Sheel Panchal vs State Of Madhya Pradesh

This is First application under Section 438 of the Cr.P.C., by which the applicant is apprehending his arrest in connection with Crime No.250/2017, registered at Police Station- Pithampur, District- Dhar for commission of the offence punishable under Sections 420 and 408 of the IPC.

As per the prosecution story, father of the applicant Shri Kishor Panchal (co-accused) was an employee in the complainant/company namely Tik Tar Industries (Badoda Limited) since 1993. The applicant has also joined the company in the year 2003. The company lodged an FIR in the Police Station alleging that father of the applicant was appointed as Senior Operation Manager in the year 1992 and his son i.e. applicant was appointed as Assistant Manager in the year 2003. Since last four years, they have stopped coming to the duties. It has been alleged that being an employees of the company, they have collected the total amount of Rs.1,79,81,758/- from various customers to whom the company has supplied the Bitumen Tar. The company issued the notice to the applicant and his father for return of the aforesaid embezzled amount. They have accepted their conduct and assured the complainant/company for return of the said amount by executing the undertaking in stamp paper. Despite giving said undertaking, when the amount was not returned, the complainant has lodged the FIR against them which has been registered under Section 420 and 408 of IPC and also filed the Civil Suit.

Shri A.M. Mathur, learned Senior Counsel appearing for the applicant submits that the complainant/company has already filed the civil suit against the accused persons for recovery of the amount of Rs.1,79,81,758/-. In order to put undue pressure on applicant and his father, they have lodged the FIR against them. The dispute is purely of civil in nature. He further submits that on the basis of allegations made in the FIR, the offence under Section 405 and 415 is not made out. The ingredients of both the Sections are missing in the FIR. In order to attract the penal provisions of Section 408 of IPC, the entrustment of money or property is must. Allegations of breach of the contract and cheating would depend upon fraudulent, inducement and mensria. Therefore, no case under Section 408 and 420 of IPC is made out. Father of the applicant has been enlarged on bail by the Sessions Court. Hence, the applicant is also entitled for anticipatory bail.

In support of his contention, Shri A.M. Mathur, learned Senior counsel appearing for the applicant has placed heavy reliance over the judgement passed by Hon'ble the Apex Court in the case of V.P. Shrivastava vs. Indian Explosives Limited And Others reported in 2010 (10) SCC 361, Roshan Lal Raina vs. State of J & K [AIR 1983 SC 631, Satishchandra Ratanlal Shah vs. State of Gujarat And Another [2019 (9) SCC 148 & MEDMEME, LLC vs. M/s Ihorese BPO Solutions Pvt.Ltd [AIR 2017 SC 3656].

Learned Public Prosecutor opposes the application by submitting that the applicant alongwith his father has misappropriated the huge amount being an employee of the complainant/company and they have given the undertaking for returning of the said amount. Therefore, who has misappropriated the fund and cheated the complainant/company is not entitled for anticipatory bail.

Shri Prateek Maheshwari, learned counsel appearing on behalf of the complainant/objector submits that the sessions Court has granted regular bail to the father of the applicant i.e. co-accused on medical ground and the applicant has started his own business from the amount illegally collected from the customers of the complainant/company and since last two years, he is avoiding his arrest and misappropriated amount has not been recovered so far, therefore, he is not entitled for bail.

In support of his contention, Shri Prateek Maheshwari, learned counsel appearing for the complainant/objector places heavy reliance over the judgement passed by Hon'ble the Apex Court in the case of P. Swaroopa Rani vs. M. Hari Narayana passed in Civil Appeal No.1734 of 2008 & Syed Askari hadi Ali Augustine Imam and Others vs. State (Delhi Admn.) And Others passed in Criminal Appeal No.416 of 2009.

I have considered the arguments advanced by the learned counsel for the parties and perused the record.

The complainant/company has filed the suit for recovery of Rs.5,11,00,000/- against the present applicant and his father on 03.05.2017. The police has registered the FIR in respect of the same dispute on 15.06.2017. The co-accused (father of the applicant) has already filed the written statement in the suit in which he has not specifically denied the execution of written undertaking. For returning of the amount, whether from the allegations made in the FIR ingredients under Section 409 and 420 of IPC is made out or not, it is for the trial Court to consider at the time of framing of charges. The investigation is pending since last two years.

Considering the facts and circumstances of the case, but without commenting on the merits of the case, I deem it proper to grant anticipatory bail to the applicant subject to deposit Rs.60,00,000/- (Sixty Lacs) with the trial Court concerned. Accordingly, this application is allowed. It is directed that in the event of arrest, applicant Sheel Panchal be released on anticipatory bail on his executing a personal bond also in the sum of Rs.3,00,000/-(Rupees three lacs Only) and furnishing one solvent surety of the like amount to the satisfaction of the Arresting Authority (Investigating Officer).

He shall further abide by the other conditions enumerated in sub- Section (2) of Section 438 of Cr.P.C as well as the following conditions:

(I) That, he will surrender his passport before the police and will not leave this Country without leave of this Court.

(II) He will co-operate with the investigation.

(III) The applicant shall make himself available for interrogation by a police officer as and when required.

(IV) He will give attendance in Police Station Pithampur once in every month.

The learned trial Court is directed to deposit the amount Rs.60,00,000/- deposited by the applicant in FDR with any Nationalized Bank fetching highest rate of interest and same shall be released after conclusion of trial either to the applicant or to the complainant/company as per decision of trial Court.