Allahabad hc pre arrest bail order corrected

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Reserved on 6.4.2021
Delivered on 13.5.2021
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S
438 CR.P.C. No. - 892 of 2021
Applicant :- Vidhan Vyas
Opposite Party :- State of U.P.
Counsel for Applicant :- Shad Khan,Shishir Prakash
Counsel for Opposite Party :- G.A.,Ramesh Kumar Pandey
Hon'ble Siddharth,J.
Heard Shri Amit Krishna and Shri Shad Khan,
learned counsels for the applicant; Shri Arun Adlkha and
Sri Ramesh Kumar Pandey, learned counsels appearing
for the informant and learned A.G.A. for the State.
The instant anticipatory bail application has been
filed with a prayer to grant anticipatory bail to the
applicant, Vidhan Vyas, in Case Crime No. 133 of 2020,
under Sections- 376,323,504,506 I.P.C., Police Station-
Phase-3, Noida District- Gautam Budh Nagar.
In the First Information Report dated 28.2.2020
there is allegation that informant was employed in a
software company and she engaged the applicant, who is
an advocate, for working in her company. He gained her

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confidence and got some share certificates transferred in
his name and became director of her company despite
being a lawyer. From February 2018 he started
frequenting her house and office and they used to meet
outside also. In April 2018 they stayed at Taj
Hotel,Chandigarh. The applicant started claiming his
personal expenses also from the company. The father of
the applicant is a senior journalist and applicant started
doing entire work of company from his website. The
applicant entered into one sided agreements and caused
loss of crores of rupees to the company. Applicant gained
confidence of informant on the promise of marriage and
sexually exploited her and when she asked him to marry
her he avoided. She went to Mumbai,Nepal and Dubai
with him .In Nepal he accepted her as his wife at
Pashupati Nath temple. When she asked the applicant to
talk about the money due to her company from his father
, co-accused, Hari Shanker, he used to say that now she
is member of his family and how she can talk about the
money from his father .Applicant started beating and
harassing her and in August ,2019 she broke all ties with

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him. When she did not got payment of her company from
his father she had to stop working from website of his
father, and co-accused, Hari Shankar. Applicant was so
annoyed then he threatened her of life. He sent recovery
notice of Rs. 2.5 corers to her company and started
loose talk against her in the society. He adulterated her
drink with some material which effected her ability to
understand. He got her pregnancy aborted. On account of
influence of his father no help was given to her by her
acquaintances. It was finally alleged that applicant has
sexually exploited her and made obscene video and
threatened her to make it and her photograph viral on
internet.
Learned counsel fore the applicant has submitted
that First Information Report has been lodged after delay
of about two years. In the last week of January,2020
applicant received telephonic call from the Noida Police
that a complaint has been made by one Pooja (fictitious
name of informant.)The applicant cooperated with
investigation and police found that parties have settled
their dispute and it appears that both the parties have

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some business dispute and report was submitted on
13.2.2020 and matter was closed. The applicant being an
advocate was engaged by the company of the
informant,namely, Refundme India Services Private
Limited, Noida as legal consultant in January 2018.The
decision was taken by the informant on behalf of the
company being its Managing Director. She is managing
director of two more companies namely,Quantumsoftech
R &D Private Limited, New Delhi and AVLM Private
Limited , New Delhi.The informant is an engineer aged
about 32 years and has worked earlier as Business
Development Executive in another company and is
managing director of the aforesaid two companies and
managed huge staff of company and withdrawn
handsome salary.The company of the informant entered
into an agreement on 19.12.2017 with regard to
assistance in business in Civil Aviation Sector. The
informant also entered into an agreement with his father,
and co-accused, Hari Shanker, on 1.7.2018 regarding
presentation on the web portal developer and server
manager of City Khabhar mobile application for

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consideration of Rs. 40 lacs..The company failed to
comply the agreement and closed the website and
demand exhorbitant amount of money from his father .
On account of default on her part in execution of
agreement, applicant’s father sent two legal notices and
then instituted Civil suit at Kolkata. The applicant was
appointed as Additional Director in the company of the
informant,namely, Quantumsoftech R &D Private Limited,
New Delhi on 31.8.2018 without any salary and he
purchased 526 shares by making payment of due
consideration. Due to efforts of applicant, informant’s
company gained huge profits. When applicant realized
that informant has causing huge loss to his father by
advertising on portal of his father, he tried to extricate
himself from the company which was resisted by the
informant but ultimately on 13.8.2019 he resigned from
the company. The informant did not acted upon his
resignation sent by E-mail and behaviour on the part
sent an E-mail asking him to return the shares of
company. Thereafter present First Information Report was
lodged falsely implicating the applicant.

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Learned counsel for the applicant has submitted that
applicant has been falsely implicated in this case on
account of business dispute of the informant with him and
his father, co-accused.In the statement of the victim
under section 164 Cr.P.c. she has only stated that her
name is Akansha alias Ashu but she has changed her
name in January. Now her name is Pooja Mathur .She
claims that she met applicant on 18.12.2017 for the first
time. Thereafter they kept meeting and entered into
physical relationship. Applicant married her in Pashupati
Nath Temple,Nepal in August 2019.The applicant and his
father are threatening her.She became pregnant in 2019
and was given medicine which resulted in abortion. He
has submitted that statement of the victim under section
164 Cr.P.c. does not proves any other allegations made in
the First Information Report, except that since the year
2017-18 till August 2019, applicant entered into physical
relationship with her on the promise of marriage and has
refused to live with her.He has further submitted that
applicant has already been granted interim anticipatory
bail by this court vide order dated 21.1.2021 and he has

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not violated the conditions of the order.
Counter affidavit has been filed on behalf of the
informant wherein paragraphs of the affidavit in support
of the anticipatory bail application have mostly being
denied and stated to be based on record but no
documentary evidence have been annexed in support of
averments.The documents filed on behalf of the applicant
annexures to the bail application have been only baldly
denied. The allegations in the First Information Report
have been reaffirmed and specific objection has been
taken regarding non disclosure of source from which
applicant received copy of the statement of the victim
under 164 Cr.P.c. It is further submitted that custodial
interrogation of the applicant is required by the police.He
has not cooperated with investigation and therefore
interim anticipatory bail granted to the applicant may be
cancelled. In the counter affidavit there is no mention in
the swearing clause on what basis the averments have
been made in different paragraphs. Which paragraph is
based on personal knowledge which are on the basis of
record and which are on legal advice are not clear. The

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swearing clause of counter affidavit is blank. it is
defective and not in accordance with law,therefore it can
be ignored.
Learned A.G.A has filed counter affidavit in the same
manner without filing documents in support of the
averments. However counter affidavit has been properly
sworn.
After considering rival contentions, this court finds
that applicant has been implicated in this case on the
basis of business and personal dispute both by the
informant. It requires clear investigation by the
investigating officer regarding the correctness of the
allegation made in the First Information Report. Neither
informant nor learned A.G.A. have brought on record any
progress report of the investigation. Parties have
admitted that investigation is still going on.
The Apex Court in the case of Dhruvaram
Murlidhar Sonar Vs. State of Maharastra(2019) 18
SCC,191 has held that conscious decision of the victim to
be involved in sexual relationship with accused without
pressure or misconception on the part of the accused and

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their relationship not involving passive submissions of the
victim, offence of rape is not made out.In the case of
Shiv Shanker Vs. State of Karnataka(2019) 18
SCC,204,the Apex Court had held that long physical
relationship and living with accused informant as husband
and wife and subsequent breach of promise of marry will
not make out offence of rape.
In the present case victim clearly got involved in
sexual relationship with applicant and she also admitted
that applicant had married her later in Pashupati Nath
temple, Nepal.The allegation of marriage is admitted ,the
allegation of rape against the applicant becomes false
once marriage is admitted .In case dispute arose between
the parties after marriage it cannot be covered by
allegation of rape. The allegations regarding offence
under sections 323,504,506 I.P.C. are not proved from
any documentary evidence.The allegations regarding
business dispute between the parties is borne out from
the material on record of the anticipatory bail application
in the form of more than 15 annexures and there is no
documentary evidence on record in rebuttal of the

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same.The informant is older in age as compared to the
applicant by about five years. From the allegations in the
First Information Report itself the applicant did not
committed any physical violation of informant against
her will and without her consent.Therefore allegation of
rape is not made out against the applicant.
In view of the above, interim anticipatory bail
granted to the applicant vide order dated 21.1.2021 is
confirmed. Applicant will remain on anticipatory bail on
same terms and conditions as given in the order dated
21.1.2021 till the cognizance is taken by the court on the
police report submitted under section 173(2) Cr.P.C. and
summons issued by the court are served on him or till
3.1.2022 whichever is later, in view of the judgment of
this Court in Anticipatory Bail Application No.4002 of
2021,Prateek Jain Vs. State of U.P.
The investigating officer of the case is directed to
conclude the investigation of this case within a period of
three months positively. The findings recorded in this
order shall not be relevant for further proceedings and
are only tentative.

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The anticipatory bail application is allowed to the
extent stated above.
Order Date :- 13.5.2021
Atul kr. sri.