Allahabad High Court
Navneet Bhadauria vs State Of U.P. Thru. Prin. Secy. Home, ... on 18 November, 2022
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Reserved Court No. - 11 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1841 of 2022 Applicant :- Navneet Bhadauria Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. Counsel for Applicant :- Lalta Prasad Misra,Alok Singh Counsel for Opposite Party :- G.A.,Digvijay Nath Dubey Hon'ble Sanjay Kumar Singh,J.
1. This Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. has been moved by the applicant after rejecting his anticipatory bail application by the order dated 18.10.2022 passed by Special Judge, C.B.I., Court No. 6, Lucknow seeking Anticipatory Bail in Case Crime No. 363 of 2021, under Sections 323, 504, 506, 406, 420, 467, 468 and 471 I.P.C., Police Station Vibhuti Khand, District Lucknow.
2. On the matter being taken, learned counsel for the applicant filed rejoinder affidavit dated 11.11.2022, which is taken on record.
3. Heard Dr. L.P. Mishra, learned counsel, assisted by Mr. Alok Singh, learned counsel for the applicant, Mr. S.P. Tiwari, learned Additional Government Advocate-1st for the State of U.P., Mr. Digvijay Nath Dubey, learned counsel, assisted by Mr. Akhand Pratap Singh, learned cousnel appearing on behalf of first informant/complainant at length and perused the record.
4. As per the prosecution case in brief, complainant Deepak Sharma lodged first information report on 23.07.2021 against Anand Kumar Singh @ Baba Trikaldarshi, Rajeev Lochan Paliwal, Navneet Singh Bhadauria (present applicant) and Vijay Pal Prajapati (Proprietor of "M/S V.P. Construction") alleging inter alia that he is director of "M/s Natural Builders Pvt. Ltd. Company". In the month of December 2018, co-accused Anand Kumar Singh @ Baba Trikaldarshi met him in a party and posed himself to be very knowledgeable person in the field of mining. The applicant on the invitation of Anand Kumar Singh @ Baba Trikaldarshi believing his words visited Lucknow three times to assess the business opportunities. In this regards, meeting was organized by Anand Kumar Singh @ Baba Trikaldarshi at the house of Rajeev Lochan Paliwal, in which all the accused as well as some other persons participated. In January-February, Anand Kumar Singh @ Baba Trikaldarsi informed that tender for government mining in district Banda will be out soon and persuaded him to transfer Rs. One crore so that his company may also be included in the tender process. Anand Kumar Singh @ Baba Trikaldarshi on the pretext of getting the company of the complainant registered in the tender process got his signature done, which was prepared by Rajeev Lochan Paliwal and he was assured that tender will be allotted in his favour. Later on, papers were found to be forged. Subsequently, in the first week of February 2019, co-accused Vijay Pal Prajapati was introduced by Anand Kumar Singh @ Baba Trikaldarshi as owner of the firm M/s V.P. Construction. On 11.02.2019, tender for sand mining was invited by the government, in which tender was bid on behalf of Vijay Pal Prajapati's firm M/s V.P. Construction without his consent and assurance was given that since Vijay Pal Prajapati is local person, therefore, name of his firm is being used, but actual control of the business shall be handed-over to him. As such, he has transferred an amount of Rs. One crore and sixty lacs in the account of M/s V.P. Construction of Vijay Pal Prajapati. On 08.03.2019, second tender for sand mining was allotted to the firm M/s V.P. Construction. Thereafter, he objected for further investment in mining business and decided that investment and profit sharing ratio in the tender allotted to M/s V.P. Construction will be shared jointly by all. He requested the accused person to deposit the amount of their share. Thereafter, on 05.12.2020, a joint venture agreement was executed between complainant - Deepak Sharma and Vijay Pal Prajapati as well as Pramod Tiwari deciding the investment ratio between them. On the same day i.e. on 05.12.2020, another agreement, namely, exclusive sales and marketing agreement was also executed between complainant - Deepak Sharma's firm "Natural Builders Pvt. Ltd. Company" and Vijay Pal Prajapati's firm "M/s V.P. Construction" regarding rights and obligations, sale of product, etc. After some days of start of mining process, the accused persons in collusion with each other with dishonest intention started selling sand under the name of the firm M/s V.P. Construction in violation of aforesaid agreements causing huge loss to him. Complainant raised objection and thereafter on 09.03.2021, a meeting was called to settle the issues in Fairfield Marriott Hotel, Lucknow. On raising objection by him in the meeting regarding the acts and conduct of the accused persons, they started abusing and threatening him and also pointed revolver towards his chest.
5. It is argued by Dr. L.P. Mishra, learned counsel for the applicant that the applicant is neither a proprietor nor partner or investor in M/s V.P. Construction of co-accused Vijay Pal Prajapati. The applicant has no concern whatsoever with the contract/tender given by the State Government to co-accused Vijay Pal Prajapati for excavation of sand, morrum and bajri in question. The complainant invested about Rs. Nineteen crores in the mining business along with co-accused Vijay Pal Prajapati under the influence and at the instance of Anand Kumar Singh @ Baba Trikaldarshi and Vijay Pal Prajapati. No amount has been transferred by the complainant in the account of present applicant. The applicant is neither witness nor party in both the aforesaid agreements dated 05.12.2020, namely, "joint venture agreement" and "exclusive sales and marketing agreement". The dispute between the complainant and co-accused Vijay Pal Prajapati is purely civil in nature. The genuineness of both the above agreements are not disputed. The applicant along with co-accused Rajeev Lochan Paliwal had preferred Writ Petition being Misc. Bench No.17201 of 2021 for quashing of F.I.R., in which interim protection was granted by the Division Bench of this Court staying the arrest of the applicant vide order dated 10.08.2021 till submission of police report under Section 173 (2) Cr.P.C. Subsequently, on submission of charge-sheet dated 01.06.2022 and taking cognizance on 19.07.2022 by the magistrate concerned, Criminal Misc. Writ Petition No. 17201 of 2021 was dismissed as infructuous vide order dated 17.09.2022. It is also pointed out that during investigation, statement under Section 161 of Cr.P.C. of complainant was recorded which has been brought on record at page 102 of paper book, in which complainant has stated inter alia that there was no financial transaction between him and the applicant as well as Rajeev Lochan Paliwal. He also stated that they have not forged any document. On 10.09.2021, complainant and co-accused Vijay Pal Prajapati have also entered into compromise with regard to return of total remaining amount Rs. Twelve crores to the complainant by Vijay Pal Prajapati, in which applicant, Rajeev Lochan Paliwal, Anand Kumar Singh @ Baba Trikaldarshi and Pramod Tiwari were witnesses. It is the case of the complainant that he has paid Rs. Fifty lacs and remaining amount is to be paid by Vijay Pal Prajapati. The applicant is not liable to pay any amount to the complainant. The allegation against the applicant and co-accused Rajeev Lochan Paliwal is that they have instigated Vijay Pal Prajapati for doing such wrongful act. The applicant after submission of charge-sheet challenged the same by means of an application under Section 482 Cr.P.C. no.6754 of 2022, which was disposed of vide order 26.09.2022 directing the applicant to apply for grant of anticipatory bail before the concerned Court below. Thereafter, applicant moved anticipatory bail application before the Court below on 29.09.2022 and during pendency of the same non-bailable warrant was issued on 15.10.2022 against the applicant. On 18.10.2022, Anticipatory Bail Application of the applicant was rejected by the concerned Court below. The applicant fully cooperated with the investigation and did not misuse the aforesaid interim stay order dated 10.08.2018. The co-accused Rajeev Lochan Paliwal has been granted anticipatory bail by the co-ordinate bench vide order dated 20.10.2022 in Criminal Misc. Anticipatory Bail Application No. 1750 of 2022, therefore, applicant is also entitled for same protection on the ground of parity. Much emphasis has been given by contending that main role of cheating, deception and fraud etc. has been attributed to co-accused Anand Kumar Singh @ Baba Trikaldarshi and Vijay Pal Prajapati (Proprietor of M/s V.P. Construction). The applicant has been falsely implicated in this case because he is known to Vijay Pal Prajapati and was one of the witnesses of compromise deed dated 10.09.2021 executed between complainant and co-accused Vijay Pal Prajapati. Applicant has no criminal history to his credit. No such incident took place on 09.03.2021 as alleged in F.I.R. In view of the above, applicant has apprehension of imminent arrest. Lastly, it is submitted that in case, applicant is granted anticipatory bail, he would not misuse the liberty and will co-operate with the trial of this case.
6. Mr. S.P. Tiwari, learned Additional Government Advocate-1st for the State of U.P opposed the prayer for granting anticipatory bail to the applicant by contending that since charge-sheet has been filed and learned magistrate took cognizance thereon and summoned the applicant vide order dated 19.07.2022, therefore, the applicant should appear before the trial Court. As on date there is no material on record to presume the false implication of the applicant. Considering the prosecution case, offence is made out against the applicant.
7. Mr. Digvijay Nath Dubey, learned counsel appearing on behalf of first informant/complainant also vehemently opposed reiterating the prosecution case in the light of F.I.R. It is also submitted that the manner in which crime has been committed is very serious. In order to cheat the complainant, fake and false letter of intent was prepared regarding grant of mining tender in the name of "M/s Natural Builders Pvt. Ltd. Company" and "M/s V.P. Construction" filed as Annexure no.2 to the counter affidavit, whereas actual intent letter was given by the competent authority exclusively in the name of "M/s V.P. Construction" of co-accused Vijay Pal Prajapati, which has been filed as Annexure no.3 to the counter affidavit. Charge-sheet has been filed after detailed investigation. Co-accused Vijay Pal Prajapati challenged the charge-sheet by means of an application under Section 482 Cr.P.C. no.6044 of 2022, in which interim protection was given vide order dated 06.09.2022 on the assurance of Vijay Pal Prajapati that he will pay the entire amount in question to the complainant but he did not comply the same, therefore, his aforesaid application was dismissed vide order 14.09.2022. After submission of charge-sheet, the applicant did not appear despite issuance of non-bailable warrant dated 15.10.2022. Relying on the extract of case diary filed at Page 84 of the counter affidavit, it is submitted that offence under Sections 147, 323, 504, 506, 406, 420 467, 468 and 471 I.P.C. are made out against the applicant. Lastly, relying on the judgment of the Apex Court in the matter of Lavesh Vs State (NCT of Delhi), (2012) 8 SCC 730 and Sumitha Pradeep vs. Arun Kumar C.K & Anr., 2022 LiveLaw (SC) 870, it is submitted that this application is liable to be dismissed.
8. Having heard the learned counsel for the parties, I find that as per prosecution case, first time co-accused Anand Kumar Singh @ Baba Trikaldarshi with dishonest intention by luring the complainant insisted him to invest money in mining business in U.P. and thereafter, he introduced the complainant to Vijay Pal Prajapati (Proprietor of "M/s V.P. Construction"), who was also in his collusion. Subsequently, on their inducement and assurance, complainant believing their words as true, invested money in question in good faith in the mining business along with M/s V.P. Construction. Applicant is neither partner of Vijay Pal Prajapati nor investor in the mining business in question. There is no business deal between the complainant and present applicant-Navneet Singh Bhadauria and he is also not party in the aforesaid agreements dated 05.12.2020. The applicant is not liable to return any amount in question to the complainant. The applicant has no criminal antecedent to his credit. Learned A.G.A. as well as learned counsel for the complainant could not point out any material on record to establish the specific act of forgery or fabrication of any document on the part of present applicant-Navneet Singh Bhadauria. Tender was also not allotted to the applicant. This Court is of the view that in order to constitute the offence under Section 420 I.P.C., there must be element of deception and a person is said to deceive another by "Suggestio falsi" (suggesting false) or "Supressio very" (suppressing the truth) or both intentionally induces another to believe a thing to be true which he knows to be false or does not believe to be true. Under the facts of this case, I find that the co-accused Anand Kumar Singh @ Baba Trikaldarshi and Vijay Pal Prajapati (Proprietor of M/s V.P. Construction) are the main culprit in this case and the case of the present applicant Navneet Singh Bhadauria is distinguishable from them and stands on better footing than that of co-accused Rajeev Lochan Paliwal, who has been granted anticipatory bail by the co-ordinate Bench as noted above. The incident which is alleged to have taken place on 09.03.2021 as alleged in F.I.R. is a disputed question of fact and can be seen by the trial Court. I also find that non-bailable warrant dated 15.10.2022 was issued during pendency of anticipatory bail application of the applicant before the concerned Court below, which was filed in compliance of above order dated 26.09.2022. So far as judgments relied upon by the counsel for the complainant is concerned, this Court is of the view that the same is distinguishable on the facts of this case. It is well settled that every case turns on its own facts. Even one additional or different fact may make a big difference between the conclusion in two cases, because even a single significant detail may alter the entire aspect.
9. In view of the above analysis of the case, looking to the overall facts and circumstances of the case, submissions of learned counsel for the parties, reasonable apprehension of arrest of the applicant, taking into consideration the gravity of offence in the light of nature of accusation so far as against the present applicant is concerned which is distinguishable from the case of Anand Kumar Singh @ Baba Trikaldarshi and Vijay Pal Prajapati and there being no possibility of his fleeing from justice as well as reasons noted above, this Court is of the view that prima facie the applicant has made out a case for granting anticipatory bail during trial.
10. In the event of arrest of the applicant - Navneet Bhadauria involved in the aforesaid case shall be released on anticipatory bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the concerned Court below with the following conditions :-
(i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court on each dates unless inevitable.
(ii) That the applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or tamper with the evidence.
(iii) That the applicant shall not involve in any criminal activity.
(iv) In case of breach of any of the conditions mentioned above, the concerned Court below will be at liberty to cancel the anticipatory bail of the applicant after recording reasons.
11. It is clarified that observations made in this order at this stage is limited to the purpose of determination of this anticipatory bail application only and will in no way be construed as an expression on the merits of the case. The concerned Court below shall be absolutely free to arrive at its independent conclusions according to law on the basis of materials / evidences on record.
12. With the aforesaid observations and directions, this anticipatory bail application is allowed.
Order Date :- 18.11.2022 Shubham