Devendra Gupta and Another vs State and Others

R. Regupathi, J.—The petition in Cri. O. P. No. 10702 of 2009 was filed by the accused/petitioners in Cri. O. P. No. 14278 of 2008

seeking anticipatory bail in respect of a case registered against them on the file of the CCB, Chennai, with the allegation that the petitioners, who

are husband and wife, received a sum of Rs. 1 crore from the de facto complainant/brother of the first petitioner and, along with the contribution

made by their mother, purchased a property measuring 7 grounds in Egmore, Chennai, for Rs. 3.45 crores and, after such purchase the property

was clandestinely settled in the name of the first petitioner''s wife i.e., 2nd petitioner, who in turn sold it to a third party for Rs. 20 crores and the

due share of the de facto complainant was not given; thereby, he was cheated. This Court, by order dated 23-6-2009, granted anticipatory bail by

imposing certain conditions including the one for deposit of title deeds of property worth Rs. 25 lakhs by each of the accused, standing either in

their respective names or in the name of third parties. Two week time was granted for execution of bond and production of documents. Under

such circumstances, M. P. No. 1 of 2009 in Cri. O. P. No. 10702 of 2009 has been filed on 15-7-2009, seeking for modification of the condition

pertaining to deposit of title deeds and the learned Counsel, expressing inability on the part of the petitioners to furnish title deeds of property worth

Rs. 25 lakhs, submits that the 2nd petitioner is a cancer patient and that the condition in question being onerous, the same should not have been

imposed having regard to the facts and circumstances involved.

Per contra, learned Government Advocate, by pointing out that investigation in the case that was registered on 19-6-2009 as Crime No. 261 of

2009 is still pending, submits that, because of the relief granted in favour of the petitioners, the investigation could not proceed, for, they are not

co-operative throughout and further, after obtaining an order in their favour, in parallel, the petitioners have filed Cri. O. P. No. 14278 of 2009 to

quash the FIR pertaining to Cr. No. 261 of 2009, and while admitting the petition, interim stay was ordered, therefore, the respondent police are

not in a position to proceed further with the investigation.

The de facto complainant/3rd respondent in Cri. O. P. No. 14278 of 2009 has preferred M. P. No. 3 of 2009 in Cri. O. P. No. 10702 of

2009 for cancellation of the relief of anticipatory bail granted in favour of the accused and the learned Senior Counsel appearing for him submits

that the present petition is nothing but a mode devised by the accused to protract the proceedings and to see that the complaint given to the

respondent police is somehow closed to the favour of the accused. He points out that a petition in Cri. O. P. No. 9782 of 2009 was filed and this

Court, on being satisfied that a cognizable offence has been made out against the accused, issued a positive direction to the respondent police to

register a case and investigate into the same. Only under such circumstances, the complaint was taken on file against the accused and considering

their plea for anticipatory bail, relief was granted in Cri. O. P. No. 10702 of 2009 by imposing certain conditions. After getting favourable orders

from this Court, the petitioners have moved the application for modification only to gain some more time for non-compliance of the conditions and

equally to cripple the investigation which course, if allowed, would greatly prejudice the interests of the de facto complainant. According to him,

only with such intention, alternatively, they have come up with the petition in Cri. O. P. No. 14278 of 2009 to quash the proceedings pertaining to

Cr. No. 261 of 2009; therefore, this is a fit case for cancellation of the relief of anticipatory bail granted in favour of the accused/ petitioners.

The petitioners/accused have preferred Cri. O. P. No. 14278 of 2009 to quash the proceedings in Crime No. 261 of 2009 and, by submitting

that there was inordinate delay in initiating the criminal case, for, as evident from the telegram dated 4-6-2002, the dispute amongst the brothers

arose even during 2002 and if really, the de facto complainant was defrauded in the transaction involving crores of rupees, he would have instantly

proceeded against the petitioners and the laxity with which the complaint came to be given may have to be taken note of; that the sources and

mode for contributing Rs. 1 crore have not been enumerated; that, on the same set of facts and allegations, suits have been filed wherein the

mother is also taken as a party and it is alleged therein that the contribution by the de facto complainant is only Rs. 25 lakhs; that pending

proceedings in the suit, a compromise has been arrived at whereunder the de facto complainant is agreed to have received Rs. 25 lakhs; that the

mother also filed a suit against the de facto complainant, however, it was later withdrawn; that, in view of the contradictory versions in the FIR and

other contemporaneous materials, one can come to a conclusion that based on false and baseless allegations, a case has been concocted against

the petitioners; and that the dispute is purely of civil nature and it is apparent that only for the purpose of harassing the petitioners, the de facto

complainant has set in motion the proceedings before the respondent police; learned Counsel pleads that this a fit case to quash the proceedings as

it is nothing but an abuse of process of Court and, in support of his submission, he pressed into service the ruling reported in Inder Mohan

Goswami and Another Vs. State of Uttaranchal and Others, . Learned Counsel, by referring to the case law reported in The State of Andhra

Pradesh Vs. Aravapally Venkanna and Another, , further submits that, in the case on hand, having regard to the allegations in the F. I. R. and the

facts and circumstances involved, it could be concluded that a cognizable offence has not been made out; thus, the proceedings initiated against the

petitioners are liable to be set aside in threshold.

4-A. Per contra, learned Government Advocate submits that on 19-6-2009, the 2nd respondent police registered the case on the direction issued

by a Bench of this Court in Cri. O. P. No. 9782 of 2009 and such invariable direction came to be issued after finding that materials are available to

constitute a cognizable offence against the accused. He further submits that the specific allegation in the complaint is that the signature of the mother

of the accused has been forged by the first petitioner and that though the understanding was that the land in question must be assigned in favour of

the mother, clandestinely assignment was effected in favour of the wife of the first accused; therefore, when serious allegations of forgery,

falsification of documents and cheating have been made and prima facie materials are available to constitute cognizable offences, it may not be

proper to quash the proceedings.

4-B. Learned senior counsel for R-3/de facto complainant submits that the accused received money from the de facto complainant and the

understanding was to purchase the property after receiving contribution from the family members including the parents and that though the de facto

complainant contributed Rs. 1 crore, by creating false documents and forging the signature of the mother, the property was clandestinely assigned

in favour of the wife of the first petitioner and there are valid materials to substantiate the same. The accused not only played fraud on the de facto

complainant but also on the mother. In spite of the fact that orders were passed by this Court to take up investigation by a competent police

officer, the petitioners never made themselves available for inquiry and all along, they have been successfully evading appearance before police and

ultimately, filed the present petition to quash the proceedings.

I have meticulously examined the materials available on record having regard to the prayer sought for by the petitioners/accused on the one hand

to modify the condition in respect of property security and to quash the proceedings pending before the respondent police as a whole and on the

other hand pertaining to the complainant''s plea for cancellation of anticipatory bail and objections to quash the proceedings.

The de facto complainant and the first accused are brothers and the 2nd accused in the case is the wife of the first accused. It seems that, on the

previous occasion, while passing orders in Cri. O. P. No. 9782 of 2009, a Bench of this Court, by holding that prima facie materials are available

to constitute cognizable offences, issued direction to the respondent police for registration of a case and investigation into the same. On a perusal of

the complaint/FIR and the allegations made therein, I am of the considered view that there are valid materials to proceed against the accused. If the

petitioners are innocents and have got bona fide materials in proof of their claim, immediately after obtaining the relief granted by this Court, they

would have complied with the condition by appearing before the respondent police and producing the documents for examination so as to reach at

a conclusion. On a perusal of the orders granting anticipatory bail, it appears that the accused sold the property for Rs. 20 crores to a third party

without the knowledge of the de facto complainant, who contributed Rs. 1 crore for purchase of the property, and taking note of the same, the

condition to deposit title deeds of property worth Rs. 25 lakhs came to be imposed only after ascertaining the willingness and ability on the part of

the accused through their counsel and it was reported that the accused would readily abide by such condition to show their bona fides and ensure

their availability before the respondent police for the purpose of inquiry/investigation. Though it is claimed that the 2nd petitioner is suffering from

cancer, no supportive document in the form of medical reports has been filed to substantiate the same.

The de facto complainant, who is aggrieved by the fraudulent acts of accused, alleging non-compliance of the conditions on their part, has

preferred the petition for cancellation of the relief. Learned Government Advocate has also pointed out that even the other condition to appear

before the respondent police for enquiry has not been complied with and it could be presumed that probably, to avoid appearance before the

respondent police once for all, the petition to quash the proceedings has been filed. In such circumstances, this Court could discern that the

promise to furnish title deeds has been made by the petitioners only to snatch an order in their favour and that the petitioners do not have any

regard for this Court and its orders and they successfully flouted the anticipatory bail orders by keeping themselves away from the inquiry by the

respondent police.

While making elaborate submissions, learned Counsel for the petitioners pointlessly relied on contemporaneous documents which should have been

made available before the Investigating Officer so as to come to a conclusion one way or the other. Keeping such materials with them without even

forwarding the same to the respondent police at least through post for investigation in a case which was taken on file subsequent to the orders

passed by this Court, the petitioners have approached this Court with unclean hands and ulterior motives; therefore, I am of the considered opinion

that the petitioners are not entitled for any relief and accordingly, the order passed on 23-6-2009 in Cri. O. P. No. 10702 of 2009 is hereby

recalled and the anticipatory bail granted is cancelled.

Coming to the contention raised in the petition to quash the proceedings, again it must be mentioned that the materials now sought to be

produced must be made available before the Investigating Officer and that the approach of the petitioners in holding with them all those

contemporaneous materials including civil Court documents and making suggestions and submissions before this Court that even without an

enquiry/ investigation, the whole proceedings may have to be quashed in threshold, cannot be appreciated. There are valid materials to substantiate

that the signature of the mother of the first petitioner and the de facto complainant has been forged. From the allegations made in the FIR, it

appears that, by using such forged documents and with dishonest intention, the petitioners have derived wrongful gain and thereby caused wrongful

loss to the de facto complainant. The law is also well settled that an FIR cannot be quashed in threshold as a routine course and only in rare and

exceptional circumstances, the inherent powers have to be exercised. In a case of this nature, after due investigation, in the event of final report

being filed against the petitioners, it can be decided by the trial Court as to whether a prima facie case has been made out as against the accused

and further, the grievance of the de facto complainant may also be remedied if his case is substantiated. Therefore, the investigation taken up by the

respondent police must be allowed to continue and materials must be collected from both the parties; and I hold, it is not a fit case to quash the

FIR at the inception when prima facie materials are available to proceed against the accused.

In the light of the foregoing discussions, Cri. O. P. No. 14278 of 2009 is dismissed and the interim stay granted is vacated and the respondent

police is directed to proceed with the investigation and conclude the same at the earliest. M. P. No. 3 of 2009 filed by the de facto complainant for

cancellation of the anticipatory bail stands allowed, recalling the order dated 23-6-2009 passed in Cri. O. P. No. 10702 of 2009 and cancelling

the anticipatory bail granted to the petitioners/accused. Consequently, other Miscellaneous Petitions are also dismissed. Order accordingly.