Allowed

Manjoosha Dixit v. State of U.P. Thru. Secy. Home Lko.

Allahabad HC9 Oct 2023/2041/2023

Case brief

AI extract

What is this about?

Single-judge High Court allowed bail application of a woman accused of cheating and criminal conspiracy in a commercial investment dispute. The court held the dispute was essentially civil in nature and granted bail on personal bond and sureties while noting the applicant's minor daughters.

What did the court decide?

Order allowing the bail application and directing release of the applicant on personal bond and two sureties.

Manjoosha Dixit Vs State of U.P. Thru. Secy. Home Lko. — Bail and Remand | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC-LKO:64998

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Court No. - 16

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2041 of 2023 Applicant :- Manjoosha Dixit Opposite Party :- State Of U.P. Thru. Secy. Home Lko. Counsel for Applicant :- Pradeep Tiwari Counsel for Opposite Party :- G.A.,Ayodhya Prasad Mishra A.P. Mishra,Rituraj Mishra

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Hon'ble Subhash Vidyarthi,J.

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Heard Sri Pradeep Tiwari, the learned counsel for the applicant, Sri Anurag Verma, the learned A.G.A. for the State and Sri Rakesh Kumar Singh holding brief of Sri A.P. Mishra, the learned counsel for the informant.

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The instant application has been filed seeking release of the applicant on bail in Case Crime No. 327 of 2021, under Sections 323, 504, 506, 409, 420 I.P.C., registered at Police Station Gomti Nagar Vistar, District Lucknow.

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The aforesaid case has been registered on the basis of an F.I.R. lodged on 15.09.2021 against four persons, including the applicant, stating that on the pursuation of the applicant's husband co-accused Ashish Dixit, the informant had made some investments in M/s Swastik Enterprises of which the applicant is the proprietor. The informant states that no amount was paid in return of his invested amount in the business of the aforesaid firm.

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In the affidavit filed in support of bail application it has been stated that the applicant is innocent, she has been falsely implicated in the present case and she has no criminal history. It has further been stated that applicant is a mother of 9 years old twin daughters and her husband has gone missing on 16.02.2022 and missing report has been lodged by the applicant.

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The learned counsel for the applicant has submitted that because of incarceration of the applicant there is no one to take care of her minor daughters. It has further been submitted that the co-accused Amitendra Dixit has already been enlarged on bail by this court vide order dated 09.10.2023, passed in Criminal Misc. Bail Application No.11783 of 2022.

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The learned counsel for the applicant submits that the offence alleged against the applicant is triable by magistrate and the applicant is languishing in jail since 26.12.2022 and the trial is yet to commence.

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The learned A.G.A. has opposed the prayer for bail but he could not dispute the aforesaid aspects of the matter.

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Having considered the aforesaid facts and circumstances of the case and without making any observation, which may affect the merits of the case, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail in the aforesaid crime.

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After pronouncement of the aforesaid order and the order having been transcribed, Sri A.P. Mishra, learned counsel for the informant appeared at 2:15 pm and stated that the order has been passed without giving him an opportunity to advance his submissions and he submitted that in similar circumstances the Hon'ble Supreme Court has allowed an appeal in the case of Jagjeet Singh and Others Vs. Ashish Mishra @ Monu and Another by means of an order order dated 18.04.2022 passed in Criminal Appeal No. 632 of 2022 and has set aside the order passed by this Court granting bail to an accused person.

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In Jagjeet Singh and Others Vs. Ashish Mishra @ Monu and Another, the order passed by the High Court was set aside on account of the factors like (i) irrelevant considerations having impacted the impugned order granting bail; (ii) the High Court exceeding its jurisdiction by touching upon the merits of the case; (iii) denial of victims' right to participate in the proceedings; and (iv) the tearing hurry shown by the High Court in entertaining or granting bail to the respondent/accused. While setting aside the order granting bail and remanding order for decision afresh, the Hon'ble Supreme Court observed that "needless to say that the bail application shall be decided on merits and after giving the adequate opportunity of hearing to the victim's as well.

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The present application was filed on 13.10.2022 and it is pending for the past one year and it is not that this court has proceeded to decide the application with a 'tearing hurry'. It is also not correct that the victims' right to participate in the

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proceedings has been denied and the order was passed in presence of Sri Rakesh Kumar Singh holding brief of Sri A.P. Mishra, the learned counsel for the informant, who had stated that Sri A.P Mishra was busy in the district court and was not available to assist this court for the aforesaid reason. It is highly improper on the part of a learned counsel to be unavailable to assist the High Court for the reason that he had preferred to go to the District Court and to allege thereafter that this court has denied an opportunity of hearing to him.

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However, in the interest of justice, the court proceeds to hear submission of the learned counsel for the informant in opposition of the bail application.

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Sri A.P. Mishra has submitted that the informant had made investment in a Dairy business run in the name of M/s Swastik Enterprises, of which the applicant is the proprietor. She had produced an agreement with Paras Dairy regarding supply of milk and she had given an offer to the informant for running the business. Believing the statements of the accused persons, the informant had transferred Rs. 8 lakhs to M/s Swastik Enterprises through RTGS on 30.09.2020. Two other persons Brijendra and Tauheed Raza had also invested Rs. 3 lakhs each in the aforesaid business through the informant. When no returns were paid to the informant and other persons on their investments, the informant went to the house of the applicant on 06.04.2021 whereupon all the three accused persons had threatened to get him entangled in some false case. Subsequently, the General Manager of Paras Dairy informed that the agreement shown by the applicant was forged.

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The learned counsel for the informant has submitted that the aforesaid facts clearly make out commission of offences alleged by the accused persons. He has further submitted that the accused persons are habitual of committing similar offences and two more F.I.Rs have been lodged against them in this regard, a mention thereof has been made in para 14 of the affidavit filed in support of the bail application.

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Sri A.P. Mishra has further submitted that the co-accused had filed an application for his release on bail in Case Crime No. 14 of 2021 and this court

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has referred the parties to Mediation and Conciliation Center of this Court for settlement of their disputes through mediation. However, this submission is not supported by any material available on record. Moreover, even if the submission of the leaned counsel for the informant is accepted, prima facie it appears that the court dealing with the bail application regarding case Crime No. 14 of 2021 has dealt with the matter as a monetary dispute regarding commercial transaction because the question of grant of bail to an accused person cannot be decided through Mediation. From the allegation levelled in the F.I.R and the aforesaid submission made by the learned counsel for the informant, it appears that the dispute between the parties is regarding non payment of returns on investments made by the applicant in a commercial project, which dispute predominantly appears to be a civil nature. Prima facie it appears that the informant has lodged the F.I.R instead of initiating civil proceedings for recovery of the money payable under commercial relations, to avoid payment of court fee and to coerce the applicant for payment of money.

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As far back as in the year 2006, the Hon'ble Supreme Court had observed in Indian Oil Corpn. v. NEPC India Ltd., (2006) 6 SCC 736 , that: -

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"13. While on this issue, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors. Such a tendency is seen in several family disputes also, leading to irretrievable breakdown of marriages/families. There is also an impression that if a person could somehow be entangled in a criminal prosecution, there is a likelihood of imminent settlement. Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged. In G. Sagar Suri v. State of U.P. (2000) 2 SCC 636, this Court observed:

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"It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice."

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14. While no one with a legitimate cause or grievance should be prevented from seeking remedies available in criminal law, a complainant who initiates or persists with a prosecution, being fully aware that the criminal proceedings are unwarranted and his remedy lies only in civil law, should himself be made accountable, at the end of such misconceived criminal proceedings, in accordance with law. One positive step that can be taken by the courts, to curb unnecessary prosecutions and harassment of innocent parties, is to exercise their power under Section 250 CrPC more frequently, where they discern malice or frivolousness or ulterior motives on the part of the complainant. Be that as it may."

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The learned counsel for the informant has next submitted that the allegation levelled in the F.I.R made out commission of offence by the applicant and other accused persons.

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This application has been filed by the applicant for his release on bail and not for quashing of the proceedings, in which case the court has to record a satisfaction that no criminal offences is made out against him. Bails are admissible to persons accused of commission of offences even where commission of offence is clearly made out against them, provided the requisite conditions are satisfied.

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Having considered the aforesaid facts and circumstances of the case and keeping in view the fact that the allegations against the applicant is that she was proprietor of the concern, in which the informant had made investments and as per the F.I.R allegations, the said concern was actually being run by the applicant's husband- Ashish Dixit; that the informant had made some business investments in a commercial entity owned by the applicant but managed by her husband; that the dispute primarily appears to be civil in nature and the F.I.R has been lodged apparently to pressurize the accused persons to pay commercial dues of the informant without the informant having taken recourse to the civil remedies and by adopting this oblique method, the informant has evaded payment of court fee, which would have benefited the public at large and that the applicant is a women and she is languishing in jail since 26.12.2022 and her twin minor daughters are also suffering due to her incarceration and without making any observation, which may affect the merits of the case, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement

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of the applicant on bail in the aforesaid crime.

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Accordingly, this bail application stands allowed .

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Let the applicant- Manjoosha Dixit be released on bail in the aforesaid case, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-

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(i) the applicant shall not tamper with the prosecution evidence;

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(ii) the applicant shall not pressurize the prosecution witnesses;

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(iii) the applicant shall appear on each and every date fixed by the trial court.

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(Subhash Vidyarthi, J.)

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Order Date :- 9.10.2023 Preeti.

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Digitally signed by :- PREETI GAUTAM High Court of Judicature at Allahabad, Lucknow Bench

Manjoosha Dixit v. State of U.P. Thru. Secy. Home Lko.

Case brief

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Manjoosha Dixit v. State of U.P. Thru. Secy. Home Lko.

Case brief

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