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Madhya Pradesh High Court · body

2014 DIGILAW 1523 (MP)

Shishir Khare v. State Of M. P.

2014-11-24

U.C.MAHESHWARI

body2014
ORDER : On behalf of the applicant, this petition is preferred under section 438 of the Criminal Procedure Code for grant of anticipatory bail as he is under apprehension of his arrest in connection with Crime No. 2/14 registered at PS Crime Branch, district Bhopal for the offence punishable under section 420, 467, 468 and 471 of the Indian Penal Code. 2. Applicant's counsel after taking me through the rejection order of the Sessions Court Annexure-1 and referring the documents placed on the record argued that in respect of some civil dispute of the parties by making false allegation and the story, the impugned FIR was lodged by the complainant against him. In continuation he said that vide partnership deed dated 20-10-2006, a partnership firm was constituted by the applicant and the complainant for construction of the flats on the alleged land. At the time of constituting the firm, such land was recorded in the name of the complainant as Bhumiswami. Subsequent to constituting the firm vide agreement dated 14-12-2006, such partnership firm entered in an agreement with the complainant to purchase the land in consideration of Rs. 3.55 crores. The consideration was also paid to the complainant. Subsequent to such agreement, a joint venture (agreement) dated 1-1-2007 had also taken place between the applicant and the complainant in which the description and percentage regarding promoter quota and others were settled. Subsequent to that, as per terms of the agreement, the alleged encroachment over the land could not be removed by the complainant within the prescribed period, on which, the period of aforesaid agreement dated 14-12-2006 was extended for further three years but, within such period also, such encroachment could not be removed. So, the object of the partnership firm could not be materialized and was not remained possible, on which, some dispute had taken place between the applicant and the complainant. Consequently, one suit COS No. 109-B/12 for recovery of the sum of Rs. 3.55 crores while another suit COS No. 1089-A/12 for specific performance of aforesaid agreement to sale were filed on behalf of the applicant. Consequently, one suit COS No. 109-B/12 for recovery of the sum of Rs. 3.55 crores while another suit COS No. 1089-A/12 for specific performance of aforesaid agreement to sale were filed on behalf of the applicant. After appearance of the complainant in such suit, the alleged dispute was amicably settled between the parties out of the Court, on which, with the joint signature of the parties including the applicant as well as the complainant and their respective counsel, an application under Order 23, Rule 1 read with section 151 of the Civil Procedure Code was filed in such suits on 23-11-2012 for withdrawal of the same, on which, in presence of the parties and their counsel, such application was allowed and both the suits were dismissed as withdrawn on the same day. Pursuant to the aforesaid settlement, a cheque of Rs. 50,00,000/- was also given to the applicant on behalf of the complainant. Besides this, in such settlement, 18 flats and 16 duplexes of City Builders, were also given by the complainant to the applicant and to transfer the alleged flats and duplexes, the requisite sale deeds were also executed by the concerning sellers in favour of the applicant or in the name of the person named by him. Thereafter on behalf of the complainant, a complaint/report in writing under section 156(3) of the Criminal Procedure Code was filed in the Court of JMFC, Bhopal on 29-8-2013. The same was sent by such Court to PS Shahpur with a direction to enquire and investigate the same. Pursuant to it, the inquiry was carried-out by the concerning police station and its report dated 10-12-2013 was submitted. According to such report it was found that the applicant has not committed any alleged offence stated in such report/ complaint. Subsequent to such report of PS Shahpur, with respect of the alleged transaction, the complainant again filed a report in writing in PS Shahjahanabad, Bhopal on 3-9-2013, on which, Crime No. 15/14 was registered against the applicant. The same is under investigation. In pendency of investigation, considering the prayer of the applicant, the X ASJ Bhopal, has extended the benefit of anticipatory bail in such case to the applicant and pursuant to that, the applicant is on bail in such case. The same is under investigation. In pendency of investigation, considering the prayer of the applicant, the X ASJ Bhopal, has extended the benefit of anticipatory bail in such case to the applicant and pursuant to that, the applicant is on bail in such case. In pendency of the investigation of the aforesaid crime No. 15/14, with respect of some other document of compromise relating to the same dispute which was the subject matter of the aforesaid civil suits, again a report in writing was given by the complainant against the applicant to PS Crime Branch, Bhopal on 15-9-2014, on which, vide dated 24-9-2014 the impugned Crime No. 2/14 was registered against the applicant for the above mentioned offences. By referring the FIR of Crime No. 2/14, the applicant's counsel argued that in such report the allegations are also made with respect of the compromise which had taken place amicably outside the Court and in presence of the counsel of the parties and by allowing the application of the applicant filed under Order 23, Rule 1 read with section 151 of the CPC, signed by both the parties, the suits were dismissed as withdrawn. In continuation he said that on account of such amicable settlement and withdrawal of the suit, in respect of the dispute relating to the property the subject matter of the aforesaid suit could not be raised by way of lodging the impugned report by the complainant and firstly he prayed for grant of anticipatory bail on this count. In continuation he said that on filing the first application complaining the matter to the JMFC Bhopal under section 156(3) of the Criminal Procedure Code, if the alleged disputed offence was not raised, again and again the complainant has no authority to lodge the FIR with respect of the same offence and specially in the circumstances when after holding the inquiry, PS Shahpur, Bhopal had given the report dated 10-12-2013 stating that the applicant has not committed any alleged offence. He further said that subsequent to such report even after registration of the offence on the basis of the report of the complainant in writing dated 3-9-2013 at PS Shahjahanabad, Bhopal and after registration of Crime No. 15/14 at the request of the complainant, if the competent Court has extended the benefit of anticipatory bail to the applicant vide order dated 15-1-2014 then in the present crime relating to the transaction of the property which was in dispute in the aforesaid civil suits, the applicant cannot be refused for grant of anticipatory bail in continuation of the aforesaid earlier order of the anticipatory bail passed by the X ASJ Bhopal vide dated 15-1-2014. In continuation, he also argued that subsequent to withdrawal of aforesaid both the suits, on behalf of the complainant, COS No. 17-A/13 was also filed against the applicant and other persons on 13-11-2013 for declaration along with some other relief, in such suit, some interlocutory application has also been filed. In response of such interlocutory application, by filing the reply on behalf of the applicant, a copy of the alleged agreement of the impugned offence dated 23-11-2012, has also been placed and such suit is sub-judice and if the document filed is sub-judice then in view of provision of section 195 of the Criminal Procedure Code on the basis of such document, the applicant could not be prosecuted unless the trial of civil suit is over and, in such premises, the impugned investigation of the criminal case is also not sustainable under the law. He further said that although in the aforesaid application under section 156(3) of the Criminal Procedure Code and subsequent FIR of Crime No. 15/14 and in the impugned Crime No. 2/14, some different allegations and averments with respect of the different documents have been made by the complainant while all the disputes are relating to the aforesaid transaction of the property which was the subject matter of the earlier suits of the applicant as well as the subject matter of the aforesaid subsequent suit filed by the applicant. So, in such premises, it is apparently a case of civil dispute and litigation between the parties with respect of the property and consideration of the aforesaid property and as per settled proposition of the law, in respect of the civil dispute, the litigant like complainant cannot be permitted to invoke the provisions of the criminal law for redressal of their dispute. With these submissions, applicant's counsel has prayed for extending the benefit of anticipatory bail to the applicant by allowing this petition. 3. On the other hand, responding the aforesaid arguments, Shri Amit Sharma, Panel Lawyer with the assistance of the case diary, argued that in view of the evidence collected by the investigating agency available in the case diary there is prima facie circumstance against the applicant for committing the alleged offence and for the purpose of recovery of the original compromise deed dated 23-11-2012, the custodial interrogation of the applicant is necessary. In support of such contention he also referred the interrogatory statements of the witnesses, namely, Pradeep Agarwal, Ramesh, Mahesh Manwani, Kamlesh Tiwari, Karnal Singh and Rakesh Kushwaha and prayed for dismissal of this petition. 4. Apart the aforesaid, counsel of the complainant/objector Shri Sankalp Kochar, after taking me through his objection filed in the shape of IA No. 2123/14 along with some other documents so also by referring the other documents filed subsequently along with the covering memo as Document No. 3162/14 argued that COS No. 17-A/13 filed on behalf of the complainant Vishandas Parwani in the district Court, Bhopal on 13-11-2013 for declaration and other reliefs, is based on altogether different cause of action and the same is not related to any alleged dispute which was the subject matter of the aforesaid earlier civil suits filed by the applicant and, as alleged, withdrawn the same subsequently with the consent of the parties on account of some alleged amicable settlement. He further said that such amicable settlement is also under challenge at the instance of the complainant. He further said that such amicable settlement is also under challenge at the instance of the complainant. He further said that the compromise deed dated 23-11-2012 under dispute was projected and copy of the same was filed by the applicant on the first occasion along with the anticipatory bail application filed in connection of Crime No. 15/14 registered at PS Shahjahanabad, Bhopal and on such date the complainant came to know that the applicant had prepared and fabricated the aforesaid compromise deed dated 23-11-2012 with the forged and fabricated signature of the applicant, such compromise deed was neither the subject matter of any earlier litigation nor was referred in any of such litigation. So, such compromise deed being prepared by the applicant with the forged and fabricated signature of the complainant, the impugned report was lodged by the complainant against the applicant and it is apparent that till today such original document, the subject matter of the offence, has not been recovered and unless the custodial interrogation of the applicant is carried-out, such document could not be recovered because the original deed is in possession of the applicant. He further said that when such document was not the subject matter of any earlier litigation then it could not be connected with any earlier report or litigation or transaction and such document being an independent document, the impugned crime requires investigation so also the custodial interrogation of the applicant. He further said that the original compromise deed must be with the applicant and in support of such contention he has referred the deposition of the above mentioned witnesses named by the Panel Lawyer. He further said that in the available circumstances, the provision of section 195 of the Criminal Procedure Code is not applicable in any manner because copy of such document has not been produced by the applicant in COS No. 17-A/13 with the written statement. The same has been filed along with the reply of some interlocutory application. However, he fairly admitted that copy of such document has been placed on behalf of the applicant in the aforesaid COS No. l7-A/13. He further said that unless such original document is recovered from the applicant after making his arrest, the investigation of the case could not be completed as per requirement of the law. However, he fairly admitted that copy of such document has been placed on behalf of the applicant in the aforesaid COS No. l7-A/13. He further said that unless such original document is recovered from the applicant after making his arrest, the investigation of the case could not be completed as per requirement of the law. In addition to it he argued that besides the aforesaid report and FIR against the applicant, subsequent to registration of the impugned offence, one another crime at the instance of some other society/ person was also registered against the applicant for the offence made punishable under sections 420, 467, 468 and 471 of the Indian Penal Code. So, in view of such conduct and criminal antecedents of the applicant, he being habitual offender, does not deserve for extending the benefit of anticipatory bail. In continuation he said that as per settled proposition, on the basis of the alleged transaction, on availability of the cause of action to initiate the proceedings in civil side as well as in the criminal side also then both proceedings could be proceeded simultaneously and one is not dependent on another. In such premises also, the arguments advanced by the applicant's counsel is not helping him. In support of his contention he also placed his reliance on reported decisions of the Apex Court in the matter of Smt. Rumi Dhar vs. State of West Bengal and another, AIR 2009 SC 2195 , Kishan Singh (dead) thr. LRs vs. Gurpal Singh and others, AIR 2010 SC 3624 , Iqbal Singh Marwah and another vs. Meenakshi Marwah and another, (2005) 4 SCC 370 and Ramdhan vs. State of Uttar Pradesh and another, (2012) 5 SCC 536 . With these submissions, he prayed for dismissal of this petition. 5. Having heard the counsel, keeping in view the arguments advanced, I have carefully gone through the rejection order of the Sessions Court, case diary, objection of the complainant along with the papers placed by the respective parties on record. 6. In view of the aforesaid facts of the case as advanced by the counsel of the parties, it is apparent that long before they were the partners and after constituting the partnership, in the name of such partnership firm, to purchase the land of the complainant, the above-mentioned agreement had taken place between them for which the consideration was also paid to the complainant. Subsequently when within the period of limitation the terms of the agreement to sale was not complied with by the complainant then, as alleged, the period of agreement was extended for further period but even extending the period the terms regarding removal of the encroachment over the land could not be complied with by the complainant and, in such premises agreement could not be materialized and was not remained possible. Besides the aforesaid partnership deed and the agreement, some other venture (agreement) had also taken place between the parties for settling the promoter quota and others in respect of the proposed construction of the aforesaid partnership firm. When the aforesaid agreement to sale could not be materialized then possibility to carry out the construction work of the partnership on the disputed property was not remain possible and, in such premises, the dispute had taken place between the applicant and the complainant. Consequently, one suit COS No. 109-B/12 for recovery of the sum of Rs. 3.55 crores while another suit COS No. 1089-A/12 for specific performance of aforesaid agreement to sale were filed on behalf of the applicant. After appearance of the complainant in such suit, the alleged dispute was amicably settled between the parties out of the Court, on which, with the joint signature of the parties including the applicant as well as the complainant and their respective counsel, an application under Order 23, Rule 1 read with section 151 of the Civil Procedure Code was filed in such suits on 23-11-2012 for withdrawal of the same, on which, in presence of the parties and their counsel, such application was allowed and both the suits were dismissed as withdrawn on the same day. Pursuant to the aforesaid settlement, a cheque of Rs. 50,00,000/- was also given to the applicant on behalf of the complainant. Besides this, in such settlement, above mentioned other constructed flats and duplexes as argued by the applicant's counsel were also given by the complainant to the applicant and to transfer the alleged flats and duplexes, the requisite sale deeds were also executed by the concerning sellers in favour of the applicant or in the name of the person named by him. After such settlement in the aforesaid manner and execution of the sale deeds, on the basis of some part of the aforesaid earlier transactions, on behalf of the complainant, a complaint/ report in writing under section 156(3) of the Criminal Procedure Code was filed in the Court of JMFC, Bhopal on 29-8-2013, on which, such Court disposed of such matter with a direction to PS Shahpur to enquire and submit the report. On holding such inquiry by such PS according to its reported dated 10-12-2013 it was found that the applicant has not committed any alleged offence stated in such report/ complaint. The averments regarding such report were stated by the counsel in the course of arguments. Subsequent to such report of PS Shahpur, with respect of some other part of the transaction, the complainant again filed a report in writing in PS Shahjahanabad, Bhopal on 3-9-2013, on which Crime No. 15/14 was registered against the applicant. The same is under investigation. In pendency of investigation of such Crime No. 15/14, considering the prayer of the applicant, the X ASJ Bhopal vide order dated 15-1-2014, has extended the benefit of anticipatory bail to the applicant, pursuant to that, the applicant is on bail in such case. In pendency of the investigation of the aforesaid crime No. 15/14, with respect of alleged compromise deed dated 23-11-2012, relating to the same dispute which was the subject matter of the aforesaid civil suits, again a report in writing was given by the complainant against the applicant to PS Crime Branch, Bhopal on 15-9-2014, on which, vide dated 24-9-2014 the impugned Crime No. 2/14 was registered against the applicant for the above mentioned offences and in such case the applicant is under apprehension of his arrest. 7. Besides these criminal cases, it is apparent from the record that to quash the above-mentioned sale deeds executed in compliance of the aforesaid alleged settlement, on behalf of the complainant, COS No. 17-A/13 was also filed against the applicant and other persons on 13-11-2013 for declaration along with some other relief. In such suit, some interlocutory application has also been filed. In response of such interlocutory application, by filing the reply on behalf of the applicant, a copy of the alleged compromise deed dated 23-11-2012, the subject matter of the impugned offence, has also been placed and such suit is still sub-judice. In such suit, some interlocutory application has also been filed. In response of such interlocutory application, by filing the reply on behalf of the applicant, a copy of the alleged compromise deed dated 23-11-2012, the subject matter of the impugned offence, has also been placed and such suit is still sub-judice. Although counsel of the objector has argued that at the time of withdrawal of the earlier suits by the applicant and subsequent to that for a longer period such compromise deed dated 23-11-2012 was not remained in existence and its copy was firstly filed along with the anticipatory bail application filed in respect of aforesaid Crime No. 15/14, was also filed in the civil suit but till today the original document has neither been produced nor shown before any of the Court, authority or to the complainant is concerned, I am of the view that under the provision of the Civil Procedure Code, at the appropriate stage, such document could be discovered at the instance of the applicant by the civil Court or the civil Court may direct the applicant to produce the same. In such premises, one thing is certain that such compromise deed dated 23-11-2012 is still sub-judice in the civil suit pending at the instance of the complainant. So, in such premises, it is apparent that the civil dispute was remained in existence between the parties since long and on account of such transaction of the civil dispute simultaneously, criminal reports have also been given and lodged by the complainant against the applicant either before the Court of Magistrate or to the authorities which are described in elaborate manner in the earlier part of this order. 8. By placing reliance on the above-mentioned cited cases, on behalf of the objector, it was argued that on availability of the cause of action for both the proceedings, criminal and civil, the party has a right to initiate both the proceedings and, in the available circumstances, in respect of the aforesaid compromise deed dated 23-11-2012, the provision of section 195(1)(b)(ii) of the Criminal Procedure Code is not applicable are concerned. I agree with the argument of the counsel of the objector that on availability of concurrent cause of action to initiate the proceedings in the civil side as well as of criminal side, the party has a right to file and prosecute the same because the alleged document has neither been fabricated nor tampered after filing in the Court. 9. But in view of the aforesaid discussion, it is apparent that there is a long civil dispute between the parties with respect of the civil transaction and in entire argument from the side of the State as well as the objector it was argued that unless the applicant's custodial interrogation is carried out, the whereabouts of the original compromise deed dated 23-11-2012, could not be traced out and the same could not be recovered, I am of the view that when copy of such document has already been filed in the civil suit on behalf of the applicant then under the provision of the Civil Procedure Code its custody and whereabouts could be considered and appropriate order may be passed by the civil Court in that regard. However, mere on the ground that such original compromise deed has to be recovered, for which there is rival contention that such document is with the applicant as it was forged and fabricated by him while from the side of the applicant it was said that such original document is with the complainant, such issue could be adjudicated by the Court at the appropriate stage in the light of the concerning provisions. In view of the settled proposition of the law for redressal of the civil dispute, the parties could not be permitted to misuse the provisions of criminal law. But, at present, this is not the stage in the matter where this Court has to consider this question. In view of the settled proposition of the law for redressal of the civil dispute, the parties could not be permitted to misuse the provisions of criminal law. But, at present, this is not the stage in the matter where this Court has to consider this question. However, prima facie, keeping in view such principle, taking into consideration the existence of the long civil dispute between the parties as described above along with the nature of the evidence collected by the investigation agency in the impugned case, without expressing any opinion on merits of the matter, subject to following terms and conditions, this petition is allowed :- (A) It is directed that in the event of arrest to the applicant in connection with the above mentioned offence, the arresting officer/Investigating Officer shall release him on bail, on his furnishing a personal bond in the sum of Rs. 1,00,000/- (Rupees one lakh) along with one solvent surety in the like amount to the satisfaction of the arresting officer/Investigating Officer. (B) The applicant shall remain present before the Investigating Officer whenever his presence is required by him during the course of investigation till filing the charge sheet and shall also fully co-operate to such officer in tracing-out the whereabouts and recovery of the aforesaid original compromise deed dated 23-11-2012. (C) The aforesaid condition (B) shall remain in force till filing the charge sheet in the matter. (D) Besides the aforesaid condition, this anticipatory bail has also been granted subject to the terms and conditions enumerated under section 438(2) of the Criminal Procedure Code. C.C as per rules.