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Judgment
Heard learned counsel for the petitioner, learned counsel for the learned Addl. P.P.
The petitioner is apprehending his arrest in connection with Baghmara P.S. Case No. 95/2016 corresponding to G.R. No. 3643/2016, the case registered under Sections 341 / 323 / 406 / 420 / 403 / 120B of the Indian Penal Code.
The prosecution case in short is that the complainant is a banking company and is being represented by its Attorney Holder Sri Amit Kumar Dey, who had filed a Complaint Case No. 1911/2016 in the court of S.D.J.M.,Dhanbad against the petitioner and one Haradhan Modak u/s 156(3) of the Cr.P.C . On the basis of the aforesaid complaint Baghmara P.S. Case No. 95/2016 under Sections 341 / 323 / 406 / 420 / 403 / 120B of the Indian Penal Code was instituted against the petitioner-Haradhan Modak.
It is alleged that the petitioner-Shankar Mahto approached the bank for taking loan for purchase of one EICHER TERRA 16 HDR (16 TON GVW TIPPER) and the said Haradhan Modak accepted to become the co-borrower/Guarantor for the said loan. On 18.10.2012 an agreement was executed between the bank and the petitioner and an amount of Rs.29,14,000/- was sanctioned to the petitioner (i.e. Rs.22,00,000 as Principal loan amount, Rs.5,94,000/- as interest and Rs.1,20,000/- as the insurance amount) on the condition that petitioner will pay the loan amount in 48 installments till 07.09.2016. It is further alleged that petitioner had paid some installments but failed to pay the rest amount and till 09.06.2016 the current due amount is Rs.17,70,916.68/- and the total due amount is Rs.19,56,916.68. Thereafter the complainant sent legal notice to the petitioner on 10.12.2013, 07.04.2014, 15.09.2015 and 28.06.2016 but the petitioner did not repay the due amount. It is further alleged that the complainant came to know that the petitioner has sold the vehicle to some unknown person. It is further alleged that when the complainant went to the house of the petitioner on 09.07.2016 and demanded for payment of monthly rent of the vehicle and to produce the vehicle, the petitioner abused them and threatened with dire consequences. Hence, this case has been instituted.
Learned counsel for the petitioner while pressing the bail application has submitted that it is not a case where petitioner has not paid the loan amount to the complainant, rather petitioner has paid some installments of the loan amount but subsequently failed to pay further installments and has become defaulted. It was submitted that in terms of the agreement the complainant has invoked the provisions of arbitration clause at Madras and an amount of Rs. 22,08,072/- was awarded against the petitioner. The O.P. 2 had filed Execution Case no.237/2015 before the Civil Judge( Sr. Division) No.1 Dhanbad which was dismissed in view of order dated 17.08.2015 passed in WPC No.3998/2013 and the execution proceeding was dropped.
So, it was further submitted that since complainant has already invoked Arbitration Clause, no case is made out against the Petitioner. Hence, petitioner deserves anticipatory bail.
Learned Add.P.P and the learned counsel appearing for the O.P.No.2 have appeared and opposed the prayer for bail of the petitioner and submitted that a case of defalcation is made out against the petitioner in view of the fact that the petitioner has filed a First Information Report being FIR No. 144/2014 under Section 406 IPC alleging therein that he had given his vehicle to one Satish Kumar Modi on monthly hire basis of Rs.1,30,000/- but when monthly rent was stopped and the petitioner inquired about his vehicle ,he could not found his vehicle . The police after investigation has submitted final form no. 220/2015 dated 16.06.2015, so under order dated 28.01.2016
the SDJM, Dhanbad has accepted the final form as the petitioner has not filed any objection disputing the fact. Hence petitioner does not deserve anticipatory bail.
After hearing the parties and going through the admitted fact that the O.P. No.2 has invoked arbitration clause at Madras where award was passed, in my view it is a fit case for grant of bail to the petitioner.
Considering the fact and circumstances of the case, the above named petitioner is directed to surrender in the Court below within Four Weeks from the date of this order and in the event of his arrest or surrender, the Court below shall enlarge the above named petitioner, on bail, on furnishing bail bond of Rs. 10,000/- (Rupees ten thousand) with two sureties of the like amount each to the satisfaction of S.D.J.M.,Dhanbad, in connection with Baghmara P.S. Case No. 95/2016 corresponding to G.R. No. 3643/2016, subject to the conditions as laid down under Section 438(2) of the Cr.P.C., subject to the further condition that one of the bailors must be the local resident of Dhanbad district.