The Lucknow Bench of the Allahabad High Court while allowing an application observed that mere non-payment of money paid under a contract cannot be a ground for criminal prosecution of a party to the agreement and, in any case, that cannot be a ground for rejection of the anticipatory bail application of the accused person.
A Single Bench of Justice Subhash Vidyarthi passed this order while hearing a Criminal Misc Anticipatory Bail Application filed by Vijay Pal Prajapati.
By means of the application, the applicant is seeking anticipatory bail in case under Sections 323/504/506/406/420/467/468/471 IPC, P.S Vibhuti Khand, District Lucknow.
The aforesaid case has been registered on the basis of an FIR lodged by the informant Deepak Sharma on 23.07.2021 against four named persons, including the applicant, and an unknown person, alleging that in December, 2018, co-accused Anand Kumar Singh alias Baba Trikaldarshi met the informant at Mumbai and projected that he had a good understanding of mining of sand and had a sound grip on the market in Banda.
The informant visited Lucknow thrice in December, 2018, January, 2019 and February, 2019 where the co-accused Anand Kumar Singh met him in a hospital and at the residence of co-accused Rajiv Porwal and the applicant and the co-accused Navneet Singh Bhadauria also used to sit in the meetings and they claimed themselves to be established businessmen of Morang (a minor mineral used in construction activities).
Co-accused Anand Kumar Singh demanded Rs 1 crore from the informant for a government tender and he asked the informant to sign some documents which had been prepared by the applicant. The applicant had shown some documents purportedly relating to registration of the company in the tender process but the documents turned out to be forged. On 11.02.2019, a notice inviting tenders for excavation of sand was published wherein the applicant had made a bid without knowledge of the informant and co-accused Anand Kumar Singh had told the informant that only the applicant’s name will be used and the actual control of the work will be given to the informant.
The informant alleged that he had transferred a sum of Rs 1,60,00,000 in the account of M/s VP Constructions towards earnest money for the tender.
On 08.03.2019, another contract was allotted to M/s V. P Constructions, which is a firm of the applicant. The informant claims that it was mutually settled between him and the accused persons that the investments and profit in the tender allotted to M/s VP Constructions will be distributed amongst all the persons and on 05.12.2020, a joint venture agreement was executed between the informant, the applicant and one Pramod Tiwari.
On the same day, another agreement for sale and marketing was executed between the informant and the applicant but after sometime, the accused persons started sale and marketing of excavated sand through M/s V. P Constructions and they committed a breach of the agreement dated 05.12.2020. The informant alleged that when he objected to it, the accused persons abused and threatened him.
The applicant was granted interim anticipatory bail by means of an order dated 16.01.2023, after taking into consideration the fact that co-accused namely Rajiv Lochan Paliwal has been granted interim protection vide order dated 20.10.2022 passed in Criminal Misc Anticipatory Bail Application U/S 438 Cr.P.C “Rajiv Lochan Paliwal Vs State of U.P and others”.
Another co-accused Navneet Bhadauria has also been granted bail by the coordinate Bench of the Court passed in Criminal Misc Anticipatory Bail Application U/S 438 Cr.P.C “Navneet Bhadauria Vs State of U.P and others”.
The State and the informant have filed counter affidavits opposing the anticipatory bail application.
The counsel for the informant has vehemently opposed the application and he has submitted that while granting anticipatory bail to the co-accused Navneet Bhadauria, it was specifically recorded in the order dated 18.11.2022 passed by the Court in Anticipatory Bail Application that the case of the aforesaid co accused is distinguishable from the case of Anand Kumar Singh @ Baba Trikaldarshi and Vijay Pal Prajapati (the applicant) and he has submitted that the applicant is not entitled to be granted anticipatory bail on the ground of parity.
The Court said that,
In this regard, firstly it is to be seen that the applicant has not been charged with commission of offence under Section 120 B I.P.C and merely because the applicant is the beneficiary of an offence will not ipso facto make the applicant guilty of the offence of forgery, when there is no allegation of commission of the offence by him.
Secondly, the money was transferred to the applicant in furtherance of an agreement to carry out business of mining of minor minerals and the informant claims that the accused persons have committed a breach of the agreement, which dispute prima facie appears to be a dispute which is inherently of the civil nature.
Nowadays it is becoming a general practice to set the criminal law into motion for putting pressure on the parties to commercial transactions. Instead of initiating civil proceedings for specific performance of contracts, accounting or recovery of money, where the plaintiff / claimant has to pay Court fee and where the decision of the dispute consumes a very long time, F.I.Rs are filed with the object of getting the other party incarcerated to put pressure on him so as to make him redress the grievances of the informant.
However, the Courts cannot shut their eyes in such matters so as not to ascertain whether there is sufficient material to warrant incarceration of the accused person and to examine whether the criminal proceedings are being used for prosecution of a person who has committed an offence or the same are being misused for persecution of a person who has committed a breach of an agreement by giving the disputes a color of criminality.
The counsel for the informant has next submitted that the bail application of co-accused Anand Kumar Singh Alias Baba Trikaldarshi has been rejected by means of an order dated 03.03.2023 passed by the Court. In this regard, suffice it to say that parity is a relevant consideration while granting bail to persons accused of similar charges but the principle of parity is not attracted to rejection of bail applications.
“Mere non-payment of money paid under a contract cannot be a ground for criminal prosecution of a party to the agreement and, in any case, that cannot be a ground for rejection of the anticipatory bail application of the accused person. Therefore, I am of the view that the application for grant of anticipatory bail to the applicant cannot be rejected on this ground.
Regarding the applicant, it is mentioned in the F.I.R that co-accused Anand Kumar Singh alias Baba Trikaldarshi had asked the informant to put his signature on some documents which had been prepared by the applicant. Obviously, the informant would not be required to sign the letter dated 08.03.2019 issued by the Additional District Magistrate on behalf of the District Magistrate and, therefore, the aforesaid allegation would not lead to an inference that the applicant had forged the letter dated 08.03.2019. The F.I.R contains no allegation that the letter dated 08.03.2019 had been forged or fabricated by the applicant”, the Court observed.
“In the aforesaid circumstances, I find no good ground to take a view different from the view taken by the Court while passing the order dated 16.01.2023. Therefore, the order dated 16.01.2023 is made absolute and the application is allowed in terms of the aforesaid order”, the Court ordered.