IN THE HIGH COURT OF JUDICATURE AT PATNA 1. Cr.Misc. No.44720 of 2009 AJAY KUMAR SINGH @ MADAN SINGH,son of Late Shrawan Dhari Singh,resident of village- Mustafapur,P.S.-Khagaul,District-Patna ……… …… …… ……… Petitioner Versus THE STATE OF BIHAR ……… Opposite Party with 2. Cr.Misc. No.41336 of 2009 UPENDRA KUMAR,s/o Sri Krishna Mahto,r/o- Mohalla-Gola Road,near St.Karens School, P.S.-Danapur(now Rupaspur),District-Patna ……… ……… …… ……… Petitioner Versus THE STATE OF BIHAR ……… Opposite Party with 3. Cr.Misc. No.21000 of 2009 ARVIND KUMAR,son of Sri Ram Krishna Bhagat,resident of Mohalla-Saguna,P.S.- Danapur,Dist.-Patna ……… Petitioner Versus THE STATE OF BIHAR ………… Opposite Party ----------- 03/ 16-04-2010 All the petitioners have filed this batch of criminal miscellaneous petitions seeking anticipatory bail under Section 438 of the Code of Criminal Procedure in connection with Khagaul P.S. Case No.29 of 2009 dated 14-03-2009, registered under Sections 420, 408, 467, 468, 471 and 120B of the Indian Penal Code. Since all the petitioners are accused in one and common police station case, referred to above, therefore, their petitions have been heard together for convenience and present order shall govern all the cases. According to prosecution case, as disclosed in the FIR vide Annexure-1, D.A.V. College Trust and Management Society, Chitragupta Road, New Delhi (hereinafter to be referred to as `the 2 Management Society’) has been defrauded huge amount of Rs.4.20.90,953/- (Rupees four crore twenty lac ninety thousand and nine hundred fifty three) by the accused persons including the petitioners in the name of transfer of lands for extension of D.A.V. Public School, Cantt Road, Khagaul as also D.A.V. Public School, Shashtri Nagar in the town of Patna. The Management Society was in need of five acres of land for extension of D.A.V. Public School, Cantt Road, Khagaul as also D.A.V. Public School, Shashtri Nagar. Accused Upendra Kumar (petitioner in Cr.Misc.No.41336 of 2009) and accused Arvind Kumar (petitioner in Cr.Misc.No.21000 of 2009), on coming to know about the need of five acres of land, contacted the then Regional Director Late N.D.Grover and the then Principal, Late U.K.Rai, D.A.V. Public School, Cantt Raod, Khagaul, and they assured them to provide the required lands at Mauza- Mustafapur at the rate of Rs.2,50,000/- (Rupees two lac and fifty thousand) per Katha. The then Regional Director and the then Principal, because of past transaction with accused Upendra Kumar and his father, believed the statement made by the aforesaid two accused persons, and granted permission for purchase of the land from different farmers. Subsequently, 17 sale deeds were executed by different persons in favour of the Management Society with respect to several plots of land including Plot Nos.154 and 155. Accordingly, total consideration amount of Rs.4,20,90,953/-(Rupees four crore twenty lac ninety thousand and nine hundred fifty three) was paid. When the informant and other personnel of the Management Society wanted to erect boundary wall on the lands purchased by them, 3 then several farmers raised strong protest and claimed that, in fact, they have not executed sale deeds transferring the lands in question either in favour of the Management Society or in favour of any body else. Thereafter, the informant learnt that accused persons including the petitioners have entered into conspiracy for cheating the Management Society, and by committing forgery; accused persons executed the fake sale deeds by pasting fake photographs of fake owners in place of real owners of the lands in question. I have heard Mr. Pankaj Kumar Sinha, learned counsel appearing for the petitioner Ajay Kumar Singh @ Madan Singh, Mr. Jagnnath Singh, learned counsel appearing for the petitioner Upendra Kumar, and Mr. K.N.Choubey, learned senior counsel appearing for the petitioner Arvind Kumar at length. I have also heard Sri Dashrath Mehta, learned Additional Public Prosecutor for the State as also Mr. Bindh Keshari Kumar, learned senior counsel appearing for the informant. It was submitted by Mr. Pankaj Kumar Sinha that petitioner Ajay Kumar Singh @ Madan Singh is merely an identifier of the sale deeds executed by Dukhan Singh and he has not been benefitted in any manner by the aforesaid transactions. He further submitted that there is no other material to connect this petitioner with the offence in question. Mr. Jagnnath Singh, learned counsel appearing for the petitioner Upendra Kumar submitted that though the prosecution case has been launched for cheating and committing criminal breach of trust 4 with respect to Rs.4,20,90,953/- only, whereas by referring to alleged admission made by accused Arvind Kumar at page 49 of the brief assurance was taken by the prosecution party for refund of Rupees 4 crore 75 lac. Accused Arvind Kumar is said to have given in writing on 06-01-2009 that he along with accused Upendra Kumar got the forged sale deed prepared by setting up fake persons and received the entire amount through cheques. By the aforesaid letter dated 06-01-2009 it was promised that petitioner Arvind Kumar and petitioner Upendra Kumar shall return rupees 4 crore 75 lac to the Management Society. Mr. Singh further contended that, according to the finding of Dy.S.P. in his supervision note, petitioner Upendra Kumar was identifier with respect to only five sale deeds. He further pointed out that even the conduct of the informant and some of the members of the prosecution party were not above board. According to him, when the lands were purchased from different farmers, then one fails to understand as to why such a huge amount in crores was paid to only two accused persons, who at best were working as brokers for purchase of the lands in question. He further highlighted that, as a matter of fact, the informant and the Principal have also taken share in the booty by taking certain percentage from the entire transactions and, therefore, they ought to be put in the category of accused. He refuted the alleged undertaking given by the petitioner Arvind Kumar for returning the entire amount. However, according to him, his client was prepared to return Rs.17,50,000/- only in installments. Mr. K.N.Choubey, learned senior counsel appearing for 5 the petitioner, Arvind Kumar, submitted that, in fact, his client had received only an amount of Rs.14,72,000/- for purchase of stamp papers for getting the sale deeds executed and, therefore, according to him, his client was ready to return the aforesaid amount in installments. He submitted that the undertaking dated 06-01-2009 allegedly given by petitioner Arvind Kumar, was obtained by the prosecution party under certain duress and, therefore, that has got no evidentiary value. He has disowned the liability with respect to the entire amount, which is the subject matter of criminal breach of trust and cheating. According to him, petitioner Arvind Kumar is a witness of sale deeds, but he is not the identifier of any of the executants. In support of their submissions, learned counsels appearing for the petitioners referred to certain paragraphs from the case diary and also referred to supervision note of Dy.S.P. Mr. Dashrath Mehta, learned Additional Public Prosecutor appearing for the State as also Mr. Bindh Keshari Kumar, learned senior counsel appearing for the informant have strongly opposed the prayer made on behalf of the petitioners and have submitted that in view of the nature of allegations and in view of involvement of more than four crore, petitioners are not entitled to have the privilege of anticipatory bail. It was also submitted that huge money has been cheated by the petitioners Upendra Kumar and Arvind Kumar besides other. They have taken the cheques in the name of different vendors, who all were the fake persons and thereby they have committed criminal breach of trust. With respect to petitioner Ajay Kumar Singh 6 @ Madan Singh it was submitted that because of his wrong identification Rs.16,08,000/- (Rupees sixteen lac and eight thousand) was paid to a fake person, therefore, he is also party to the entire conspiracy. By referring to a judgment of the Apex Court in the case of Sunita Devi Vs. The State of Bihar & Anr. reported in 2005(2) BBCJ 119, learned counsel for the informant submitted that petitioners were not entitled to refer any finding recorded by the Supervising Officer, as the same was a confidential document and the matter is still under investigation. According to him, this clearly shows that the accused persons including the petitioners are trying to influence the Investigating Agency as also Supervising officer for getting some finding of facts recorded in their favour. Having considered the rival submissions referred to above, it is apparent that petitioners after having committed criminal conspiracy with other co-accused persons, have committed offence of criminal breach of trust and cheating with respect to huge amount of more than four crore rupees and there are ample materials available on record showing the complicity of the petitioners for committing the crime in question. Therefore, they are not entitled to have the privilege of anticipatory bail. The prayer for anticipatory bail made on behalf of the petitioners is hereby rejected. The petitioners must surrender in the court below within a period of four weeks from today and, if so advised, seek regular bail, which may be disposed of on its own merit. Before parting with the order, I must indicate that the 7 conduct of the informant and the Principal of the D.A.V. School in question appears to very much suspicious. If the lands were being purchased from different farmers, they were not required to make payment of such huge amount to only petitioner Upendra Kumar and petitioner Arvind kumar. The consideration money could have been paid to the individual farmers by separate cheque. Therefore, the conduct of the informant and the Principals of the schools in question of the present case require investigation by the Investigating Agency to find out as to whether they were also a party of the conspiracy for gobbling such a huge amount of money. AH/ ( Birendra Prasad Verma, J.)