Chattisgarh High Court
Kavish Gupta vs State Of Chhattisgarh on 3 May, 2024
Neutral Citation
2024:CGHC:16305
1
NAFR
HIGH COURT of CHHATTISGARH, BILASPUR
MCRCA No. 369 of 2024
• Kavish Gupta S/o Late Shri Pramod Kumar Gupta Aged About 37
Years, O/o Kkspun India Limited, 10th Floor Tower A, Vatika
Mindscape, 12/3 Sarai Khwaja, Mathura Road, Sector 27,
Faridabad, Haryana.
------Applicant
VERSUS
• State Of Chhattisgarh through - The Station House Oicer,
Police Station - Telibandha, District - Raipur (C.G.).
-------Non-applicant
For applicants : Mr. Shoeb Alam, Sr. Advocate along with
Mr. Aman Saxena, Advocate
For Non-applicants-State : Mr. U.K.S. Chandel, Dy. A.G.
SB: Hon'ble Shri Parth Prateem Sahu, Judge
ORDER ON BOARD
03/05/2024
1. This is an anticipatory bail application iled by the applicant under
Section 438 of Cr.P.C. for grant of anticipatory bail as he is
apprehending his arrest in connection with Crime No. 0045/2024
registered at Police Station - Telibandha, District - Raipur,
Chhattisgarh for the ofence punishable under Sections 420, 120-B
of the Indian Penal Code, 1860.
2. Case of the prosecution is that, one Shivani Raj Tomar, Proprietor
M/s. S.R. Constructions (hereinafter referred to as complainant) has
lodged a report in the concerned police station against the
applicant stating that applicant after due deliberation and taking
complainant in conidence had issued work order on 30.12.2020 for
construction of S.T.P. After allotment of work, complainant has
started the work immediately thereafter because, it has to be
completed at the earliest. Company of the complainant has
completed about 30% of the work allotted to her, for which entire
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amount is expended by company of complainant and against which
complainant has also raised bill of Rs.2,69,66,995/- against which
complainant was paid only Rs.1,50,78,579/- and rest of the amount
was not paid stating that it will be paid at later point of time. The
work allotted to the complainant by applicant company i.e. M/s. K.K.
Spun Pvt. Ltd. was awarded to the said company by Municipal
Corporation, Satna, which was already terminated prior to awarding
of the work to complainant company and likewise complainant was
not paid the entire bills of the work done by her company allotted
by the company of applicant and thereby the complainant was
cheated. It is further allegation that applicant has withdrawn
amount from the employer by raising forged and fabricated bills in
the name of irm/company of the complainant. Based on the report,
aforementioned crime was registered, in which, the applicant is
apprehending his arrest.
3. Learned senior counsel for the applicant submits that applicant is
innocent, he has been falsely implicated in the instant crime, he has
not committed any ofence as alleged. He contended that that
company of the applicant M/s. K.K. Spun Pvt. Ltd. sublet the
awarded work to M/s. S.R. Construction of which complainant is
proprietor and also to Ansh Infra. Same complaint was made by
both the proprietorship irm against applicant before
Superintendent of Police in which applicant was called for enquiry
on 12.07.2023. During pendency of that inquiry M/s. Ansh Infra
lodged a report on 20.07.2023 in the concerned police station
which was registered as Crime No.218 of 2023. Co-accused
Himanshu Gupta iled an application for grant of anticipatory bail,
which was dismissed by learned Sessions Court as also by the High
Court. Against the rejection of an application for grant of
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anticipatory bail, that applicant iled Special Leave to Appeal
(Criminal) No.371 of 2024, which came up for hearing on 10.01.2024
and Hon'ble Supreme Court has passed an interim protective order
in his favour observing that "In the meantime, the petitioner shall
not be arrested subject to condition that he shall cooperate with the
investigation". It is only after passing of an order dated 10.01.2024,
complainant has iled a written complaint to the concerned police
station on 22.01.2024 and on the same day, the FIR was registered.
4. It is next contended by learned Senior Counsel for applicant that no
ofence as alleged under Section 420 of I.P.C. would be made out
against applicant. There was a contract between the irm/company
of applicant with the irm of complainant. He completed part of the
work out of which part payment was also paid and therefore, the
dispute between them is purely of civil nature. Only to give colour
to the civil dispute of criminal, allegation is made that suppressing
the material fact of termination of contract, work allotted to
applicant company/irm was sublet to complainant's irm, which
was per-se wrong and baseless. He contended that though the
oice of Municipal Corporation, Satna vide order dated 21.04.2020
has issued letter of termination of contract under Clause-27 of
agreement of sewerage project, during irst phase of Covid-19
pandemic and also the lock-down period. Against termination of
contract, applicant company availed the remedy available under the
contract, of dispute resolution before Superintending Engineer and
the Superintending Engineer, Urban Administration Development
Department had taken decision on the application/claim of
applicant irm/company and decided that Municipal Corporation to
consider the suspension of the decision of termination of contract
and allied activity for the next six months from the date of
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receiving of order and further directed the Director/Firm of
applicant to submit monthly work program for next six months to
be mutually agreed upon by Municipal Corporation, Satna PDMC
and contractor. On successfully achieving the six months time line
progress Municipal Corporation may review the decision of
termination of contract accordingly. The decision was
communicated on 04.07.2020 and it is only thereafter, the
complainant was allotted the work for construction of STP in the
month of December, 2020 and therefore, on the date of allotting
the work by way of subletting the order of termination of contract
was not in force as it was suspended. With respect to allegation of
forged bills raised by applicant, it is submitted that it can be proved
by the documentary evidence as the bills are in the possession of
Municipal Corporation.
5. Learned senior counsel further submits that the co-accused
Himanshu Gupta was arrested and his application for grant of bail
was allowed vide order dated 14.03.2024 in M.Cr.C. No. 1577/2024.
He submits that this Court has taken note of the connivance of the
complainant and Ansh Infrastructure and further that for the work
allegedly done by the complainant, part-payment has already been
made and the remaining amount was to be paid and allowed the
same.
6. On the other hand, learned State counsel opposes the submission
made by learned counsel for the applicant and would submit that
written report is iled by complainant alleging that complainant was
awarded the work, on subletting by applicant irm/company, of
which, complainant has also executed part of the work, however,
she was not made aware about the termination of the contract
awarded to M/s. K.K. Spun Pvt. Ltd. of which applicant is one of the
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director. He submits that there is no error in rejecting the
application for grant of anticipatory bail. Upon asking, he further
submits that till date police has not seized any bills from the oice
of Municipal Corporation, Satna.
7. Further, when query was put to the learned State Counsel as to the
allegation against the applicant and the allegation against the co-
accused person who has been granted beneit of bail in M.Cr.C. No.
1577/2024, he submits that the allegations are almost identical.
8. I have heard learned counsel for the respective parties and also
perused the documents placed on record.
9. Copy of the earlier bail order dated 14.03.2024 in the case of
M.Cr.C. No. 1577/2024 (Himanshu Gupta Vs. State of Chhattisgarh)
has been placed on record as Annexure A-9. This Court while
considering the application of the co-accused has observed thus:-
12.Perusal of the documents placed along with
bail application in particular Annexure A-6 would
show that one FIR was lodged by Ajay Nair,
Proprietor of M/s. Ansh Infrastructure and
Developers on 20.07.2023 bearing Crime
No.218 of 2023 for alleged commission of
offence under Section 420, 34 of I.P.C.. Perusal
of the contents of FIR would show that similar
nature of allegation of withdrawal of amount
through forged bills was levelled and further
subletting the work on 30.12.2020 whereas
contract was terminated on 21.04.2020 by the
Municipal Corporation, Satna. Anticipatory bail
application was filed, which came to be
dismissed by District and Sessions Court as also
by the High Court, against which, Special Leave
to Appeal (Criminal) No. 371 of 2024 was filed,
which came up for hearing on 10.01.2024 and
the Hon'ble Supreme Court had passed the
following orders :-
"The complainant is added as respondent No.2 in
the present Special leave Petitions. Amended memo of parties be filed within two weeks. Issue notice to the respondent - State. We have heard Learned senior counsel for the petitioner and learned counsel appearing for the Neutral Citation 2024:CGHC:16305 6 de-facto complainant. In the meantime, the petitioner shall not be arrested subject to condition that he shall co-operate with the investigation."
13.Hon'ble Supreme Court by the above order has granted interim protection to petitioner from arrest subject to condition that he will co-operate with investigation. From the documents placed in record along with bail application i.e. copy of the e-mails, filed along with supplementary affidavit would show that the firm of the complainant and Ansh Infrastructure are aware of the activities and steps taken because in the e-mail of complainant subject ws of Ansh Infra - KAtni. Bill-01 is mentioned in the FIR lodged by complainant would show that complainant completed work awarded to her firm on 30.12.2020 to the extent of 30% and out of Rs.2,69,66,995/-, Rs.1,50,78,579/- was paid but remaining amount was not paid.
14.From the contents of FIR it is appearing that report was lodged on account of non-payment of part of the amount due to complainant towards the work, she executed pursuant to the contract agreement executed between the parties. The documents enclosed by applicant as Annexure SA-4, which is proceeding of the office of the Urban Administration Development Department in arbitration case would show that contract awarded to applicant/company of Sewerage Project Municipal Corporation Satna was terminated on 21.04.2020 against which applicant has submitted an application on 27.06.2020 under Clause 12 of the General Conditions of Contract for dispute resolution in which the Superintending Engineer, Urban Administration Development Department concluded and decided that Municipal Corporation, Satna to consider the suspension of decision of termination of contract and allied activity for the next six months from the date of receiving of order. Decision of Superintending Engineer was enclosed along with covering letter dated 04.07.2020.From the contents of FIR it is appearing that report was lodged on account of non-payment of part of the amount due to complainant towards the work, she executed pursuant to the contract agreement executed between the parties. The documents enclosed by applicant as Annexure SA-4, which is proceeding Neutral Citation 2024:CGHC:16305 7 of the office of the Urban Administration Development Department in arbitration case would show that contract awarded to applicant/company of Sewerage Project Municipal Corporation Satna was terminated on 21.04.2020 against which applicant has submitted an application on 27.06.2020 under Clause 12 of the General Conditions of Contract for dispute resolution in which the Superintending Engineer, Urban Administration Development Department concluded and decided that Municipal Corporation, Satna to consider the suspension of decision of termination of contract and allied activity for the next six months from the date of receiving of order. Decision of Superintending Engineer was enclosed along with covering letter dated 04.07.2020.
15. Hon'ble Supreme Court in case of Arnesh Kumar (supra) has considered the provisions under Section 41-A of the Cr.P.C. and observed that notice of appearance in terms of Section 41- A of Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing. The offence complained in case of Arnesh Kumar (supra) was of under Section 498 A of I.P.C., however, Hon'ble Supreme Court further clarified that directions aforesaid shall not only apply to the cases under Section 498-A of the I.P.C. or Section 4 of the Dowry Prohibition Act, but also to such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years.
10. In the case at hand also, except the nature of application which is iled by the present applicant with regard to the grant of anticipatory bail, there is no change of circumstance. The dispute which is raised is arising out of the contract entered into between the complainant and the applicant company/irm. The report was lodged because, out of the work done, only part-payment was made and part-payment remained due to be paid to the complainant. In the aforementioned facts of the case, I am of the Neutral Citation 2024:CGHC:16305 8 view that the present is a it case to allow the application for grant of anticipatory bail to the applicant.
11. For the foregoing discussions, application under Section 438 of Cr.P.C. is allowed. It is directed that in the event of arrest of applicant in connection with crime in question, he shall be released on anticipatory bail by the Oicer arresting him, on his furnishing a personal bond in the sum of Rs. 50,000/- with one surety in the like sum to the satisfaction of the Arresting Oicer. Applicant shall also abide by following conditions:
(i) That, the applicant shall make himself available for interrogation before the Investigating Oicer as and when required.
(ii) 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 to any police oicer.
Certiied copy as per rules.
Sd/-
(Parth Prateem Sahu) Judge Dey