Madhya Pradesh High Court
Sanjay Basani vs The State Of Madhya Pradesh on 2 January, 2017
MCRC-20417-2016
(SANJAY BASANI Vs THE STATE OF MADHYA PRADESH)
02-01-2017
Mr. A.K. Jain, learned counsel with Mr. Bhupendra Mishra, counsel for the applicant.
Mr. Devendra Shukla, learned P.L. for the State.
Mr. Vivek Agrawal, learned counsel for the Objector.
This application U/s.438 of Cr.P.C. has been filed by the applicant Sanjay Basani in connection with Crime No.441/16 of P.S. Barela, Distt. Jabalpur for offence U/s.420/34 of I.P.C.
According to the case of the prosecution, the applicant herein is stated to be the Chief Executive Officer of M/s. Vibrant Plot Pvt. Ltd. Earlier, one Smt. Kashish Vasani and Smt. Rashmi Pandey were the Directors in this Company. Subsequently, one Arpit Singh was also inducted as a Director of this Company. The applicant herein being the C.E.O. is an employee of the Company as stated so by the learned counsel appearing for the applicant.
Learned counsel for the applicant has drawn my attention to page 40 of the application which is Annexure A/6 whereby an agreement to sale was entered into between the sellers of the plots mentioned in paragraph 1 and the Company through its Director Smt. Kashish Vaswani. In page No.42 paragraph 2, the agreement stipulated that though the land would remain in the name of the seller, the seller undertook to sell or execute the sale deed in the name of the buyer or any such other person that the buyer indicated. Thereafter, the learned counsel for the applicant has drawn the attention of this Court to page 46 Annexure P/8, which is an agreement entered into between Vibrant Properties executed on behalf of the seller by Smt. Rashmi Pandey and Smt. Kashish Vasani and the buyer was the complainant Smt. Nisha Dubey. According to the said agreement, plots No.67 and 68 from the land which were purchased by the Company from Shankarlal Sharma and Virendra Kumar Sharma was sold to the complainant at a total cost of Rs.1,80,000/- which was to be paid in installment of Rs.3000/- spread over a period of 60 months. In page 47 para 2, there was a default stipulation which entitled the Company to forfeit the amount deposited by the complainant in the event she defaulted in the payment of three straight installment. Likewise, another agreement was also executed in relation to Plot No.67, which was also marked out from the aforementioned land. The said agreement is from page 49 to 50 bearing the identical stipulation relating to forfeiture. Thereafter, on page 52 which is Annexure A/9 is the letter by the complainant addressed to the C.E.O. of Vibrant Properties, which the applicant herein in which the complainant has stated that she wanted the cancellation of her plot as she was unable to continue paying the E.M.I. and she asked for refund of the amount deposited by her. This letter of cancellation is dated 20.6.2016. Based upon the forfeiture clause in the agreement, the applicant refused to have refunded the amount already deposited with the Company. On account of the refusal of the Company to refund the amount, the complainant filed a complaint before the Police and the Superintendent of Police, Jabalpur, alleging the commission of offence U/s.420 read with Section 34 of I.P.C. This complaint is dated 27.8.2016 on the basis of which the aforementioned F.I.R. came to be registered against the applicant and the co-accused persons.
Learned counsel for the Objector has not disputed the letter dated 20.6.2016 written by the complainant to the applicant herein. However, he has stated that upon enquiry, the complainant came to know that one Vinod Shrivastava is stated to have purchased the same land from Shankarlal Sharma and Virendra Kumar Sharma prior to the sale of the same plot by the said persons in favour of M/s. Vibrant Properties. Even assuming that the contention of learned counsel for the Objector is correct even then prima-facie it appears that the sellers i.e. Shankarlal Sharma and Virendra Kumar are the Principal accused persons as they sold the same plot of land to two different entities of which M/s. Vibrant Properties is one of them. However, this fact ought to have been mentioned as the cause for withdrawing from the project, which in the letter dated 20.6.2016 is visibly not so. As the reason given therein are the financial inability of the complainant to continue being a part of the project and pay the monthly installment, prima-facie the offence U/s.420 read with Section 34 of I.P.C. does not appear to have been committed by the applicant herein, who is merely the C.E.O. of the Company and himself a servant of the Company. The F.I.R. prima-facie seems to have been registered on account of the refusal of the Company to return the amount already deposited with it by the complainant which as per the agreement the Company prima-facie appears to be entitled to do so.
Under the circumstances, the application is allowed and it is directed that in the event of arrest, the applicant herein shall be enlarged on bail forthwith by the Arresting Officer upon his furnishing a personal bond in the sum of Rs.50,000/- with a surety in the like amount to the satisfaction of the Arresting Officer.
The applicant shall abide by the conditions enumerated under Section 438(2) of Cr.P.C. He shall however join the investigation as and when directed to do so by the Police.
C.C. as per rules.
(ATUL SREEDHARAN) JUDGE a