Madhya Pradesh High Court
Pawan Kumar Ajmera vs The State Of Madhya Pradesh on 24 June, 2020
Author: Virender Singh
Bench: Virender Singh
1
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
M.Cr.C. Nos.18522, 18524, 18528 of 2020
M.Cr.C. Nos.18522, 18524, 18528 of 2020
Pawan Kumar Ajmera Vs. State of M.P.
Indore, Dated:- 24/06/2020
Shri A. S. Garg, learned Senior Counsel with Shri
Sapnesh Jain, learned Counsel for the petitioner.
Shri Saaransh Jain and Shri R. K. Jain, learned Panel
Lawyers for the respondent/State.
Shri P. C. Nair, learned Counsel for the objector (in M.Cr.C. No.18524 of 2020).
1. Heard with the aid of case diary.
2. Petitioner Pawan Kumar Ajmera has filed all these three petitions for granting bail in the same crime numbers i.e., Crime Nos.1424/2019, 1432/2019 & 02/2020 of Police Station--Lasudia, Indore in which this Court has granted bail to the co-accused Yogita Ajmera, who is his daughter- in-law. At the outset, the petitioner has claimed parity with her (Yogita Ajmera). Advance age, ailment and period of custody have also been taken as other grounds to press the bail. Shri Garg reiterated almost all other contentions relied on at the time of pursuing Yogita's bail. The opposition has contested all the grounds and has prayed for dismissal of all the petitions. It would be apt to go through the order passed in Yogita's case first, which is being reproduced here:
"M.Cr.C. Nos.11569, 11450, 13004 and 14371 of 2020 Yogita W/o Ritesh Ajmera Vs. State of M.P. Indore, Dated:- 28/05/2020 Shri A. S. Garg, learned Senior Counsel with Shri Sapnesh Jain, learned Counsel for the petitioner.
Shri Amol Shirvastava, learned Public Prosecutor for the respondent/State.
Heard with the aid of case diary.
1. All these four petitions are identical, therefore, this order shall govern disposal of all of them.2
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. Nos.18522, 18524, 18528 of 2020
2. All these petitions are the first bail applications under Section 439 of Cr.P.C. filed by the same petitioner Ms. Yogita Ajmera in four different Crime Nos.1424/2019, 1435/2019, 1432/2019 & 02/2020 registered at Police Station
--Lasudia, District--Indore under Sections 420, 467, 468, 471 and 34 of IPC.
3. The chief allegation against the petitioner is that her company, namely, M/s. Phoenix Devcon Private Limited did not deliver possession of the plots sold to the several persons/complainants even after receiving full consideration or even after executing the sale deeds.
4. The chief contention of the petitioner is that she was neither the Director of the company at the relevant point of time, nor has she executed any sale deed. She was director of the Company only from 30.09.2008 to 12.02.2011. None of the alleged transactions were done during this period. She is implicated only on the ground that she is wife of one of the Director of the company or was Director in the company for some time. There is absolutely no inculpatory evidence against her.
5. Second principal contention of the learned Senior Counsel is that the prosecution of the petitioner is against the principle of Double Jeoparde. Earlier in the year 2016, for the same allegation Crime No.13/2016 was registered by the police of Crime Branch, Indore. In that case; the police recorded statements of other aggrieved persons including the present complainants, who made similar allegations at that time too. Clubbing grievance of all those aggrieved persons, the police filed the charge-sheet in that case, which is still pending trial. In that Crime No. 13/2016, the petitioner was granted bail by this Court vide order dated 22.06.2017 passed in MCRC No. 5596/2017. In order to circumvent this bail order, after about 3 years of registration of Cr. No. 13/2016, the police have now registered separate FIRs on the basis of the complaints made by the same persons; whose similar grievance was earlier included in the charge-sheet filed in Cr. No. 13/2016. As per the law and also the common practice of the police, these complaints ought to have been made part of the earlier offence registered in the year 2016 and is still pending for trial. Registration of separate cases is nothing but abuse of powers by the police.
6. It is alleged that in order to harass the petitioner, the police is arresting her in one after the other crime so that she may not come out of the jail even after getting bail from the Court. This is apparent from the fact that when she got bail from this Court in one such case (Cr.No.1410/2019 PS Lasudia), the police arrested her in another case and she could not come out of the jail.
7. It is also averred that in Cr. No. 1410/2019 registered recently at Police Station Lasudia, the co-ordinate bench of this Court has granted bail to the petitioner vide order dated 23.01.2020 passed in M.Cr.C. No.54912/2019. The present cases are identical to the case wherein she has been allowed bail. Therefore, she be granted bail in the present matters also.3
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. Nos.18522, 18524, 18528 of 2020
8. It is further contended that the allegations made in the FIR at its face value do not constitute offence punishable under Ss. 420, 467, 471/34 of the IPC as no document was ever executed by the petitioner nor she persuaded, instigated or deceived anyone or even met with any of the complainant. She is impleaded in the array of the accused only on the basis of principle of vicarious liability, which has no applicability in the criminal law.
9. The learned senior counsel argued that in most of the cases the sale deeds were registered way back in the year 2012 and after about 7-8 years of alleged transaction, the complainant have lodged the present FIR without any explanation for the inordinate delay, which makes their intention as well as intention of the police seriously doubtful.
10. It is further argued that the petitioner is a lady, she is behind the bar since December, 2019, investigation is over, no custodial interrogation is required and nothing has to be recovered from her, therefore, she be granted bail. Threat of life due to recent spread of Covid-19 (corona) Virus is also taken as a ground to press the bail.
11. The objection of the learned Public Prosecutor is that the petitioner was Director of the Company. She and other Directors of the Company have defrauded several persons in the name of selling of the plots, which were not in existence. In pursuant to their intention to defraud the people, they constituted a company, used land of other owners, got it diverted without their knowledge, carved out plots and sold them to several persons for hefty consideration and embezzled the money without delivering possession of the plots purchased by the poor persons. Ld. PP referred an audit report available in the case-diary, showing that it doesn't make any difference as to whether the petitioner was or was not Executive Director of the company and she cannot be exonerated from the liability on this ground.
12. It is also contended by the learned Public Prosecutor that the charge under Section 120-B of IPC is also levelled against the petitioner and in that case no specific allegation or overtact is required to be alleged. It is the conspiracy constituted by the several accused persons, which matters to consider the bail and not the specific act attributed to any individual accused; therefore, the petitioner is not entitled for bail.
13. Another serious objection taken by the learned Public Prosecutor is that a total of 11 cases of similar nature have been registered against the petitioner, which shows that the petitioner is used to commit such offences, therefore, she is not entitled for bail.
14. In reply, it is submitted that there is no evidence to show that the plots sold to the complainant are not in existence. No such allegation is made by them. The only allegation is that the possession of the plots was not delivered. The allegation constitutes predominantly a civil dispute. It does not constitute a criminal offence. Further, no person has approached the police alleging that their land has got diverted or sold by the petitioner fraudulently.4
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. Nos.18522, 18524, 18528 of 2020
15. It is further submitted that in Crime No.13/2016, the petitioner has been granted bail by this Court vide order dated 22.06.2017 passed in M.Cr.C. No.5596 of 2017. In Crime No.1410/2019 registered in the recent development at Police Station Lasudiya also she has been granted bail by the co- ordinate Bench of this Court vide order dated 23.01.2020 passed in M.Cr.C. No.54912 of 2019 and in other cases, she has been granted bail by the Trial Court.
16. It is further contended that all the cases are identical and have been registered subsequently during pendency of the earlier criminal case registered on the basis of the similar allegations made by the same persons, therefore, the bail cannot be denied on this ground.
17. I have considered rival contentions of the parties and have perused the evidence available in the case-diary.
18. The contention that the petitioner was not the Director of the Company except for the period from 30.09.2008 to 12.02.2011 and also the fact that no sale deed was ever executed by the petitioner have not been controverted by the learned Public Prosecutor. This is also not contested that no land owner has approached the police with any sort of allegation of fraud committed by the petitioner.
19. Having regard to the allegation made against the petitioner and after going through the evidence proposed to establish them and also keeping in view the earlier bail orders passed in her favour, I deem it proper to allow all the four petitions. Therefore, without commenting on merits of the case, the applications are allowed.
20. It is directed that the petitioners Yogita W/o Ritesh Ajmera be released from custody on her furnishing a personal bond in the sum of Rs.2,00,000/- (Rupees Two Lakhs) in each cases with one solvent surety of the like amount in each cases to the satisfaction of the Trial Court for her appearance before the Trial Court as and when required further subject to the following conditions:
(i) The petitioner shall co-operate in the trial and shall attend the trial Court during the trial;
(ii) The petitioner shall not directly or indirectly allure or make any inducement, threat or promise to the prosecution witnesses, so as to dissuade them from disclosing such facts of the Court;
(iii) The petitioner shall not commit any offence or involve in any criminal activities;
(iv) In case, involvement in any other criminal activity is found, the bail granted in this case may also be cancelled."
3. Shri Nair, who appeared for the objector, took quite long to explain or to justify the delay in taking action against the company. Sum and substance of the contention is that since even after purchase of the plot they did not get the possession, they were raising their grievance at all available forums. They 5 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. Nos.18522, 18524, 18528 of 2020 also approached the High Court, filed several Writ Petitions, faced Writ appeals, approached the police, lodged complaints etc., but every time the company successfully manipulated things and escaped the dragnet. They all had also approached the police in the year 2016, but the police projected only four persons as complainants and made rest of the aggrieved persons witnesses of the case assuring that their grievance will also be redress in the same case, but the company cleverly won over those four complainants, compromised the case with them and left the objectors hanging in the balance. Their second attempt was also foiled by the company in the same fashion. Their problem still persists. It is further submitted that the sale agreements/deeds of the objectors were executed during the period when the petitioner was one of the director of the company. Yogita had made several financial transactions in the account of the company, which were not available at the time of arguments on her bail application. The company has sold the plots in excess than the land it actually had in its name. It (company) sold the plots assuring the development of the colony, but never did so. After collecting the money, they moved out swiftly and introduced dummy directors. Therefore, the petitioner be not granted bail.
4. In short reply, Shri Garg submitted that the entire argument of the learned counsel of the objector as well as of the learned Penal Lawyer does not show as to how the case of the petitioner is different from the case of Yogita Ajmera. Therefore, it is insisted that on the principle of parity; the petitioner is also entitled for bail. Denying all the allegations levelled by the objectors, it is claimed that there is no evidence to show involvement of the present petitioner, it is further argued that the transactions, if any, done by Yogita Ajmera does not dis-entitle the petitioner from getting the relief prayed 6 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE M.Cr.C. Nos.18522, 18524, 18528 of 2020 for.
5. After giving a considered thought to the contentions of both the parties and after going through the case diary, without commenting on merits or appreciating the evidence, in my opinion, the case for granting bail is made out. Therefore, all three petitions are allowed. The petitioner herein is granted bail in all three petitions on the same terms and conditions as is granted in the Yogita Ajmera's case.
6. Accordingly, all three petitions stand allowed and disposed off.
(Virender Singh) Judge Pankaj Digitally signed by Pankaj Pandey Date: 2020.06.26 17:10:43 +05'30'