ORAL ORDER

Learned advocate Mr.K.T.Beladiya submits that he has instructions to appear for the complainant and he will file Vakalatnama. Registry to accept the same.

1. By way of the present petition under Section 438 of the Code of Criminal Procedure, 1973, the petitioner has prayed to release him on anticipatory bail in case of his arrest in connection with the FIR registered as C.R.No.11210030240111 of 2024 registered with Mahidharpura Police Station, Surat City. 2. Learned advocate for the petitioner submits that the petitioner is innocent. He has not committed any offence. It is submitted that FIR is motivated as commercial transaction has been given colour of criminality. It is further submitted that if the FIR is taken on its face value, it appears to be business transaction whereby one has to pay back certain amount to complainant. It is further submitted that it is typical modus operadi to file FIR under section 409, 120(B) of IPC to recovery the amount which can be done only through civil suit.

2.1. In addition to above, it is submitted that the petitioner is permanent resident of Surat. He has no criminal history and investigation is complete and charge-sheet is filed against other accused and other accused are acquitted by the learned Trial Court. Considering these aspect, it is submitted to grant anticipatory bail to the petitioner, more particularly, when the petitioner is ready and willing to extend co-operation in investigation.

3. Learned Additional Public Prosecutor appearing on behalf of the respondent-State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. It is submitted that charge-sheet is filed against other accused. Present petitioner is on run. The petitioner is not available and never co- operated in investigation. Name of the petitioner is shown in column no.2 of the charge-sheet as absconding. It is also submitted that warrant under section 70 is also issued against the petitioner which indicates that the petitioner is not co- operating in investigation. It is submitted that there is iota of evidence against the petitioner. It is submitted that the petitioner started business of purchasing diamond from the complainant. Initially, given trust by paying amount in time but later on, the petitioner in connivance with other accused purchased diamonds and did not pay back the amount to the complainant. As such the petitioner has committed offence under section 409, 420 and 120(B) of IPC. Therefore, it is submitted that the petition may be dismissed.

4. Heard the learned Advocates for the respective parties and perused the papers.

5. Having heard the learned counsel for the parties, it can be notice that charge-sheet is filed against other accused. The petitioner is on run and not available and therefore, learned Trial Court has issued warrant under section 70 of Cr.P.C., which prima facie indicates that the petitioner is not co-operating in investigation. As such the petitioner is not entitled for extraordinary relief of anticipatory bail. This Court can take assistance from judgment of Hon'ble Apex Court in the case of Srikant Upadhyay and Ors. v/s. State of Bihar [2024 INSC 202], whereby, the Hon'ble Apex Court examined the issue of accused being absconding and observed as follows in para to 17 to 20 :-

“17. Section 70 (2), Cr. PC mandates that every warrant issued under Section 70 (1), Cr. PC shall remain in force until it is cancelled by the Court which issued it, or until it is executed. In this case, as noticed hereinbefore, the bailable warrants and thereafter the non-bailable warrants, were issued against the appellants. They were neither cancelled by the Trial Court nor they were executed. It is not their case that they have successfully challenged them. Sections 19, 20, 21, 174 and 174 A, IPC assume relevance in this context. They, insofar as relevant read thus:

19. "Judge".- The word "Judge" denotes not only every person who is officially designated as a Judge,