Chetan vs State

Chander Shekhar, J

CRL.M.A.43104/2019 (for exemption)

Allowed, subject to all just exceptions. Application stands disposed of.

Bail Appn. No.3134/2019

This is an application filed under Section 438 of the Code of Criminal Procedure, 1973(Cr.P.C) by the petitioner for the grant of anticipatory bail.

The case of the prosecution, as noted by the Trial Court in its order dated 24.10.2019, is as under:

The complainant lodged an FIR No.250/2019, alleging that the accused Kanhiya Lal approached him for the sale of the property bearing house No.68, Samrat Enclave, Pitam Pura and in this regard, an MoU dated 21.5.2018 was executed between accused Kanhiya Lal and Vikas Goyal, wherein it was agreed that the accused Kanhiya Lal was to have upper ground floor and first floor and the complainant was to have second floor and third floor, with roof rights of the above said property.

The total sale consideration amount of the property was Rs.2,05,00,000/-, out of which Rs.20,00,000/- were paid by way of cheque of even date and Rs.5,00,000/- were paid in cash to the accused Kanhiya Lal and the remaining Rs.1,80,00,000/- were to be directly paid in favour of the bank against the loan taken by the accused Kanhiya Lal on 30.8.2018.

On further inquiry, it was revealed that the total loan amount was Rs.3,00,00,000/-. On this, the complainant asked the accused Kanhiya Lal to return the money, which he had given as the bayana amount to the accused Kanhiya Lal. The accused Kanhiya Lal stated that he was not in a position to pay the bayana amount. Thereafter, the MoU dated 21.5.2018 was amended in continuation of the same on 11.6.2018, wherein it was agreed that the complainant will take the ownership of upper ground, second and third floor, with roof rights. It is alleged that both the earlier MoU and the amended MoU were signed by the petitioner as witness and both the MoUs bear the thumb impression of the co-accused Kanhiya Lal.

It is also alleged that another son of Kanhiya Lal, namely, Deep Chand filed a civil suit in Rohini Courts, bearing No.875/18 and sought injunction in respect of the suit property. It is further stated that the complainant had paid a sum of Rs.60,00,000/- to the accused Kanhiya Lal and complainant was not ready to make further balance payment and demanded his money back, but the accused Kanhiya Lal was not in a position to return the money to the complainant. Finding no alternative, Kanhiya Lal requested the complainant that he was ready to surrender his balance share, which was worth Rs.1,00,00,000/- in the suit property, if the complainant would pay the total balance amount of loan and would arrange one suitable accommodation for his son Deep Chand.

The complainant, finding no alternative, was ready to give his one property, worth Rs.1,25,00,000/-, which was situated in Mansarover Garden and it was agreed between the parties that the accused Kanhiya Lal and his son shall pay only a sum of Rs.22,00,000/- against the Mansarover Garden property and rest Rs.1,00,00,00/-, which was the balance share amount in the property, shall be adjusted against the balance share of the accused Kanhiya Lal in the above said property.

It is stated that, on 4.8.2017, one Compromise-cum-Settlement Deed was executed between Kanhiya Lal and his son with the complainant, whereby Kanhiya Lal sold the entire suit property to the complainant and the matter was settled in the Mediation Cell and it was agreed that Kanhiya Lal will himself go to the bank and receive the original documents of the title.

It is also alleged that the accused Kanhiya Lal had relied upon forged MoU dated 21.5.2018, which he had also used in civil suit to the detriment of the complainant, in which there are no witnesses, whereas the MoU dated 21.5.2018 was executed formally on a stamp paper, whereas the MoU of the same date was on a plain paper.

Learned counsel for the petitioner submitted that the petitioner is having no role in the offence and nothing is to be recovered from the petitioner. Even otherwise, the main accused, Kanhiya Lal has already been granted bail by the Trial Court vide order dated 19.10.2019, just two days after his arrest and there is nothing incriminating on the record against the petitioner.

I deem it appropriate to reproduce the relevant paras of the order dated 24.10.2019 of the Trial Court, whereby the anticipatory bail application of the petitioner was dismissed, which read as under:

"Since the allegations against the accused are grave and serious in nature, as the allegations are that forged MOU dated 21.05.2018 was made by the co-accused Kanhiya Lal in connivance with his son and other persons and it is also argued that there was no need for the MOU dated 21.5.2018 when the first one was executed on the stamp paper of the same date. It is also alleged that no consideration amount has been mentioned in the said forged collaboration agreement and the signatures of complainant have been allegedly forged on it by the co-accused Kanhaiya Lal in conspiracy with the present accused. It is also alleged that the signatures of the present applicant appears as a witness on the original MOU dated 21.05.2018 and supplementary MOU dated 11.6.2018.

Since the tentacles of forged MOU is to be worked out and the exact role of the present applicant in the conspiracy is also to be worked out, for which his custodial interrogation would be required including the unearthing of the original alleged forged MOU. Considering the overall facts and circumstances and the nature of grave and serious allegations, no ground for anticipatory bail is made out at this stage. The application stands dismissed."

Learned APP pointed out that the Memorandum of Understanding (MoU) dated 21.5.2018 was executed between Kanhiya Lal and Vikas Goyal and submitted that the petitioner is one of the signatories to the aforesaid MoU as well as to the bayana receipt.

Learned counsel for the petitioner, on the query of the Court, admitted that the MoU dated 21.5.2018 bears the signatures of the petitioner, however, it is not the said document which was taken into consideration by the prosecution and as such the same was not a forged document.

Anticipatory bail may be granted when there is material on record to show that prosecution was inherently doubtful or where there is material on record to show that there is a possibility of false implication. However, when the element of criminality is involved and/or the custodial interrogation is required and/or the other aspects and facts are required to be unfolded in investigation, the applicant is not entitled for anticipatory bail.

It is a well-settled law that while considering the question of grant of anticipatory bail, the Court prima facie has also to look into the nature and gravity of the alleged offence and the role of the accused. The Court is also bound down and must look into, while exercising its power to grant bail, the antecedents of the applicant and also the possibility of the applicant fleeing from justice, apart from other factors and parameters in view of the facts of each and every case.

The Supreme Court in the matter of Dr. Subhash Kashinath Mahajan v. State of Maharashtra & Anr., in Criminal Appeal No.416/2018, decided on 20.3.2018, held as under:

"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused's likelihood to repeat similar or other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

Learned APP submitted that the MoU dated 21.5.2018 is a forged document and the original forged document has still not been recovered and the system through which it was prepared is also to be worked out.

The petitioner has claimed parity with the accused Kanhiya Lal, stating that the accused Kanhiya Lal has already been granted bail by the Court, but the scope of Sections 438 and 439 Cr.P.C is entirely different and both the Sections attract different principles. Hence, the petitioner cannot claim parity with the accused Kanhiya Lal.

The MoU dated 21.5.2018 was allegedly forged by the accused Kanhiya Lal in conspiracy and connivance with his son and other persons. It is also the case of the prosecution that there was no need for the MoU dated 21.5.2018 when the first one was executed on the stamp paper of the same date. It is also stated by the learned APP that no consideration amount has been mentioned in the said forged collaboration agreement and the signatures of the complainant have been allegedly forged on it by the co-accused Kanhiya Lal in conspiracy with the present accused. It is alleged that the petitioner has signed as a witness on the original MoU dated 21.5.2018 and the supplementary MoU also. It is also the case of the prosecution that the forged MoU dated 21.5.2018 has been executed and the fact that the loan amount was more than Rs.3,00,00,000/- on the property in question, was concealed from the complainant. The allegations against the petitioner are stated to be grave and serious in nature. In this case, the material on record, prima facie does not, in any manner, reflect that the prosecution is inherently doubtful or there is a possibility of false implication. The indispensable element of criminality is positively involved in the present matter.

Taking into consideration the nature and the gravity of the offence, the alleged role of the petitioner in the commission of the offence, the severity of the punishment, the possibility to repeat similar or other offences and impact on the public in case the anticipatory bail is granted to the petitioner as well as the fact that the MoU dated 21.5.2018 is alleged to have been forged by the co-accused, which is stated to have been signed by the petitioner as a witness, the custodial interrogation of the petitioner, is required to unearth the conspiracy to know, how this MoU dated 21.5.2018 was executed and also to iron out the exact role of the petitioner in the conspiracy. Even otherwise, there is nothing on the record to satisfy this Court, at this stage, that there are grounds, or more to say reasonable grounds, for granting anticipatory bail to the petitioner. Hence, this Court does not find any merit in the anticipatory bail application of the petitioner.

Accordingly, the anticipatory bail application is dismissed.

It is clarified that whatever is discussed or observed hereinabove is only a prima facie view of this Court and shall not tantamount to any expression or opinion on the merits of the case.