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2003 DIGILAW 1324 (PNJ)

Pankaj Bansal v. State of Punjab

2003-09-19

M.M.KUMAR

body2003
JUDGMENT M.M. Kumar, J. - This petition brings to the fore-front conduct of the petitioner hoodwinking the process of law and adventurous escapade after obtaining beneficial order from the Court. The petition which is filed under Section 439 read with Section 482 of Criminal Procedure Code, 1973 seeks grant of bail to the petitioner in case FIR No. 241 dated 20.6.2003 registered at P.S. Sadar, Jalandhar under Sections 386/406/420 Indian Penal Code. 2. The allegations contain in the FIR are that the petitioner is engaged in the business of sending people abroad and is running a travel agency. He allured the complainant by representing him that his son would be sent to U.S.A. by obtaining visa from Thailand and various amounts were paid at different stages. The whole FIR makes an interesting reading and reads as under :- "The Superintendent of Police, Incharge Economic Offices Wing. In the complex of P.S. Division No. 2, Jalandhar, Ref : Harnam Dass son of Sh. Karam Chand, resident of Village Alladinpur, PO Kartarpur Tehsil and District Jalandhar. [Sub : Criminal complaint of fraud and cheating against Sh. Pankaj Kumar, resident of H.No. 276, Mohalla Old Jagatpura, Hoshiarpur for exciting the complainant to send his son Santokh (Santosh ?) Kumar Virdi to USA on procuring permanent visa for him and duping him after receiving Rs. 3,53,000/-. [Sir, the complainant is retired official from the Central Govt. Department and Santosh Kumar is his son, who was unemployed as such, the complaint was keen to get him settled abroad. (2) That the accused Pankaj Kumar who is doing the business of sending persons abroad, to various countries and is engaged in travel agency, on learning about the desire of the complainant, from his agents and the reputation of said Pankaj Kumar came to his house in Village Alladinpur and he impressed him about his knowledge in the travel agency trade and knowledge in sending youths from Punjab to Foreign countries by providing them the proper visas from the concerned Embassies. Said Pankaj Bansal gave an allurement to the complainant that his son being a graduate would be best settled, if migrated to USA which would be easy for Pankaj Kumar as Santosh Kumar is a graduate. Said Pankaj Bansal gave an allurement to the complainant that his son being a graduate would be best settled, if migrated to USA which would be easy for Pankaj Kumar as Santosh Kumar is a graduate. Pankaj Kumar went on to give the complete plan to the complainant of executing this exercise and conveyed that the entire process of obtaining visa from USA Embassy and sending his son would cost Rs. 7,25,000/-. Firstly, the son of the complainant would be sent to Thailand and after staying there for a short period, he would be sent to USA by obtaining visa from Thailand, by using good office of the son of King of Thailand who is a friend of Pankaj Kumar. Relying upon the representation of Pankaj Kumar and believing them to the true, the complainant was carried away by this enticing offer and accepted the same. (3) That on the complainant agreeing to the Officer (offer ?) of the travel agent, Pankaj Kumar asked the complainant to pay Rs. 35,000/- as advance which complainant paid to Pankaj Kumar on that day at village Alladinpur. While leaving on receiving the sum of Rs. 35,000/- Pankaj Kumar said that when arrangement for sending Santosh Kumar get processed then he would come again to him to collect a sum of Rs. 18,000/-. (4) That after about a week, Pankaj Kumar communicated to complainant that the process of sending his son has been set in as such he would be coming the next day to collect Rs. 18,000/- which he arranged. The complainant thinking that things were going in the right directions believed Pankaj Kumar and gave him another sum of Rs. 18,000/- when he came on the next day to the house of the complainant at village Allandpur. In this manner, Pankaj Kumar received a total sum of Rs. 53,000/- from the complainant under the pretext of sending his son to USA. (5) That shortly thereafter the complainant was told by Pankaj Kumar to send his son for being flown to Thailand. Since it fitted with the story already communicated by Pankaj Kumar, the complainant sent his son to Pankaj Kumar, who arranged his flight to Thailand. (6) That on 22.6.2000, Pankaj Kumar rung me up to pay balance amount of Rs. (5) That shortly thereafter the complainant was told by Pankaj Kumar to send his son for being flown to Thailand. Since it fitted with the story already communicated by Pankaj Kumar, the complainant sent his son to Pankaj Kumar, who arranged his flight to Thailand. (6) That on 22.6.2000, Pankaj Kumar rung me up to pay balance amount of Rs. 6,72,000/-, the complainant replied that the same was payable only after visa would be given from USA to his son reaches USA. But, Pankaj Kumar gave 30-35 telephone calls between 22.6.2000 to 23.6.2000 after noon and during these conversations, Pankaj Kumar said that photocopy of the visa in favour of his son was already shown to the complainant on 16.6.2000, so the balance amount be paid. But the complainant was doubtful about the genuinity of that photocopy of visa which ultimately turned out to be fabricated and forged document, that too of Canada. The manner in which Pankaj Kumar was pressing the complainant and threatening him to the effect that in case the balance amount is not paid before 23.6.2000 then his son would be in trouble and may be arrested in Thailand. Ultimately, Pankaj Kumar agreed to Rs. 3,00,000/- for sending his son from Thailand to Canada and from there to USA. The balance Rs. 3,72,000/- would be paid by the complainant to Pankaj Kumar on his son reaching USA. (7) That the complainant being caught in this situation had no alternative under this coercive atmosphere created by Pankaj Kumar than to deliver Rs. 3,00,000/- to Pankaj Kumar, under these compelling circumstances which he paid in the presence of Ram Dass son of Mandu Ram r/o House No. 558 Moh. Subhash Nagar, Hoshiarpur and Rajinder Kumar Ex. MLA Adampur, District Jalandhar on 23.6.2000. (8) That thereafter the complainant insisted upon Pankaj Kumar to make him talk on telephone with his son, to know about his welfare being frightened by the conduct of Pankaj Kumar and to dispel the heat of his son being made a victim like that of the infamous Malta Boat tragedy. After great persuasion the complainant was put through on telephone with his son who told that the accompliance of Pankaj Kumar in Thailand has got Santosh Kumar and his accompanying passenger arrested by the Thailand Police, purposely and there is no visa obtained for them by Pankaj Kumar or his accompliances. After great persuasion the complainant was put through on telephone with his son who told that the accompliance of Pankaj Kumar in Thailand has got Santosh Kumar and his accompanying passenger arrested by the Thailand Police, purposely and there is no visa obtained for them by Pankaj Kumar or his accompliances. On this the complainant realised that it was all a top (plot ?) created by Pankaj Kumar for extorting Rs. 3,53,000/- from the complainant. (9) That the complainant immediately thereafter approached Pankaj Kumar who assured the safe return of his son to India and return the extorted money of Rs. 3,53,000/- which Pankaj Kumar undertook to return in due course and in the meanwhile gave an affidavit regarding the amount of extorted amount received from the complainant, duly attested before the Executive Magistrate, Hoshiarpur. (10) That due to impleadment, Pankaj Kumar agreed to sell immovable property of his father Sh. Anand Bansal equal to the amount payable to the complainant. (11) That when the son of the complainant was deported to India, he came and told the entire woeful events which disclosed that Pankaj Kumar and his father Anand Bansal are only cheats and have no arrangement like travel agents for obtaining visas to send persons abroad. Rather it is a plot made by Anand Bansal and his son Pankaj Kumar of fleecing money by putting forward false representations. (12) That both the culprits Anand Bansal and his son Pankaj Kumar have been prevailing upon the complainant for not taking any action against them or reporting the matter to any office or authority as they cannot get the money returned to them rather the culprits will return the same through sale of their property or transfer the same in the name of complainant against falling in this trap, the culprits had been putting off the matter on one pretext or the other and prolonged the repayment of the extortion money. Now it has become clear that they have no intention of repaying the extortion amount of Rs. 3,53,000/-. (13) That in this manner, Anand Bansal and Pankaj Kumar dishonestly induced the complainant and deceived to deliver Rs. Now it has become clear that they have no intention of repaying the extortion amount of Rs. 3,53,000/-. (13) That in this manner, Anand Bansal and Pankaj Kumar dishonestly induced the complainant and deceived to deliver Rs. 3,53,000/- and cheated him of this amount by making a false document i.e. photocopy of alleged visa by dishonestly and fraudulently making that the alleged visa with signs and seals of USA Embassy with the intention of causing it to believe that the said photocopy of the visa is of the true document of the original visa, made, signed, sealed and executed by the authorized person of the USA Embassy by whom by use of authority, Pankaj Kumar and Anand Bansal knew that it was not signed made sealed or executed by the USA Embassy authority. In this manner both these culprits have committed the offence of forgery for the purpose of cheating the complainant. (14) That both the culprits Pankaj Kumar and his father Anand Bansal had committed extortion of Rs. 3,53,000/- cheating and putting the complainant in fear of the life of his son and injury to him by being detained in Thailand for all times which could result in infamous boat tragedy case of Malta, which would result into death of his son, otherwise, the complainant would not (have) parted with Rs. 3,00,000/- but for saving the life of his son as such, both these culprits are guilty of the offence under sections 386, 387 and 388 Indian Penal Code. It is, therefore, requested that the above named culprits be booked for the offences committed under sections 386, 387, 388, 420, 468, 120-B, Indian Penal Code and be arrested on registering FIR against them. [Sd/- English Harnam Dass complainant (Harnam Dass) Dated : 18.2.2002. SHO PS Sadar to enquire and report Sd/- English." 3. A perusal of the FIR reveals that the son of complainant was sent to Thailand and he was arrested by the Thailand police on the ground that there was no visa obtained by him. At this stage, it was realised that Pankaj Kumar has extorted a sum of Rs. 3,53,000/- from the complainant. The son of the complainant was deported to India and he revealed that the petitioner alongwith his father has cheated the complainant and his son because no visa was arranged by them. At this stage, it was realised that Pankaj Kumar has extorted a sum of Rs. 3,53,000/- from the complainant. The son of the complainant was deported to India and he revealed that the petitioner alongwith his father has cheated the complainant and his son because no visa was arranged by them. The petitioner filed an application under Section 438 before the Additional Sessions Judge, Jalandhar, who dismissed the same vide his order dated 9.8.2002. A copy of the order passed by the learned Additional Sessions Judge has been placed on record as Annexure P-4. Thereafter, the petitioner approached this Court and this Court on 12.9.2002 passed the following order :- "In the event of arrest, the petitioner will be released on bail on furnishing bail bonds to the satisfaction of the arresting officer on the condition that the petitioner will not interfere with the prosecution evidence directly or indirectly; he will not leave the country without the permission of the court and that he will associate with the investigation as and when called by the police. Anticipatory bail will continue for three months or till the filing of the challan in the Court, whichever is earlier, within which period the petitioner may move the concerned court for regular bail in accordance with law. The petition in disposed of." 4. A perusal of the afore-mentioned order makes it evident that the petitioner was granted anticipatory bail for a period of three months or till the filing of the challan in the Court, whichever was earlier. It was further held that the petitioner may move the concerned Court for regular bail in accordance with law. On account of the fact that the case remained pending, the petitioner again filed Crl. Misc. No. 54229-M of 2002 with a prayer for grant of pre-arrest bail. The afore-mentioned petition came up for hearing on 26.12.2002 and this Court declining the prayer of the petitioner pased the following order :- "Vide order dated 12.9.2002 passed in Criminal Misc. No. 35709-M of 2002, this Court had directed that the petitioner would be released on bail on his furnishing bail bonds to the satisfaction of the Arresting Officer. It was further directed that the aforesaid directions would continue for a period of three months or till the filing of the challan in the Court, whichever is earlier. No. 35709-M of 2002, this Court had directed that the petitioner would be released on bail on his furnishing bail bonds to the satisfaction of the Arresting Officer. It was further directed that the aforesaid directions would continue for a period of three months or till the filing of the challan in the Court, whichever is earlier. Within the aforesaid period, the petitioner was required to move the concerned court for regular bail, in accordance with law. The petitioner has stated that in accordance with the aforesaid directions dated 12.9.2002, he filed a bail application which is fixed before the learned Additional Sessions Judge, Jalandhar. The arguments in the aforesaid bail application are stated to have been heard on 19.11.2002, 25.11.2002, 13.12.2002 and 20.12.2002. The case is stated to be now fixed for 4.1.2003. The apprehension of the petitioner is that since the period of three months grand by this Court vide order dated 12.9.2002 has since expired, therefore, he would be arrested by the police. Keeping in view the aforesaid facts and circumstances, the protection granted to the petitioner for a period of three months vide order dated 12.9.2002 is hereby extended till the disposal of the bail application filed by him which is stated to be fixed before the Additional Sessions Judge, Jalandhar, for 4.1.2003. It is further directed that the learned Additional Sessions Judge, Jalandhar shall finally decide the aforesaid application on the date fixed. With the aforesaid direction, the present application is disposed of." 5. A perusal of the order shows that this court extended the direction of the order dated 12.9.2002 till the disposal of the bail application filed by the petitioner before the Additional Sessions Judge, Jalandhar, was disposed of. However, the learned Additional Sessions Judge dismissed the bail application of the petitioner on 4.1.2003 and a copy of the order passed by him is appended as Annexure P-5. A perusal of the order date 4.1.2003 shows that the petitioner had made mis-statement of facts before this Court on various dates of hearing as is revealed from the reading of paras 5 and 6. The learned Additional Sessions Judge further observed that before the Additional Chief Judicial Magistrate, Jalandhar, the petitioner never appeared nor he appeared before the Additional Sessions Judge. The learned Additional Sessions Judge further observed that before the Additional Chief Judicial Magistrate, Jalandhar, the petitioner never appeared nor he appeared before the Additional Sessions Judge. In this manner, it appears that the petitioner has successfully misused the concession of pre-arrest bail given by this Court for a period of three months vide order dated 12.9.2002 till date. The operative part of the order passed by the Additional Sessions Judge reads as under :- "It was specifically mentioned by the Honble High Court in the order dated 12.9.2002 that the petitioner may move the concerned Court for regular bail in accordance with law. At the time of passing the order by the Court of Additional Chief Judicial Magistrate, Jalandhar, only counsel for the petitioner appeared and thus the accused did not appear in the Court. In this Court the petitioner Pankaj Bansal has never appeared in the Court. Today, Shri Sat Pal Garg, counsel for the accused has also made statement that his client Pankaj Bansal has not come to the Court. So, in view of the order passed by the Honble High Court dated 12.9.2002, this application cannot be said to be a regular bail application." 6-7. Mr. D.S. Bali, learned counsel for the petitioner has argued that the petitioner is victim of the circumstances and he has admitted his liability to pay to the complainant the amount received by him. The learned counsel has stated that the allegations levelled against the petitioner are triable by a Magistrate and, therefore, the petitioner may be granted the concession of bail pending trial. However, the learned counsel was not able to give any satisfactory answer to the Courts query as to why the petitioner has not surrendered after the expiry of the period of three months in accordance with the order passed by this Court on 12.9.2002." 8. Mr. B.S. Sewak, learned State counsel and Mr. Vinod Sharma, learned counsel for the complainant have argued that the petitioner is responsible for playing fraud with the innocent citizens, who are allured to go abroad after making payment of huge amounts. The learned counsel have further argued that the petitioner has successfully misused the process of Court and has circumvented it by not surrendering to the trial Court after a period of three months in accordance with the order dated 12.9.2002. The learned counsel have further argued that the petitioner has successfully misused the process of Court and has circumvented it by not surrendering to the trial Court after a period of three months in accordance with the order dated 12.9.2002. Both the learned counsel have prayed for not only dismissal of the instant petition but also dealing with the petitioner severally. 9. After hearing the learned counsel for the parties at a considerable length and perusing the various orders of this Court, I am of the considered view that the petitioner has lost all the benefits which might have flowed to him under Section 439 Criminal Procedure Code The petitioner has chosen to give himself the liberty of fleeing from the due process of law and deceived the Court. Despite specific directions issued by this Court in its order dated 12.9.2002 that he shall apply for regular bail after the expiry of three months or the presentation of challan, whichever, is earlier, the petitioner has remained unable to surrender before any Court. Even thereafter the petitioner did not join investigation. This fact alone in my considered opinion is sufficient to dismiss the petition by refusing the petitioner of relief under Section 439 Criminal Procedure Code He was given protection by this Court again by extending his pre- arrest bail till the time his application was decided. The application was dismissed by the learned Additional Sessions Judge on 4.1.2003. The petitioner has again failed to surrender before any Court. The conduct of the petitioner is reprehensible and he does not deserve to be granted the magnanimity and leniency which ordinarily is extended to citizen by the Courts. Therefore, the petition is dismissed with costs of Rs. 10,000/-. The cost shall be paid by the petitioner to the complainant within a period of 30 days. A copy of this order be sent to the District and Sessions Judge Jalandhar, for its onward transmission to the concerned trial Court to ensure payment of costs of Rs. 10,000/-. However, it is made clear that any observation made in this order shall not be considered as an expression of opinion on the merits of the controversy and the trial Court should proceed with the trial without being influenced by them. Petition dismissed.