# Vivek Yadav & Ors v. State of U.P. & Anr

- **Citation:** (2023) 10 ILRA 37
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-27
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 1246 of 2023
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vivek-yadav-ors-v-state-of-u-p-anr-49335
- **Pages:** 10

## Headnote

Indian Penal Code, 1860 - Sections 409,
420, 467, 468 & 471 - Criminal Procedure
Code, 1973 - Section 438 - Anticipatory
Bail - Corporate Fraud - Civil Dispute
Criminalization Criminal Misc. Anticipatory Bail
Application No. 1246 of 2023 under Section 438
Cr.P.C. seeking anticipatory bail in F.I.R. No.
898 of 2021, under Sections 409, 420, 467, 468,
471 IPC, lodged on 15.11.2021 at Police Station
Gomti Nagar, Lucknow, alleging that applicants
Vivek Yadav, Vandana Yadav, Tushar Nagar,
Manoj Kumar Singh, and others conspired to
mismanage and misappropriate funds and
shares of Piscesia Power Transmission Pvt. Ltd.,
using forged documents. The informant, a
director and shareholder, alleged fraudulent
transactions,
including
a
₹5
crore
loan,
undervalued
share
transfers,
and
fake
documents causing a ₹11 crore liability. The
court found the dispute predominantly civil,
noting the informant's parallel proceedings
before the National Company Law Tribunal
(NCLT) and failure to secure injunctions,
followed by filing four FIRs within 24 hours,
suggesting abuse of criminal process (Indian Oil
Corpn.). The Sessions Court wrongly rejected
the
anticipatory
bail
application
as
not
maintainable,
misinterpreting
the
Supreme
Court's order dated 04.11.2022 (A.R. Antulay).
No
custodial
interrogation
was
deemed
necessary post-charge-sheet, and no misuse of
interim
bail
granted
on
26.05.2023
was
reported. The court held that the dismissal of a
Section
482
Cr.P.C.
application
did
not
conclusively
establish
guilt
(Kamlesh).
Anticipatory bail was granted, making the
interim order absolute.

Application allowed.

Case Law Cited:

## Text

10 All. Vivek Yadav & Ors. Vs. State of U.P. & Anr.
37
Tribunal Constituted. Accordingly, the
Court proposes the name of Hon'ble Mr.
S.S. Chauhan , a retired Judge of this
Court, R/o 4/150, Vishesh Khand, Gomti
Nagar, Lucknow, Mobile No. 9454001000,
justicesschauhan@gmail.com to act as a
sole Arbitrator.

36. Learned counsel for the petitioner
shall submit the entire paper-book with the
office of this Court within ten days for
seeking the consent of the proposed
arbitrator in terms of Section 12(1) of the
Arbitration and Conciliation Act, 1996.

37. List this matter on 1st November,
2023 for further orders after receiving the
consent.
----------
(2023) 10 ILRA 37
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 27.10.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 1246 of 2023

Vivek Yadav & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Nadeem Murtaza, Aditya Vikram Singh

Counsel for the Opposite Parties:
G.A., Anil Kumar Khare, Prafulla Tiwari

Indian Penal Code, 1860 - Sections 409,
420, 467, 468 & 471 - Criminal Procedure
Code, 1973 - Section 438 - Anticipatory
Bail - Corporate Fraud - Civil Dispute
Criminalization Criminal Misc. Anticipatory Bail
Application No. 1246 of 2023 under Section 438
Cr.P.C. seeking anticipatory bail in F.I.R. No.
898 of 2021, under Sections 409, 420, 467, 468,
471 IPC, lodged on 15.11.2021 at Police Station
Gomti Nagar, Lucknow, alleging that applicants
Vivek Yadav, Vandana Yadav, Tushar Nagar,
Manoj Kumar Singh, and others conspired to
mismanage and misappropriate funds and
shares of Piscesia Power Transmission Pvt. Ltd.,
using forged documents. The informant, a
director and shareholder, alleged fraudulent
transactions,
including
a
₹5
crore
loan,
undervalued
share
transfers,
and
fake
documents causing a ₹11 crore liability. The
court found the dispute predominantly civil,
noting the informant's parallel proceedings
before the National Company Law Tribunal
(NCLT) and failure to secure injunctions,
followed by filing four FIRs within 24 hours,
suggesting abuse of criminal process (Indian Oil
Corpn.). The Sessions Court wrongly rejected
the
anticipatory
bail
application
as
not
maintainable,
misinterpreting
the
Supreme
Court's order dated 04.11.2022 (A.R. Antulay).
No
custodial
interrogation
was
deemed
necessary post-charge-sheet, and no misuse of
interim
bail
granted
on
26.05.2023
was
reported. The court held that the dismissal of a
Section
482
Cr.P.C.
application
did
not
conclusively
establish
guilt
(Kamlesh).
Anticipatory bail was granted, making the
interim order absolute.

Application allowed.

Case Law Cited:

1. Kamal Shivaji Pokarnekar Vs St. of Mah.,
(2019) 14 SCC 350 (Para 12)

2. Syed Askari Hadi Ali Augustine Imam Vs St.
(Delhi Administration), (2009) 5 SCC 528 (Para
12)

3. P. Swaroopa Rani Vs M. Hari Narayana,
(2008) 5 SCC 765 (Para 12)

4. Indian Oil Corpn. Vs NEPC India Ltd., (2006)
6 SCC 736 (Para 25)

5. Pratibha Manchanda Vs St. of Har., (2023) 8
SCC 181 (Para 26)

6. Ankit Bharti Vs St. of U.P., 2020 (3) ADJ 575
(Para 15)
38 INDIAN LAW REPORTS ALLAHABAD SERIES
7. Vinod Kumar Vs St. of U.P., (2019) 12 ADJ
495 (Para 16)

8. A.R. Antulay Vs R.S. Nayak, (1988) 2 SCC
602 (Para 19)

9. Chiranjilal Shrilal Goenka Vs Jasjit Singh,
(1993) 2 SCC 507 (Para 19)

10. Kamlesh Vs St. of Raj., 2019 SCC OnLine SC
1822 (Para 29)

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

1. Heard Sri. Anoop Trivedi Senior
Advocate assisted by Sri Vikas Tiwari and
Sri. Nadeem Murtaza Advocates, the
learned counsel for the applicants, Sri
Anurag
Verma,
the
learned
AGA-I
appearing for the State, Dr L. P. Misra and
Sri Prafulla Tiwari Advocates, the learned
counsel for the informant.

2. The instant application has been
filed seeking anticipatory bail in F.I.R. No.
898 of 2021, under Sections 409, 420, 467,
468, 471 IPC, lodged on 15.11.2021 in
Police Station Gomti Nagar, District
Lucknow against six named persons,
including the applicants, stating that the
informant is a Director and share holder of
Piscesia Power Transmission Pvt. Ltd.
(which will hereinafter be referred to as
'the company'), which was promoted by
the informant. In collusion with the
company's chartered accountant - applicant
No. 3 Tushar Nagar, the applicants No. 1, 2
and 4 - Vivek Yadav, Vandana Yadav and
Manoj Kumar Singh, entered into a
conspiracy and grabbed the company and
the business being run by it, on the basis of
forged documents. Vandana Yadav had
invested merely ₹ 28 lakhs in the year 2014
but she grabbed money far exceeding the
amount invested by her. Vandana Yadav
inducted her husband Vivek Yadav for
extracting money from the company and
she separated herself from the company.
The applicants No. 1, 2 and 3 involved M/s
Beegha Infraventures Private Limited,
which was a commercial entity of the
applicant Nos. 4 and 5 Manoj Kumar Singh
and Vinod Kumar Singh and they took
control over the company. The informant
blindly trusted the company' chartered
accountant Tushar Nagar and he used to
sign documents on the latter's asking,
without reading the same. The accused
persons mismanaged the company and
misappropriated its monies and properties
due to which the company became
bankrupt. The company had got a contract
from U. P. Rajkiya Nirman Nigam Ltd. All
preoperative expenses for carrying out the
works, were borne by the informant and he
had lent ₹ 46 lakhs to the company. Even
before completion of the works, Vandana
Yadav took a loan of ₹ 5 crores from the
company in the name of her company SVY
infrastructure
Private
Limited,
by
misleading the informant and this loan was
taken even before Vandana Yadav had
made investment of ₹ 28 lakhs in the
company.
She
had
transferred
some
amounts to M/s Shalimar Corporation Ltd
and M/s SAS Hotel and Property Private
Limited and had purchased a car in the
years 2012 and 2013. The amounts were
mentioned in the account books as loans
but the same were not repaid by Vandana
Yadav. The informant was induced to
transfer ₹ 6 crores from the company's
account
in
various
installments
in
November 2014 and February 2015 for
purchasing a property at Mumbai but
neither a conveyance deed was executed,
nor was the aforesaid amount refunded to
the company. When the informant sent a
legal notice, the seller refunded ₹ 10 lakhs
to the company. On 21.10.2020, Manoj
10 All. Vivek Yadav & Ors. Vs. State of U.P. & Anr.
39
Kumar Singh informed that the seller
Kulwinder Singh Bains had been arrested
by Mumbai Crime Branch as he had been
absconding for the past 15 years and he
was a sharp shooter associated with a Mafia
don.

3. The F.I.R. further states that Vivek
Yadav
Manoj
Kumar
Singh
have
transferred various amounts to various
organisations without any reasonable object
on various dates, starting from the year
2017 - 18. In the year 2014 Manoj Kumar
Singh had got a sum of ₹ 16,609,193/-
transferred to Wave Silver Tower Project
Private
Limited
for
purchasing
two
commercial units, one of which was
transferred to M/s Beegha Infraventures
Private Limited. Manoj Kumar Singh had
promised to pay ₹ 90 lakhs towards the
price of the unit to the company but he did
not pay the amount. Manoj Kumar Singh
had obtained 20 lakh shares of the company
in the year 2016-17 under an assurance of
paying its market value, which was ₹
1,000/- per share, but the shares were
wrongly transferred at the rate of ₹ 10/- per
share only, in connivance with the
company's chartered accountant Tushar
Nagar. Thus the company's shares worth ₹
20 crores were wrongly sold for ₹ 2 crores
only and even out of that amount, merely ₹
5 lakhs were paid by Manoj Kumar Singh
and the balance amount was paid after four
years in February 2020. Four days after
making of the payment, ₹ 1,78,00,000/-
were paid to Manoj Kumar Singh and
Tushar Nagar had shown the amount as
dividend payout. In March 2020, Manoj
Kumar Singh and Vinod Kumar Singh got
26% shareholdings of the informant's
company transferred at undervalued price
of ₹ 10 per share through M/s Beegha
Infraventures Private Limited which was a
company controlled by them and payment
of this amount has not been made till date.
Thus a total of ₹ 2,08,30,000/- is due
towards price of the shares.

4. The F.I.R. also states that on
07.01.2020, the officials of Directorate
General of Goods and Service Tax
Intelligence had conducted a raid on the
company's premises, during which liability
of ₹ 3,46,00,000/- was fixed. It has come to
light that C.A. Tushar Nagar, in collusion
with Vivek Yadav, Smt. Vandana Yadav and
Manoj Kumar Singh, had produced some
fake documents regarding some business
transactions with M/s Sarvesh Rai and M/s
RST Infrastructure without knowledge of
the informant. In the year 2013, Vivek
Yadav was working as an employee of
Project and Development India Ltd, which
is an undertaking of the Government of
India. When the informant asked for the
documents regarding transactions with M/s
Sarvesh Rai and M/s RST Infrastructure,
Tushar Nagar tendered his resignation,
which strengthens the suspicion against
him. Thus by acting in a fraudulent manner,
Tushar Nagar and Manoj Kumar Singh
made the company liable for payment of
approximately ₹ 11 crores and the
informant had to make the payment
because of documents fraudulently filed by
Tushar Nagar and Vivek Yadav. After this,
the informant got an internal audit
conducted, in which the aforesaid acts done
by Smt. Vandana Yadav, Vivek Kumar
Yadav, Manoj Kumar Singh and the
company's C.A. Tushar Nagar came to
light. When the aforesaid irregularities
came to light, the aforesaid persons called
an extraordinary meeting of the company
without any resolution for the same having
been passed. The informant instituted a
case before the National company Law
Tribunal Allahabad. The informant had
raised an objection that no requisition was
40 INDIAN LAW REPORTS ALLAHABAD SERIES
served on the informant prior to holding of
the EGM, as provided in Section 100 of the
Companies Act, 2013 and in reply to the
aforesaid objection the aforesaid persons
produced an affidavit sworn by the
company's employee Shashank Gupta
stating that the requisition had been served
in the Company's office on 05.06.2021,
whereas the office was closed on the
aforesaid date due to lockdown and
Shashank Gupta is not authorised to receive
documents related to the company.

5. In the affidavit filed in support of
the application, it has been stated that the
informant has filed Company Petition No.
32 of 2021 before the National Company
Law Tribunal. He had filed an application
seeking an injunction against the proposed
meeting of the Board of Directors which
was scheduled to be held on 11.08.2021 but
the NCLT did not pass any stay order. A
meeting of the Board of Directors of the
Company was held on 11.08.2021 in which
it was resolved to open a new bank account
in Bank of Maharashtra and the new
account has been opened accordingly. The
reason stated for opening of new bank
account is that the informant was sending
frivolous communications to the Manager of
the earlier bank, which was hampering the day
to day functioning of the Company and,
therefore, a new bank account was opened as
per the decision taken in a meeting of the Board
of Directors of the Company.

6. The affidavit further states that the
informant had filed another application seeking
injunction against credit of any amount in the
new bank account opened by the Company but
no injunction order has been passed till date.
The informant has filed four FIRs against the
applicants within 24 hours in the same police
station after having failed to obtain injunction
orders.

7. In the affidavit filed in support of the
application, it has been stated that the applicants
are innocent. The criminal history of the
applicants has been explained in the affidavit
filed in support of the anticipatory bail
application, as per which the applicant no. 1
was implicated in F.I.R. No. 639 of 2015, Police
Station Kalyanpur, Kanpur, in which he has
been acquitted by means of a judgment and
order dated 24.01.2018, which has not been
challenged and which has attained finality. He is
involved in four more cases, all of which have
been lodged by the present informant. The
informant had lodged a total of five F.I.Rs.
against the applicants within a span of 24 hours
and the investigating Officer has submitted
closure report in respect of one of the F.I.Rs.,
bearing number 897 of 2021 on the ground that
the allegations are the same as in F.I.R. No. 894
of 2021. The applicant No. 2 Vandana Singh is
involved in a total of five F.I.Rs. lodged by the
informant, four of which were lodged within a
time span of 24 hours. The applicant no. 3 is
involved in 2 more F.I.Rs. No. 897 and 898 of
2021, both of which were lodged by the same
informant in the same police station and the
Investigating Officer has submitted a closure
report in respect of F.I.R. No. 897 of 2021.

8. The applicants had filed an
application under Section 438 Cr.P.C before
the Sessions Judge, Lucknow, which has
been rejected by means of an order dated
10.11.2022.

9. The informant has filed a counter
affidavit by and large reiterating the
allegations levelled in the F.I.R.

10. Dr. L. P. Mishra, the learned
Counsel for the informant, has submitted
that for deciding the applicants' prayer for
grant of anticipatory bail, this Court has to
record a prima facie satisfaction regarding
the need for custodial interrogation of the
10 All. Vivek Yadav & Ors. Vs. State of U.P. & Anr.
41
applicant's,
prima
facie
satisfaction
regarding commission of the alleged
offence, the gravity of the offence and its
impact on the society and the applicants'
conduct. He has submitted that chargesheets having already been submitted in
respect of all the four F.I.Rs. filed against
the applicant, there is no need for the
applicants' custodial interrogation.

11. The applicants had filed an
application under Section 482 Cr.P.C.
challenging the charge-sheet filed pursuant
to F.I.R. No. 898 of 2022 and that
application has been dismissed by means of
a judgment and order dated 08.05.2023
passed by this Court. As per the learned
Counsel for the informant, from the
dismissal of the application under Section
482 Cr.P.C., commission of the alleged
offence is prima facie established. He has
further submitted that the nature of the
offence alleged is a serious corporate fraud
and it would have a serious impact on the
society at large.

12. Dr. Mishra has also submitted that
the proceedings pending before the NCLT
would not create a bar against criminal
prosecution of the applicants and it is a
settled principle that civil and criminal
proceedings can go on simultaneously, as
has been held by the Hon'ble Supreme
Court in the case of Kamal Shivaji
Pokarnekar vs State of Maharastra and
others, (2019) 14 SCC 350, Syed Askari
Hadi Ali Augustine Imam and another vs
State
(Delhi
Administration)
and
another, (2009) 5 SCC 528 and P.
Swaroopa Rani vs M. Hari Narayana @
Hari Babu, (2008) 5 SCC 765. There can
be no dispute to the aforesaid proposition
of law but that proposition would be
relevant for deciding an application for
quashing of the proceedings and not while
deciding an application for anticipatory
bail.

13. Regarding the conduct of the
applicants, the learned Counsel for the
informant has submitted that the applicants
had filed a Writ Petition challenging
validity of the FI.R. and three other Writ
Petitions were filed challenging the three
other F.I.Rs. By means of an interim order
dated 30.11.2021, arrest of the petitioners
was stayed. However, the Writ petitions
were dismissed by means of a judgment
and order dated 30.11.2021, on the ground
that a charge-sheet had been submitted, the
Court had taken cognizance of the offence
and the accused had put in appearance
before the trial Court and the Writ Petition
had become infructuous. The applicants
had assailed the orders dismissing the Writ
Petition by filing four S.L.P. (Crl.) Nos.
9808 of 2022, 9787 of 2022 and 9785 of
2022 and Diary No. 32276 of 2022, all of
which were disposed off by an order dated
04.11.2022, which reads as follows: -

"Permission to file the special
leave petition is granted.

While we have some reservations
on the findings recorded by the High Court
that the petition filed under Article 226 of
the Constitution of India had become
infructuous, we are not inclined to issue
notice as we believe that the petitioner(s)
can take recourse to appropriate remedy
consequent to the filing of the charge sheet
vide proceeding(s) in accordance with law.

It will be open to the petitioner(s)
to rely upon the orders and annexures filed
with the present special leave petitions. We
clarify that we have not made any
comments or observations on the merits of
the case.

We, however, are inclined to
direct that the interim orders passed by the
42 INDIAN LAW REPORTS ALLAHABAD SERIES
High Court on 30.11.2021 and 4.12.2021
will continue for a period of six weeks from
today, subject to the petitioner(s) joining
and cooperating with the investigation. It
will also be open to the petitioner(s) to file
an appropriate application(s) before the
trial court/High Court for grant of regular/
anticipatory bail, which application(s)
would be considered in accordance with
law.

Recording the aforesaid, the
special leave petitions are disposed of.

Pending application(s), if any,
shall stand disposed of."

14.

The
applicants
had
filed
applications seeking anticipatory bail from
the Session Court in all the four cases on
04.09.2022 and those were rejected by
means of separate orders dated 10.11.2022,
stating
that
the
anticipatory
bail
applications were filed on 16.09.2022, the
S.L.Ps. were filed on 10.10.2022 without
disclosing
that
the
anticipatory
bail
applications had already been filed. While
disposing off the S.L.Ps., the Hon'ble
Supreme Court had provided in the order
dated 04.11.2022 that the petitioners may
file an appropriate application for grant of
regular / anticipatory bail before the trial
court / High Court and the Session Court
was neither the trial court, nor the High
Court,
therefore
the
anticipatory
ail
application was not maintainable before the
Session Court.

15. The learned Counsel for the
informant has submitted that after the
Hon'ble Supreme Court had passed of the
order dated 04.11.2022, the applicants
ought to have filed a fresh application
before
the
Session
Court
seeking
anticipatory bail and the anticipatory bail
application filed directly before this Court
is not maintainable in view of the law laid
down by a Full Bench of this Court in
Ankit Bharti and others versus State of
U.P and another, 2020 (3) ADJ 575.

16. In Ankit Bharti (Supra), the Full
Bench has approved the following law laid
down by a Bench consisting of an Hon'ble
Single Judge in Vinod Kumar versus
State of U. P., (2019) 12 ADJ 495: -

"In light of what has been held
above, the Court records its conclusions on
the questions formulated as under:-

A. Section 438 Cr.P.C. on its plain
terms does not mandate or require a party
to first approach the Sessions Court before
applying to the High Court for grant of
anticipatory bail. The provision as it stands
does not require an individual first being
relegated to the Court of Sessions before
being granted the right of audience before
this Court.

B. Notwithstanding concurrent
jurisdiction being conferred on the High
Court and the Court of Session for grant of
anticipatory bail under Section 438 Cr.P.C.,
strong, cogent, compelling and special
circumstances must necessarily be found to
exist in justification of the High Court
being approached first without the avenue
as available before the Court of Sessions
being exhausted. Whether those factors are
established or found to exist in the facts of
a particular case must necessarily be left
for the Court to consider in each individual
matter.

C. The words "exceptional" or
"extraordinary" are understood to mean
atypical, rare, out of the ordinary, unusual
or uncommon. If the jurisdiction of the
Court as conferred by Section 438 Cr.P.C.
be circumscribed or be recognised to be
moved only in exceptional situations it
would again amount to fettering and
constricting
the
discretion
otherwise
10 All. Vivek Yadav & Ors. Vs. State of U.P. & Anr.
43
conferred by Section 438 Cr.P.C. Such a
construction would be in clear conflict of
the statutory mandate. The ratio of
Harendra Singh must be recognised to be
the
requirement
of
establishing
the
existence
of
special,
weighty
and
compelling reasons and circumstances
justifying the invocation of the jurisdiction
of this Court even though a wholesome
avenue of redress was available before the
Court of Sessions

D. What would constitute "special
circumstances" in light of the nature of the
power conferred, must be left to be
gathered by the Judge on a due evaluation
of the facts and circumstances of a
particular case. It would be imprudent to
exhaustively chronicle what would be
special circumstances. It is impossible to
either identify or compendiously postulate
what
would
constitute
special
circumstances.
Sibbia
spoke
of
the
"imperfect awareness of the needs of new
situations". It is this constraint which
necessitates the Court leaving it to the
wisdom of the Judge and the discretion
vested in him by statute.

E. While the Explanation may
have created an avenue for an aggrieved
person to challenge an order passed under
Section 438(1), it cannot be construed or
viewed as barring the jurisdiction of the
High
Court
from
entertaining
an
application for grant of anticipatory bail
notwithstanding that prayer having been
refused by the Court of Sessions.

17. In the present case, the applicants
have not approached this Court directly.
They had first filed an application for
anticipatory bail before the Session Court,
which has wrongly rejected the same as not
maintainable and the applicants have
thereafter approached this Court. Therefore,
the present application does not appear to
be barred by the principles laid down in
Vinod
Kumar
(Supra),
which
were
approved in Ankit Bharti (Supra).

18. As per the provision contained in
Section 438 (1) Cr.P.C., jurisdiction to
entertain anticipatory bail application vests
in the High Court or the Court of Session
only and it does not confer jurisdiction for
granting anticipatory bails to the trial court,
where the trial Court is not a Court of
Session.

19. In A. R. Antulay versus R. S.
Nayak, (1988) 2 SCC 602, a Constitution
Bench of the Hon'ble Supreme Court had
directed the High Court to try the offences
under the Prevention of Corruption Act
with which the petitioner therein was
charged and the trial was being proceeded
with, he questioned the jurisdiction of the
Supreme Court to give such a direction. A
Bench of seven judges laid down an
authoritative proposition of law that the
jurisdiction to try a case could only be
conferred by law enacted by the legislature.
The Supreme Court could not confer
jurisdiction if it does not exist in law. This
principle was followed and reiterated in
Chiranjilal Shrilal Goenka v. Jasjit
Singh, (1993) 2 SCC 507.

20. Therefore, although the Hon'ble
Supreme Court had observed that the
applicants
may
file
an
appropriate
application
for
grant
of
regular
/
anticipatory bail before the trial court /
High Court, the applicants could not have
filed an application for grant of anticipatory
bail before the trial Court, which in the
present case is the Court of the Chief
Judicial Magistrate, Lucknow, as the Chief
Judicial Magistrate has no jurisdiction to
entertain an application for anticipatory
bail.
44 INDIAN LAW REPORTS ALLAHABAD SERIES

21. The Session Court has wrongly
rejected the applicants' anticipatory bail
application on the ground that the Hon'ble
Supreme Court had provided in the order
dated 04.11.2022 that the petitioners may
file an appropriate application for grant of
regular / anticipatory bail before the trial
court / High Court and, therefore, the
anticipatory bail application was not
maintainable before the Session Court
whereas Section 438 Cr.P.C. confers
jurisdiction on the Session Court to
entertain applications seeking anticipatory
bail.

22. The anticipatory bail application
having been rejected by the Session Court,
the only option left for the applicants was
to file an application for anticipatory bail
before this Court and they have rightly
exercised this option. The preliminary
objection raised by the learned Counsel for
the informant lacks merit and the same is
rejected.

23. The informant claims himself to
be a Director and share holder of Piscesia
Power Transmission Pvt. Ltd. and he
alleged several irregularities having been
committed by the accused persons, who are
also directors and shareholders of the
company. Till 24.06.2016, the informant
Prashant Singh held 50% shares of the
company and thereafter his shareholding
was reduced to 25% and the remaining
75% shares are held by the applicants. The
informant has already filed Company
Petition No. 32 of 2021 before the National
Company Law Tribunal Allahabad. The
informant had attempted to get an order
staying a meeting of the Board of Directors
which was scheduled to be held on
11.08.2021 but the National Company Law
Tribunal did not pass any stay order. The
F.I.R. has been lodged by the informant
after having failed in the aforesaid
endeavor. The informant has filed three
more FIRs against the applicants within 24
hours.

24. The learned counsel for the
applicants has submitted that till filing of
the company petition, the informant was a
signatory to all the banking transactions.
He himself was a signatory to the
agreement executive for purchase of the
property at Mumbai and a copy of the
agreement has been annexed with the
affidavit filed in support of the application.

25. In Indian Oil Corpn. v. NEPC
India Ltd., (2006) 6 SCC 736, the Hon'ble
Supreme Court had observed that: -

"13. While on this issue, it is
necessary to take notice of a growing
tendency in business circles to convert
purely civil disputes into criminal cases.
This is obviously on account of a
prevalent
impression
that
civil
law
remedies are time consuming and do not
adequately
protect
the
interests
of
lenders/creditors. Such a tendency is seen
in several family disputes also, leading to
irretrievable
breakdown
of
marriages/families. There is also an
impression
that
if
a
person
could
somehow be entangled in a criminal
prosecution, there is a likelihood of
imminent settlement. Any effort to settle
civil disputes and claims, which do not
involve any criminal offence, by applying
pressure through criminal prosecution
should be deprecated and discouraged...."
(Emphasis supplied)

26. Dr. Mishra has relied upon the
decision
in
the
case
of
Pratibha
Manchanda and another versus State of
Haryana and another, (2023) 8 SCC 181.
10 All. Vivek Yadav & Ors. Vs. State of U.P. & Anr.
45
The appellants in that case were senior
citizens who were owners and had
possession over the land in question for
over a period of 30 years. They did not
execute a sale deed of or any power of
attorney in favour of any third party. A
person named Bhim Singh Rathi had
applied for mutation of his name in respect
of the land on the basis of a forged and
fabricated sale deed which had been
executed on the basis of a forged and
fabricated
power
of
attorney.
The
appellants claimed to be continuing in
possession of the original sale deed for the
subject land. The offending sale deed was
executed
in
the
year
2022
without
providing a PAN number. There was no
mention of the 1% amount of tax deducted
at source being deposited, which also forms
part of the requirements for execution and
registration of a sale deed. The current
market value of the land was not less than
Rs 50 crores but the sale deed executed in
2022 mentioned the sale consideration to
be merely Rs 6,60,62,500/-. The appellants
had not received even this minuscule
amount. In this factual background, the
Hon'ble Supreme Court held that " It goes
without saying that the alleged offences of
forging
documents
for
transferring
ownership of land worth crores of rupees
are grave in nature. Hence, while it is
extremely important to protect the personal
liberty of a person, it is equally incumbent
upon us to analyse the seriousness of the
offence and determine if there is a need for
custodial interrogation." The Court further
held that: -

"21. The relief of anticipatory
bail is aimed at safeguarding individual
rights. While it serves as a crucial tool to
prevent the misuse of the power of arrest
and protects innocent individuals from
harassment, it also presents challenges in
maintaining a delicate balance between
individual rights and the interests of
justice. The tight rope we must walk lies in
striking a balance between safeguarding
individual rights and protecting public
interest. While the right to liberty and
presumption of innocence are vital, the
court must also consider the gravity of the
offence, the impact on society, and the need
for a fair and free investigation. The court's
discretion in weighing these interests in the
facts and circumstances of each individual
case becomes crucial to ensure a just
outcome."

27. When we examine the facts of the
present case in light of the law laid down
by the Hon'ble Supreme Court in the
aforesaid cases, what we find is that in the
F.I.R. filed in the year 2021 the allegation
against
the
applicants
is
of
having
mismanaged the company since the year
2012. The informant has already filed a
company petition alleging mismanagement
of the company and seeking redressal of his
grievance in this regard. The allegation
regarding wrongful payment of money to a
person for purchasing some property at
Mumbai has been refuted by saying that the
informant himself was a signatory of the
agreement for purchase of the said property
and it has been contended that till filing of
the company petition the informant himself
was a signatory of all the banking
transactions.

28. The acts complained of in the FIR
are the acts which were sought to be
restrained by means of injunctions sought
from NCLT and the FIR has been lodged
after the informant's failure to obtain
injunction orders. Prima facie the conduct
of the informant in lodging four F.I.Rs.
against the applicants within a span of 24
hours appears to be an abuse of the process
46 INDIAN LAW REPORTS ALLAHABAD SERIES
of criminal justice system for achieving the
same goal for which the injunction
applications were filed before the NCLT.

29. Regarding the submission of Dr.
Mishra, that the application under Section
482 Cr.P.C. No. 9394 of 2022 challenging
the charge-sheet dated 11.04.2022 filed
pursuant to F.I.R. No. 894 of 2022 has been
dismissed by means of a judgment and
order dated 08.05.2023 passed by this
Court, commission of the alleged offence is
prima facie established, suffice it to say that
in Kamlesh and another versus State of
Rajasthan
and another,
2019
SCC
OnLine SC 1822, the High Court had
rejected the application for anticipatory bail
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 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.

30. Having considered the aforesaid
facts, particularly the facts that the dispute
between the parties is predominantly of
civil nature and a company petition in this
regard has already been filed; that the
learned Counsel for the informant has
himself submitted that the charge-sheet
already having been filed, there is no need
for the applicants' custodial interrogation;
that the applicants were granted interim
anticipatory bail by means of an interim
order dated 26.05.2023 and there is no
allegation of any misuse of the anticipatory
bail granted to them, I am of the considered
view
that
the
interim
order
dated
26.05.2023 granting anticipatory bail to the
applicants deserves to be made absolute
and the application deserves to be allowed.

31. Accordingly, the application is
allowed. The interim anticipatory bail
already granted to the applicants by means
of the order dated 26.05.2023 will continue
to remain in force during pendency of the
trial.
----------
(2023) 10 ILRA 46
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 04.10.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 2145 of 2023

Ravindranath Singh ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicant:
Akshay Kumar Singh, Paresh Mishra

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 406, 419, 420, 467, 468, 471,
506 & 120-B - Criminal Procedure Code,
1973 - Section 438 - Anticipatory Bail -
Criminalization of Civil Dispute Criminal
Misc. Anticipatory Bail Application No. 2145 of
2023 under Section 438 Cr.P.C. seeking
anticipatory bail in F.I.R. No. 464 of 2023, under
Sections 406, 419, 420, 467, 468, 471, 506, and
120-B IPC, lodged on 01.08.2023 at Police
Station Gomti Nagar, Lucknow. The informant
alleged that the applicant, Ravindranath Singh,
induced him to invest ₹2.85 crores between
05.03.2018 and 07.05.2018 for a sand mining
partnership, showing a forged Letter of Intent
(LOI)
purportedly
issued
by
the
District
Magistrate,
Jalaun.
After
discovering
the