Patna High Court
Mohammad Shamim Ahmad @ Md. Shamim AhmadversusThe State of Bihar
- Decided
- Disposal
- BAIL GRANTED
- Bench
- SATYAVRAT VERMA
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
- Code of Criminal Procedure, 1973 — s. 438(2)
- Indian Penal Code — s. 120B, 406, 420
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
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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
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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
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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
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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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