide orders dated 27.05.2019 and 24.06.2019 directing the applicant to surrender before the concerned court below. The applicant preferred Petition for Special Leave to Appeal (Criminal) No. 10823 of 2019 before the Apex Court, in which counsel for the applicant submitted that his client is willing to deposit an amount of RS. 6,30,000/- (rupees six lac thirty thousand only) or the full amount which is to be paid to the State Bank of India. The Apex Court vide order dated 02.12.2019 directed the concerned trial court to consider the bail application of the applicant, expeditiously in accordance with law, but said amount of loan has not been deposited by the applicant, therefore bail application of the applicant is liable to be dismissed.
Keeping in view the nature of the offence, evidence, complicity of the accused, considering the submissions of the learned counsel for the parties, this Court feels that rival submissions about construction of plot over the land in question is a matter of evidence in trial. Since, informant is not party in a proceedings of aforesaid Case No. 05-273 of 2009 filed by the Bank against the applicant and charge sheet has already been filed in the matter, the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant Arshad Khan, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicant will not indulge in any unlawful activities.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. It is further clarified that the trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
Order Date :- 17.1.2020 Sazia