Chandrashekhar Deshbhratar vs State Of Chhattisgarh

Heard.

This is the second application filed under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail to the applicant, who is apprehending his arrest in connection with Crime No.209/18 registered at Police Station Telibandha, District Raipur (CG) for the offence punishable under Sections 420 & 34 of the IPC.

The first bail application of the applicant was dismissed on merits vide order dated 28.1.2022 passed in MCRCA No.1522 of 2021.

Case of the prosecution story, in brief, is that a complaint was filed by the complainant Mr. K.P. Pradip vide FIR No. 209 of 2018 alleging that the Directors of the Company - M/s. Pheonix Infra Estate International Limited gave inducement that the Company was selling plots and flats in their project and in this regard, the complainant(s) entered into an agreement for the said purchase and for which, advance amount was also received from them. It is alleged that the complainant(s) were cheated by taking the money from them as neither the plots were sold to them nor the advance money was returned to them.

Learned Senior Counsel for the applicant would submit that the applicant is innocent and has been falsely implicated in the case. He submits that at the time of the inducement, the applicant was not a Director of M/s. Phoenix Infra Estate International Limited and he became its Director only in February 2014 and held its office till 5.2.2016. He also submits that the applicant never entered into an agreement or made any transaction with the complainant and thereby, he has not made any wrongful gain. He would emphasize that in the earlier bail order of the applicant, the State has not brought the true facts as the Crime No.443/2016 is registered at Police Station Betama, Depalpur, District Indore, Madhya Pradesh and the applicant is not involved in such crime. He would further submit that if incorrect facts submitted are relied on by the Court while rejecting the first bail application, then, the repeat bail application on correct facts, is maintainable. He places reliance on the order dated 25.11.2021 passed by the Madhya Pradesh High Court in MCRC No.38255/2021 (Haneef Khan Vs. The State of Madhya Pradesh). He would further submit that co-accused Indra Kumar Bhagat has been granted anticipatory bail by a Coordinate Bench of this Court vide order dated 18.1.2019 passed in MCRCA No.1731/2018, therefore, the applicant may also be enlarged on anticipatory bail. He would further submit that the procedure prescribed under Section 82 of the Cr.P.C. has to be followed before declaring an accused as an absconder and the said ratio has been laid down in the matter of Suresh Chandra Khandelwal Vs. State of Chhattisgarh Through A.C.B., Raipur, 2020 SCC OnLine Chh 150. He would also submit that in the matter of Imratlal Vishwakarma and others Vs. State of Madhya Pradesh, 1996 M.P.L.J. 662, a question directly came before the Division Bench of the Madhya Pradesh High Court, as to whether a second anticipatory bail application would be maintainable, when earlier bail application was rejected on merits, which was answered in affirmative that the second bail application is maintainable. Learned Senior Counsel lastly submits that considering the role of the present applicant since earlier the true facts was not brought on record, the applicant may be enlarged on anticipatory bail.

Learned counsel for the State would oppose the bail application and place reliance on the matter of on G.R. Ananda Babu Vs. The State of Tamil Nadu and another, SLP (Criminal) No.213 of 2021, in which, it has been categorically observed that the successive anticipatory bail application ought not to be entertained and more so, when the case diary and the status report clearly indicated that the accused was absconding and not cooperating with the investigation. The specious reason of change in circumstances cannot be invoked for successive anticipatory bail applications, once it is rejected by a speaking order and that too by the same Judge. He would further submit that in the present case, after going through the case diary, it appears that against the Company certain offences have been registered at District Indore, though the name of the present applicant is not mentioned therein. He very fairly submits that Crime No.443/2016 was inadvertently intimated to this Court in the earlier order though the other crime number has been registered there against the Company but not against the applicant. However, he would submit that the present applicant is also actively involved in such offence as he executed a commitment letter, in which, he has signed as a Director and the same was issued to one Anju Vijayan on 9.10.2014. Through the said letter, it was averred that after receipt of the full and final payment and other charges, the deed of sale of the said plot will be executed in favour of Anju Vijayan and in case, the Company failed to execute the deed of sale of the plot, then, the entire amount will be refunded with interest @ 9% per annum till January 2015. Hence, he lastly submits that since the earlier anticipatory bail application was rejected after detailed examination of the merits of the case, this Court cannot review its own order. He prays for dismissal of the bail application.

Having considered the submissions of learned counsel for the parties and particularly considering that though in the earlier order, inadvertently, Crime No.443/2016 was reported against the present applicant by learned counsel for the State and as per the case diary, the other crime number was registered against the Company in District Indore (MP) and not against the applicant, but the fact remains that the commitment letter was signed by the present applicant as a Director of the Company and further, though learned counsel for the applicant would emphasize that at the inception, no inducement was promised by the present applicant but considering the commitment letter issued by the applicant and also that he has actively worked as a Director of the Company from 5.2.2014 to 5.2.2016 and the said Company has cheated so many investors by not providing the plots to any of them and further considering that the applicant has failed to demonstrate that the Company or its Directors owned any plot on the spot and that this Court in its earlier order observed that it is a case of continuous offence, which can have its own origin on the date of transfer of money, therefore, continued omissions of making repayments or providing plots to the complainant(s), which is the subject of the offence, is attracted to the present applicant also and therefore, in view of the aforesaid observations made in the earlier order also, this Court is of the view that the present is not a fit case to extend the benefit of Section 438 of Cr.P.C. to the applicant.

Accordingly, the bail application is dismissed.