Mere Non-Payment Of Money Under A Contract No Ground To Deny Anticipatory Bail To Accused: Allahabad High Court

The Allahabad High Court has observed that mere non-payment of money paid under a contract cannot be a ground for criminal prosecution of a party to the agreement and, in any case, that "cannot be a ground for rejection of the anticipatory bail application" of the accused person.

The bench of Justice Subhash Vidyarthi observed thus while granting anticipatory bail to one Vijay Pal Prajapati, who has been accused of committing a breach of the agreement concerning the sale and marketing of excavated sand.

The Court also noted that nowadays it is becoming a general practice to set the criminal law into motion for "putting pressure on the parties to commercial transactions".

The Court observed that instead of initiating civil proceedings for specific performance of contracts, accounting or recovery of money, FIRs are being filed with the object of getting the other party incarcerated to put pressure on him so as to make him redress the grievances.

However, the Court added that it cannot "shut eyes" in such matters so as not to ascertain whether there is sufficient material to warrant the incarceration of the accused person and to examine "whether the criminal proceedings are being used for the prosecution of a person who has committed an offence or the same are being misused for the persecution of a person who has committed a breach of an agreement by giving the disputes a colour of criminality".

The case in brief

In July 2021, informant-Deepak Sharma lodged an FIR against 4 accused including the accused-applicant (Vijay Pal Prajapati) under various sections of IPC including the offences of criminal breach of trust and cheating alleging that the co-accused Anand Kumar Singh demanded Rs. 1 crore from him in 2019 for a government tender (for excavation of sand) and he asked the informant to sign some documents which had been prepared by the applicant.

It was further alleged that thereafter, he transferred 1.6 crores Rupees in the account of the firm of the applicant and it mutually settled between him and the accused persons that the investments and profit in the tender allotted to said firm would be distributed amongst all the persons.

Allegedly, another agreement for sale and marketing was executed between the informant and the applicant, but after some time, the accused persons started the sale and marketing of excavated sand through the said firm, thereby committing a breach of the agreement. The allegations of forgery were also levelled against the applicant-accused.

Submissions of the parties

Before the Court, the Counsel for the accused, Purnendu Chakravarty submitted that it was a case of non-payment of money in breach of an agreement and since, the informant had already initiated proceedings before the Commercial Court, Gwalior for recovery of the money, the proceedings of which are pending, therefore, the issue of payment of money to the applicant and the informant’s entitlement for recovery thereof will be decided in those proceedings.

It was further submitted that even the specimen of the applicant’s handwriting has not been taken for comparing the same with the signatures made on the letter in question, which could have been used as evidence to prove the commission of forgery by the applicant.

On the other hand, counsel for the informant argued that the applicant was not entitled to be granted anticipatory bail on the ground of parity as the HC, while granting bail to a co-accused had noted that his case was distinguishable from the case of Anand Kumar Singh and Vijay Pal Prajapati (the applicant).

It was further argued that since the applicant's application under section 482 CrPC had been dismissed earlier by the HC, therefore, he can not now seek the benefit of anticipatory bail in the same matter.

In response to this submission, the counsel for the accused submitted the applicant's Section 482 CrPC was not dismissed on merits and it was dismissed for the mere reason that the applicant had not returned the money to the informant

Court's observations

At the outset, referring to the 2019 ruling of the Apex Court in the case of Kamlesh and another versus State of Rajasthan and another, the Court noted that the law is clear that the dismissal of the applicant’s application under Section 482 Cr.P.C. would not be a bar against consideration of the merits of his application for anticipatory bail.

The Court further observed that merely because the applicant is the beneficiary of an offence will not ipso facto make the applicant guilty of the offence of forgery. The Court also noted that the offence alleged was prima facie of a civil nature.

Regarding the parity to grant bail, the Court stressed that parity is a relevant consideration while granting bail to persons accused of similar charges, however, the principle of parity is not attracted to reject bail applications.

Further noting that no allegations were levelled in the FIR against the applicant regarding forgery, the Court granted anticipatory bail to the accused.

Appearances

Counsel for Applicant: Purnendu Chakravarty, Pranjal Jain

Counsel for Opposite Party: G.A., Digvijay Nath Dubey

Case title - Vijay Pal Prajapati vs. State Of U.P. Thru. Prin. Secy. Home Lko  [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 57 of 2023]

Case Citation: 2023 LiveLaw (AB) 240

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