Allahabad High Court
Amit Kumar Rai @ Padmakar vs State Of U.P. on 2 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. - 55330 of 2019 Applicant :- Amit Kumar Rai @ Padmakar Opposite Party :- State of U.P. Counsel for Applicant :- Santosh Kumar Rai,Lav Srivastava,Shri V.P. Srivastava Sr. Adv. Counsel for Opposite Party :- G.A.,Kailash Prakash Pathak,Pramod Kumar Sahani,Sheikh Obaidullah Hon'ble Sanjay Kumar Singh,J.
Supplementary counter affidavit filed on behalf of informant is taken on record.
Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Santosh Kumar Rai, learned counsel for the applicant, learned AGA for the State and Sri Satish Trivedi, learned Senior Advocate assisted by Sri Pramod Kumar Sahni, Sri Sheikh Obaidullah and Sri Ajay Pandey, learned counsel for the informant.
As per the prosecution case, main allegation against the applicant is that he alongwith other co-accused have extracted total an amount of Rs. 48,62,000/- from the informant by showing the land of co-accused Ramasray and giving an assurance of getting the sale deed of the land in question executed in favour of the informant by the other co-accused persons, who are owner of the land. In the FIR it is also alleged that applicant got an amount of Rs. 1 lac, 4 lac, 2 lac and 3 lac transferred in the account of Indrajeet Yadav, Awadhesh Yadav, Abhimanyu Yadav and Ramasray respectively and remaining amount was transferred by the informant in the account of applicant, but neither sale deed has been executed in favour of the informant nor his money has been returned.
The main substratum of argument of Sri V.P. Srivastava, learned Senior Advocate appearing on behalf of the applicant is that the land in question was not plain land. It had several pits and was also not demarcated by boundary walls, therefore, without developing and demarcating the same by filling pits and getting the boundary wall constructed, plotting on the said land was not possible. Under the circumstances, applicant being mediator has taken total an amount of Rs. 21,08,000/- by twelve different cheques from the first informant on different dates between 07.08.2018 to 31.12.2018 for the purpose of development and construction of boundary wall over the land in question. It is next submitted that no cash amount was given by the informant as alleged by him and aforesaid deal was oral between the informant and owners of the land namely, Awdhesh Yadav, Indrajeet Yadav, Abhimanyu Yadav and Ramasray Yadav, who had also taken advance money by the informant. It is further submitted that applicant was mediator in the said deal and there is no fault on the part of the applicant, as applicant got the soil work carried out and has developed the land in question and also got the boundary wall constructed over the land in question investing the amount given by informant to him after retaining his profit/commission. Learned counsel for the applicant in support of his submission referred some bill and vouchers of Rs. 14,11,600/- filed as Annexure No.5 and also placed reliance on the photographs of the land in question filed as Annexure No.6 to the application. It is also submitted that major portion of land belongs to Ramasray Rai, but on account of filing injunction Suit No. 176 of 2018 by his brother Sarvesh Kumar against Ramasray Rai, sale deed has not been executed by Ramasray Rai in favour of informant, for which applicant cannot be said to be at his fault. As per prosecution case, Indrajeet Yadav, who was one of the owner has returned the amount taken by him to the informant. Further submission is that aforesaid civil suit is still pending. Applicant has been falsely implicated. Regarding criminal history of the applicant it is submitted by Sri V.P. Srivastava, learned Senior Advocate that earlier he was implicated in case crime no. 349 of 2017 under Sections 147, 384, 323, 336, 504, 506, 427 IPC, but final report was submitted in the said case, as the involvement of the applicant was found false. It is also submitted that in another case crime no. 756 of 2000 under Sections 323, 506, 427 IPC and Section 3(1) (X) SC/ST Act, Police Station Saray Lakhansi, District Mau nothing credible was found against the applicant. The applicant is languishing in jail since 15.11.2019 and the applicant undertakes that in case he is released on bail, he will not misuse the liberty of bail and cooperate in trial. It is also submitted that case of applicant is distinguishable from the case of other co-accused persons.
Per contra, submission of Sri Satish Trivedi, learned Senior Advocate appearing on behalf of informant is that the informant had given an amount of Rs. 21,08,000/- by cheque, detail of the same has been filed as Annexure No. 3 to the counter affidavit and an amount of Rs. 17,54,000/- in cash to the applicant, because he was mediator. It is also submitted that prior to giving the aforesaid amount to the applicant, boundary wall was already constructed over the land in question. Some photographs have also been filed alongwith counter affidavit as Annexure No.6. He also submits that fact of pendency of civil suit was deliberately suppressed by the accused persons. It is submitted that land of plot no. 84 of Ramashrey Rai, plot no. 87 of Indrajeet Yadav and Ramjeet Yadav were shown to informant. The applicant is land Mafia. Detail of expenses as shown by the applicant is false. Much emphasis has been given that in civil suit no. 176 of 2018, injunction was granted on 31.05.2018, therefore, no construction could be done after granting injunction order. Mr. Satish Trivedi, learned Senior Advocate placed reliance on the affidavit dated 21.12.2019 of Mamta Rai wife of Sarvesh, in which she has stated that defendant in collusion with the applicant started construction on 1.6.2018 despite injunction order dated 31.05.2018, but same was stopped by district authorities on making complaint by her. In para 18 of short counter affidavit, it is mentioned that applicant is facing trial in case crime no. 349 of 2017, but no document has been filed. Applicant has denied such averments in para 15 of his rejoinder affidavit. Lastly, it is submitted that bail application of the applicant is liable to be rejected. Learned AGA also reiterated the submissions as argued by Sri Satish Trivedi, learned Senior Advocate.
One of the dispute in this matter is whether the boundary walls on the land in question were already constructed prior to giving the amount in question by the informant to the applicant as well as other co-accused persons or it was subsequently got constructed by the applicant. By order dated 19.12.2019 time was granted to the learned counsel for the informant to substantiate his argument by documentary evidence on record that boundary walls on the land in question were already in existence prior to giving amount by the informant to the applicant.
Today, supplementary counter affidavit has been filed enclosing injunction order, affidavit dated 21.12.2019 and Khatauni of plot no. 84.
In rejoinder submission, Sri V.P. Srivastava, learned Senior Advocate has pointed out that affidavit dated 21.12.2019 of Smt. Mamta Rai was prepared after order dated 19.12.2019 of this Court and boundaries of the land in question as mentioned in para 4 of the affidavit dated 21.12.2019 is different from the map and detail of land as mentioned in plaint of suit no. 176 of 2018. On the photograph of the land filed at page 31 of the counter affidavit, date is mentioned as December 29, 2018. In the plaint of Suit no. 176 of 2018 there is no averment that land in question is covered by boundary walls.
After having heard the submissions of learned counsel for the parties, I find that it is admitted fact that applicant is not owner of the land in question. There is no written agreement between the parties concerned that for what purpose, the informant had given an amount in question to the applicant. In absence of written agreement, parties concerned are taking different stand whether informant was aware about the aforesaid civil suits or not, and whether boundary walls over the land in question were already constructed or subsequently got constructed by the applicant are matter of evidence in trial.
Considering the facts and circumstances of the case, keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, I am of the view that the applicant has made out a fit case for bail. Hence, the bail application is hereby allowed.
Let the applicant Amit Kumar Rai @ Padmakar, 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 :- 2.1.2020 AK Pandey