Order On Board

06/12/2022 Heard.

1. The applicant has been arrested in connection with Crime No.1155/2022 registered at Police Station – Kotwali Thana, Raigarh, District – Raigarh (C.G.) for alleged commission of offences under Section

420, 409 and 406 of IPC.

2. Prosecution case is that the complainant lodged FIR alleging that the complainant has spent Rs.27800000/- towards repair and maintenance of rolling mill and certain amount has been paid to various business associates of the complainant as directed by the applicant which the applicant is unwilling to pay back to the complainant, thereby committed the offence.

3. Learned senior counsel for the applicant vehemently submits that it is purely a commercial dispute between the parties and the applicant has been falsely implicated just to pressurize him to settle the commercial dispute and FIR was lodged. He submits that earlier, the applicant has made complaint before the police at Raipur, in which, the police, after investigation, gave a report under Section 155 CrPC that no cognizable offence is made out. He further submits that thereafter, instead of taking legal recourse against the finding of the police at Raipur, the applicant lodged report at police station – Raigarh on 10/08/2022 at about 21:10 hrs. Relying upon the judgment of Hon’ble Supreme Court in the case of Lalita Kumari v. Government of Uttar Pradesh and ors.1, it is contended that when there is delay in lodging FIR and when it appears that the allegations leveled appears to be a commercial transaction, preliminary enquiry ought to have been conducted by the police. He submits that as soon as the complaint was lodged, the FIR was registered. Neither the compliance of directions contained in the judgment of the Supreme Court in Arnesh Kumar v. State of Bihar and anr.2 nor without following the dictum of Lalita Kumari (supra), straightway the FIR was registered. He took to various documents appended with the bail application to contend that it is merely a lease / agreement entered into between the applicant and the complainant and at the most, even assuming any offence has been committed, the police ought to have conducted preliminary enquiry. He further submits that the applicant’s company has also filed a suit for recovery before the competent Court at Raipur, therefore, it cannot be said that the applicant has committed the alleged offence. He further submits that ingredients of Section 409 IPC is not made out on the perusal of FIR. Initially, the FIR was registered under Section 406 and Section 420 IPC, which are punishable with maximum sentence of 7 years. Therefore, when the non-compliance of directions of the Supreme Court in the case of Arnesh Kumar (supra) and no notice under Section 41 of CrPC was issued, the entire proceeding is vitiated. He further goes on to submit that the applicant is in jail since 12/08/2022, investigation is complete and charge sheet has already been filed, custodial interrogation of the present applicant is not required and the offence is triable by Judicial Magistrate, 1st Class. Therefore, keeping the applicant behind the bar, would not serve any purpose. In order to buttress his submission, learned senior counsel relies upon decision of the Supreme Court in the case of Sanjay Chandra v.

1 (2014) 2 SCC 1

2 (2014) 8 SCC 273

Central Bureau of Investigation, (2012) 1 SCC 403 to contend that the applicant would face the trial and ultimately, if the applicant is found to be innocent, his pre-trial detention will jeopardize his prestige and mental status.

4. On the other hand, learned State counsel opposes bail application and submits that the allegations against the present applicant is serious in nature. He submits that the written complaint was received on 10/08/2022 and the FIR was registered on the very same day and on the next day, i.e. on 11/08/2022, the police went to Raipur in connection with the investigation and arrested the applicant. He further submits that so far as complian