Petitioner sought anticipatory bail under Section 438 Cr.P.C. in a cheating case. The High Court rejected the application, noting the seriousness of the offence and pending investigation, without opining on the merits.
Anticipatory bail application under Section 438 Cr.P.C. is rejected.
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S.B. Criminal Miscellaneous Bail Application No. 10988/2020
Surendra Singh Rathore @ Sonu S/o Shri Ramesh Kumar, Aged About 36 Years, R/o Opposite Shiv Mandir , Luniyapura , Abu Road, Distt. Sirohi , Raj.
----Petitioner
| Versus | ||
|---|---|---|
| State Of Rajasthan, | Thro | ugh Pp ----Respondent |
| For Petitioner(s) | : | Ms. Nupur Bhati Mr. SandeepSoni |
| For Respondent(s) | : | Mr. Mohd. Javed Gauri, P.P. Mr. Shambhoo Singh, for the complainant |
HON'BLE MR. JUSTICE SUDESH BANSAL
Order
11/11/2021
Heard the learned counsel for the petitioner as well as the learned Public Prosecutor and perused the material available on record.
The petitioner, who apprehends his arrest in connection with FIR No.22/2020 of Police Station Anandpuri, District Banswara for the offence punishable under Sections 420, 120-B, 467, 468 and 471 of IPC has filed this application for anticipatory bail under Section 438 Cr.P.C.
In the present case, after hearing both the parties and considering the documents available on record, it appears that petitioner Surendra Singh Rathore made an assurance to the complainant along with other persons about establishing and
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starting a hotel in Thailand and under such assurance, the petitioner received a huge amount from the complainant. It further transpires that when the petitioner neither honoured his assurance nor refunded the aforesaid amount, then the complainant made inquiry and came to know that the petitioner made a false assurance just to grab the amount from him. The present FIR was lodged on 19.02.2020.
Learned counsel for the petitioner has submitted that the complainant and other person namely Dilip jointly entered into an agreement with the petitioner to start a hotel business at Thialand. It is further submitted that a written agreement to this effect was also executed between them. It is also submitted that the petitioner was already running a restaurant at Thialand and indulged in the similar nature of businesses. It is submitted that petitioner assured only to deal with the management and working of the hotel set up of hotel was to be done by complainant and others and not by petitioner. It is submitted by counsel for the petitioner that the amount received by him from the complainant, was later on, assured to be refunded by Dilip Savot vide document dated 01.08.2019. It is submitted that this is a case of breach of agreement and may not be treated as a case of criminal breach of trust and cheating. It is submitted that the dispute in the present FIR is of civil nature and, therefore, he may be granted benefit of pre-arrest bail.
Learned Public Prosecutor has opposed the bail application. Learned counsel for the complainant has put in appearance and opposed the bail application contending that the petitioner made an assurance to establish and start a hotel at Thialand and
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received huge amount of Rs.74 lacs time to time from the complainant. It is submitted that the petitioner has not taken a single step regarding the establishment and start of the hotel business for which he took the amount. It is submitted that the petitioner cheated the complainant deliberately and grabbed his money in pre-planned manner. It is submitted that by the transaction of messages and other documents send by the petitioner, it is a matter of investigation as to whether the petitioner has accepted his mistake and gave assurance many a time to refund the amount but later on did not repay the amount. Thus, as per the complainant this is a clear case of cheating and criminal breach of trust. During the course of investigation, no case for grant of pre-arrest of bail is made out.
Having heard learned counsel for the parties, this Court is of the opinion that the truthfulness of allegations levelled in the FIR may not be examined at this stage. It may not be stated at this stage that the petitioner has wrongly been implicated in the present case and no custodial investigation is required from him. The Sessions Court in the order dated 26.08.2020 has observed that this is a case of grabbing an amount of Rs.74 lacs and cheating with the complainant.
The Constitutional Bench of Hon’ble Supreme Court in case of Sushila Aggarwal and Ors. vs. State (NCT) & Anr. (2020) 5 SCC 1 has affirmed and reiterated principal governing the law of grant/refusal of pre-arrest bail as propounded in case of Gurbaksh Singh Sibbia vs. State of Punjab (1980) 2 SCC 565. The relevant paragraph No.11 of the said judgment reads as follows:“The power under Section 438 Criminal Procedure
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Code, is of an extraordinary character and must be exercised springy in exceptional cases only.”
Having regard to the totality of the facts and circumstances of the case and looking to the nature of accusation and seriousness of the offence and the fact that investigation in the present case is pending, without expressing any opinion on the merits of the case, this Court is not inclined to grant anticipatory bail under Section 438 Cr.P.C. to the petitioner.
Accordingly, the application preferred by the petitioner under Section 438 Cr.P.C. is rejected.
(SUDESH BANSAL),J 149-Taruna/-
2 issues framed by the court
Whether anticipatory bail should be granted to the petitioner in a cheating case involving an alleged breach of agreement.
Whether the truthfulness of allegations and the pre-arrest custody requirement can be examined at the bail stage.
Colour shows how this judgement treated each authority
Sushila Aggarwal and Ors. vs. State (NCT) & Anr.Referred¶19
Sushila Aggarwal and Ors. vs. State (NCT) & Anr. (2020) 5 SCC 1 · Who else cites this
Gurbaksh Singh Sibbia vs. State of PunjabExplained¶19
Gurbaksh Singh Sibbia vs. State of Punjab (1980) 2 SCC 565 · Who else cites this
2 provisions across 2 enactments
Surendra Singh Rathore @ Sonu
State Of Rajasthan
Sudes B Bansal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
