Allowed

Chaman Lal Diwakar v. State of U.P. Thru. Prin. Secy. Home Lko.

Allahabad HC26 May 2022/1209/2022

Case brief

AI extract

What is this about?

The High Court considered a bail application regarding allegations of cheating and fraud in a property transaction. The applicant argued he was falsely implicated despite resigning from the relevant company. The court granted bail, applying the principle from Dataram Singh, noting the applicant made out a case without expressing an opinion on merits.

What did the court decide?

Release on bail subject to personal bond, two sureties, and specific undertakings regarding court appearances and prohibition against defaulting in evidence testimony.

Chaman Lal Diwakar Vs State of U.P. Thru. Prin. Secy… — Cheating and Forgery | Allahabad HC (2022)

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Court No. - 28

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1209 of 2022

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Applicant :- Chaman Lal Diwakar Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Purnendu Chakravarty,Nishant Srivastava Counsel for Opposite Party :- G.A.

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Hon'ble Krishan Pahal,J.

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Heard Sri Gopal Mishra, learned counsel for the applicant and Sri Ajay Kumar Srivastava, learned AGA for the State and also perused the material placed on record.

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By means of the present application, the applicant seeks bail in Crime No.172 of 2021, under Sections 409, 420, 467, 468, 471, 120-B IPC, Police Station- Gomti Nagar, District- Lucknow, during the pendency of trial.

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As per the allegations of the FIR, the applicant along with coaccused persons are said to have taken an amount of Rs.4,84,880/- from the Informant on 6/7.11.2014 in lieu of a plot and got it registered through a sale-deed on 10.11.2014. The possession of the land was to be handed over after three years i.e. after November, 2017 but the same has not been done till date.

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Learned counsel for the applicant has stated that the applicant has been falsely implicated in the present case. The applicant was neither named in the FIR nor committed any fraud with the investors as alleged in the FIR. The FIR is delayed by about four years and there is no explanation of said delay whatsoever. The dispute is purely civil in nature which pertains to the possession of the plot/land. He has no concern with the company in question i.e. Shine City Infra Private Limited. The applicant was the Director in another company Shine City Erector Private Limited for a period of only 13 months i.e. w.e.f. 1.12.2014 to 18.3.2016 and he had resigned way back i.e. on 18.3.2016. Learned counsel has placed much reliance upon a true copy of the Master Data of company Shine City Erector Private Limited, which is also available on website of Ministry of Corporate Affairs and has been filed as Annexure-1 to the

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affidavit annexed with the bail application. He has next stated that on the date of registration of the alleged sale-deed, the applicant was not the Director of the company. Learned counsel has further argued that as per the allegations contained in the FIR, the possession of land was to be handed over after November, 2017 and by then also, the applicant had admittedly resigned on 18.3.2016. Thus, the applicant was neither working as Director in the alleged company on the date of registration of the sale-deed nor was the Director at the time of alleged handing over of the possession of the said plot.

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To buttress his case, learned counsel for the applicant has submitted that no allegation has been made against the applicant by either the complainant or any of the investors. The Department of Economic Offence Wing could not collect any evidence against him whatsoever, has in a hurried manner denied the bail to him and also filed charge-sheet on 15.1.2022. Learned counsel has also stated that there is no direct evidence against the applicant. There is no likelihood of applicant absconding as he belongs to a respectable family of the area. He is ill and his health is deteriorating day-by-day in jail as he is diabetic and suffers from high blood pressure. The applicant is languishing in jail since 23.11.2021 and he deserves to be released on bail. In case, the applicant is released on bail, he will not misuse the liberty and shall cooperate with the trial.

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Per contra, Sri Ajay Kumar Srivastava, learned AGA has vehemently opposed the bail prayer of the applicant by contending that the present subject matter is a serious offence committed by the land mafias only to usurp hard earned money of the innocent investors. The parent company i.e. Shine City Infra Private Limited has defrauded various persons by creating about 50 companies with different names but he has fairly conceded that the applicant is not named in the FIR. Learned AGA has also stated that the applicant was the Director of the company for a period of more than one year and he has the right of money changing hands. The applicant had himself created a company, namely, Scapper Real Con Private Limited in which he was the Director and used to de-facto work with Shine City Infra Private Limited company. He has also stated that an amount of Rs.3 crores has been transferred to the account of the applicant from the Shine City company. There is a statement of Lekhpal who has stated that the modus operandi of the directors

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of the company is that they keep on changing the names of the company one after another. There is a criminal history of six cases assigned to the applicant. Three sale-deeds of which the applicant is stated to have executed, pertain to the persons of Scheduled Caste category to which he is not entitled to. The applicant has transferred two properties on 13.7.2020 and 25.8.2020 to Shine City Infra Private Limited from his company Scapper Real Con Private Limited. The said dealings categorically established the fact that the applicant after showing himself to have resigned from the company, is still acting as a de-facto Director and getting the said amount transferred to and fro from his company.

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In rebuttal, learned counsel for the applicant has stated that he has already stated at Bar and filed an affidavit to this effect that he is engaged in the business of property dealing and it is his livelihood to sale and purchase land. So far as his criminal history is concerned, he has stated that out of six cases, the applicant is on bail in four cases and in jail in the present two cases. He has further stated that had he been hand in glove with the promoters of Shine City Infra Private Limited, he would have been made an accused by the Investors in all the FIRs lodged against the company.

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Keeping in view the nature of the offence, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

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Let the applicant- Chaman Lal Diwakar, who is involved in the aforementioned case crime number be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in Court. In case of default of

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this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(ii) The applicant shall remain present before the Trial Court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A IPC.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C., may be issued and if applicant fails to appear before the Court on the date fixed in such proclamation, then, the Trial Court shall initiate proceedings against him, in accordance with law, under Section 174-A IPC.

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(iv) The applicant shall remain present, in person, before the Trial Court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.

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Order Date :- 26.5.2022 Siddhant

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Digitally signed by SIDDHANT SAHU Date: 2022.05.30 10:49:42 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Chaman Lal Diwakar v. State of U.P. Thru. Prin. Secy. Home Lko.

Case brief

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Chaman Lal Diwakar v. State of U.P. Thru. Prin. Secy. Home Lko.

Case brief

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