IN THE COURT OF HON’BLE SESSIONS JUDGE, NAGPUR

Misc. Cri. Application No. _____/2021

(Arising out of Crime No. 346/ 2019 for the offence

punishable under Sections 420,406 and 34 of IPC)

APPLICANT : Shri Ravi S/o. Madhavrao Kamble

Aged about 33 years,
R/o Santaji Apartment, Narendra Nagar,
Nagpur.

-:Versus:-

NON-APPLICANT: State of Maharashtra through

Officer In charge, Bajajnagar, Police
Station,
Nagpur.

APPLICATION UNDER SECTION 438 OF THE

CODE OF CRIMINAL PROCEDURE FOR GRANT
OF ANTICIPATORY BAIL

The applicant most respectfully begs to submit as under.

01. That the applicant is constrained to approach this Hon’ble

Court under Section 438 of the Code of Criminal Procedure,

seeking the relief of anticipatory bail as the applicant

apprehends his arrest by the non-applicant in Crime No.346 for

offences under Sections 420,406 and 34 of Indian Penal Code

registered by the non-applicant on 19.11.2019 on the strength of

complaint filed by Dilip Damu Gajbhiye, R/o Ajni Railway Quarter

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No.396, A/RB Central Railway Colony, Ajni, Nagpur (the

complainant, hereinafter). The copy of the First Information

Report filed by the complainant before the non-applicant on

19.11.2019 is placed on record. The facts and circumstances of

the case would justify the claim of the applicant that the said

complaint does not allege any overt act against the applicant.

Moreover the bare perusal of the complaint and the document in

question in the complaint would satisfy this Hon’ble Court that no

criminal offence is made out and it is only a civil dispute for

which legal remedy is available for the complainant of

approaching before the Civil court for effecting recovery for

alleged breach of contract if any between the parties.

02. It is humbly submitted that the applicant is a reputed

developer of Nagpur City and was the Director of Aim-way

Infrastructure India Private Limited. He is a permanent habitant

of the city of Nagpur and is residing in the city from past 20

years. His record as a reputed builder/developer is unblemished.

It is alleged that that complainant was is need of plot of land for

constructing house thereon for his family and therefore he

approached the Aim-way Infrastructure India Private Limited in

the year 2013 and accordingly booked Plot No.39 admeasuring

1529.43 Sq. Ft. being a portion of entire land bearing Khasra

No.75 of Mouza – Amgao, P.H. No.62, Tah. Hingna and Dist.

Nagpur (Rural). Accordingly complainant executed an Agreement

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to Sale dated 14.11.2013 with Aim-way Infrastructure India

Private Limited and at the time of execution of agreement

complainant had paid Rs.1,00,000/- on 28.10.2013 and

Rs.28,472/- on 09.11.2013 and agreed to pay remaining balance

consideration in twenty four installments of Rs.12,490/- by

13.11.2015. It is submitted that complainant after being satisfied

with aforesaid property purchased the said plot of land and

accordingly entered into an agreement to sale dated 14.11.2013.

It is submitted that complainant thereafter failed to pay the

installment as agreed by him within stipulated time period which

is evident from the contents of crime report itself. It is further

alleged that complainant paid certain amount to the Aim-way

Infrastructure India Private Limited from time to time but paid

after the expiry of time period as agreed by him. It is alleged by

the complainant that he had paid in total Rs.3,98,472/- to the

Aim-way Infrastructure India Private Limited. It is submitted that

complainant approached Shri Ravi Kamble and requested for

sale deed and hence Shri Ravi Kamble took the complainant at

the house of Original Owner i.e. Shri Sanjay Pandey of Kh. No.75

and requested him to execute sale of said plot of land in favour

of complainant and accordingly paid Rs.1,00,000/- to the Original

Owner I.e. Sanjay Pandey. However, Sanjay Pandey had returned

the said amount to the complainant. Hence looking to the fact

complainant requested Shri Ravi Kamble to either execute sale

deed of said plot of land or return the amount, so the

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complainant and Shri Ravi Kamble executed one ‘Kararit

Rakkam Parat Karnyacha Kararnama’ (Agreement Returning

Amount) on 12/09/2018 in which Shri Ravi Kamble was agreed

to return the alleged amount of Rs 4,98,000/- to the complainant

towards the Agreement Of sell of Plot No.39 adm land 1529.43sq

ft. The agreement of sell dated 14/11/2013 came to be ceased

after the execution of this kararnama. Later on 21/11/2018 Shri

Ravi Kamble has returned 50% of the alleged amount i.e. Rs

2,49,000/- by way of DD to complainant and issued a post dated

cheaque of remaining 50% of the amount i.e. Rs 2,49,000/-. That

last year situation of covid-19 pandemic was helarious everyone

was suffered lots of financial crises. “In february itself Finance

Ministry clairifed that disruption in supply chain due to spread of

coronavirus qualifies as a force majeure event”. covid-19 is a

force majeure event and still the sitauation is very critical. That

the applicant is never of the intention of cheat and fraud but his

hands were tied due to the current sitaution. Accordingly when

Shri Ravi Kamble failed to return the amount to the complainant

he filed present complaint against him for not executing sale

deed of said plot of land and also for not returning the alleged

amount paid by him. It is submitted that thereafter on the basis

of said complaint investigation got started and on 11.12.2020.

Non-applicant has filed charge sheet bearing No.104/2020 with

the Hon’ble Judicial Magistrate First Class, Court No.5, Nagpur.

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03. It is submitted that non-applicant without arresting the

applicant had completed the investigation and filed charge sheet

and therefore as the investigation is over hence it is a fit case to

grant pre-arrest bail to the applicant as custodial investigation of

applicant is not required. The material filed alongwith charge

sheet and also the statement recorded by the investigation

officer clearly demonstrate that in no manner criminal offence is

made out which is evident from the fact that during investigation

non-applicant was of the clear view that case in hand is of the

nature of civil dispute and complainant must approach before

the civil court for obtaining suitable order. Thus, it is crystal clear

that in no manner the offence under IPC is made out and the only

remedy available with complainant is to approach before the civil

court seeking recovery of amount. Moreover, the material

available on chargesheet itself shows that as Agreement to Sell

dated 29.10.2012 executed by Shri Sanjay Ramvilas Pandey, Shri

Harswardhan Suryabanji Gawande, Shri Devendra Ramsundar

Shukla and Shri Manoj Nanku Yadav in favor of applicant

regarding sell of Plot Nos.5, 6, 11 to 14, 22 to 27, 36 to 42 out of

the layout carved out in land bearing Kh. No.75 of Mouza –

Amgao, P.H. No.62, Tah. Hingna and Dist. Nagpur had been

cancelled/revoked by the parties on mutual terms as applicant

and Shri Ravi Kamble failed to pay entire amount of

consideration and therefore in view of said fact Shri Ravi Kamble

had executed ‘Kararit Rakkam Parat Karnyacha Kararnama’

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(Agreement of Returning Amount) under Agreement to Sale

dated 14.11.2013 in favour of complainant and same was

executed on 12.09.2018 and in terms of said agreement dated

12.09.2018 Shri Ravi Kamble had agreed to return the

consideration amount received by the company towards sell of

plot no.39 from complainant. It is submitted that said agreement

dated 12.09.2018 was duly signed by both the applicant as also

by complainant and therefore as there are written contracts

between parties and when complainant is well aware about each

and every aspect of the transaction therefore no case under

aforesaid provisions of IPC is made out as there exist no element

of cheating or fraud and the only thing which exist is the, non-

contravention/breach of contractual liability on the part of

applicant and therefore on this count alone applicant be released

on anticipatory bail as nowhere applicant has any intention to

cheat his customer as much as complainant.

04. That in view of above stated facts and circumstances as

also the fact that investigation is over and charge-sheet is filed it

is humbly submitted before this Hon’ble court to grant pre-arrest

bail to the applicant . It is submitted that the co-accused is

already granted bail vide order dated 03/04/2021 in [Link] App

No. 1000/2021. That the applicant is ready and willing to

cooperate with the investigation if any, and shall remain present

before the Hon’ble court as and when it is directed for evidence.

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It is further submitted that in case of arrest of the applicant, his

reputation, good-will and standing in society will be tarnished

forever. It is respectfully submitted that the applicant is peace

loving and law abiding citizen. The applicant has not committed

any criminal offence and on the contrary non-applicant has

investigated in the matter by imposing penal provisions of IPC

despite being well aware that the case is of civil nature.

05. It is humbly submitted that the applicant is a permanent

resident of Nagpur City. He is a reputed builder as well as a law

abiding citizen. He has no criminal antecedents and has not been

convicted of any criminal offence before. No criminal case has

ever been registered or pending against the applicant. A bare

perusal of the complaint will make it clear that no case is made

out under section 406, 420 and 34 of IPC on the contrary the

concerned officer in charge himself was of the opinion that case

is of civil nature and complainant ought to have approach before

the civil court for effecting recovery of his amount and there is

absolutely no material on record to show that applicant has ever

defrauded the complainant and was having any ill – intention to

cheat complainant as was himself aware about each and every

transactions which was arising out of a written agreement which

was executed by applicant in favour of complainant and as

applicant did not perform his part of contract hence applicant

agreed to return consideration amount and therefore the only

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question involved is of fulfillment of contractual obligation. The

applicant is the permanent resident of Nagpur City and there is

least chance of fleeing away from the hands of justice. The

applicant undertakes to abide by the conditions imposed by this

Hon’ble Court while granting the relief.

06. It is submitted that the applicant being a man from a

respectable family, he has an apprehension that the non-

applicant will arrest him on the basis of alleged complaint filed

by complainant. The applicant respectfully submits that the

applicant has made out a strong case for grant of relief of

anticipatory bail in as much as the allegations made in the

complaint are not made out and is of civil nature which had been

already confirmed by officer concerned. Hence it is a fit case to

protect the applicant by granting anticipatory bail otherwise the

applicant would be put to an irreparable loss and very purpose of

filing of this application would be frustrated.

07. The applicant craves leave of this Hon’ble Court to rely

upon and refer to the contents made in the main complaint and

also the charge-sheet filed by investigation officer at the time of

hearing of this application.

08+. The applicant declares that the applicant has not moved

this Hon’ble Court or the Hon’ble Supreme Court of India in the

present matter at any time hereinbefore.

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PRAYER: It is, therefore prayed that this Hon’ble Court

be pleased to :-

i) grant the relief of anticipatory bail

directing that in the event of arrest of the

applicant in Crime No.346/2019

registered by the non-applicant for

offence punishable under sections

406,420, 34 of IPC., the applicant be

released on bail on such terms and

conditions deemed fit by this Hon’ble

Court in the facts and circumstances of

the case.

ii) during the pendency of this application

direction be issued to the non-applicant

that in the event of arrest of the

applicant in Crime No.346/2019

registered by the non-applicant for

offence punishable under sections

406,420 and 34 of IPC., the applicant be

released on bail on such terms and

conditions deemed fit by this Hon’ble

Court in the facts and circumstances of

the case.

iii) grant ad-interim relief in terms of prayer

clause (ii) above if need arises.

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iv) Grant any other relief, which this Hon’ble

Court deems fit in the facts and

circumstances of the case.

NAGPUR

DATED : COUNSEL FOR APPLICANT

(AMIT BHATE)