Madhya Pradesh High Court
Kailash Keswani vs The State Of Madhya Pradesh on 11 January, 2017
MCRC-21845-2016
(KAILASH KESWANI Vs THE STATE OF MADHYA PRADESH)
11-01-2017
Shri Sankalp Kochar, counsel for the petitioner.
Shri Anand Nayak, counsel for the complainant.
Shri D.K. Paroha, Panel Lawyer for the respondent/State.
Heard on this first application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on behalf of the petitioner Kailash Keswani and Sachin Keshwani in Crime No.616/2016, registered by P.S. Shahjahanbad, District- Bhopal under Section 420 of the IPC.
As per the case of the complainant, the petitioners entered into an agreement to sell three shops in a multi- storied building for a consideration of Rs.45 lakhs, on 4.6.2015. Pursuant to aforesaid agreement, the complainant paid Rs.45 lakhs in cash to the petitioners and the petitioners handed over actual physical possession of the three shops to the complainant. However, since the complainant, at that time was not in a position to get the registry executed, the agreement was not registered as per requirement of law. It has been averred in the agreement that the shops are free of all encumbrances and if later the shops are found to be encumbered in any manner, the complainant would be entitled to recover the loss from the petitioners. Later the complainant learnt that the aforesaid property had been mortgaged to First Capital Finance Company and a loan in the sum of Rs. 60 lakhs was taken thereagainst. As such, the petitioners cheated the complainant by concealing aforesaid information from the complainant, which they were bound to disclose.
Learned counsel for the petitioner has submitted that the agreement of sale purportedly dated 4.6.2015 is a forged one. In fact, the petitioners had given signed and stamped papers to the complainant in connection with some other transaction. The complainant misused the stamp papers to forge the agreement. The signature of witnesses on the stamp papers are also forged. Though, as per the complainant, the possession of the shops was handed over to the complainant yet as per requirements of the law, the agreement is neither registered nor adequately stamped; therefore, it cannot be tendered in evidence. The alleged consideration of Rs. 45 lakhs purportedly paid by the complainant was said to have been given in cash; however, no receipt has been filed, which appears to be highly improbable. It has also been submitted that the loan from the finance company has been taken on the land for the purpose of construction of the multi storey building; therefore, the petitioners deserves the benefit of anticipatory bail.
Learned counsel for the complainant and learned panel lawyer for the respondent/State has opposed the application mainly on the grounds that there are specific averments in the agreement itself that the shops are not encumbered in any manner. The petitioners have admitted in the agreement that they have received Rs.45 lakhs in cash; therefore, no separate receipt was required. The custodial investigation in the case is necessary; therefore, it has been prayed that the application for anticipatory bail be dismissed. However, keeping in view the facts and circumstances of the case in their entirety, particularly the fact that the case arises from a civil transaction, the agreement is not adequately stamp and registered, as also the fact that the sum of Rs.45 lakhs was said to have been given in cash by the complainant, which appears to be improbable, in the opinion of this Court, the petitioners are entitled to the benefit of anticipatory bail.
Consequently, the first application for anticipatory bail under Section 438 of the Code of Criminal Procedure filed on the petitioners Kailash Keshwani and Sachin Keshwani is allowed.
It is directed that in the event of their arrest, the petitioners shall be released on anticipatory bail on their furnishing a personal bond in the sum of Rs.40,000/- each and a solvent surety in the same amount to the satisfaction of the Arresting Officer for their appearance before the trial Court on all dates and for complying with the conditions enumerated in sub- section (2) of Section 438 of the Cr.P.C.
Certified copy as per rules.
(C V SIRPURKAR) JUDGE ahd