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2023 DIGILAW 1719 (ALL)

Sandeep Kumar Garg v. State of Uttar Pradesh

2023-07-18

KRISHAN PAHAL

body2023
JUDGMENT : 1. Counter affidavit filed by learned counsel for the informant and rejoinder affidavit and supplementary affidavit filed by learned counsel for the applicants are taken on record. 2. Heard Sri Anoop Trivedi, learned Senior Advocate assisted by Sri Abhinav Gaur, learned counsel for the applicants and Sri Gopal Swaroop Chaturvedi, learned Senior Advocate assisted by Sri Alok Ranjan Mishra, learned counsel for the informant as well as Sri V.K.S. Parmar, learned A.G.A. for the State and also perused the material available on record. 3. The present anticipatory bail application has been filed on behalf of the applicants in F.I.R./Case Crime No. 128 of 2018, under Sections 406, 409, 420, 467, 468, 471, 120(B) IPC, Police Station Swarup Nagar, District Kanpur Nagar, with a prayer to enlarge them on anticipatory bail. PROSECUTION STORY: 4. As per allegations in FIR, the applicants and the informant are the directors in MTG Infra Power Private Ltd. Company. It was agreed upon by the directors that the said company shall file tenders for contracts in the State departments and the released amount shall be deposited in the joint account of the informant and the named accused persons in the FIR. 5. On 30.9.2013, ten tenders were issued in favour of the company, but the applicants and co-accused persons Somendra Mehta and Romendra Mehta are stated to have committed criminal breach of trust and had deposited the said amount in different account numbers to which the informant was not the authorized signatory. The said account numbers are A/c No. 2336002100016082 of PNB, Panki, Kanpur, A/c No. 032605008262 of ICICI Bank, Govind Nagar, Kanpur and A/c No. 07271300000712 Punjab and Sind Bank, Transport Nagar, Kanpur. Thus, the whole amount was usurped by the applicants and other named co-accused persons in collusion with other unknown persons. The applicants and the co-accused persons are stated to have filed forged documents in the official records and also had filed fake bank guarantees before State Authorities. 6. Subsequent to it, another Bank A/c No. 0043002100062099 was also opened in PNB Bareilly, and Rs.19 crores were deposited in it, which was debited by the applicants and the other co-accused persons illegally. 7. On 18.4.2016 and 25.4.2016, the applicants are even stated to have purchased two BMW Cars with registration no. UP 78 E 7722 and UP 78 EH 0055 worth Rs. 65 lakhs each. 7. On 18.4.2016 and 25.4.2016, the applicants are even stated to have purchased two BMW Cars with registration no. UP 78 E 7722 and UP 78 EH 0055 worth Rs. 65 lakhs each. They are even purported to have purchased another Fortuner Toyota Car worth Rs. 35 lakhs in the month of May-June 2018. Thus, they have illegally and with malicious intent, misused about Rs. 1 crore 50 lakhs of the company. 8. In September-October 2017, a new Bank A/c No. 4845214000005 was opened in Canara Bank, Civil Lines, Kanpur, to which applicant no. 1, Sandeep Kumar Garg and co-accused person Somendra Mehta were authorized signatories, and an amount of about Rs. 30 crores is stated to have been deposited in it and withdrawn by them. The applicants and other co-accused persons are even stated to have deposited fake bank guarantees in the department. It is also mentioned in the FIR that the applicants have criminal antecedents. RIVAL CONTENTIONS: CONTENTIONS ON BEHALF OF THE APPLICANTS: 9. Learned Senior Counsel for the applicants has stated that the applicants are maliciously being prosecuted in the present case due to ulterior motive. They have the apprehension of their arrest. The applicants have nothing to do with the said offence as alleged by the prosecution. Learned Senior Counsel has stated that in the said case, closure report was filed by the investigating officer after a detailed investigation. A protest petition was filed by the informant and the applicants were summoned by the court concerned by rejecting the closure report, and the court concerned was pleased to take cognizance in the case under Sections 406, 420 and 120-B IPC vide order dated 29.10.2021. 10. Subsequent to it, the informant had filed a criminal revision before the Sessions Judge, Kanpur, whereby the said cognizance order was set aside vide order dated 15.3.2022 and the Magistrate concerned was ordered to pass a fresh order after hearing the parties on merits, as such, the learned Magistrate concerned summoned the applicants under Sections 406, 420, 467, 471 and 120-B IPC. 11. Learned Senior Counsel has stated that the co-accused persons Somendra Mehta and one another person had challenged the said summoning order by filing a petition u/s 482 Cr.P.C. No. 11879 of 2021 in which the proceedings were stayed vide order dated 7.9.2021. 11. Learned Senior Counsel has stated that the co-accused persons Somendra Mehta and one another person had challenged the said summoning order by filing a petition u/s 482 Cr.P.C. No. 11879 of 2021 in which the proceedings were stayed vide order dated 7.9.2021. It is next stated that the applicants have been put to double jeopardy as the matter is of civil nature and already it is pending before the NCLT with respect to the said company matter. 12. Learned counsel has further stated that another petition u/s 482 Cr.P.C No. 35335 of 2022 has been dismissed by this Court vide order dated 2.1.2023. Learned counsel has also stated that applicant nos. 1 and 2 are father and son. The applicant no. 2-son has nothing to do with the said offence and has been implicated owing to his relationship with the applicant no. 1-his father. It is further argued that the applicant no. 1 is terminally ill and is suffering from brain tumour. 13. Learned counsel has placed reliance on the judgments of the Apex Court passed in Kamlesh & another vs. The State of Rajasthan & Another, Criminal Appeal No. 1006 of 2019 (Arising out of SLP (Crl.) No. 1530 of 2018 decided on 9.7.2019 14. Learned counsel has also placed reliance on the judgment of the Apex Court in Ravindra Saxena vs. State of Rajasthan, (2010) 1 SCC 684 , whereby the anticipatory bail was granted to the applicants therein, on the ground that the matter was purely of civil in nature and the complainant had already filed a suit for specific performance. 15. Learned counsel has also placed reliance on the judgment of the Apex Court in Bharat Chaudhary and another vs. State of Bihar and another, (2003) 8 SCC 77 . 16. Learned counsel has also placed reliance on the judgment of the Apex Court in Vinod Kumar Sharma and another vs. State of Uttar Pradesh and another, SLP (Crl.) No. 6057 of 2021 decided on 16.11.2021, whereby the petitioners had challenged the said filing of charge sheet and were granted time by the court concerned to apply for regular bail. Instead, the applicants herein had applied for anticipatory bail, as such, it was opined that the bail includes anticipatory bail. 17. Instead, the applicants herein had applied for anticipatory bail, as such, it was opined that the bail includes anticipatory bail. 17. Learned counsel has also stated that already the petition before the NCLT is pending in which the interim order was passed on 15.11.2021 for both the parties to appear before the Court in the AGM, and it is the informant, who had defrauded the said order and has not complied with it. As such, the applicants had even filed contempt petition before the NCLT, which is still pending. It is next stated that the applicant no. 2 has no criminal history. The criminal history of the applicant no. 1 stands explained as there are the FIRs instituted by his tenants as Case Crime No. 160 of 2021, P.S. Gwaltoli, District Kanpur Nagar and another Case Crime No. 187 of 2021, P.S. Gwaltoli, District Kanpur Nagar, Case Crime No. 2 of 2023, P.S. Collectorganj, district Kanpur Nagar and Case Crime No. 26 of 2016 pending at Police Station-Sector 49, Noida, district Gautambudh Nagar. It is next stated that in the case at Noida, the applicant no. 1 was not named. Rather, it was against the company itself and the matter has been referred to Lokayukt after passing through various forums. The said criminal history stands explained vide rejoinder affidavit. CONTENTIONS ON BEHALF OF THE INFORMANT AND STATE: 18. On the other hand, learned A.G.A. and learned Senior Counsel for the informant have vehemently opposed the prayer for grant of anticipatory bail on the ground that already the applicants had agitated the provisions of Section 482 Cr.P.C. at this Court and had failed as no stay order has been granted in the present case, as such, they have approached this Court by filing anticipatory bail. This tantamounts to forum hunting as the applicants, who are habitual in using various courts, are themselves deliberately evading arrest. Learned counsel has placed reliance on the judgment of this Court passed in Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No. 2529 of 2022 (Sabir Ali and State of Uttar Pradesh and 2 others) whereby in a detailed order, it has been stated that if the applicants had filed a petition u/s 482 Cr.P.C., no anticipatory bail application can be entertained. 19. Anticipatory Bail Application u/s 438 Cr.P.C. No. 2529 of 2022 (Sabir Ali and State of Uttar Pradesh and 2 others) whereby in a detailed order, it has been stated that if the applicants had filed a petition u/s 482 Cr.P.C., no anticipatory bail application can be entertained. 19. Learned Senior Counsel for the first informant has stated that the applicant has not come with clean hands, as he has concealed the fact that he had filed Criminal Misc. Application u/s 482 Cr.P.C. No. 15383 of 2022 before this Court challenging the order dated 15.3.2022 passed by the Additional District and Sessions Judge, Court No. 12, Kanpur Nagar, in 283 of 2021, arising out of Case Crime No. 128 of 2018 (present case). Learned Senior Counsel has next stated that no protection has been granted to the applicant despite the case being taken up four times. 20. Thus, the case law settled by this Court in Shivam v. State of Uttar Pradesh and another, AirOnline 2021 All 484 applies to the case of the applicants and they are not entitled for anticipatory bail. Learned Senior Counsel has also placed reliance on the judgment of this Court passed in Criminal Misc. Anticipatory Bail Application u/s 438 Cr.P.C. No. 2529 of 2022, whereby much reliance has been placed on the judgment passed by the Apex Court in Satender Kumar Antil vs. Central Bureau of Investigation and another, 2022 SCC Online SC 825, Aman Preet Singh vs. C.B.I. through Director, AIR 2021 SC 4154 and Siddharth vs. The State of Uttar Pradesh and another, (2022) 1 SCC 676 . No anticipatory bail can be entertained after having agitated the provisions of Section 482 Cr.P.C. 21. In rebuttal, learned Senior Counsel for the applicant has stated that the applicant has every right to file anticipatory bail as the word ‘bail’ includes 'anticipatory bail' also. CONCLUSION: 22. It is true that the word ‘bail’ includes ‘anticipatory bail’ also, as such, the anticipatory bail has been heard at length. The present case does not fall within the category to be of civil nature only. CONCLUSION: 22. It is true that the word ‘bail’ includes ‘anticipatory bail’ also, as such, the anticipatory bail has been heard at length. The present case does not fall within the category to be of civil nature only. The judgment of Kamlesh and another (supra) does not apply to this case, as the matter pertains to the State of Rajasthan, where the petition u/s 482 Cr.P.C. is entertained before the filing of final report (charge sheet), as such, in the case, FIR has been challenged while in the present case, that stage has already passed. 23. The judgments of Ravindra Saxena (supra), Bharat Chaudhary and another (supra) and Vinod Kumar Sharma (supra) also do not apply to the present case in clear terms. It is an admitted fact that the applicant no. 1 Sandeep Kumar Garg has a criminal history of five cases and he has not been enlarged in any of the cases, as such, the said criminal history goes unexplained. 24. After hearing the parties and taking into consideration the criminal history of applicant no. 1 and also the fact that they have already agitated the provisions of Section 482 Cr.P.C. without any success, and the case law referred above, I do not find it a fit case for grant of anticipatory bail to the applicants Sandeep Kumar Garg and Gaurang Garg. 25. In view of the above, the present anticipatory bail application is found devoid of merits and is, accordingly, rejected.