# Udit Kumar Mittal (In Jail) v. State of U.P

- **Citation:** (2020) 1 ILRA 690
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-12
- **Case number:** Crl. Misc. Ist Bail Application No. 50174 of 2019
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/udit-kumar-mittal-in-jail-v-state-of-u-p-45270
- **Pages:** 9

## Headnote

A. Criminal Procedure Code, 1973 - Bail -
Applicant case that he is bona fide
purchaser of the property in question and
has been cheated by co-accused Vikas
Garg - Possession of property in question
has not been handed over by the coaccused Vikas Garg to the applicant
despite
executing
sale
deed
dated
2.1.2012
in
favour
of
applicant
-
Proceeding under SARFAESI Act in the
matter is still subjudice before D.R.T.,
Lucknow and no suit for cancellation of
sale
deeds
dated
24.06.2011
and
02.01.2012 has been filed by any person -
case of applicant distinguishable from the
case of co-accused Vikas Garg, who is
main
person
in
this
case
and
is
absconding - Fit case for Bail (Para 3)

Crl. Misc. Bail application allowed. (E-5)

## Text

690 INDIAN LAW REPORTS ALLAHABAD SERIES
vexatious or oppressive" as well as in State of
Bihar v. Murad Ali Khan, (1989) Cr LJ
1005: AIR 1989 SC 1, Apex Court
propounded "In exercising jurisdiction under
Section 482 High Court would not embark
upon an enquiry whether the allegations in
the complaint are likely to be established by
evidence or not".

9. Meaning thereby, exercise of inherent
jurisdiction under Section 482 Cr.P.C. is
within the limits, propounded as above.

10. The prayer for quashing
summoning order as well as proceeding of
the aforesaid criminal case is refused.

11. However, in the interest of
justice, it is provided that if the applicants
appear and surrender before the court
below within four weeks from today and
apply for bail, then the bail application of
the applicants be considered and decided
in view of the settled law laid by this
Court in the case of Amrawati and
another Vs. State of U.P. reported in
2004 (57) ALR 290 as well as judgment
passed by Hon'ble Apex Court reported in
2009 (3) ADJ 322 (SC) Lal Kamlendra
Pratap Singh Vs. State of U.P.

12. For a period of four weeks from
today or till the disposal of the application
for grant of bail whichever is earlier, no
coercive action shall be taken against the
applicants.

13. However, in case, the applicants
do not appear before the Court below
within the aforesaid period, coercive
action shall be taken against them.

14. With the aforesaid directions, this
application is finally disposed of.
----------
(2020)1ILR 690

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.12.2019

BEFORE
THE HON'BLE SANJAY KUMAR SINGH, J.

Crl. Misc. Ist Bail Application No. 50174 of 2019

Udit Kumar Mittal ...Applicant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Gopal Swarup Chaturvedi, Sri Shishir
Tandon

Counsel for the Opposite Party:
A.G.A., Sri Ajay Kumar Pandy, Sri Imran
Ullah

A. Criminal Procedure Code, 1973 - Bail -
Applicant case that he is bona fide
purchaser of the property in question and
has been cheated by co-accused Vikas
Garg - Possession of property in question
has not been handed over by the coaccused Vikas Garg to the applicant
despite
executing
sale
deed
dated
2.1.2012
in
favour
of
applicant
-
Proceeding under SARFAESI Act in the
matter is still subjudice before D.R.T.,
Lucknow and no suit for cancellation of
sale
deeds
dated
24.06.2011
and
02.01.2012 has been filed by any person -
case of applicant distinguishable from the
case of co-accused Vikas Garg, who is
main
person
in
this
case
and
is
absconding - Fit case for Bail (Para 3)

Crl. Misc. Bail application allowed. (E-5)

(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1. Learned counsel for the informant
has filed short counter affidavit dated
24.11.2019. In reply, short rejoinder
1 All. Udit Kumar Mittal Vs. State of U.P. & Anr.
691
affidavit dated 25.11.2019 has been filed
by the learned counsel for the applicant.

2. Heard Sri G.S.Chaturvedi, learned
Senior Advocate assisted by Sri Shishir
Tandon, learned counsel for the applicant,
learned Additional Government Advocate
on behalf of the State of U.P. and Sri
Imran Ullah, Advocate assisted by Sri
Ajay Kumar Pandey, learned counsel
appearing
for
the
informant/Kotak
Mahindra Bank Limited.

3. By means of this application, the
applicant, who is involved in Case Crime
No.622 of 2018, under Sections 406, 420,
467, 468, 471 & 120-B I.P.C., Police
Station Link Road, District Ghaziabad, is
seeking enlargement on bail during the
trial.

4. Filtering out unnecessary details,
basic facts as per prosecution case, which
are relevant for the purpose of disposal of
this bail application are that the dispute in
this case is regarding property situated at
C-51, Ramprastha Colony, Ghaziabad
measuring about 355 square yards (hereinafter referred to as the "property in
question"). In the year 1982, said property
was purchased by Dr. R.K. Malhotra from
one Balwant Singh through registered sale
deed dated 04.09.1982. Thereafter, it was
sold by Dr. R.K. Malhotra to Bhagwati
Rustagi and Rashmi Rustagi through sale
deed dated 16.12.1993. On 21.08.1995,
Bhagwati Rustagi and Rashmi Rustagi
executed a general power of attorney in
favour
of
Swarnlata
Sharma,
and
thereafter, said property was again sold by
Swarnlata Sharma in favour of one B.D.
Sharma by executing a sale deed dated
23.04.1997. On 16.09.2005, B.D. Sharma
executed a sale deed of same property in
question in favour of co-accused Vikas
Garg, Vinay Garg and Deepika Garg.
Thereafter, on 28.11.2007 Vikas Garg,
Nidhi Garg W/o Vikas Garg, Vinay Garg
and Deepika Garg have taken a total loan
of Rs.1,65,80,000/- through loan account
Nos. 14013241 and 14081767 (hereinafter
referred to as the "first loan") on an
interest of 11.5 % per annum from a NonBanking Financial Company known as
M/s Citi Financial Consumer Finance
(India) Ltd. New Delhi, mentioning
themselves to be the Directors of Tirupati
Rice Mills Pvt. Ltd. While taking aforesaid
loan,
property
in
question
(C-51,
Ramprastha
Colony,
Ghaziabad)
was
mortgaged by the borrowers with a view to
secure
the
repayment
thereof
and
borrowers were liable to pay aforesaid
loan in 180 monthly installments of Rs.
1,93,686/- and two home loan agreements
were signed by them on 28.11.2007.
Thereafter, installments of said loan were
not paid by Vikas Garg, Nidhi Garg, Vinay
Garg and Deepika Garg, therefore, M/s
Citi Financial Consumer Finance (India)
Ltd. started arbitration proceedings against
co-accused Vikas Garg, Nidhi Garg, Vinay
Garg, Deepika Garg, M/s Tirupati Rice
Mills Pvt. Ltd. and M/s Shiv Kumar
Agarwal, but they did not participate in
arbitration proceedings and claim of M/s
Citi Financial Consumer Finance (India)
Ltd. was allowed by ex-parte deed of
award dated 31.01.2009 directing that the
respondents in arbitration proceedings will
jointly and severely pay to the claimant a
sum of Rs. 1,78,40,626.14 only together
with interest on the aforesaid amount at
the rate of 18% per annum from
27.09.2008 till the date of realization.

5. Here, it is relevant to mention as
argued by Sri Imran Ullah, learned counsel
for the informant that Vikas Garg after
taking aforesaid loan and mortgaging the
692 INDIAN LAW REPORTS ALLAHABAD SERIES
property in question got another sale deed
dated 24.06.2011 of the same property
prepared fraudulently showing that the
same has been executed in his favour by
Dr. R.K. Malhotra, S/o D.S.Malhotra.
Thereafter, the said property in question
has been sold by Vikas Garg mentioning
his name as Vikas Gopi Chand, S/o Gopi
Ishwar Chand to Udit Kumar Mittal and
his wife Mrs. Neetu Mittal through a
registered sale deed dated 02.01.2012 after
receiving sale consideration of an amount
of Rs.1,66,00,000/-. It is pointed out that
Udit Kumar Mittal and his wife Nitu
Mittal had purchased the said property (C51, Ramprastha Colony, Ghaziabad) after
taking
loan
of
Rs.1,42,000,00/-
(hereinafter referred to as the "second
loan") from Citi Bank and mortgaging the
same property with City Bank also on
31.12.2011. Thereafter, M/s Citi Financial
Consumer
Finance
(India)
Ltd.
has
sold/assigned the loan taken by Vijay
Garg, Nidhi Garg, Vinay Garg and
Deepika Garg to Kotak Mahindra Bank
Ltd. under the deed of assignment on
09.04.2013 executed between M/s Citi
Financial
Consumer
Finance
(India)
Limited and Kotak Mahindra Bank Ltd. As
such, after 09.04.2013, Kotak Mahindra
Bank
Ltd.
came
into
picture.
On
10.01.2014, Kotak Mahindra Bank Ltd.
has issued notices under section 13(2)
SARFAESI Act, 2002 to Vikas Garg,
Nidhi Garg, Vinay Garg, Deepika Garg,
M/s Tirupati Rice Mills Pvt. Ltd. and M/s
Shiv Kumar Agarwal for payment of
aforesaid amount of loan (first loan), but
said amount was not paid by them,
therefore, Kotak Mahindra Bank Limited
has started proceedings under Section
13(4) SARFAESI Act, 2002 for taking
possession of the property in question, and
accordingly,
issued
possession
notice
dated 16.07.2014 to Vikas Garg, Vinay
Garg and Deepika Garg. On receiving the
said possession notice dated 16.07.2014,
same was challenged by Vikas Garg,
Vinay Garg and Deepika Garg on
28.08.2014
before
Debts
Recovery
Tribunal,
Lucknow
by
means
of
application
under
section
17
of
SARFAESI Act, 2002 being S.A. No.393
of 2014.

6. Before the Debts Recovery
Tribunal, Lucknow a legal issue was raised
on behalf of the co-accused (borrowers)
that under the facts of the case proceedings
under SARFAESI Act is not maintainable,
because M/s Citi Financial Consumer
Finance (India) Limited had assigned the
loan to Kotak Mahindra Bank Limited on
9.4.2013. After assignment of loan to
Kotak Mahindra Bank Limited, the Kotak
Mahindra Bank Limited had stepped into
shoes of M/s Citi Financial Consumer
Finance (India) Limited, and as such,
Kotak Mahindra Bank Limited is now
secured creditor of loan, therefore, Kotak
Mahindra Bank Limited is not competent
to take SARFAESI action for recovery of
dues, as loan has been assigned by
financial institution (M/s Citi Financial
Consumer Finance (India) Limited) to
Bank (Kotak Mahindra Bank Limited).
Before the Tribunal a judgment dated
16.07.2015 passed by Bombay High Court
in Writ Petition No 722 of 2015 (Kotak
Mahindra Bank Limited Vs. Trupti Sanjay
Mehta and others) was cited by the
borrowers, wherein Bombay High Court
framed the following issues:-

"Whether the Bank to whom a
debt has been assigned by the NonBanking Financial Corporation (NBFC) is
entitled to adopt proceedings under the
Securitization
and
Reconstruction
of
Financial Assets and Enforcement of
1 All. Udit Kumar Mittal Vs. State of U.P. & Anr.
693
Security Interest Act, 2002 (SARFAESI
Act)?"

7. The Bombay High Court had
considered
the
aforesaid
issues
and
answered in negative. In reply to the said
argument, it was contended on behalf of
Kotak Mahindra Bank Limited that the
said order of Bombay High Court was
assailed before the Apex Court through
Special Leave to Appeal (C ) No. 20885 of
2015, in which the Apex Court stayed the
order dated 16.07.2015 of Bombay High
Court vide order dated 22.09.2015, and
thereafter, on 8.10.2015 another order was
passed by the Apex Court directing that
interim order passed on the earlier
occasion shall remain in force till the
pronouncement of judgment. The Debts
Recovery Tribunal, Lucknow considering
the facts and circumstances of the case as
well as submissions raised in the matter
directed the parties concerned to maintain
status
quo
by
interim
order
dated
30.07.2018.

8. It is also pointed out on behalf of
the applicant that M/s Citi Financial
Consumer Finance India Limited had also
filed execution petition No. 993 of 2016
before District Judge, Ghaziabad, but the
same was dismissed in default. Apart from
arbitration proceedings and proceedings
under SARFAESI Act, M/s Citi Financial
Consumer Finance India Limited filed
complaint under Section 138 of Negotiable
Instrument Act against co-accused Vikas
Garg on account of dishonour of cheque,
in which by judgment dated 17.10.2011
and order of sentence dated 21.10.2011
passed
by
Metropolitan
Magistrate,
Dwarka Courts, New Delhi, co-accused
Vikas Garg has been convicted for the
offence punishable under Section 138 of
Negotiable Instrument Act and sentenced
to undergo simple imprisonment for a
period of one year apart from payment of
compensation of Rs. 1,85,09,000/- to M/s
Citi Financial Consumer Finance India
Limited within six months and in default
thereof he shall further undergo simple
imprisonment for a period of six months.
The
said
order
of
conviction
was
challenged by co-accused Vikas Garg in
Criminal Appeal No. 24 of 2015 under
Section
374
of
Code
of
Criminal
Procedure, which has been allowed by the
judgment and order dated 29.02.2016 of
Special Judge CBI, (P.C. Act)-06, Tis
Hazari Court Delhi, setting aside the
judgment and order dated 17.10.2011 and
order of sentence dated 21.10.2011 and
acquitted the co-accused Vikas Garg on
the
charge
under
Section
138
of
Negotiable Instrument Act.

9. It has also brought to the notice of
the Court that after purchasing the
property in question by Udit Kumar Mittal
and his wife Smt. Neetu Mittal, possession
of the property in question was not handed
over to them by Vikas Garg, therefore,
Udit Kumar Mittal and Smt. Neetu Mittal
jointly filed Suit No. 840 of 2018 against
Vikas Gopi Chand before the Civil Judge
(Senior
Division),
Ghaziabad
on
10.09.2018,
which
is
still
pending.
Thereafter, Kotak Mahindra Bank Limited
moved an application under Section 156
(3) Cr.P.C. dated 9.10.2018 seeking
direction to S.H.O., P.S. Link Road,
Ghaziabad to lodge FIR against the
accused persons of this case. The said
application dated 9.10.2018 has been
allowed by the Additional Chief Judicial
Magistrate, Court No. 8, Ghaziabad by
order dated 12.10.2018 directing the
S.H.O., Link Road, Ghaziabad to lodge
FIR in appropriate sections in the matter
and investigate the case. In the aforesaid
694 INDIAN LAW REPORTS ALLAHABAD SERIES
background, on 26.10.2018 FIR of Kotak
Mahindra Bank Limited was registered
against eight accused persons, namely
Vikas Garg, Smt. Nidhi Garg, Vinay Garg,
Smt. Deepika Garg, M/s Shiv Kumar
Agarwal, M/s Tirupati Rice Mills Private
Limited, Udit Kumar Mittal and Smt.
Neetu Mittal, under Sections 406, 420,
467, 468, 471 and 120B IPC as case crime
No. 0622 of 2018 at Police Station Link
Road, District Ghaziabad. The applicant
moved his bail application before the
concerned court below, which has been
dismissed vide order dated 24.10.2019 of
Additional
District
and
Session
Judge/Special
Judge
SC/ST
Act,
Ghaziabad.

10. Sri G.S. Chaturvedi, learned
Senior
Advocate
after
placing
the
aforesaid facts submitted that:-

(i) Applicant
is
bona
fide
purchaser of the property in question after
paying the sale consideration amount.

(ii) For purchasing the said
property in question, the applicant and his
wife have taken a loan of Rs. 1,42,00,000/-
(Rupees one crore forty two lac only) from
Citi Bank, but till date Citi Bank neither
initiated any proceedings nor lodged FIR
against the applicant.

(iii) Informant Kotak Mahindra
Bank Limited has no concern with the
second loan amount of Rs. 1,42,00,000/-
given by Citi Bank to the applicant.

(iv)
The
responsibility
of
payment of second loan is upon the
applicant and his wife Smt. Neetu Mittal,
which is not subject matter of impugned
FIR dated 26.10.2018 lodged by informant
Kotak Mahindra Bank Limited.

(v) It has been vehemently urged
that in fact Udit Kumar Mittal, who is
distant relative of Nidhi Garg has been
cheated by Vikas Garg, Vinay Garg,
Deepika Garg and Nidhi Garg by not
mentioning the correct fact that said
property was already mortaged by them in
lieu of loan taken by them and creating a
forged sale deed on 24.06.2011 for the
property in question and by selling the said
mortgaged property.

(vi) In the sale deed dated
2.1.2012, it has clearly been mentioned
that the said property in question is clean
and clear and the same has neither been
mortgaged nor any loan has been taken on
the said property.

(vii) It is submitted that in case
aforesaid second loan is not paid by the
applicant, the same can be recovered only
by Citi Bank in accordance with law, and
not by Kotak Mahindra Bank Limited.

(viii) Matter under SARFAESI
Act against the co-accused is sub-judice
before
Debts
Recovery
Tribunal,
Lucknow, in which interim order dated
30.07.2018 of status quo has been passed.

(ix) It is also submitted that in
the present case required permission has
not been obtained by R.B.I., therefore,
jurisdiction under SARFAESI Act cannot
be invoked unless and until permitted by
R.B.I. It is vehemently urged that merely
on the basis of deed of assignment dated
9.4.2013, by which first informant claims
to have purchased the debts is illegal and
no right can be claimed on the basis of
said deed of assignment dated 9.4.2013.
The loan amount involved in the matter
cannot be recovered otherwise in due
course of law.

(x) The applicant is not party in
the S.A. No.393 of 2014 before Debts
Recovery Tribunal, Lucknow.

(xi) There is no statutory bar that
mortgaged property cannot be sold out.

(xii) So far as issue regarding
forged sale deed dated 24.06.2011 is
1 All. Udit Kumar Mittal Vs. State of U.P. & Anr.
695
concerned, the same was prepared by
Vikas Garg showing the property in
question was purchased by Vikas Gopi
Chand S/o Gopi Ishwar Chand from Dr.
R.K. Malhotra S/o D.S. Malhotra. The
applicant considering the said forged
registered sale deed dated 24.06.2011 to be
genuine has purchased the property in
question from Vikas Garg after paying
total sale consideration amount of Rs.
1,66,00,000/- to him.

(xiii) Offence as alleged against
the applicant is purely civil in nature and
nothing attracts a criminal offence against
the applicant.

(xiv)
Admittedly,
first
loan
amount of Rs. 1,65,80,000/- was taken by
co-accused Vikas Garg, Nidhi Garg, Vinay
Garg, Deepika Garg from M/s Citi
Financial
Consumer
Finance
India
Limited, New Delhi on 28.11.2007. The
applicant came in light after purchasing
the property in question by registered sale
deed dated 2.1.2012, therefore, there is no
entrustment of the aforesaid first loan
amount to the applicant.

(xv) It is further submitted that
since applicant is bona fide purchaser,
therefore, there is no evidence of cheating
inducing any person to deliver any
property to him. It is also submitted that
there is no evidence that applicant has
committed
any
forgery
with
any
document,
because
applicant
has
purchased the property in question through
genuine
registered
sale
deed
dated
2.1.2012, as such essential ingredients to
constitute offence under Sections 406,
420, 467, 468, 471 and 120B IPC are
lacking in this case so far as applicant is
concerned.
Apart
from
aforesaid
submissions, it is also argued by Sri G.S.
Chaturvedi that considering the allegations
against the applicant in the matter, the case
against the applicant will not travel beyond
the offence under Section 422 IPC, which
is bailable. Section 422 IPC is reproduced
as under:-

"422.
Dishonestly
or
fraudulently
preventing
debt
being
available
for
creditors.--Whoever
dishonestly or fraudulently prevents any
debt or demand due to himself or to any
other person from being made available
according to law for payment of his debts
or the debts of such other person, shall be
punished with imprisonment of either
description for a term which may extend to
two years, or with fine, or with both."

(xvi) The allegations against the
applicant are false. Informant Kotak
Mahindra Bank Limited on becoming
unsuccessful in proceeding before Debts
Recovery Tribunal, Lucknow and on filing
civil suit no. 840 of 2018 by the applicant
on
10.09.2018
got
the
FIR
dated
26.10.2018
registered
through
an
application under Section 156(3) Cr.P.C.
dated 9.10.2018.

(xvii) It is also submitted that
purchasing any property, filing any suit or
availing any statutory remedy by the
applicant cannot be said to be an offence.

(xviii) Lastly, it is submitted that
the applicant is neither previously convict
nor involved in any other case and he is
languishing in jail since 10.10.2019,
therefore, applicant is liable to be released
on bail. The applicant undertakes that in
case he is released on bail, he will not
misuse the liberty of bail and will
cooperate in trial.

11. Per contra, learned Additional
Government Advocate for the State of U.P.
as well as Sri Imran Ullah, learned counsel
appearing on behalf of first informant
vehemently
opposed
the
bail
by
contending that:-
696 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) All the accused persons were
in collusion with each other and under the
pre-planned manner, the co-accused Vikas
Garg sold the mortgaged property in
question to Udit Kumar Mittal and his
wife Smt. Neetu Mittal, who are relative of
Vikas Garg on the basis of forged sale
deed dated 24.06.2011 showing that same
has been executed by Dr. R.K. Malhotra to
him, while the said property was already
sold by Dr. R.K. Malhotra to Bhagwati
Rustagi and Rashmi Rustagi through sale
deed dated 16.12.1993, which was later on
already purchased by Vikas Garg, Vinay
Garg and Deepika Garg by registered sale
deed dated 16.09.2005.

(ii) Much emphasis has been
given on behalf of the informant that sale
deed dated 24.06.2011 is forged document.
Dr. R.K. Malhotra has not executed any
sale deed. It is also submitted that name
and old photographs of Dr. R.K. Malhotra
has been used by the co-accused Vikas
Garg in collusion with other accused in
preparing
forged
sale
deed
dated
24.06.2011.

(iii) It is next submitted that till
date possession of property in question is
with co-accused Vikas Garg.

(iv) It is next submitted that coaccused Vikas Garg, Nidhi Garg, Vinay
Garg and Deepika Garg are responsible for
payment of first loan amount of Rs.
1,65,80,000/- alongwith interest and other
charges threreon and Udit Kumar Mittal
and his wife Neetu Mittal are also
responsible for payment of second loan
amount of Rs. 1,42,00,000/- alongwith
interest and other charges thereon.

(v) It is also submitted that till
date neither aforesaid loan has been paid
nor possession of said property, which has
been mortgaged in lieu of first loan dated
28.11.2007 has been handed over to Kotak
Mahindra
Bank
Limited,
who
has
purchased the debt by deed of assignment
dated 9.4.2013 from M/s Citi Financial
Consumer Finance India Limited.

(vi) It is also pointed out that the
main
accused
Vikas
Garg
is
still
absconding, therefore, bail application of
applicant is liable to be rejected.

12.

After
hearing
the
rival
submissions of the learned counsel for the
parties, I find that applicant as well as
informant both have come up with the
stand that sale deed dated 24.06.2011 of
the same property (C-51, Ramprastha
Colony, Ghaziabad) has been prepared
fraudulently by co-accused Vikas Garg
changing his name as Vikas Gopi Chand.
It is also admitted to the parties that legally
sale deed dated 24.06.2011 in question
could not be executed by Dr. R.K.
Malhotra because, said property was
already sold by Dr. R.K. Malhotra by sale
deed dated 16.12.1993 to Bhagwati
Rustagi
and
Rashmi
Rustagi,
and
subsequently, said property was purchased
by co-accused Vikas Garg alongwith
Vinay Garg and Deepika Garg on
16.09.2005
and
taken
loan
of
Rs.
1,65,80,000/- from M/s Citi Financial
Consumer
Finance
India
Limited
mortgaging the said property, therefore,
main accused in this case is Vikas Garg,
because he despite knowing the fact that
the said property in question has already
been mortgaged against loan of Rs.
1,65,80,000/- given by M/s Citi Financial
Consumer Finance India Limited, New
Delhi, has prepared forged sale deed dated
24.06.2011 of the same property in
question showing it to be sold by Dr. R.K.
Malhotra in his favour mentioning his
name as Vikas Gopi Chand S/o Gopi
Ishwar Chand and, thereafter, concealing
the aforesaid fact of taking loan and
mortgaging the said property further
1 All. Udit Kumar Mittal Vs. State of U.P. & Anr.
697
executed the registered sale deed dated
2.1.2012 in favour of applicant only with a
view to escape from his liability to pay the
said loan.

13. It is also admitted fact that
possession of the said property in question
has not been handed over by the coaccused Vikas Garg to the applicant
despite executing sale deed dated 2.1.2012
in favour of applicant. Though, it is
alleged by the prosecution that applicant
was also in connivance with other coaccused, but could not show anything on
record before this Court that applicant was
having knowledge prior to sale deed dated
2.1.2012 that said property in question
had already been mortgaged by coaccused Vikas Garg. Inference in this
regard has been drawn by the prosecution
only on the basis that applicant is relative
of co-accused Vikas Garg, while applicant
has come with the stand that applicant is
bona fide purchaser of the property in
question and applicant has also been
cheated in this case by co-accused Vikas
Garg. There is no dispute that proceeding
under SARFAESI Act in the matter is still
subjudice before D.R.T., Lucknow and no
suit for cancellation of sale deeds dated
24.06.2011 and 02.01.2012 has been filed
by any person. Kotak Mahindra Bank
Limited and Citi Bank are free to avail
statutory remedy available to them in the
matter. In view of above, I find that case
of present applicant is distinguishable
from the case of co-accused Vikas Garg,
who is main person in this case and is
absconding.

14. Considering the facts and
circumstances of the case, keeping in view
the nature of the offence, evidence,
complicity of the accused, submissions of
the learned counsel for the parties, I am of
the view that the applicant has made out a
fit case for bail. Hence, the bail application
is hereby allowed.

15. Let the applicant Udit Kumar
Mittal, be released on bail in the aforesaid
case crime number on furnishing a
personal bond and two sureties each in the
like amount to the satisfaction of the court
concerned with the following conditions
which are being imposed in the interest of
justice:-

i) The applicant will not tamper
with prosecution evidence and will not
harm or harass the victim/complainant in
any manner whatsoever.

ii) The applicant will abide the
orders of court, will attend the court on
every date and will not delay the disposal
of trial in any manner whatsoever.

(iii) The applicant will not
indulge in any unlawful activities.

(iv) The applicant will not
misuse the liberty of bail in any manner
whatsoever.

16.

The
identity,
status
and
residential proof of sureties will be
verified by court concerned and in case of
breach of any of the conditions mentioned
above, court concerned will be at liberty to
cancel the bail and send the applicant to
prison.

17. It is clarified that anything said in
this order is limited to the purpose of
determination of this bail application and
will in no way be construed as an
expression on the merits of the case. It is
further clarified that the trial court shall be
absolutely free to arrive at its independent
conclusions on the basis of evidence led
unaffected by anything said in this order.
----------
698 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)1ILR 698

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.01.2020

BEFORE
THE HON'BLE MANOJ MISRA, J.
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Criminal Appeal No. 1294 of 1985

Aftab Ahmad & Ors. ...Appellants (In Jail)
Versus
State ...Opposite Party

Counsel for the Appellants:
Sri Mukhtar Alam, Sri T. Rathore, Sri M.D.
Singh, Sri S.R. Ullah, Sri S.K. Sharma, Sri
N.I. Jafri

Counsel for the Opposite Party:
A.G.A.

Criminal Law - Indian Penal Code -
Sections
147,
323/149,
307/149
&
302/149 - Appeal against conviction.

It is well settled by a catena of decisions that it
is the duty of the prosecution to prove, and, if
necessary, by examining an expert, that the
particular injury has been caused in the
manner alleged by the prosecution, otherwise,
the accused may be entitled to the benefit of
doubt. (para 43)

The injured witnesses do not leave the real
culprits and falsely implicate innocent persons
but at the same time, there may be cases
where the injured persons have themselves
committed wrong and out of fear of disclosure
about their own wrong doing, they twist the
real facts to demonstrate their innocence by
introducing incorrect version of the incident.
(para 53)

The possibility of the accused forming an
unlawful assembly to plough their own field
becomes doubtful. Secondly, injuries from hard
and blunt object found on the body of the
deceased has no explanation. Thirdly, the gun shot
injury found on the body of the deceased could not
have been from a gun, as alleged, but might have
been from country-made pistol. Fourthly, the
deceased had suffered hard and blunt object injuries
of which there was no explanation in the prosecution
evidence. (para 55)

Appeal is allowed. (E-2)
List of cases cited: -

1. St. of U.P. Vs. Ballabh Dass, AIR 1985 SC
1384

2.
Woolmington
Vs.
Director
of
Public
Prosecution, 1935 AC 462

3. Sharad Birdi Chand Sharda Vs. St. of Mah.,
AIR 1984 SC 1622

4. Mohinder Singh Vs. State AIR 1953 SC 415

5. Laxmi Singh Vs. St. of Bihar (1976) 4 SCC
394

6. Dashrath Singh Vs. St. of U.P. (2004) 7 SCC
408

7. Vadivelu Thevar Vs. St. of Madras AIR 1957
SC 614

8. Gautam Lal Vs. St. of U.P. (1981) CrlJ 1187

9. Balak Ram Vs. St. of U.P. (1975) 3 SCC 219

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. This appeal has been preferred by
appellants, namely, Aftab Ahmad, Laiq
Ahmad, Imtiaz Ahmad @ Addey, Sukha,
Afzal Ahmad, Chootey Mian @ Afsar
Ahmad, Chhutawa @ Sakeel Ahmad and
Bullar @ Abdul Sattar against the
judgment and order dated 14.05.1985
passed by VIth Additional District and
Sessions Judge, Bareilly in Sessions Trial
No. 144 of 1982 arising out of case crime
no. 231 of 1979, police station Bhojipura,