Madhya Pradesh High Court
Sawan Kumar Pachoriya vs State Of Mp on 7 November, 2020
Author: Sheel Nagu
Bench: Sheel Nagu
1
The High Court Of Madhya Pradesh
MCRC-38431-2020
(Sawan Kumar Pachoriya Vs State of M.P.)
Gwalior, Dated: 07.11.2020
Shri Abhishek Singh Bhadoriya, learned counsel for the
petitioner.
Shri Ajay Singh Raghuvanshi, learned Panel Lawyer for the
State.
Shri Sohit Mishra, learned counsel for the complainant.
Matter is heard through video conferencing.
Petitioner has filed this third application u/S.438 Cr.P.C. for
grant of anticipatory bail after rejection of earlier ones, out of which
last one was rejected on 14.09.2020 by detailed order on merits.
Petitioner apprehends arrest in connection with offence
punishable u/S.420, 467, 468, 469, 470, 471 of IPC registered as
Crime No.344/2020, by Police Station Maharajpura, district Gwalior
(M.P.).
Learned Panel Lawyer for the State opposed the application and
prayed for its rejection by contending that on the basis of the
allegations and the material available on record, no case for grant of
anticipatory bail is made out.
Learned counsel for the petitioner in present case has relied
upon the decision of Apex Court in case of Mohammed Ibrahim &
Others Vs. State of Bihar and Another, 2009 (8) SCC 751 to
contend that offence of cheating as defined in Section 415 is not made
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The High Court Of Madhya Pradesh
MCRC-38431-2020
(Sawan Kumar Pachoriya Vs State of M.P.)
out, if the promise extended in an agreement to sale is resiled.
Complainant is a person who was not party to the said agreement, and
therefore, the offence of cheating punishable u/s. 420 IPC is not made
out. It is submitted that offences of forgery as alleged are ancillary to
the main offence of cheating and since the main offence of cheating is
not made out, offence of forgery is also not made out. The relevant
paragraph of said judgment is reproduced below for ready reference
and convenience.
"20. When a sale deed is executed conveying a property
claiming ownership thereto, it may be possible for the purchaser
under such sale deed, to allege that the vendor has cheated him
by making a false representation of ownership and fraudulently
induced him to part with the sale consideration. But in this case
the complaint is not by the purchaser. On the other hand, the
purchaser is made a co-accused.
21. It is not the case of the complainant that any of the
accused tried to deceive him either by making a false or
misleading representation or by any other action or omission, nor
is it his case that they offered him any fraudulent or dishonest
inducement to deliver any property or to consent to the retention
thereof by any person or to intentionally induce him to do or omit
to do anything which he would not do or omit if he were not so
deceived. Nor did the complainant allege that the first appellant
pretended to be the complainant while executing the sale deeds.
Therefore, it cannot be said that the first accused by the act of
executing sale deeds in favour of the second accused or the
second accused by reason of being the purchaser, or the third,
fourth and fifth accused, by reason of being the witness, scribe
and stamp vendor in regard to the sale deeds, deceived the
complainant in any manner.
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The High Court Of Madhya Pradesh
MCRC-38431-2020
(Sawan Kumar Pachoriya Vs State of M.P.)
22. As the ingredients of cheating as stated in section 415
are not found, it cannot be said that there was an offence
punishable under sections 417, 418, 419 or 420 of the Code."
In view of above and considering the fact that the material
placed on record does not disclose the possibility of petitioner fleeing
from justice and looking to the extra-ordinary situation created by
COVID-19 pandemic, this Court is inclined to extend the benefit of
anticipatory bail to the petitioner.
Accordingly, without expressing any opinion on merits of the
case, I deem it appropriate to allow this application u/S. 438 of Cr.P.C.
in the following terms.
It is hereby directed that in the event of arrest, the petitioner
shall be released on bail on furnishing a personal bond in the sum of
Rs.1,00,000/- (Rs. One Lakh only) with two solvent sureties of
Rs.50,000/- each to the satisfaction of the Arresting Authority.
This order will remain operative subject to compliance of the
following conditions by the petitioner :-
1.The petitioner will comply with all the terms and conditions of the bond executed by him;
2. The petitioner will cooperate in the investigation/trial, as the case may be;
3. The petitioner will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or to the Police Officer, as the case may be; 4
The High Court Of Madhya Pradesh MCRC-38431-2020 (Sawan Kumar Pachoriya Vs State of M.P.)
4. The petitioner shall not commit an offence similar to the offence of which he is accused;
5. The petitioner will not seek unnecessary adjournments during the trial;
6. The petitioner will not leave India without previous permission of the trial Court/Investigating Officer, as the case may be;
7. The petitioner as a Shiksha Swayamsevak shall render physical and financial assistance to government primary school situated nearest to residence of petitioner for ensuring hygiene and sanitation and for removing deficiencies of infrastructural amenities in the said school from the skill/resources of the petitioner.[;kfpdkdrkkz ,d f'k{kk lo;alsod ds :i esa vius fuokl ds fudV vofLFkr ljdkjh izkFkfed fo|ky; esa lopnrk vksj vkjksx; dks lqfuf'pr djus ds fy, 'kkjhfjd ,oa forrh; lgk;rk iznku djsxk rFkk vius dks'ky o lalk/kuksa ls mDr fo|ky; esa volajpukred lqfo/kkvksa dh dfe;ksa dks nwj djsxka] The petitioner after selecting a particular Govt. Primary School shall inform about the same to the office of Gram Panchayat (in case of rural area) and/or Ward Officer of the concerned ward (in case of urban area), within whose territorial jurisdiction the said school is situated. [;kfpdkdrkZ ,d fof'k"V ljdkjh Ldwy dk p;u djus ds i'pkr~ blds ckjs esa xzke iapk;r ds dk;kZy; ¼xzkeh.k {ks= ds ekeys esa½ vkSj@;k lEcaf/kr okMZ ds okMZ vf/kdkjh ¼'kgjh {ks= ds ekeys esa½ ftlds {ks=kf/kdkj esa mDr Ldwy vofLFkr gS] dks lwfpr djsxkA] It will be joint responsibility of Sarpanch and Secretary of said Gram Panchayat (in case of rural area) and/or Ward Officer of the concerned ward (in case of urban area) to preserve the said information 5 The High Court Of Madhya Pradesh MCRC-38431-2020 (Sawan Kumar Pachoriya Vs State of M.P.) provided by the petitioner. [;g lEcaf/kr okMZ ds okMZ vf/kdkjh ¼'kgjh {ks= ds ekeys esa½ vkSj@;k mDr xzke iapk;r ds ljiap vkSj lfpo ¼xzkeh.k {ks= ds ekeys esa½ dh la;qDr ftEesnkjh gksxh fd] ;kfpdkdrkZ }kjk iznRr lwpuk dks lajf{kr djsA] The registry of this Court shall communicate this order through Legal Aid Officer, SALSA, Gwalior to the Collector, District Education Officer, Block Education Officer of the district/block concerned for information and compliance.
A copy of this order be supplied to the Legal Aid Officer, SALSA, Gwalior who is directed to communicate this order to the District Education Officer, Block Education Officer of the district/block concerned to verify as to whether petitioner has complied with condition No.7 or not and submit report once every month.
In case, report regarding condition No.7 is not filed or report is found to be wanting in any manner then Registry is directed to list this matter as PUD before appropriate Bench.
The petitioner has gracefully volunteered to donate Rs.2000/- (Rs. Two Thousand Only) in the account of the High Court Bar Association, Gwalior for the purpose of assistance and rehabilitation of those members of the Bar, who are facing financial distress due to Lockdown and restrictive functioning of the courts owing to ongoing Covid-19 pandemic. This Court has no manner of doubt that the office 6 The High Court Of Madhya Pradesh MCRC-38431-2020 (Sawan Kumar Pachoriya Vs State of M.P.) bearers and the Senior members of the Bar shall ensure that the donation reaches the rightful and deserving claimants. Let the donation be deposited within seven (7) working days from the date of release.
A copy of this order be sent to the Court concerned for information.
C.c as per rules.
(Sheel Nagu)
Judge
Aman
Aman
Digitally signed by Aman Tiwari
DN: c=IN, o=High Court Of Madhay Pradesh
Bench Gwalior, ou=all,
2.5.4.20=70c6eef55d043fbd523acacb7d1ef4b060 Tiwari 9a37510b8e1527bc41da9009c41f72, postalCode=474011, st=MADHYA PRADESH, cn=Aman Tiwari Date: 2020.11.08 18:30:28 -08'00'