High Court · 2025 on 13 Aug 2025

Judgment

1. Heard Shri Virendra Kumar Shukla, learned counsel for the applicant, Smt. Kamlesh Kumari, learned A.G.A. for the State, Shri Sarvesh Kumar Dubey, the learned counsel who has filed his vakalatnama on behalf of the complainant, which is taken on record.

2. The instant application has been filed seeking release of the applicant on bail in Case Crime No.159 of 2025, under Sections 409, 420 I.P.C., registered at Police Station Mohanlalganj, District Lucknow.

3. The aforesaid case has been registered on the basis of an F.I.R. lodged against the applicant and his brother Vinod Kumar Upadhyay, stating that the informant had purchased plot of land from Infra Vision Pvt. Ltd. for sale consideration of Rs.13,51,000/- on 04.12.2017 and his name was mutated in the revenue records on 11.05.2018 but possession of land was not delivered to the informant in spite of lapse of more than 7 years. The informant has requested in the F.I.R. that proper proceedings should be instituted to ensure that the informant gets possession of his land without any obstruction.

4. In the affidavit filed in support of the bail application, it has been stated that the applicant is innocent and he has been falsely implicated in the present case. The applicant’s involvement in 21 other cases has been disclosed in para 16 of the affidavit, which are similar in nature and the applicant has been granted bail in one of the cases. Page No. 1 of 7

5. A supplementary affidavit has been filed on behalf of the applicant annexing therewith a copy of the sale deed executed in favour of the informant and it is mentioned in the sale deed that possession of the land in question had been delivered to the informant at the time of execution thereof.

6. The learned A.G.A. has opposed the bail applicant and she has stated that the applicant is involved in 47 criminal cases, all of which are similar in nature.

The learned counsel for the complainant has vehemently opposed the bail application and he has submitted that the applicant has duped numerous persons and this case is a replica of shine city case where numerous persons have been duped. He further submitted that one of the victims of the applicant is a cancer patient and her F.I.R. has not been registered by the police. He also submitted that the petitioner and the other co-accused Vinod Kumar Upadhyay had filed Criminal Misc. Writ Petition No.5480 of 2025 challenging the validity of the F.I.R. and the said writ petition has been dismissed by the Division Bench of this Court on 12.08.2025.

8. An F.I.R. can be quashed when the contents of the F.I.R., even if they are taken to be true, do not make out commission of a cognizable offence or in certain other situations providing a similar ground. The refusal to quash the F.I.R. would not make out a ground for rejection of the bail application of the accused persons as it is the basic principle of law that bail is the rule and jail is the exception.

9. So far as the reference to the case of shine city is concerned, each case is decided on the basis of its own peculiar facts. The reference to shine city case, when the detailed facts of that case are not before this Court, cannot be of any avail to the complainant. The fact that F.I.R. of some other victim has not been registered by the police, also has no bearing on consideration of bail application of the applicant on its merits. Page No. 2 of 7

10. The applicant has already been granted bail in another case of similar nature by means of an order dated 07.08.2025 passed by this Court in Bail Application No.7263 of 2025, after hearing submissions of the complainant.

11. The F.I.R. includes allegation of commission of offences under Sections 409 and 420 I.P.C., which are as follows: - “409. Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. * * *

420. Cheating and dishonestly inducing delivery of property.— Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

12. There is no allegation that the accused persons had been entrusted with any property, or with any dominion over property in their capacity of a public servant or in the way of their business as a banker, merchant, factor, broker, attorney or agent and apparently, Section 409 I.P.C. is not attracted in the present case. It appears that Section 409 IPC has been mentioned in the F.I.R. only to portray the offences as more grave and serious, as it carries the punishment of imprisonment upto life whereas the offence punishable under Section 420 carries a maximum sentence of imprisonment which may extend upto seven years only.

13. In Arnesh Kumar v. State of Bihar: (2014) 8 SCC 273, the Hon’ble Supreme Court has issued the following directions: - Page No. 3 of 7 “11. Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:

11.1. All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;

11.2. All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

11.3. The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

11.4. The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

11.5. The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; Page No. 4 of 7

11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

12. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498-A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine.”

14. As the allegations make in the F.I.R. do not make out commission of the offence under Section 409 I.P.C. and the same only make out a case of commission of the offence punishable under Section 420 I.P.C., the accused persons ought not to have been arrested in the present case.

15. In Delhi Race Club (1940) Ltd. v. State of U.P.: (2024) 10 SCC 690, the Hon’ble Supreme Court has held that: - “43. There is a distinction between criminal breach of trust and cheating. For cheating, criminal intention is necessary at the time of making a false or misleading representation i.e. since inception. In criminal breach of trust, mere proof of entrustment is sufficient. Thus, in case of criminal breach of trust, the offender is lawfully entrusted with the property, and he dishonestly misappropriated the same. Whereas, in case of cheating, the offender fraudulently or dishonestly induces a person by deceiving him to deliver any property. In such a situation, both the offences cannot co-exist simultaneously.”

16. In Satender Kumar Antil v. CBI, (2022) 10 SCC 51, the Hon’ble Supreme Court has issued the following directions: - Page No. 5 of 7 “100. In conclusion, we would like to issue certain directions. These directions are meant for the investigating agencies and also for the courts. Accordingly, we deem it appropriate to issue the following directions, which may be subject to State amendments: * * *

100.2. The investigating agencies and their officers are duty-bound to comply with the mandate of Sections 41 and 41-A of the Code and the directions issued by this Court in Arnesh Kumar [Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273]. Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action.

100.3. The courts will have to satisfy themselves on the compliance of Sections 41 and 41-A of the Code. Any non-compliance would entitle the accused for grant of bail.

100.4. All the State Governments and the Union Territories are directed to facilitate Standing Orders for the procedure to be followed under Section 41 and 41-A of the Code while taking note of the order of the High Court of Delhi dated 7-2-2018 in Amandeep Singh Johar v. State (NCT of Delhi) [Amandeep Singh Johar v. State (NCT of Delhi), 2018 SCC OnLine Del 13448] and the Standing Order issued by Delhi Police i.e. Standing Order 109 of 2020, to comply with the mandate of Section 41-A of the Code.”

17. Having considered the aforesaid facts and circumstances of the case and keeping in view the fact that the sale deed in question was registered on 04.12.2017; that it is recorded in the sale deed that possession of land was delivered to the purchaser - complainant; that the F.I.R. has been lodged more than 7 years thereafter requesting the police to help in delivery of possession of the plot in question to the informant, which prayer essentially is in the nature of a decree for recovery of possession of an immovable property which relief can only be granted in a civil suit, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail in the aforesaid crime.

18. Accordingly, this bail application stands allowed.

19. Let the applicant- Pramod Kumar Upadhyay be released on bail in the aforementioned case on furnishing a personal bond and two Page No. 6 of 7 sureties each in the like amount to the satisfaction of Magistrate/Court concerned, subject to following conditions:- (i) the applicant shall not tamper with the prosecution evidence; (ii) the applicant shall not pressurize the prosecution witnesses; (iii) the applicant shall appear on each and every date fixed by the trial Court. [Subhash Vidyarthi, J.] Order Date :- 13.8.2025 S. Shivhare Page No. 7 of 7 SHASHANK SHIVHARE High Court of Judicature at Allahabad, Lucknow Bench