Nafr High Court
Case Details
1 2025:CGHC:21798 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Order Reserved on 19.03.2025 Order Delivered on 09.05.2025 CRMP No. 3027 of 2024 Abhishek Atlani S/o Suresh Atlani Aged About 38 Years R/o Atlani Villa, Behind Shiv Mandir, Khamhardhih Road, Shankar Nagar, Raipur, Chhattis- garh- 492007 ... Petitioner versus 1 - State Of Chhattisgarh Through Station House Officer, Police Station Chhattisgarh. District New Rajendra Raipur, Nagar, 2 - Vijay Nagpure S/o Late Mukund Raj Nagpure Aged About 51 Years R/o Near Telghaninaka Bridge, Raipur, Chhattisgarh. ... Respondent --------------------------------------------------------------------------------------------------- For Petitioner : Mr. Vivek Tankha, Senior Advocate appeared through Video Conferencing, assisted by Mr. Ashish Tiwari, Advocate and Mr. Ashish Kaushal, Advocate For State For Respondent No. 2 : Mr. Sudeep Verma, Advocate --------------------------------------------------------------------------------------------------- Hon'ble Shri Arvind Kumar Verma, Judge : Ms. Pragya Shrivastava, Deputy Govt. Advocate CAV Order 1. The present petition has been filed under Section 528 read with section 483(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023 for invoking the inherent powers of this Court to issue appropriate order/direction for cancellation of the bail granted to respondent no. 2 in FIR No. 41 of 2023 dated 31.01.2023 (Annexure P/1) filed by the Police Station New Rajender Nagar, Raipur, Chhattisgarh for the offence punishable under Section 409, 420, 467, 468 and 471 of the Indian Penal Code. Initially petitioner had 2 preferred an application seeking cancellation of bail granted to respondent no. 2 before the learned Additional Sessions Judge, Raipur, Chhattisgarh which was dismissed vide order dated 04.09.2024 in MJC No. 56/2024 (Annexure P/2).
Legal Reasoning
2. Brief facts of the case are such that the petitioner and respondent no. 2 are erstwhile directors of Geekay Colonizers and Builders Limited, which is involved in the business of real estate, development and sale of plots, housing and commercial projects. The Geekay Limited had introduced a housing project, being Kalpvriksh Project. The matter thereafter is such that a Memorandum of Understanding (MoU) dated 13.07.20212 was executed between respondent no. 2 with Vinod Jain were given rights and obligations with respect to one of the housing projects of Geekay Limited, being Kalpvriksh Project. A board resolution dated 25.06.2015 which empowered Respondent no. 2 as a project head for the Kalpvriksh Project was superseded by subsequent board resolution dated 15.09.2015 (Annexure P/04) passed by the Board of Directors of Geekay Limited,
Legal Reasoning
wherein the Respondent no. 2 alongwith the father of the Petitioner, Mr. Suresh Atlani were appointed as project heads for the Kalpvriksh Project and further empowered him to take all necessary action and decisions jointly for execution of the said project. 3. The whole case starts from the fact that the present petitioner lodged an FIR No. 41/2023 on 31.01.2023 (Annexure P/1) wherein he alleged that after the appointment of the respondent no. 2 and Mr. Suresh Atlani as project heads, the present petitioner came to the knowledge that the respondent no. 2 was being involved in cheating and siphoning off the 3 funds of Geekay Limited as he was unilaterally executing sale deeds in the Project of Geekay Limited without any prior permission and authorization from Mr. Suresh Atlani, in abject contravention and violation of the contents of the board resolution dated 15.09.2015. He alleged that the respondent no. 2 sold multiple plots by unilaterally executing sale deeds in the Project and even made significant effect on the registry of the said plots. The sale proceeds and monies received from the sale and registry of the said plots was diverted and misappropriated towards the bank accounts unrelated to Geekay Limited. It was revealed that the said monies were diverted to different Bank accounts. Aggrieved by the aforesaid illegal acts by the respondent no. 2, the petitioner registered a complaint before the New Rajendra Nagar Police Station against respondent no. 2 and an FIR No. 41/2023 stood registered on 31.01.2023 under Section 409, 420, 467, 468 and 471 of the Indian Penal Code and the respondent no. 2 was arrested on 31.01.2023. 4. Subsequently, respondent no. 2 filed a bail application bearing no. 302 of 2025 under Section 439 of the Indian Penal Code before the District and Sessions Judge, Raipur, Chhattisgarh on 06.02.2023 (Annexure P/05). Upon which the petitioner as well as respondent no. 1 raised objection to the bail application of respondent no. 2 (Annexure P/8 and Annexure P/07 respectively). However the Learned Additional Sessions Judge upon hearing of the case, granted bail to the respondent no. 2 vide order dated 06.02.2023 (Annexure P/09). The said bail granted to the respondent no. 2 was subjected to the adherence to the following conditions:- 4 a) The respondent no. 2 shall appear in terms of the bond. b) The respondent no. 2 shall not directly or indirectly influence any witnesses and tamper with evidence. c) The respondent no. 2 shall not involve himself in commission of offence of similar nature. d) The respondent no. 2 shall co-operate and assist in the investigation of the case. e) The respondent no. 2 shall not leave India without permission of the Court. 5. The petitioner further alleged that there is no substantial investigation and progress in the case and till date even after passage of almost 20 months from the registration of the FIR no charge sheet has been filed by the respondent no. 1. The petitioner thereafter sought information under the RTI regarding the status and the replies as received on 12.07.2023 and 10.05.2024 (Annexure P/10, Annexure P/11 and Annexure P/12 respectively) . It is also alleged that subsequent to the release on bail, respondent no. 2 executed sale and registry of another plot in the Kalpvriksh Project on 12.07.2023 to one Smt. Shradha Mishra and Smt. Sarita Nayak. The aforesaid sale and registry of the plot was done in abject violation of the terms of the board resolution dated 15.09.2015 which was subject matter of FIR No. 41/2023. The petitioner vide his letter dated 21.05.2024(Annexure P/14) had intimated the respondent no. 1 fo the actions of the respondent no. 2 in further effecting illegal sale of plots subsequent to his release on bail and non-cooperation in the investigation. Aggrieved by the inaction of the respondent no. 1 in initiating any action against the respondent no. 2, the petitioner preferred an application seeking cancellation of bail granted to respondent no. 2 before the learned Additional Sessions Judge on the ground that the respondent no. 2 has 5 violated the conditions of grant of bail and his bail is liable to be cancelled. The aforesaid application seeking cancellation of bail stood dismissed vide order dated 04.09.2024 (Annexure P/02). 6. Written submission on behalf of the petitioner as well as respondent no. 2 has been filed. 7. Mr. Vivek Tanka, Senior Advocate assisted by Mr. Ashish Tiwari and Mr. Ashish Kaushal, Advocate while arguing on the matter submitted the following contentions:- (I) The first was that the respondent no. 2 has violated the condition no. 3 of the bail. He stated that the condition no. 3 states that the petitioner shall not involve himself in any other offence of similar nature. But the respondent no. 2 has sold a plot of the kalpvriksh project of the company Geekay Limited. Learned Sessions Judge in its order dated 04.09.2024 erroneously held that a separate complaint ought to have been filed by the petitioner with respect to the subsequent illegal sale of plot by respondent no. 2 of Geekay Limited in the said project. For this he stated that a complaint on 21.05.2024 with the SHO, Police Station Rajendra Nagar, Raipur was made but the Investigating Officer failed to initiate any action. In this regard he placed reliance on the judgment passed by the Hon’ble Supreme Court of Indian in the matter of T.T. Antony V. State of Kerala (2001) 6 SCC 181 in para 19 and 20 as under:- 19. the scheme of CrPC is that an ofÏce in charge of a police station has to commence investigation as provided in Section 156 or 157 CrPC on the basis of entry of the first information report, on coming to know of the commission of a cognizable offence. On completion of investigation and on the basis of the 6 evidence collected, he has to form an opinion under Section 169 or 170 CrPc, as the case may be, and forward his report to the Magistrate concerned under Section 173(2) CrPC. However, even after filing such a report, if he comes into possession of further information or material, he need not register a fresh FIR; he is empowered to make further investigation normally with the leave of the court, and where during further investigation he collects further evidence, oral or documentary, he is obliged to forward the same with one or more further reports; this is the import of sub-section (8) of Section 173 CrPC. 20. From the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 162, 169, 170 and 173 of CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPc. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence of incident giving rise of ne or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the ofÏcer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC. 8. The second contention raised by the petitioner was regard violation of Condition no. 4 of the bail granted, which clearly signified that the the respondent no. 2 shall provide assistance in the investigation of the case. The learned judge in its order has held that it is the Investigating Officer who should have moved an application for cancellation of bail and further held that if at all there would have been any non-cooperation in the investigation by respondent no. 2 the I.O. himself would have moved an appication seeking cancellation of bail. However the petitioner cannot be made to suffer on account of inaction by the State in conducting the investigation and the respondent no. 2 has admitted that he has failed to respond and provide any document. The third contention raised by the 7 petitioner was that the respondent no. 2 has illegally sold the plots of land in Kalpvriiksh Project by Respondent No. 2. Thus respondent no. 2 in contravention of the Board Resolution dated 15.09.2015 is illegally sold the plot vide sale deed dated 18.07.2023. The last submission made by the learned counsel for the petitioner was that respondent no. 2 has played fraud and has brought on record an entirely unrelated bank statements and cheques in order to canvas his arguments that he has not received the dale consideration. It is submitted that it is quite surprising as to how a plot of land in Raipur stood sold by respondent no. 2 for the entire sale consideration of merely Rs. 4,88,000/-. It is further submitted that the respondent no. 2 clearly siphoned off the funds received as sale consideration amount from the sale of the plot vide sale deed dated 18.07.2023 into his own account. Respondent No. 2 has been engaged in systematic siphoning off of funds from the company’s bank account to his own personal account(s) and to the account to company namely KNC Enterprises, of which respondent no. 2 is a director. In view of the aforsaid submission, learned counsel for the petitioner prays to set aside the order dated 04.09.2024 passed by the Ld. Additional District Judge, Raipur in MJC No. 56/2024 and further pleased to cancel the bail granted to respondent no. 2 vide order dated 06.02.2023 in Bail Application No. 302/2023 in connection with FIR No. 41/2023, Police Station Rajendra Nagar, Raipur under Section 409,420,467,468,471 of the Indian Panel Code. 9. Per contra, learned counsel for the State opposes the prayer made by the learned counsel for the petitioner. 8 10. Learned Counsel for the respondent no. 2 Mr. Sudeep Verma, while answering all the contentions of the learned counsel for the petitioner has submitted that petitioner utterly failed to demonstrate any such grave illegality or perversity in the order of the Trial Court, also failed to show that the order dated 04.09.2024 caused miscarriage of justice. He submits that the petitioner has stated that the respondent no. 2 is not cooperating with the investigation of the police, however, this contention of the petitioner is totally baseless and ill-founded. It is just an attempt by the petitioner to deprive the respondent no. 2 from the protection of his fundamental right of protection against testimonial compulsion, which is given to a person accused of any offence and the same solemnly protected by virtue of Article 20(3) of the Constitution of India. 11. Answering to the next contention of the learned counsel for the petitioner, he submitted that the application submitted by the resolution professional is itself not sufficient to impute the criminal liability on the respondent no. 2 as there are total seven directors in the company including the petitioner and all the directors are simultaneously hold the entire shares of the Geekay Limited. When the functioning of the company is derailed being director of the company, all of them are collectively responsible and the liability cannot be saddled only on the respondent no. 2. In fact, the petitioner has put the criminal colors to civil transactions and merely because application submitted by the resolution professional of Geekay Limited adversely observed against the respondent no. 2 that is not a legal ground to cancel the bail granted to the respondent no. 2 as the 9 purpose of application by the resolution professional is only to initiate the proceedings under the Insolvency and Bankruptcy Code, 2016. The respondent no. 2 is facing the recovery proceeding drawn against him vide Annexure R-2/1 and it cannot be said that the respondent no. 2 is taking advantage in any way by siphoning off of the funds available with the Geekay Limited. 12. He further submitted that the allegations by the petitioner against the respondent no. 2 that sale deed dated 18.07.2023 is executed in contravention of the Board Resolution dated 15.09.2015 will not sufficient to impose the criminal liability on the respondent no. 2 as the contravention of the Board Resolution of the company primarily generates the civil liabilities being mere irregularity and not illegality. In the matter of functioning of the company in normal circumstances it is always open for the Board of Directors of the Company to ratify the action made on behalf of the Company and that will confirm the action right from the inception. The petitioner being one of the Director of the Company is well aware from the legal position and that is the reason that he has not filed any suit for declaration to nullify the execution of sale deeds by the respondent no. 2 on behalf of the company. The petitioner also not avail the remedies available to him under the Companies Act, 2013 in order to handle and cure the affairs of the Company and the petitioner herein dragged the respondent no. 2 in the criminal case for his ulterior motives and personal vendettas. In the light of the above mentioned submissions, the petitioner is not entitled for any relief prayed by him in the present petition. The instant petition being devoid of merit and substances is liable to be dismissed with 10 cost. 13. I have heard learned counsel for the respective parties at length, perused the record as well as the categorical submission made by the parties with utmost circumspection. 14. On bare perusal of the records available it is observed that on the basis of information received by the petitioner under the Right to Information Act, it has been stated that the petitioner did not co-operate in the investigation of the case, but the Station-in-charge of New Rajendra Nagar himself has not stated that with regard to the respondent no. 2 did not co-operate in the investigation neither any report has been presented before the trial court after receiving of the notice of the said MJC case nor has the investigating officer himself appeared before the court and made any statement in this regard nor has the petitioner submitted his application through prosecution. If in fact the respondent no. 2 had not cooperated in the investigation, then certainly the New Rajendra Nagar Police Station of Raipur district would have tried to take action to cancel the bail of the respondent no. 2 through prosecution. 15. As far as the question of illegal sale of land Khasra No. 587/2 area O.2650 hectare situated in village Tekari P.H. No. 4/48 R.N.M. and Tehsil Abhanpur District Raipur by the respondent no. 2 again through registered sale deed dated 18.07.2023 is concerned, in this regard, the petitioner has only submitted a complaint application dated 21.05.2024 to the police station in-charge Rajendra Nagar. On the basis of the said application, no 11 crime has been registered against the respondent no. 2. No FIR copy was submitted. Even with regard to the buyers of the sale deed have been given fake and illegal documents by the respondent no. 2 , no document has been submitted by the petitioner to show that any complaint has been made by the respondent no. 2 regarding the sale of land through the registered sale deed dated 18.07.2023. 16. Hence it is clear from the facts that the if the respondent no. 2 violates any condition of bail granted to him, then his bail can certainly be cancelled, but in the case on hand, no such evidence or document has been produced by the petitioner to show that the conditions of the Bail Application no. 302 of 2023 vide order dated 06.02.2023 has been violated by the respondent no. 2. 17. It is pertinent to mention here that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It is a well settled law that bail once granted should not be cancelled in a mechanical manner without considering whether any circumstances rendered in it is no longer conducive the fair trial to retain his freedom by enjoying the cancellation of bail during the trial. It is to be borne in mind that it is easy to get a bail then to cancel a bail already granted by the court. In this case, there is no offence registered against the petitioner after the bail was granted to the respondent no. 2 by the concerned trial court. Thus it is clear that the fact of bail granted under Section 439 of the CrPC to the respondent no. 2 should not be cancelled unless there are solid and irrefutable grounds on record for cancelling it. 12 18. Hence this court finds no illegality, perversity and jurisdictional error in dismissing the cancellation of the bail granted under Section 439 of CRPC to respondent no. 2 by the Learned Additional Sessions Judge, Raipur vide order dated 04.09.2024. 19. Accordingly, the present petition deserves to be and is hereby dismissed. sd/- alfiza (Arvind Kumar Verma) Judge