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Shankar Mahto vs The State Of Jharkhand And Anr on 29 June, 2017


A.B.A. No.472 of 2017
Shankar Mahto …… Petitioner
1. The State of Jharkhand
2. Induslnd Bank …… Opposite Parties
For the Petitioner : Mr. S.K.Verma, Advocate
For the State : APP
For the O.P. No.2 : Mr. K.P.Deo, Advocate
C.A.V. on 20.06.2017 Delivered on …../06/ 2017

Heard learned counsel for the petitioner, learned counsel for the
learned Addl. P.P.

The petitioner is apprehending his arrest in connection with Baghmara
P.S. Case No. 95/2016 corresponding to G.R. No. 3643/2016, the case
registered under Sections 341/323/406/420/403/120B of the Indian
Penal Code.
The prosecution case in short is that the complainant is a banking
company and is being represented by its Attorney Holder Sri Amit
Kumar Dey, who had filed a Complaint Case No. 1911/2016 in the
court of S.D.J.M.,Dhanbad against the petitioner and one Haradhan
Modak u/s 156(3) of the Cr.P.C. On the basis of the aforesaid complaint
Baghmara P.S. Case No. 95/2016 under Sections 341/ 323/ 406/
420/ 403/ 120B of the Indian Penal Code was instituted against the
petitioner-Haradhan Modak.
It is alleged that the petitioner-Shankar Mahto approached the
bank for taking loan for purchase of one EICHER TERRA 16 HDR (16
TON GVW TIPPER) and the said Haradhan Modak accepted to become
the co-borrower/Guarantor for the said loan. On 18.10.2012 an
agreement was executed between the bank and the petitioner and an
amount of Rs.29,14,000/- was sanctioned to the petitioner (i.e.
Rs.22,00,000 as Principal loan amount, Rs.5,94,000/- as interest and
Rs.1,20,000/- as the insurance amount) on the condition that
petitioner will pay the loan amount in 48 installments till 07.09.2016. It

is further alleged that petitioner had paid some installments but failed
to pay the rest amount and till 09.06.2016 the current due amount is
Rs.17,70,916.68/- and the total due amount is Rs.19,56,916.68.
Thereafter the complainant sent legal notice to the petitioner on

, 07.04.2014, 15.09.2015 and 28.06.2016 but the petitioner
did not repay the due amount. It is further alleged that the complainant
came to know that the petitioner has sold the vehicle to some unknown
person. It is further alleged that when the complainant went to the
house of the petitioner on 09.07.2016 and demanded for payment of
monthly rent of the vehicle and to produce the vehicle, the petitioner
abused them and threatened with dire consequences. Hence, this case
has been instituted.

Learned counsel for the petitioner while pressing the bail
application has submitted that it is not a case where petitioner has not
paid the loan amount to the complainant, rather petitioner has paid
some installments of the loan amount but subsequently failed to pay
further installments and has become defaulted. It was submitted that
in terms of the agreement the complainant has invoked the provisions
of arbitration clause at Madras and an amount of Rs. 22,08,072/- was
awarded against the petitioner. The O.P. 2 had filed Execution Case
no.237/2015 before the Civil Judge( Sr. Division) No.1 Dhanbad which
was dismissed in view of order dated 17.08.2015 passed in WPC
No.3998/2013 and the execution proceeding was dropped.

So, it was further submitted that since complainant has already
invoked Arbitration Clause, no case is made out against the Petitioner.
Hence, petitioner deserves anticipatory bail.

Learned Add.P.P and the learned counsel appearing for the
O.P.No.2 have appeared and opposed the prayer for bail of the
petitioner and submitted that a case of defalcation is made out against
the petitioner in view of the fact that the petitioner has filed a First
Information Report being FIR No. 144/2014 under Section 406 IPC
alleging therein that he had given his vehicle to one Satish Kumar Modi
on monthly hire basis of Rs.1,30,000/- but when monthly rent was
stopped and the petitioner inquired about his vehicle ,he could not
found his vehicle . The police after investigation has submitted final
form no. 220/2015 dated 16.06.2015, so under order dated 28.01.2016

the SDJM, Dhanbad has accepted the final form as the petitioner has
not filed any objection disputing the fact. Hence petitioner does not
deserve anticipatory bail.

After hearing the parties and going through the admitted fact that
the O.P. No.2 has invoked arbitration clause at Madras where award
was passed, in my view it is a fit case for grant of bail to the petitioner.

Considering the fact and circumstances of the case, the above
named petitioner is directed to surrender in the Court below within
Four Weeks from the date of this order and in the event of his arrest or
surrender, the Court below shall enlarge the above named petitioner, on
bail, on furnishing bail bond of Rs. 10,000/- (Rupees ten thousand)
with two sureties of the like amount each to the satisfaction of
S.D.J.M.,Dhanbad, in connection with Baghmara P.S. Case No.
95/2016 corresponding to G.R. No. 3643/2016, subject to the
conditions as laid down under Section 438(2) of the Cr.P.C., subject to
the further condition that one of the bailors must be the local resident
of Dhanbad district.

( Anant Bijay Singh, J.)

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