Nitendra Singhal vs State of Rajasthan and Others

Prashant Kumar Agarwal, J.—The complainant-petitioner has filed this application under Section 439(2) Cr.P.C. with a prayer to cancel the anticipatory bail granted to the accused-respondent by the Additional Sessions Judge No. 2, Jaipur Metropolitan vide order dated 25.11.2013 in Second Application for grant of anticipatory Bail No. 397/2013 in respect of FIR No. 538/2012 registered at Police Station JDA, Jaipur for the offences under Sections 420, 406 read with Section 120-B IPC.

Relevant facts in brief for the disposal of this application may be stated as below:-

(1) The petitioner lodged a report against the respondent and co-accused at Police Station JDA, Jaipur on 20.7.2012 for the offences under Sections 420, 406 read with Section 120-B IPC on the basis of which aforesaid FIR No. 538/2012 was registered.

(2) Apprehending his arrest the respondent moved application for grant of anticipatory bail under Section 438 Cr.P.C. and the same was dismissed as not pressed by the Additional Sessions Judge No. 2, Jaipur Metropolitan vide order dated 21.11.2012.

(3) Subsequently the respondent moved second application for grant of anticipatory bail under Section 438 Cr.P.C. and the same was registered as Misc. Bail Application No. 397/2013 and it was allowed by the Court vide impugned order dated 25.11.2013.

In these circumstances, the complainant-petitioner has filed the present petition for cancellation of the order dated 25.11.2013.

In support of the application, learned counsel for the petitioner submitted as below:-

(1) As the first application filed by the respondent for anticipatory bail was dismissed as not pressed by the Court below vide order dated 21.11.2012, the second application filed by the respondent for the same relief was legally not maintainable as it is well settled that second or successive application for grant of anticipatory bail under Section 438 Cr.P.C. is not maintainable before the Sessions Judge more particularly in view of the fact that there was no substantial change in the facts and circumstances of the case. Even if the first application filed by the respondent was not dismissed on merit, but as it was not pressed by the respondent himself it can be assumed that it was felt by the respondent that there is no chance of his application being allowed by the Court.

(2) It is an admitted fact that on receipt dated 6.11.2005 the respondent also signed and although on perusal of the printed receipt it may appear that the respondent signed on it either as Manager or Accountant of the company, but on consideration of the evidence collected during investigation it is clear that the respondent pretended to be one of the Directors of the company and, therefore, he cannot escape from his liability now by saying that at the relevant time he was employed in the company only as an accountant. It is an admitted fact that at the relevant time co-accused-Shri Mahesh Chand Jain was one of the Directors of the company and he also signed on a receipt of the same type and, therefore, this fact is of no relevance that on the receipt word "Manager/Accountant" is printed.

(3) The allegation against the respondent and co-accused is that after receiving an amount of Rs. 25 lacs from the petitioner, they issued a possession letter in his favour in regard to the plot in dispute, but they neither handed over the possession of the plot to the petitioner nor refunded the aforesaid amount to him. From the agreement dated 6.11.2005 allegedly executed between the petitioner and co-accused Shri Mahesh Chand Jain, it cannot be said that the aforesaid amount of Rs. 25 lacs was obtained by the accused from the petitioner only as a loan with stipulation to refund the double amount of the aforesaid amount after expiry of a period of 18 months and the possession letter was issued to the petitioner only as a security for the refund of the aforesaid amount. If the intention of the accused to issue possession letter to the petitioner was only as a security for the refund of the aforesaid amount there was no need for them to issue two receipts for the same. Otherwise also, there is no evidence made available by the respondent on record that the aforesaid amount of Rs. 25 lacs alongwith the interest has been refunded to the petitioner at any point of time.

(4) From the factual report dated 1.7.2014, it is clear that the respondent after obtaining order of anticipatory bail from the Court below neither submitted the requisite bail bonds before the investigating officer nor he is cooperating with the investigation although as many as twelve notices were issued to him from time to time for the production of relevant documents and thus, the respondent is mis-using the facility given to him by the Court below.

In support of his submissions, learned counsel for the petitioner relied upon the case of Ganesh Raj Vs. State of Rajasthan and Others, (2005) CriLJ 2086 : (2005) 2 RLW 1048 : (2005) 2 WLC 327 .

On the other hand, learned counsel for the accused-respondent controverting the submissions made on behalf of the petitioner submitted as below:-

(1) As the first application filed by the respondent was dismissed as not pressed by the Court below without going into its merit, it cannot be said that the second application for the same relief was not legally maintainable. It is an admitted fact that the fact of dismissal of first application as not pressed was not concealed from the Court below and this fact was specifically considered by the Court and it was observed that as the first application was not dismissed on merit, it cannot be said that the second application for grant of anticipatory bail under Section 438 Cr.P.C. is barred. In the decision relied upon on behalf of the petitioner, it has not been held that even if the first application has not been dismissed on merit, second or subsequent application is barred.

(2) From the material made available on record it is clear that the company was incorporated w.e.f.4.5.2005 and at that time one Shri Ghanshyam Sharma and co-accused-Shri Mahesh Chand Jain were the Directors of the company and the respondent was made one of the Directors only with effect from 12.05.2010 and, therefore, at the relevant time the respondent was not Director and he cannot be made liable even if the aforesaid amount received by the company was not refunded and possession of the plot in dispute was also not handed over to the petitioner. From the receipt dated 6.11.2005, it is clear that the respondent was employed in the company only as an accountant and he signed upon it in that capacity only.

(3) The petitioner has not denied the execution of agreement dated 6.11.2005. It is clear from the agreement that the company was in need of money to develop a housing scheme and, therefore, an amount of Rs. 25 lacs was obtained by it from the petitioner as loan and it was stipulated that a total amount of Rs. 50 lacs would be refunded by the company to the petitioner after expiry of a period of 18 months. It was further stipulated that if the aforesaid amount of Rs. 25 lacs taken from the petitioner is refunded by the company before the expiry of the period of 18 months, the petitioner would be entitled to obtain profit @ 5.55% from the company. The agreement further shows that the possession letter was handed over to the petitioner by the company only as a security to ensure the refund of the aforesaid amount to the petitioner.

(4) The material made available on record further shows that an amount of Rs. 35 lacs was refunded by the company to Shri Rajendra Singhal, elder brother of the petitioner, in compliance of the terms of the agreement dated 6.11.2005.

(5) When even after repayment of the amount of Rs. 35 lacs to the brother of the petitioner as per terms and conditions of agreement dated 6.11.2005, the petitioner failed to hand over back the original possession letter to the company, a complaint was filed against the petitioner in the year 2012 and only thereafter the present FIR was lodged by him to pressurise the Directors of the company. Apart from that, it has not been explained by the petitioner when possession of the plot in dispute was not handed over to him in the year 2005 or within a reasonable time after receiving the aforesaid amount of Rs. 25 lacs, why the present FIR was lodged in the year 2012 after such a long time and that too after FIR was lodged against him on behalf of the company.

(6) No material/evidence has been produced on record showing that the respondent is misusing the facility of anticipatory bail granted to him by the Court below and he is not cooperating with the investigation. No material has been produced showing that any of the alleged notices issued by the Investigating Officer was ever received by the respondent and in absence thereof, it cannot be said that the respondent is not cooperating with the investigation.

In support of his submissions, learned counsel for the accused-respondent relied upon the cases of Padmakar Tukaram Bhavnagare and Another Vs. The State of Maharashtra and Another, (2013) 1 Crimes 98 : (2013) 1 DMC 36 : (2013) 1 JCC 576 : (2013) 1 JCC 232 : (2013) 1 RCR(Criminal) 220 : (2012) 11 SCALE 334 , Mahant Chand Nath Yogi and anr. Vs. State of Haryana reported in (2013) 1 SCC 326 , Hazari Lal Das Vs. State of West Bengal and Another, (2009) 11 JT 651 : (2009) 12 SCALE 307 : (2009) 10 SCC 652 : (2009) 14 SCR 195 and Shiv Mohan Kapoor Vs. State of U.P. and Another, (2012) 11 SCC 632 .

Alongwith the rejoinder filed by the petitioner copy of factual report dated 1.7.2014 has also been filed. From the perusal of this report the following material and relevant facts are revealed:-

(1) A Complaint No. 364/2012 was filed by the accused-respondent against the petitioner and his family members with the allegation that although an amount of Rs. 35 lacs has been refunded to them, but even then the original possession letter has not been handed back over to him by them, but the said complaint was dismissed by the Chief Metropolitan Magistrate, Jaipur Metropolitan vide order dated 30.8.2012 observing that prima facie no offence has been found to have been committed by the petitioner and his family members.

(2) Even after dismissal of the aforesaid complaint, the respondent on the same facts filed second complaint before the Chief Metropolitan Magistrate, Jaipur Metropolitan and the same was sent for investigation under Section 156(3) Cr.P.C. to Police Station Jawahar Circle, Jaipur and FIR No. 842/2013 for the offences under Sections 420, 406 read with Section 120-B IPC was registered and after investigation it was found that no offence has been committed and FR No. 616/2013 dated 18.12.2013 was filed in the aforesaid Court on 24.12.2013.

(3) During investigation as many as twelve notices under Section 91 Cr.P.C. were issued to the company/accused for production on original documents, but the same were not complied with.

I have considered the submissions made on behalf of the respective parties, perused the material made available on record and the relevant legal provisions and the legal position prevalent in this regard.

I am of the view that the application filed by the petitioner is liable to be allowed and the order dated 25.11.2013 is required to be set aside for the following reasons:

(1) Because once the first application filed by the respondent for grant of anticipatory bail was dismissed on his prayer as not pressed by the Court below vide order dated 21.11.2012, the second application for the same relief was not legally maintainable and was liable to be dismissed as such. It has wrongly been held by the learned Court below as the previous application was not decided on merit, the second application for anticipatory bail is legally maintainable.

In the case of Ganesh Raj Vs. State of Rajasthan (supra), full bench of our High Court has held that under no circumstances the second or successive anticipatory bail application shall be entertained by the Sessions Judge/Additional Sessions Judge.

Thus, as per view of the full bench, second application for anticipatory bail is not maintainable in any circumstances before Sessions Judge or Additional Sessions Judge.

In the case of Maya Rani Guin and etc. Vs. State of West Bengal, (2003) CriLJ 1 , Full Bench of Hon''ble Calcutta High Court held that the ''accusation'' being the sine qua non and which remains the same, there can not be any revival of "reasons to believe" or apprehension of arrest which was considered by the Court in the earlier application for anticipatory bail. Thus, the second application for anticipatory bail, even if new circumstances develop after rejection or disposal of the earlier application, is not maintainable.

Thus, according to learned full bench of Hon''ble Calcutta High Court second application is barred even if the first application was disposed of without going into the merit of the case. In my view in a case, the application for grant of anticipatory bail on the prayer of the accused is dismissed as not pressed, it must be deemed to have been disposed of by the Court. I am of the further view that the pre-requisite for filing an application for anticipatory bail under Section 438 Cr.P.C. is apprehension of being arrested for accusation in a non-bailable case and when a person moves such an application, it pre-supposes existence of such an apprehension and when he after filing such an application prays for withdrawal of it either with liberty to file fresh application or without such liberty, it is a conscious decision on his part either by the reason that he feels that the chances of his application being granted by the Court are very bleak or with some change in the facts and circumstances of the case or with some new development after the filing of the application, the apprehension of his being arrested in the case no more exists. In either case one cannot be allowed to defeat the legal requirement by withdrawing such an application and to take fresh change after some time more particularly there being no change in the facts and circumstances of the case.

(2) Because in compliance of the order dated 25.11.2013, the petitioner neither appeared before the I.O./S.H.O. nor submitted the requisite bail bonds and he did not also cooperate in the investigation of the case. As per factual report dated 1.7.2014, the petitioner failed to produce original documents before the investigating officer despite the fact that as many as twelve notices were issued under Section 91 Cr.P.C. Vide order dated 25.11.2013, apart from others, a condition was imposed upon the petitioner to appear before the investigating officer and to cooperate in the investigation. Interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner are some of the well recognized grounds for cancellation of bail already granted to an accused. I am of the view that non-compliance of the condition under which the facility of anticipatory bail was granted to the petitioner is such a supervening circumstance which has rendered it no longer conducive to a fair investigation to allow the petitioner to retain his freedom by enjoying the concession of bail so granted to him. I am satisfied that the petitioner became courageous enough to avoid the notices issued by the investigating officer only because he was able to obtain an order of anticipatory bail in his favour.

In the case of State Rep. by the C.B.I. Vs. Anil Sharma, AIR 1997 SC 3806 : (1997) CriLJ 4414 : (1997) 3 Crimes 252 : (1997) 3 CTC 60 : (1997) 7 JT 651 : (1997) 5 SCALE 689 : (1997) 7 SCC 187 : (1997) 3 SCR 737 Supp : (1997) AIRSCW 3722 : (1997) 7 Supreme 670 , Hon''ble Supreme Court held that effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. It was further observed that very often interrogation in such a condition would be reduced to a mere ritual.

Consequently, the application for cancellation of bail under Section 439 (2) Cr.P.C. is allowed and the impugned order dated 25.11.2013 is set aside and the accused-respondent is directed to appear before the Investigating Officer/S.H.O. concerned on or before 23.04.2015. If the respondent does not appear within the time so granted to him, the I.O./S.H.O. of the case is free to take necessary steps for arrest of the respondent.