Point of Law: Issuance of Non-bailable warrant – Not justifie – Accuse not given requisite desired answers to Investigating Agency, can be no ground per se for issuance of non-bailable warrants

JUDGMENT :

Anu Malhotra, J.

1. The petitioner vide the present petition seeks the quashing of the order dated 05.01.2021 as well as the non-bailable warrants issued against him vide order dated 05.01.2021 by the Court of the learned CMM, PHC in FIR No.147/2020, PS EOW, under Sections 406/420/120B of the Indian Penal Code, 1860, whilst seeking quashing of order dated 02.03.2021, vide which the prayer made by the petitioner herein before the learned trial Court seeking cancellation of non-bailable warrants issued vide order dated 05.01.2021 was declined. The petitioner has also sought the quashing of an order dated 03.03.2021 of the learned CMM, PHC along with the process under Section 82 of the Cr.PC, 1973 issued against the petitioner in the said FIR by the learned trial Court.

2. At the outset, it is essential to observe that as regards the prayer made by the petitioner seeking quashing of the proceedings initiated vide order dated 03.03.2021, under Section 82 of the Cr.PC, 1973 in as much as the FIR in the instant case is registered under Sections 406/420/120B of the Indian Penal Code, 1860, the said provisions of law sought to be invoked by the Investigating Agency do not fall within the ambit of Section 82(4) of the Cr.PC, 1973 and thus the applicant cannot be declared a Proclaimed Offender thereunder in view of the verdict of this Court in in Manoj Tandon Vs. State in Crl.M.C.1961/2020, dated 25.11.2020 whereby there is a reference made to the verdict of this Court in Sanjay Bhandari vs. State in Crl.Rev.Pet.No.223/2018, a verdict dated 31.07.2018, the verdict of the Hon’ble High Court of Rajasthan in Rishabh Sethi vs. State of Rajasthan and Ors. in Petition No.5767/2017.

3. In view thereof, the order dated 03.03.2021 of the learned trial Court directing the issuance of process under Section 82 of the Cr.PC, 1973 against the petitioner in FIR No.147/2020, PS EOW, under Sections 406/420/120B of the Indian Penal Code, 1860 is quashed.

4. The petitioner vide the present petition has submitted that the FIR in question is maliciously instituted with motivated reasons to extort the petitioner though the matter relates to a civil commercial dispute and that arbitration proceedings in relation to the dispute are also pending. The FIR in the instant case has been lodged on the complaint of Mr. Anuj Tyagi, Authorized Representative of M/s Saya Cementation Ltd. wherein the complainant stated that Mr. Amit Mavi, Director of M/s Alisha Infratech Pvt. Ltd. and M/s Baya Weaver Ltd. had informed them that he was developing a project in Sector-129, Jaypee Greens Wish Town, Noida, UP in the name and style of ‘Oh My God’ but that he had been unable to complete the project which had been launched in the year 2013 and that till that time not more than 5% of the work including the structure had been done at the site and thus Mr. Amit Mavi proposed to transfer the shareholding of these two companies to the complainant company. A sum of Rs.350 crores was taken by the complainant as a loan from India Infoline Finance Ltd. (IIFL) and the Share Purchase Agreement dated 30.03.2020 was executed between the complainant and the accused for a total consideration of Rs.3.13 crores and the demand drafts of Rs.11.58 crores towards settlement of various litigations against Amit Mavi.

5. It has been submitted through the status report that has been submitted on behalf of the State that the given amount was paid by the complainant to the accused and after receipt of the same, a further payment of Rs.5.31 crores was made in lieu of various outstanding payments which was not part of the share holder agreement but in the interest of the project the complainant made additional payment to secure the original signed copies of various documents which Mr. Amit Mavi was required to deliver as Share Purchase Agreement, transfer slip of Demat share, transfer certificate of Alisa share, Transfer Deed of Bayaweaver Ltd. and receipts of the amount so paid in original but the acc