Ashok Singh Bhadoriya vs State Of M.P

G.S. Ahluwalia, J

This first application under Section 438 of Cr.P.C. has been filed for grant of anticipatory bail.

The applicant apprehends his arrest in connection with Crime No.348/2021 registered at Police Station City Kotwali, Distt. Morena for offence under Sections 406, 409 of I.P.C.

It is submitted by the Counsel for the applicant that according to the prosecution case, an amount of Rs.87,00,000/- was given by the complainant to the applicant from time to time and instead of returning the said amount with interest, the applicant has refunded only Rs. 26,62,000/- to the complainant and remaining amount Rs. 1,77,48,000/- has not been repaid. It is further submitted that as per the Income Tax Act, the amount more than 20,000/- cannot be paid in cash and it is the case of the complainant that he had paid the amount in cash is not correct.

Per contra, the application is vehemently opposed by the Counsel for the State as well complainant. It is submitted by Shri Budholiya that applicant is son- in- law of the elder brother of the complainant. The complainant had given Rs. 87,00,000/-in cash on several occasions and the applicant had also given in writing thereby accepting his liability.

In reply, it is submitted by Shri Lahoti that an enquiry was conducted and in that enquiry a specific stand was taken by the applicant that the said undertaking is a forged document. It is further submitted that even if the entire allegations are accepted, then it is clear that the dispute is predominantly of civil in nature and the complainant has tried to give it the colour of criminal case which is not permissible. It is further submitted that the complainant has not filed a civil suit and this FIR was lodged on 15.4.2021 in order to come over the period of limitation. Furthermore, according to undertaking the last amount of Rs. 9,00,000/- was paid on 7.3.2014 and thus it is clear that the suit is barred by limitation and in order to overcome that, the present FIR has been lodged. The applicant is ready and willing to cooperate with the investigating officer and there is no possibility of his absconding or tampering with the prosecution case.

In reply, it is submitted by Shri Budholiya that the complainant had arranged money after mortgaging some gold as well as alienating his property. However, he fairly conceded that he has not placed those documents either before this Court and has also not provided those documents to the investigating officer.

Be that whatever it may be.

The allegations are that the complainant had given certain money to the applicant for investment in the business and it is alleged that the profit as well as principal amount has not been refunded. Thus, it is clear that allegations are predominantly of civil in nature. No civil suit has been filed by the complainant so far.

At this stage it is submitted by Shri Budholiya that the complaint has not been lodged as an alternative mode of recovery of the said amount and since the applicant has misappropriated the huge amount of the complainant, therefore, the FIR has been lodged. However, when this Court asked Shri Budholiya that in case if the entire amount is refunded by the applicant, then whether the complainant would file an application under Section 482 of Cr.P.C for quashment of the FIR or not, then it was submitted by Shri Budholiya that no such application shall be filed. When it was enquired by this Court that in case if the application is filed then the complainant would be ready to pay any cost for making false statement before this Court or not, then it was not replied by shri Budholiya.

Thus, the basic purpose of lodging the FIR is to settle the civil liability. It is well established principle of law that the civil cases cannot be given the colour of criminal cases.

The Supreme Court by order dated 23-3-2020 passed in the case of IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS in SUO MOTU W.P. (C) No. 1/2020 has directed all the States to constitute a High Powered Committee to consider the release of prisoners in order to decongest the prisons. The Supreme Court has observed as under :

"The issue of overcrowding of prisons is a matter of serious concern particularly in the present context of the pandemic of Corona Virus (COVID - 19).

Having regard to the provisions of Article 21 of the Constitution of India, it has become imperative to ensure that the spread of the Corona Virus within the prisons is controlled.

We direct that each State/Union Territory shall constitute a High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation is known as, (ii) Director General of Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate. For instance, the State/Union Territory could consider the release of prisoners who have been convicted or are undertrial for offences for which prescribed punishment is up to 7 years or less, with or without fine and the prisoner has been convicted for a lesser number of years than the maximum.

It is made clear that we leave it open for the High Powered Committee to determine the category of prisoners who should be released as aforesaid, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate."

Considering the allegations, as well as considering the fact the deteriorating situation in view of second wave of Covid19 pandemic, and without commenting on the merits of the case, it is directed that if the applicant appears before the Investigating officer on or before 23.9.2021 and furnishes his personal bond in the sum of Rs. 1,00,000 (Rs. One Lac) to the satisfaction of the investigating officer, then he shall be released on bail.

The applicant shall also furnish an undertaking that he shall follow all the instructions which may be issued by the Central Govt./State Govt. or Local Administration (General or Specific) from time to time for combating Covid19.

The other conditions of Section 438 Cr.P.C. shall remain the same.

This order shall remain in force, till the conclusion of Trial. In case of bail jump, or violation of any of the condition(s) mentioned above, this order shall automatically lose its effect.

In case, if the applicant fails to appear before the investigating officer on the specified date, then this order shall lose its effect.

With aforesaid observations, this application is Allowed.