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2021 DIGILAW 424 (ALL)

Gaurav Khanna v. State Of U. P.

2021-03-19

VIVEK KUMAR SINGH

body2021
JUDGMENT : Vivek Kumar Singh, J. 1. Counter affidavit filed on behalf of opposite party no. 2, is taken on record. 2. Heard Sri Mithilesh Kumar Shukla, learned counsel on behalf of applicants, Sri Sharad Kumar Srivastava, learned counsel on behalf of opposite party and Sri Sanjay Singh, learned AGA-I for the State. 3. The instant anticipatory bail application has been filed on behalf of the applicants, Gaurav Khanna and Saurabh Khanna, with a prayer to grant them anticipatory bail in Case Crime No. 0038 of 2019, under Sections 406, 420, 467, 468, 471, 120-B I.P.C., Police Station-Kotwali ,District-Kanpur Nagar, during pendency of trial. 4. It has been contended by learned counsel on behalf of applicants that applicants have not committed any offence as mentioned in the firstinformation report lodged by the opposite party no. 2. The applicants and opposite no. 2 both are the partners of the firm in the name and style of M/s Khas Polymer. The applicants tried to get loan from the concern bank namely Punjab National Bank, the concern bank after verification of the documents and consent with the partners of the firms granted the loan of Rs. 16,85,840/-in favour of the firm on 20.11.2017. 5. The applicants as partners of the aforesaid firm have depositedinstallments of the loan amount continuously in the concern bank, thereafter some dispute arose between the applicants and opposite party no. 2, both are the partners of the aforesaid firm and had resigned from the partnership vide letter dated 06.08.2018, a copy of resignation letterdated 06.08.2018 has been annexed as Annexure no. 5 to the affidavitfiled in support of bail application. 6. It is next contended that only on account of some dispute of partnership of the aforesaid firm opposite party no. 2 illegally lodged thefirst information report against the applicants with the maae lfidintention only to harass them. The applicant nos. 1 and 2 being aggrieved with the first information report approached this Hon'ble Courtby way of the Criminal Misc. Writ Petition No. 5230 of 2019 (Gaurav Khanna Vs. State of U.P. and others) and Criminal Misc. Writ Petition No. 5280 of 2019 (Saurabh Khanna Vs. The applicant nos. 1 and 2 being aggrieved with the first information report approached this Hon'ble Courtby way of the Criminal Misc. Writ Petition No. 5230 of 2019 (Gaurav Khanna Vs. State of U.P. and others) and Criminal Misc. Writ Petition No. 5280 of 2019 (Saurabh Khanna Vs. State of U.P. and others), and the Hon'ble court disposed off the petition providing that theinvestigation shall continue and be brought to its logical conclusion but, subject to petitioner's cooperation in the investigation, he shall not be arrested in the aforesaid case till submission of police report under section 173(2) Cr.P.C. 7. The matter was investigated by Investigating Officer, charge sheet submitted against the applicants and other co-accused persons and learned Magistrate has taken cognizance vide order dated 26.08.2019. Itis further submitted that opposite party no. 2 after lodging the firstinformation report on 09.02.2019 against the applicants again filed a complaint against the applicants and other accused persons on similar circumstances under section 406/420 IPC before the Special Chief Judicial Magistrate, Kanpur Nagar. Thereafter, the learned Magistrate recorded the statement u/s 200 and 202 Cr.P.C. and summoned the applicants. Against the summoning order dated 06.04.2019 the applicants have approached this Hon'ble Court by way of Criminal Misc. Application under section 482 Cr.P.C. and this Hon'ble Court vide its order dated21.01.2020 stayed the further proceedings of complaint case. The applicants have also moved anticipatory bail application under section 438 Cr.P.C. for grant of anticipatory bail before the learned Additional Sessions Judge which was rejected on 07.03.2020 in an arbitrary manner. Being aggrieved with charge sheet dated 18.08.2019 the applicants approached this Hon'ble Court by way of Criminal Misc. Application No. 1614 of 2020 (Gaurav Khanna and another Vs. State of U.P. and another) and the same was disposed off vide order dated14.01.2020. After rejection of the anticipatory bail application of the applicants by the learned Additional Sessions Judge, the applicants approached this Hon'ble court by way of Anticipatory Bail Application No. 3857 of 2020 which was dismissed as not pressed vide order dated08.07.2020. It is also submitted that the aforesaid first information lafid report was lodged only due tomaeintention, ulterior motive and toblackmail the applicants. There is no criminal history against the applicants. Several other submissions in order to demonstrate the falsity of the allegations made against the applicants have also been placedbefore the Court. It is also submitted that the aforesaid first information lafid report was lodged only due tomaeintention, ulterior motive and toblackmail the applicants. There is no criminal history against the applicants. Several other submissions in order to demonstrate the falsity of the allegations made against the applicants have also been placedbefore the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon atlength. It has been assured on behalf of the applicants that they are ready to cooperate with the process of law and shall faithfully make themselves available before the court whenever required. 8. Learned AGA vehemently opposed the prayer for bail and submitted that this is the second anticipatory bail application on behalf of the applicants before this court. The first anticipatory bail application wasdismissed by this Hon'ble Court on 08.07.2020 (annexure no. 14) but in para 5 of the affidavit filed in support of anticipatory bail application, the applicants have deposed that 'this is the first anticipatory bail application before this court' as such the present anticipatory bail application is liable to be dismissed on this ground alone. Though thefirst anticipatory bail application was dismissed as withdrawn but no liberty was given to the applicants to file second anticipatory bail application. it is further submitted that anticipatory bail is to continueonly till the court summons the accused based on charge sheet, it is open for the applicants to appear and seek the regular bail in accordance with the provisions made in section 439 Cr.P.C. in view oflaw laid down in the case of Vinod Kumar Vs. State of U.P. reported in2010 (1) JIC 1(All) and Satpal Singh Vs. State of Panjab, reported in (2018) SCC online SC 415. Here in the present case charge sheet has been submitted on 18.08.2019, under section 406, 420, 467, 468, 471 &120B IPC and on 26.08.2019, the learned Magistrate had taken cognizance of offence and summoned the applicants, hence application under section 438 Cr.P.C. is not maintainable and it is open for the applicants to seek regular bail under section 439 Cr.P.C. It is also submitted that applicants had obtained huge amount of loan from PNB Housing Finance Limited by preparing forged signature of the complainant as manufactured documents such as Declaration Demand,Promissory Note, Power of Attorney, Disbursement Request Form, Cheque Submission Form/receipt etc. as such the applicants committed grave offence and are not entitled for grant of anticipatory bail. 9. After hearing the learned counsel for the applicant and learnedA.G.A., and after perusing the averments made in the present anticipatory bail application, this Court is of the opinion, that learned counsel for the applicants could not point out any good ground for grant of bail to the applicants. 10. Accordingly, the anticipatory bail application filed on behalf of the applicants is hereby rejected.