# Vijay Pal Prajapati v. State of U.P

- **Citation:** (2023) 8 ILRA 1231
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-07-31
- **Case number:** Crl. Misc. Anticipatory Bail Application (U/S 438 Cr.P.C.) No. 57 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-pal-prajapati-v-state-of-u-p-50522
- **Pages:** 6

## Headnote

1232 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 482 & 438 -
Indian Penal Code, 1860 - Sections120B,
323, 504, 506, 406, 420, 467, 468 & 471-
Anticipatory Bail Application - FIR - allegations
against accused of being part of a scheme
involving fraudulent activities related to sand
mining tenders - The applicant, along with
others, allegedly used forged documents to
deceive the informant and secured a transfer of
₹1.6 crore through misrepresentation - court
finds that, the charges include serious sections
of the IPC, such as fraud, forgery, and criminal
intimidation - Held, Court of view that
application for grant of anticipatory bail to
applicant cannot be rejected on this ground that
co-accused had asked informant to put his
signature on some documents which documents
had been prepared by applicant - therefore,
aforesaid allegation would not lead to an
inference that applicant had forged letter - and
F.I.R. contains no allegation that letter had been
forged or fabricated by applicant - Application
allowed. (Para - 22, 23, 25)

Application Allowed. (E-11)

List of Cases cited:

## Text

8 All. Vijay Pal Prajapati Vs. State of U.P.
1231
has happened in the present case by
insertion of section 12(5) in the A&C Act
and the verdicts of the Supreme Court in
TRF Ltd. and Perkins Eastman (supra), the
procedure for appointment of arbitrator at
the hands of one of the parties becomes
legally invalid, void and unenforceable,
that does not mean that the core agreement
between the parties to refer their inter-se
disputes to arbitration itself perishes. In the
opinion of this court - this "my way or the
highway" approach - is not tenable in law;
and in such circumstances, that part of the
arbitration agreement which has been
rendered invalid, void and enforceable is to
be severed or excised from the arbitration
clause, while preserving the rest of the
arbitration agreement;

17.5. Accordingly, this court is of the
view, that there is a valid and subsisting
arbitration agreement between the parties,
though the procedure for appointment of
the arbitrator at the hands of the CMD,
NTPC is no longer valid, and must
therefore be severed from the remaining
arbitration clause;"

16. The judgment of this Court in
Nandini Constructions, relied upon by
YEIDA will thus not hold the field in view
of subsequent judgments of the Supreme
Court, referred to above, and the objection
of Sri Singhal, therefore, cannot be
accepted.

17. So far as the objection of Sri
Singhal that scope of work is not covered
under the agreement would also be an
aspect open to be raised and examined
during the course of the arbitration and no
definite opinion in that regard is required to
be expressed by this Court while deciding
the application under Section 11 of the Act.
Issue with regard to filing of alleged
affidavit by the applicant, for not raising
any such claim, is also left open for
adjudication
by
the
arbitrator
after
evidence, etc., is adduced in that regard.

18. For the reasons recorded above,
this application succeeds and is allowed.

19. Accordingly, Hon'ble Mr. Justice
P.K.S. Baghel (Former Judge), R/o 8-B/6A
Parthsarthi House, Mayo Road, Near Mayo
Hall Sports Complex, Allahabad, Mobile
No. 9936931931, is appointed as an
Arbitrator to enter upon the reference and
adjudicate the dispute in accordance with
provisions of Arbitration and Conciliation
Act, 1996, subject to his consent in terms
of section 11-A of the Arbitration and
Conciliation Act.

20. The Arbitrator shall be entitled to
fees, in accordance with the provisions of
fourth schedule inserted by Act No.3 of
2016. The expenses shall be borne equally
by the parties.
----------
(2023) 8 ILRA 1231
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 31.07.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Crl. Misc. Anticipatory Bail Application (U/S 438
Cr.P.C.) No. 57 of 2023

Vijay Pal Prajapati ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Sri Purnendu Chakravarty, Sri Pranjal Jain

Counsel for the Opposite Party:
G.A., Sri Digvijay Nath Dubey
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 482 & 438 -
Indian Penal Code, 1860 - Sections120B,
323, 504, 506, 406, 420, 467, 468 & 471-
Anticipatory Bail Application - FIR - allegations
against accused of being part of a scheme
involving fraudulent activities related to sand
mining tenders - The applicant, along with
others, allegedly used forged documents to
deceive the informant and secured a transfer of
₹1.6 crore through misrepresentation - court
finds that, the charges include serious sections
of the IPC, such as fraud, forgery, and criminal
intimidation - Held, Court of view that
application for grant of anticipatory bail to
applicant cannot be rejected on this ground that
co-accused had asked informant to put his
signature on some documents which documents
had been prepared by applicant - therefore,
aforesaid allegation would not lead to an
inference that applicant had forged letter - and
F.I.R. contains no allegation that letter had been
forged or fabricated by applicant - Application
allowed. (Para - 22, 23, 25)

Application Allowed. (E-11)

List of Cases cited:

1. Kamlesh & anr. Vs St. of Raj. & anr., 2019
SCC OnLine SC 1822

2. Rajiv Lochan Paliwal Vs St. of U.P. & ors.,
Criminal Misc. Anticipatory Bail Application U/S
438 Cr.P.C. No. 1750/2022

3. Navneet Bhadauria Vs St. of U.P. & ors.,
Criminal Misc. Anticipatory Bail Application U/S
438 Cr.P.C. No. 1841/2022

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Purnendu Chakravarty
Advocate, the learned counsel for the
applicant, Sri Arvind Kumar Pandey, the
learned AGA for the State and Sri Digvijay
Nath Dubey, the learned counsel for the
informant.

2. By means of the present
application,
the
applicant
is
seeking
anticipatory bail in case crime No.
363/2021,
under
Sections
323/504/506/406/420/467/468/471
I.PC.,
P.S. Vibhuti Khand, District Lucknow.

3. The aforesaid case has been
registered on the basis of an FIR lodged by
the
informant
Deepak
Sharma
on
23.07.2021 against four named persons,
including the applicant, and an unknown
person, alleging that in December, 2018,
co-accused Anand Kumar Singh alias Baba
Trikaldarshi met the informant at Mumbai
and projected that he had a good
understanding of mining of sand and had a
sound grip on the market in Banda. The
informant visited Lucknow thrice in
December,
2018,
January,
2019
and
February, 2019 where the co-accused
Anand Kumar Singh met him in a hospital
and at the residence of co-accused Rajiv
Porwal and the applicant and the coaccused Navneet Singh Bhadauria also
used to sit in the meetings and they claimed
themselves to be established businessmen
of Morang (a minor mineral used in
construction activities). Co-accused Anand
Kumar Singh demanded Rs. 1 crore from
the informant for a government tender and
he asked the informant to sign some
documents which had been prepared by the
applicant. The applicant had shown some
documents
purportedly
relating
to
registration of the company in the tender
process but the documents turned out to be
forged. On 11.02.2019, a notice inviting
tenders for excavation of sand was
published wherein the applicant had made a
bid without knowledge of the informant
and co-accused Anand Kumar Singh had
told the informant that only the applicant's
name will be used and the actual control of
the work will be given to the informant.
The
informant
alleged
that
he
had
transferred a sum of Rs. 1,60,00,000/- in
8 All. Vijay Pal Prajapati Vs. State of U.P.
1233
the account of M/s V. P. Constructions
towards earnest money for the tender. On
08.03.2019, another contract was allotted to
M/s V. P. Constructions, which is a firm of
the applicant. The informant claims that it
was mutually settled between him and the
accused persons that the investments and
profit in the tender allotted to M/s V. P.
Constructions will be distributed amongst
all the persons and on 05.12.2020, a joint
venture agreement was executed between
the informant, the applicant and one
Pramod Tiwari. On the same day, another
agreement for sale and marketing was
executed between the informant and the
applicant but after sometime, the accused
persons started sale and marketing of
excavated
sand
through
M/s
V.
P.
Constructions and they committed a breach
of the agreement dated 05.12.2020. The
informant alleged that when he objected
against it, the accused persons abused and
threatened him.

4. The applicant was granted interim
anticipatory bail by means of an order
dated
16.01.2023,
after
taking
into
consideration the fact that co-accused
namely Rajiv Lochan Paliwal has been
granted interim protection vide order
dated 20.10.2022 passed in Criminal
Misc. Anticipatory Bail Application U/S
438
Cr.P.C.
No.
1750/2022
"Rajiv
Lochan Paliwal Vs. State of U.P. and
others". Another co-accused Navneet
Bhadauria has also been granted bail by
the coordinate Bench of this Court passed
in Criminal Misc. Anticipatory Bail
Application
U/S
438
Cr.P.C.
No.
1841/2022 "Navneet Bhadauria Vs. State
of U.P. and others".

5. The State and the informant have
filed counter affidavits opposing the
anticipatory bail application.

6. The learned counsel for the
informant has vehemently opposed the
application and he has submitted that while
granting anticipatory bail to the co-accused
Navneet Bhadauria, it was specifically
recorded in the order dated 18.11.2022
passed by this Court in Anticipatory Bail
Application No. 1841 of 2022 that the case
of
the
aforesaid
co-accused
is
distinguishable from the case of Anand
Kumar Singh @ Baba Trikaldarshi and
Vijay Pal Prajapati (the applicant) and he
has submitted that the applicant is not
entitled to be granted anticipatory bail on
the ground of parity.

7. The learned counsel for the
informant has next submitted that the
applicant had earlier filed an application
under Section 482 Cr.P.C. No. 6044 of
2022
and
in
the
order
passed
on
06.09.2022, this Court had noted the
submission of the learned counsel for the
applicant that the applicant intended to pay
the entire amount to the informant to show
his bona fide and it was recorded in the
order that the learned counsel for the
applicant would bring a bank draft of Rs. 2
crores on the next date. In the order passed
in the aforesaid case on 14.09.2022, it was
recorded that the applicant made excuses
from which the Court gathered that the
applicant had no intention to pay any
amount to the respondent no. 2 whose
money was admittedly taken. In view of the
aforesaid conduct of the applicant, the
application under Section 482 Cr.P.C. was
dismissed. Sri. Dubey has submitted that
the aforesaid conduct of the applicant
disentitles him to be granted anticipatory
bail.

8.

Replying
to
the
aforesaid
submission, Sri. Purnendu Chakravarty, the
learned Counsel for the applicant submitted
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
that the applicant had challenged the order
dated
14.09.2022
dismissing
the
application under Section 482 Cr.P.C. by
filing Special Leave Petition (Crl.) No.
9397 of 2022, which was dismissed as
withdrawn by means of an order dated
10.10.2022, but the Hon'ble Supreme
Court had clarified that the trial court may
not be influenced by the observations made
by the High Court while dismissing the
application under Section 482 Cr.P.C.

9. Therefore, it is clear that the
application under Section 482 Cr.P.C. was
not dismissed on merits and it was
dismissed for the mere reason that the
applicant had not returned the money to the
informant. The complaint of the informant
is that non-payment of money is in breach
of an agreement. The learned counsel for
the applicant has pointed out that the
informant has already initiated proceedings
before the Commercial Court, Gwalior for
recovery of the money, which proceedings
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 and it will not be appropriate
for this Court to make any observation in
this regard. However, mere non-payment of
money cannot be a ground for initiation of
criminal proceedings and it certainly cannot
be a ground for rejection of the application
for grant of anticipatory bail.

10. In Kamlesh and another versus
State of Rajasthan and another, 2019
SCC OnLine SC 1822, the Hon'ble
Supreme Court was deciding a Criminal
Appeal filed against an order passed by
Rajasthan
High
Court
whereby
an
application for grant of anticipatory bail
was rejected by the High Court only on the
ground that petition under Section 482
Cr.P.C. praying for quashing of FIR, has
already
been
rejected.
The
Hon'ble
Supreme Court held that: -

"5. We are of the view that the
order of the High Court cannot be
sustained. High Court ought to have
considered the application on merits. The
fact that petition under Section 482 Cr.P.C.
was dismissed for quashing was not
conclusive and could not be the reason for
rejecting the application."

11. Therefore, 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.

12. The learned counsel for the
applicant has submitted that the FIR alleges
that the informant was induced into
entering into a joint venture agreement on
the basis of a letter of intent dated
08.03.2019 purportedly issued by the
Additional District Magistrate (Finance &
Revenue), on behalf of the District
Magistrate, Banda, which letter was forged.
However, there is no categorical assertion
as to who had forged the letter and, in any
case, there is no allegation that the letter
had been forged by the applicant.

13. The Investigating Officer has
already submitted a charge-sheet and
besides the informant, all the witnesses
mentioned in the charge sheet are police
personnel. No officer or official from the
office of the District Magistrate, Banda has
been mentioned to be a witness in the
charge-sheet.

14. The learned counsel for the
applicant has submitted that even the
specimen of the applicant's handwriting
has not been taken for comparing the same
8 All. Vijay Pal Prajapati Vs. State of U.P.
1235
with the signatures made on the letter in
question, which could have been used as an
evidence to prove commission of forgery
by the applicant.

15. Sri Digvijay Nath Dubey, the
learned counsel for the informant has next
submitted that the money has admittedly
been transferred to the applicant's bank
account and he is the beneficiary of the
offence committed.

16. In this regard, firstly it is to be
seen that the applicant has not been charged
with commission of offence under Section
120 B I.P.C. and merely because the
applicant is the beneficiary of an offence
will not ipso facto make the applicant
guilty of the offence of forgery, when there
is no allegation of commission of the
offence by him.

17. Secondly, the money was
transferred to the applicant in furtherance
of an agreement to carry out business of
mining
of
minor
minerals
and
the
informant claims that the accused persons
have committed a breach of the agreement,
which dispute prima facie appears to be a
dispute which is inherently of the civil
nature.

18. Nowadays it is becoming a
general practice to set the criminal law
into motion for putting pressure on the
parties
to
commercial
transactions.
Instead of initiating civil proceedings for
specific
performance
of
contracts,
accounting or recovery of money, where
the plaintiff / claimant has to pay Court
fee and where the decision of the dispute
consumes a very long time, F.I.Rs. are
filed with the object of getting the other
party incarcerated to put pressure on him
so as to make him redress the grievances
of the informant. However, the Courts
cannot shut their eyes in such matters so
as not to ascertain whether there is
sufficient
material
to
warrant
incarceration of the accused person and to
examine
whether
the
criminal
proceedings
are
being
used
for
prosecution
of
a
person
who
has
committed an offence or the same are
being misused for persecution of a person
who has committed a breach of an
agreement by giving the disputes a color
of criminality.

19. As proceedings between the
parties for recovery of the money paid
under the agreement are pending before
the Commercial Court, Gwalior, the issue
of
the
informant's
entitlement
for
recovery thereof will be decided in those
proceedings and it will not be appropriate
for this Court to make any observation in
this regard.

20. The learned counsel for the
informant has next submitted that the bail
application of co-accused Anand Kumar
Singh Alias Baba Trikaldarshi has been
rejected by means of an order dated
03.03.2023 passed by this Court. In this
regard, suffice it to say that parity is a
relevant consideration while granting bail
to persons accused of similar charges but
the principle of parity is not attracted to
rejection of bail applications.

21. Moreover, the order dated
03.03.2023 rejecting the bail application of
co-accused Anand Kumar Singh merely
mentions that the bail application was
being rejected keeping in view the
submission of the learned counsel for the
informant that a complaint was made to the
District Magistrate as well as the Mining
Officer where the accused persons had
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
assured that they would refund the money
to the informant but still they have not
refunded the same.

22. As has already been stated in the
preceding paragraphs, 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. Therefore, I am of the view that the
application for grant of anticipatory bail to
the applicant cannot be rejected on this
ground.

23. Regarding the applicant, it is
mentioned in the F.I.R. that co-accused
Anand
Kumar
Singh
alias
Baba
Trikaldarshi had asked the informant to put
his signature on some documents which
documents had been prepared by the
applicant. Obviously, the informant would
not be required to sign the letter dated
08.03.2019 issued by the Additional
District Magistrate on behalf of the District
Magistrate and, therefore, the aforesaid
allegation would not lead to an inference
that the applicant had forged the letter
dated 08.03.2019. The F.I.R. contains no
allegation that the letter dated 08.03.2019
had been forged or fabricated by the
applicant.

24. The learned Counsel for the
applicant has informed that the applicant
has submitted bail bonds in terms of the
order dated 16.01.2023 passed by this
Court. The learned A.G.A. could not point
out any violation of the conditions of
anticipatory bail or misuse thereof by the
applicant.

25. In the aforesaid circumstances, I
find no good ground to take a view
different from the view taken by this Court
while passing the order dated 16.01.2023.
Therefore, the order dated 16.01.2023 is
made absolute and the application is
allowed in terms of the aforesaid order.
----------
(2023) 8 ILRA 1236
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.07.2023

BEFORE

THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Crl. Misc. Anticipatory Bail Application (U/S 438
Cr.P.C.) No. 5408 of 2023

Riyazuddin ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vinod Singh

Counsel for the Opposite Parties:
G.A.

Criminal
Law-The
Code
of
Criminal
Procedure, 1973-Section438 -The Indian
Penal Code,1860-Sections 376, 504 &
506- The physical relations between the
prosecutrix and the accused developed on the
basis of a promise to marry on the part of the
accused applicant, which continued for about
one year, but significantly, in the present case,
this is not the accused applicant, who refused to
marry with the prosecutrix, though alleged so in
the F.I.R. The supplementary affidavit consists
of a specific averment that this is the
prosecutrix, who had already performed her
marriage with one Rizwan whereas the present
applicant is still a bachelor and hence it cannot
be said at this stage that the promise to marry
was broken by the applicant himself-Fit case for
anticipatory bail to the applicant till end of the
trial. (E-15)

List of Cases cited:

1. Pramod Suryabhan Pawar Vs The St. of Mah.
& anr., 2019 (9) SCC 608