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2014 DIGILAW 582 (RAJ)

Nemchand Bothra v. State of Rajasthan

2014-02-28

PRASHANT KUMAR AGARWAL

body2014
JUDGMENT 1. - Heard learned counsel for the parties. 2. The complainant-petitioner has filed this application under Section 439(2) Cr.P.C. with the prayer to cancel the anticipatory bail granted to the accused-respondents No. 2 to 4 by this Court vide order dated 30.8.2013 in S.B. Criminal Misc. Bail Application No. 7930/2013 in respect of F.I.R. No. 40/2013 registered at Police Station Gangapur City (District Sawai Madhopur) for the offences under Sections 420, 467, 468, 471, 472 read with Section 120-B I.P.C. mainly on the {round that during investigation FSL report dated 19.11.2013 has been obtained and it has been opined in it that the disputed agreement to sell dated 15.1.2012 does not bear the signatures of the complainant and while affording liberty of anticipatory bail to the respondents, a right was given to the complainant to pray for cancellation of the same, if it is found in the FSL report that the disputed agreement does not bear the signatures of the complainant. 3. Brief relevant facts for the disposal of this application may be stated as below: (i) The petitioner filed a complaint against the accused-respondents and two other persons for the aforesaid offences in the Court of Additional Chief Judicial Magistrate, Gangapur City on 14.1.2013 alleging therein that the accused i pursuance of their criminal conspiracy executed forged agreement to sell of 15.1.2012 in respect of property in dispute and the fact of forgery came into his knowledge on 21.12.2012. (ii) The complaint was sent for investigation under Section 156(3) Cr.P.C.ti the concerned Police Station and F.I.R. No. 40/2013 was registered for the aforesaid offences and investigation commenced. (iii) Apprehending their arrest, the respondents initially filed application for anticipatory bail under Section 438 Cr.P.C. before the Additional Sessions Judge Gangapur City, but the same was dismissed vide order dated 1.4.2013. (iv) Thereafter, the aforesaid application for grant of anticipatory bail was filed before this Court mainly on the ground that the disputed agreement was executed by the complainant on 15.1.2012 in favour of respondent-Shri Vijai Kumar after obtaining the amount of sale consideration as mentioned in it am on the basis of that agreement respondent-Vijay Kumar filed a suit for specific performance against the complainant on 16.1.2013 in the Court of Additions District Judge, Gangapur City, which is now pending. It was also averred in the application that prior to the aforesaid suit, a suit for permanent injunction along with an application for temporary injunction was also filed against the complainant and two other persons in the aforesaid Court on 12.12.2012 is which the complainant filed reply to the application on 21.1.2013 and ad interim temporary injunction order has already been passed in favour of the respondent (v) Mainly considering the aforesaid claim made by the respondents, that the application filed by them was allowed, but at the same time right was granted to the complainant to pray for cancellation of the same, if it is found in the FSl report that the disputed agreement does not bear the signature of the complainant. 4. In support of the application, learned counsel for the complainant has submitted that as the right was granted to the complainant for cancellation of the bail and now the FSL report has been obtained and it has been opined that the disputed agreement does not bear the signature of the complainant, which being prima facie indication of the fact that the disputed agreement is a forget document and no such agreement was ever executed by the complainant in favour of the respondent-accused-Shri Vijay Kumar and he in pursuance of the criminal conspiracy has prepared a forged document and has filed civil suits or the basis of such a forged document. It was further submitted that once after grant of anticipatory bail, a material and important fact regarding forgery has 'come on record, the benefit already granted to the respondents is required to be taken back more particularly looking to the gravity of the offences for which the allegation have been made against them. It was also submitted that merely because civil suits have already been filed in a competent Court and question of validity and execution of the disputed agreement is also subject matter of the suites is not a bar to cancel the benefit wrongly obtained by respondents and the FSL report cannot be discarded at this stage by saying that it bears no conclusive evidence carry value and it is for the Civil Court to decide the validity of the agreement in dispute. It was also submitted that a bail granted to an accused can be cancelled not only when it appears to the Court that the same has been granted by considering irrelevant facts, but also when some material fad subsequently comes on record which was not available at the time when benefit of bail was granted. In support of his submissions, learned counsel for the complainant relied upon the case of Central Bureau of Investigation v. V. Vijay Reddy reported in (2013) 7 SCC 452 . It was also brought to the knowledge that the case is still at the stage of investigation and no final report has been prepared either way. 5. On the other hand, learned counsel for the respondents submitted that benefit of anticipatory bail was granted to the respondents considering all the fact and circumstances of the case and more particularly the fact that prior to registration of F.I.R., the respondent-accused-Shri Vijay Kumar filed two civil suits in the competent Civil Court against the complainant and ad interim temporary injunction order was also passed in his favour. Although, right was granted to the complainant to move for cancellation of the bail, if in the FSL report it is found that the disputed agreement does not bear the signature of the complainant, but it does not mean an absolute right was granted in his favour. It was further submitted that the FSL report dated 19.11.2013 only opines that there are some dissimilarities between the disputed signatures of the complainant and his admitted and specimen signatures, but there is no definite opinion that the agreement does not bear the signatures of the complainant. It was also submitted that in view of the right/liberty granted to the complainant, the bail cannot be cancelled in absence of definite opinion regarding absence of signatures of the complainant, it was also submitted that in view of the right/liberty granted to the complainant, the bail cannot be cancelled in absence of definite opinion regarding absence of signatures of the complainant. It was further submitted that the opinion of a Handwriting Expert is not conclusive and it is a weak type of evidence, which may not be safely relied upon without independent and reliable corroboration. It was further submitted that the opinion of a Handwriting Expert is not conclusive and it is a weak type of evidence, which may not be safely relied upon without independent and reliable corroboration. As the question of execution and validity of the agreement in dispute is a subject matter of civil suits already filed by the respondent-accused and final opinion can be made only by the Civil Court, the FSL report has no bearing even prima facie at this stage of the proceedings resulting cancellation of bail already granted to the respondents, as it would adversely effect their liberty. It was also submitted that it is not the case of the complainant himself that after getting benefit of bail the respondents are in any way interfering in the course of investigation or they have abused the concession granted to them in any manner. It was also brought to the notice of the Court that vide order dated 25.1.2014, the learned Additional District Judge, Gangapur City in Civil Misc. Case No. 11/2013 has allowed the application for grant of temporary injunction in favour of the respondent-accused-Shri Vijay Kumar and the complainant has been restrained not to sell or otherwise transfer the land in dispute during the pendency of the suit, which fact also an indication of the fact that the Civil Court has prima facie found that the disputed agreement was executed by the complainant in favour of the respondent. It was also submitted that respondents-accused-Shri Kaluram and Mahendra Kumar by filing affidavits in the aforesaid suit have supported the stand taken by the accused-respondent-Shri Vijay Kumar. Attention was also drawn towards the report dated 5.3.2012 prepared by a private Handwriting Expert Ms. Renu Kumari in which it has been opined that she found go forgery in the disputed document. In support of his submissions, learned counsel for the respondents relied upon the following cases: (i) Hazari Lai Das v. State of West Bengal & Anr. reported in (2009) 10 SCC 652 , (ii) Central Bureau of Investigation, Hyderabad v. Subramani Gopala krishan & Anr. reported in (2011) 5 SCC 296 , (iii) S. Gopal Reddy v. State of A.P. reported in (1996) 4 SCC 596 . 6. reported in (2009) 10 SCC 652 , (ii) Central Bureau of Investigation, Hyderabad v. Subramani Gopala krishan & Anr. reported in (2011) 5 SCC 296 , (iii) S. Gopal Reddy v. State of A.P. reported in (1996) 4 SCC 596 . 6. I have considered the submissions made - on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law relied upon on behalf of the respective parties. 7. It is now well settled legal position in what circumstances a bail already granted to an accused can be cancelled and one of the circumstances is that if any relevant and important supervening circumstance is subsequently brought before the Court, which was not available when the order was granted, the same is to be considered and it would no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during trial. In the present case, the benefit of anticipatory bail was granted to the respondents mainly on the ground that it was claimed on their behalf that prior to the registration of F.I.R., two civil suits were filed against the complainant in the competent Civil Court on the basis of the disputed agreement dated 15.1.2012 and ad interim temporary injunction order was passed and till then FSL report was not available. Although, order was passed in favour of the respondents, but at the same time right was granted to the complainant to move for cancellation, if in the FSL report it is opined that the agreement in dispute does not bear the signatures of the complainant. It is an admitted fact that subsequent there to report dated 19.11.2013 has been obtained. It has been opined in it that there are dissimilarities between the disputed signatures and the admitted and specimen signatures of the complainant although no definite opinion has been given to the effect that the disputed agreement does not bear the signatures of the complainant, but merely by that reason at this stage of the proceedings the opinion of the Government Handwriting Expert cannot be ignored. The right granted by this Court to the complainant did not mean that the application for cancellation of bail would be entertained only when definite opinion regarding signatures of the complainant is given in the FSL report. The right granted by this Court to the complainant did not mean that the application for cancellation of bail would be entertained only when definite opinion regarding signatures of the complainant is given in the FSL report. Although, the opinion of an expert is a weak type of evidence and it has to be corroborated by other evidence, but in the present case the complainant has very categorically denied the execution of the agreement not only in the complaint filed by him, but also in the written statement and reply filed to the suit and application for temporary injunction filed by the accused-respondent-Shri Vijay Kumar. Similarly, although the execution and validity of the agreement is directly subject matter of the civil suits and the same would be considered by the Civil Court after recording the evidence of both the parties, but so far as the present criminal proceedings are concerned, I am of the view that the FSL report dated 19.11.2013 is of prime importance and it being a supervening relevant circumstance cannot be ignored. So far as the report of the private Handwriting Expert relied on behalf of the respondents is concerned, the same cannot be given priority over the report of FSL more particularly in view of the fact the same has been prepared on the basis of photo copies. Similarly the affidavits of respondents No. 3 and 4 are of no value as they have been made accused as attesting witnesses of the agreement in dispute. 8. Recently, in the case of Prakash Kadam and others v. Ram Prasad Vishwanath Gupta & Anr. reported in (2011) 6 SCC 189 , Hon'ble Supreme Court has held that it is not an absolute rule that considerations of bail are different from the consideration of grant of bail; it will dependent on the facts and circumstances of the case. In considering whether to cancel the bail the Court has also to consider the gravity and nature of the offence, prima facie case against the accused, the position and standing of the accused etc. If there are very serious allegations against the accused, his bail may be cancelled even if he has not misused the bail granted to him. There is no absolute rule that once bail is granted to the accused, then it can only be cancelled if there is likelihood of misuse of the bail. If there are very serious allegations against the accused, his bail may be cancelled even if he has not misused the bail granted to him. There is no absolute rule that once bail is granted to the accused, then it can only be cancelled if there is likelihood of misuse of the bail. That factor though no doubt important is not the only factor. There are several other factors also, which may be seen while deciding to cancel the bail. 9. If in the light of prevalent legal position, the facts and circumstances of the present case are considered, the present application filed by the complainant is liable to be allowed and the order granting anticipatory bail dated 30.8.2013 is to be cancelled. 10. Consequently, the application filed under Section 439(2) Cr.P.C. is allowed and the order granting anticipatory bail dated 30.8.2013 in S.B. Criminal Misc. Bail Application No. 7930/2013 passed in favour of the respondents No. 2 to 4 is cancelled. The Investigating Agency is free to take necessary steps for the arrest of the/respondents in accordance with law if need of their arrest exists.Application allowed. *******