Allahabad High Court
Shail Varshney @ Shaily Varshney vs State Of U.P. And 2 Others on 5 January, 2023
Author: Subhash Chandra Sharma
Bench: Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 80 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 12273 of 2022 Applicant :- Shail Varshney @ Shaily Varshney Opposite Party :- State Of U.P. And 2 Others Counsel for Applicant :- Atipriya Gautam,Devesh Mishra,Jay Vishwanath Pandey,Sr. Advocate Counsel for Opposite Party :- G.A. Hon'ble Subhash Chandra Sharma,J.
Heard learned counsel for the applicant as well as learned AGA for the State and perused the material placed on record.
This anticipatory bail application (under section 438 Cr.P.C.) has been moved seeking bail in Case Crime No.626 of 2021, under sections 420, 467, 468, 471, 120B I.P.C., Police Station Etmadaula, District Agra, during the pendency of investigation.
It is submitted that a loan was taken on the basis of C.C. Limit by the wife of co-accused Yogesh Gupta which became due and property in dispute was taken as security and Yogesh Gupta was guarantor. When loan was not cleared by the wife of Yogesh Gupta his property was auctioned by the present applicant who was Bank Manager in Indian Bank, Branch Kalindi Vihar, Branch Agra. In the meantime, Yogesh Gupta executed an agreement to sale in favour of Sanjay Agrawal regarding which Sanjay Agrawal filed a civil suit for specific performance before the learned civil court. As per the auction made by the Bank property in dispute was registered through sale deed in favour of the informant but possession was due regarding which by adopting proper procedure the bank applied before the D.M. concerned for handing over the possession of the property to the informant. Thereafter, D.M. concerned passed the order for delivery of possession on 11.09.2019 regarding which money was to be deposited by the informant which he deposited on 18.03.2021 and possession was to be handed over to the informant by taking recourse of proper procedure. Even though the informant lodged this F.I.R. against the present applicant and other co-accused persons. During investigation these facts were not taken into consideration by the learned court concerned.
It is further submitted that applicant is Bank Manager and worked in good faith for recovery of arrears of debt due against the wife of co-accused Yogesh Gupta who was owner of the property subjected to hypothication and was sold through auction by the applicant in favour of the informant. In this way no offence was committed by this applicant except due discharge of his duties as being Manager of the Bank. Even no any injunction was granted by the learned civil court in the suit said to be filed by Sanjay Agarwal against the co-accused Yogesh Gupta for specific performance. It is also submitted that there is no bar on auction on account of agreement to sale by the owner of the property but the transfer becomes subject to the judgment of the court. Lastly, it is submitted that the applicant is also under apprehension of imminent arrest. In case, the applicant is released on bail, he would not misuse the liberty of bail and would cooperate with the investigation.
Learned A.G.A. has opposed the prayer for anticipatory bail.
Considering the facts and circumstances of the case, submissions made by learned counsel for the applicant as well as learned A.G.A. and without commenting on the merits of the case, the applicant is entitled to be released on anticipatory bail in this case for the limited period considering the exception considered by the Hon'ble Supreme Court in the case of Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC Online SC 98.
In the event of arrest of the applicant- Shail Varshney @ Shaily Varshney, shall be released on anticipatory bail till the submission of police report, if any, under section 173 (2) Cr.P.C., on furnishing a personal bond of Rs. 25,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the police station concerned with the following conditions:-
(i) The applicant shall make himself available for interrogation by a police office 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 from disclosing such facts to the Court or to any police office;
(iii) The applicant shall not leave India without the previous permission of the Court and if he has passport, the same shall be deposited by them before the S.S.P./S.P. concerned.
In default of any of the conditions, the Investigating Officer is at liberty to file appropriate application for cancellation of anticipatory bail granted to the applicant.
Order Date :- 5.1.2023 Ashok Gupta