..1.. Cri.B.A.No.1031/2022 Order below Exh.01 in Cri.B.A.No.1031/2022 CNR No.MHNS010044072022

(Vijay Kumar Raghunathsingh Thakur vs. State)

The applicant has preferred this application for anticipatory bail praying therein that he may be released on bail in the event of arrest in connection with CR.No.I­245/2022 registered with Nashik Road police station for the offence punishable under Sec.420, 452, 427, 504 r/w 34 of IPC, on the basis of FIR lodged by Praful Amrutlal Dholakiya.

2.Bail application is filed on the ground that the applicant is innocent and has been falsely implicated in the case. That due to financial crisis and because of healthy and trustworthy relationship between informant/his father and applicant, he offered applicant to purchase shop for Rs. 5 lac and applicant paid cheque of Rs.1 lac as advance consideration at the time of agreement to sale and thereafter cheque of Rs.4 lac. Thereafter, as informant did not perform sale­deed of the shop, applicant filed Spl.C.S.No.973/2022 which is pending and in order to pressurize applicant to withdraw the said suit, informant maliciously filed this present complaint.

There was development agreement between father of informant and applicant of giving 33% of share in whole development project i.e. 2 flats and one shop. In case of breach of contract, efficacious remedy is to file suit for specific performance. The applicant does not have an intention to deceive. On these main grounds and others have prayed for bail.

3. Notice was issued to State. State appeared through Ld. APP Mr. Kotwal and filed say resisting for grant of application on the grounds that the conversation between informant and accused No.2 on 01.10.2020 seized in presence of panch witnesses discloses that there was financial transaction with respect to the shop No.4 between the accused. Documents are to be collected. Investigation with respect to financial transaction of Shop No.4 is to be completed. There is possibility of tampering with evidence. The accused are residents of other states. Interrogation with accused no.1 is necessary. There are criminal antecedents against accused No.1. The accused have absconded. On these main grounds and others have prayed for rejection of the bail application.

4.Ld.Adv.Mr.Deshmukh appeared on behalf of informant.

5.Heard Ld. Advocate Mr.Jadhav for applicant. He reiterated all the grounds mentioned in bail application.

Furthermore, he stressed his argument that dispute is entirely civil in nature. Furthermore, he submitted that stand taken by the informant about the transaction of the shop is contrary in nature. In the FIR, the informant is hiding the fact that the informant has agreed to sell the shop to the present applicant and even has accepted part payment. He further relied upon Lalit Kargeti vs. State of U.P. and others reported in 2018(6) ADJ 22, Hridaya Ranjan Pd. Verma vs. State of Bihar reported in 2000(2) Crimes 72, Nageshwar Prasad Singh v. Narayan Singh reported in 1999 AIR (Supreme Court)1480, Maulana Mohd. Amir Rashadi vs. State of U.P. & Anr. Criminal Appeal No. 159 of 2012, Atul Kumar Singh @ Atul Kumar Rai vs. State of U.P. in Criminal Misc. Bail Application No. 40122 of 2019 and Pavan s/o. Nandkishor Sedani vs. State, through PSO, PS Akot City, Dist. Akola in Criminal Application (BA) 778 of 2021.

6.Per contra, Ld. APP Mr.Kotwal reiterated all the grounds mentioned in say filed by Nashik Road police station and prayed for rejection of bail application.

7.Ld.Adv.Mr.Deshmukh filed his written notes of arguments [Exh.11] and has contended that the report dated 14.8.2022 and written complaint dated 8.3.2022 are self explanatory to show intervener was put in possession of shop No.4 of Thakur Plaza, Nashik Road and how the applicants have cheated him. The mobile conversation dated 1.10.2020 between Durgesh @ Atul Sharma will indicate that without intimation or permission of intervener, the applicant illegally and unauthorizedly delivered possession of shop no.4 in favour of co­accused against handsome money in lacs. The Spl.C.S.No.973/2022 is counter blast to the present crime and the same is filed after applicants were summoned by the inquiry officer. That there are various cases under Sec.138 of N.I. Act filed against the applicant. The delay in filing the complaint is explained. In the rest of written arguments, the informant has emphasized on the relations with other customers/clients.

8.On perusal of FIR, it can be gathered that father of the informant had entered into development agreement dated 30.12.2002 with Vijaykumar Thakur [applicant] and it was agreed between them that owners will be entitled to 33%. Accordingly, the owners were entitled to two flats and one shop. FIR further states that two flats and shop no.4 were handed over to the father of informant as per development agreement. His father died on 12.10.2006. The informant requested Vijay Thakur to enter into deed of apartment with respect to shop no.4. However, at that time, the builder requested that he is interested in purchasing the shop and avoided to enter into deed of apartment and thereafter, Vijaykumar Thakur has left his place of residence. Thereafter, on 11.9.2020, the builder Vijaykumar Thakur offered 10­15 lacs for Shop, but because of previous bad experience, he denied the offer.

The FIR further states that at present the shop no.4 is in possession of Sanjay Rustam Bhamble who is running Om Sai Marble shop in 2/3rd part of shop no.4 whereas Om Sai Mens parlour in 1/3rd part of said shop. It seems that the wall of shop nos.4 and 5 was demolished and Sanjay Bhamble told that shop nos.4 is given by the owner of shop no.5 Atul Sharma.

9.In Lalit’s case as well as Verma’s case relied upon by Ld. Advocate for applicant, it is categorically held by the Hon’ble Supreme Court that to hold person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. For his mere failure to subsequently keep a promise,one cannot presume that he all along had a culpable intention to break the promise from beginning. If the promise is not fulfilled by the applicant, the same can be enforced before the civil court. Mere, breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right from beginning of transaction when the offence is said to have been committed.

10. It is not in dispute that the father of informant entered into development agreement with applicant No.1 in the year 2002 and vide the agreement, it was decided father of informant will be entitled to 33% of the developed area. It is also not in dispute that two flats and shop no.4 were handed over to father of informant by way of this development agreement.

11. The applicants have issued notice dated 13.5.2022 through their Adv.Komal Tiwari wherein it is contended that the shop No.4 was to be purchased by the applicant for valuable consideration of Rs.5 lac for which two cheques in the year 2009 amounting to Rs. 1 lac and Rs.4 lac were issued. The said notice further states that the cheque for the amount of Rs.1 lac on its presentation was honoured whereas cheque for amount of Rs.4 lacs was not deposited.

12.The said notice was replied by informant Prafulla Dholkiya through Adv. Anuradha Mogal­Patil and the transaction for the said amount was admitted. It was also admitted that Rs. 1 lac was received by the informant on presentation of cheque whereas the cheque for amount of Rs. 4 lacs was not presented as applicant’s requested for time due to financial crunch.

13.It can be gathered that issuance of both the cheques are in the year 2009. This transaction which is admitted by the informant in the reply to the notice is not mentioned in FIR, for the reasons best known to him. The statement of Balasaheb Nikam who is occupying the shop no.4 shows that he is in possession of the said Gala since past 13 years. Why it has taken time of 13 years to lodge complaint is not answered. Even after perusal of the report of the police, no grounds are made out to warrant custodial interrogation.

As far as previous antecedents are concerned, the majority of the offence is under Sec.138 of N.I. Act. There is one offence under Sec.420 of IPC. However, the same is way back in the year 2007. In Rashid’s case, it is categorically observed by Hon’ble Supreme Court that the claim of the applicant cannot be rejected merely on the basis of criminal antecedents. It is duty of the court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from jurisdiction of the court. So also, in Sedani’s case, Hon’ble Bombay High Court, Nagpur Bench has observed that “it would be a different matter altogether, if in the crime in which bail is sought, the prosecution makes out a reasonable strong prima facie case on the basis of material collected, in which eventually past antecedents of the accused may be extremely relevant.” Thus, the facts and role played by the accused in the crime in which he is seeking bail needs to be considered first and only then antecedents can be relied upon.

In the instant case, as discussed herein above, the transaction is of the year 2002, 2007. Vijaykumar is occupying the Gala No.4 since last 13 years. Even the offence under Sec.420 of IPC is registered
against the applicant way back in the year 2007. It can be gathered that since inception of the transaction, there was no intentions to cheat. Hence, criminal antecedents will not be a ground for rejection of the bail application. Hence, following order is passed :

ORDER
(1). Application is allowed.

(2). In the event of arrest of the applicant Vijay Kumar Raghunathsingh Thakur in connection with CR.No.I­245/2022 registered with Nashik Road police station for the offence punishable under Sec.420, 452, 427, 504 r/w 34 of IPC, on the basis of FIR lodged by Praful Amrutlal Dholakiya, the above named applicant be released on bail, on furnishing a PR and SB of Rs. 15,000/­ ( Rupees Fifteen Thousand only), with one surety of like amount on following conditions.

(a). He shall attend concern Police Station on every Monday between 11.00 a.m. to 1.00 p.m. till filing of the charge sheet.

(b). He 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 them from disclosing such facts to the Court or to any police officer.

(c). Violation of any of the above mentioned condition, would result in cancellation of bail.

(3). Inform concerned police station accordingly.

VARDHAN Digitally signed by VARDHAN PRATAPRAO PRATAPRAO DESAI DESAI Date: 2022.09.06 17:43:47 +0530 Nashik. ( V. P. Desai) Date : 05.09.2022 Additional Sessions Judge, Nashik.