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Patna High Court

Mohammad Shamim Ahmad @ Md. Shamim AhmadversusThe State of Bihar

Decided
Disposal
BAIL GRANTED

Holding

The court granted anticipatory bail to the petitioners, holding that the matter is essentially a civil dispute and that bail is warranted under Section 438(2) of the Cr.P.C.

Summary

The petitioners, Md. Shamim Ahmad and Md. Jawed Alam, sought anticipatory bail fearing arrest in a criminal complaint (Sections 420, 406, 120B IPC) arising from a disputed real‑estate transaction. They alleged that the complainant had paid Rs.54 lakh for nine flats, which remained uncompleted, and that an additional Rs.30 lakh claimed by the complainant was fictitious. The petitioners offered to return the amounts via a demand draft, which the complainant refused, contending the dispute was civil in nature. The State opposed the bail, but the court found the petitioners’ claim of a civil dispute credible and noted the lack of opposition from the complainant. Consequently, the court granted anticipatory bail under Section 438(2) of the Cr.P.C., subject to bail bonds and sureties, and ordered the petitioners to be released if arrested within six weeks.

Issues considered

  • Whether anticipatory bail under Section 438 Cr.P.C. is appropriate in a case involving alleged fraud under IPC Sections 420, 406 and 120B.
  • Whether the dispute is fundamentally civil, thereby affecting the grant of anticipatory bail.
  • Whether the petitioners' willingness to return the alleged amounts influences the bail decision.

Legislation cited

Subjects

  • anticipatory bail
  • Section 438 Cr.P.C.
  • civil dispute
  • real estate fraud
  • IPC 420
  • IPC 406
  • IPC 120B
  • bail conditions

Judgment

                      IN THE HIGH COURT OF JUDICATURE AT PATNA
                              CRIMINAL MISCELLANEOUS No.72521 of 2024
                 Arising Out of PS. Case No.-5068 Year-2023 Thana- PATNA COMPLAINT CASE District-
                                                          Patna
                 ======================================================
           1.     Mohammad Shamim Ahmad @ Md. Shamim Ahmad S/o Md. Shafique
                  Alam Resident of Shahganj, P.s- Aurangabad, District- Aurangabad
           2.    Jawed Alam @ Md. Jawed Alam @ Md. Javed Alam S/o Mohammad
                 Farooq Alam R/o vill and P.O. - Obra, Distt. - Aurangabad
                                                                           ... ... Petitioner/s
                                                   Versus
           1.    The State of Bihar
           2.     Syed Nazir Jamal S/o Late Syed Khurshid Jamal R/o Dilnashin Manzil, P.O.
                  and P.S. - Phulwari Sharif, Distt. - Patna
                                                                    ... ... Opposite Party/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :     Mr. Aryan Sinha, Advocate.
                 For the Opposite Party/s :     Mr. Chandra Bhushan Prasad, APP
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
                                       ORAL ORDER
6   30-03-2026                  1. Heard learned counsel for the petitioners and

                   learned APP for the State. No one appears on behalf of the O.P.

                   No.2.

                                2. The petitioners apprehend their arrest in a case

                   registered for the offences punishable under Sections 420. 406

                   and 120B of the Indian Penal Code.

                                3. The case was earlier taken up on 19.03.2026, when

                   no one had appeared on behalf of the O.P. No.2, thereafter again

                   the case was taken up on 23.03.2026, on the said date also, no

                   one appeared on behalf of the O.P. No.2. Today also, when the

                   case is taken up, no one appears on behalf of the O.P. No.2.

                                4. The learned counsel for the petitioners submits that

                   petitioners have antecedent of one case, but then the said
Patna High Court CR. MISC. No.72521 of 2024(6) dt.30-03-2026
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          complaint case was also instituted by the side of the present

          informant. It is next submitted that informant alleges that on

          17.08.2019, the petitioners approached and told that Md.

          Shamim Ahmad had taken power of attorney from the land

          owner namely, Md. Sahad Imam to sell nine residential flats

          including its proportionate share in the land with nine reserved

          car parking in the proposed apartment namely, Mariam at the

          rate of 90 Degree at Mauza-Nohsa, District-Patna and the total

          value of the same comes to Rs.2,04,30,000/- only further relying

          on the petitioners, the complainant paid Rs.40 Lacs by way of

          an advance and an agreement to sell dated 17.08.2019 was

          executed in favour of the complainant by Mohammad Shamim

          Ahmad (petitioner no.1) in presence of witnesses, thereafter

          complainant regularly approached the petitioners for completing

          the project and to get the same registered with RERA and then

          to execute final sale deed in his favour, further complainant in

          between 06.07.2020 to 24.09.2020 paid another Rs.14 lacs,

          hence total amount of Rs.54 lacs was paid. It is further alleged

          that project was not completed but then the complainant

          received a legal notice dated 08.07.2021 sent by the petitioners

          and the same was replied by the complainant. It is next alleged

          that petitioners contacted the complainant to deposit difference
Patna High Court CR. MISC. No.72521 of 2024(6) dt.30-03-2026
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          in stamp duty of power of attorney, accordingly, the complainant

          believing the petitioners paid a sum of Rs.30 lacs, but then, the

          project has not been completed and the petitioners have

          misappropriated an amount of Rs.84 lacs paid by the

          complainant.

                       5. The learned counsel for the petitioners submits that

          petitioners have been falsely implicated in the instant case by

          the complainant. It is next submitted that petitioners do not

          dispute that they received an amount of Rs.54 lacs from the

          complainant and were ready to return the same, for which a

          Demand Draft No.509027 dated 07.08.2025 drawn on ICICI

          Bank in name of the complainant was prepared but then the

          complainant for reasons best known was not willing to accept

          the said Demand Draft which now has lapsed but then it is

          asserted and submitted that if complainant is still willing to

          receive an amount of Rs.54 lacs from the petitioners, in that

          event, the petitioners will return the said amount willingly

          without any dispute or contest.

                       6. The learned counsel appearing on behalf of the

          petitioners next submits that as far as Rs.30 lacs is alleged to

          have been paid by the complainant on account of difference in

          stamp duty of power of attorney is being alleged, the same is
Patna High Court CR. MISC. No.72521 of 2024(6) dt.30-03-2026
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          false and concocted. It is next submitted that no doubt the

          complainant is alleging that he paid Rs.30 lacs for which he

          obtained receiving of the petitioners on the back side of the

          agreement for sale but then the said signature is forged and

          fabricated. It is also asserted and submitted that whether the

          signature is genuine or not, shall be seen in the trial. It is further

          submitted that the petitioners are willing for getting the

          signature on the back side of agreement for sale with respect to

          30 lacs examined by a handwriting expert/FSL and in the event

          if it is found that the signature of the petitioners are genuine, in

          that event also the petitioners will also return an amount of

          Rs.30 lacs without any dispute or contest. It is further submitted

          that the dispute is purely civil to which a criminal colour has

          been given. It is next submitted that had the complainant been

          ready to accept an amount of Rs.54 lacs, in that event, the

          instant dispute would not have arisen but since complainant is

          alleging that he paid another Rs.30 lacs apart from Rs.54 lacs as

          such the dispute has arisen but then for the same the

          complainant could have approached a court of competent civil

          jurisdiction where the petitioners would have got a chance to

          rebut his claim but then complainant intends to put the

          petitioners under fear of arrest with an intent to coerce them into
           Patna High Court CR. MISC. No.72521 of 2024(6) dt.30-03-2026
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                     submission so that they part with the fanciful demands of the

                     complainant.

                                  7. Learned APP for the State Mr. Chandra Bhushan

                     Prasad opposes the anticipatory bail application of the

                     petitioners.

                                  8. After hearing the learned counsel for the

                     petitioners, the Court is in complete agreement with the

                     submissions made by the learned counsel appearing on behalf of

                     the petitioners, thus the petitioners, above-named, in the event

                     of their arrest or surrender within a period of six weeks from

                     today, be released on anticipatory bail on furnishing bail bonds

                     of Rs.10,000/- (Rupees Ten Thousand) each with two sureties of

                     the like amount each to the satisfaction of learned trial court

                     where the case is pending/successor court in connection with

                     Complaint Case No.5068(c) of 2023, subject to the conditions

                     as laid down under Section 438 (2) of the Cr.P.C.

                                  9. The copy of Demand Draft No.509027 dated

                     07.08.2025 drawn on ICICI Bank in favour of the complainant

                     was produced before the Court and the photo copy of the same

                     has been kept on record.
                                                               (Satyavrat Verma, J)
amit/-
U      T


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