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2017 DIGILAW 1090 (RAJ)

Deepak Meena v. State Of Rajasthan

2017-04-26

PRASHANT KUMAR AGARWAL

body2017
JUDGMENT ORDER Prashant Kumar Agarwal, J. - Heard learned counsel for the parties. 2. The complainant-petitioner has filed this application under Section 439 (2) Cr.P.C. with a prayer to cancel the order dated 22.11.2016 passed by this Court in SB Criminal Misc. Bail Application No.13584/2016 whereby benefit of anticipatory bail under Section 438 Cr.P.C. was granted to the respondent-accused in respect of FIR No.470/2016 registered at Police Station Udhyog Nagar, Kota for the offences under Sections 420 & 406 IPC. 3. Brief relevant facts for the disposal of this application are that FIR No.470/2016 came to be registered at the instance of petitioner against the respondent-accused for the aforesaid offences on 5.10.2016 and apprehending his arrest respondent filed application for grant of anticipatory bail under Section 438 Cr.P.C. before this Court on 20.10.2016. Thereafter the parties amicably settled their dispute and a compromise was filed by them before this Court on 22.11.2016. The application filed by the respondent for grant of anticipatory bail was allowed by this Court on 22.11.2016 itself particularly considering the fact that the parties have amicably settled their dispute and entered into compromise and the amount in dispute has been refunded by the respondent in the form of two post dated cheques mentioned in the compromise. However, it was observed by this Court that in case post dated cheques are dishonored, the complainant is free to pursue the legal remedy available to him against the respondentaccused. The present application for cancellation of bail has mainly been filed on the ground that when one of the cheques dated 22.2.2017 was presented for encashment in the bank, but it was returned unpaid by the reason that the amount exceeds the arrangement made by the respondent and, therefore, the respondent has violated the condition upon which benefit of anticipatory bail was granted to him. 4. 4. It was submitted by the learned counsel for the petitioner that as per the compromise dated 22.11.2016 entered between the parties respondent-accused undertook that even if the cheque dated 22.2.2017 is returned without payment, the compromise would stand automatically cancelled and the applicant-complainant would be free to pursue legal remedy against him and, therefore, as the aforesaid cheque has returned unpaid and respondent has violated the condition of the compromise entered between them the applicant has a remedy to pray for cancellation of order of anticipatory bail granted by this Court to respondent more particularly in view of the fact that liberty was also granted by this Court to applicant to pursue the legal remedy available to him in case the post dated cheques are dishonored. It was prayed that as respondent-accused has violated the conditions of compromise as well as the order of bail, the present application is liable to be allowed. 5. On the other hand, learned counsel for the respondent-accused submitted that vide notice dated 15.2.2017 it was informed by the respondent to the applicant that for the reasons stated in the notice he could not make arrangement for the payment of cheque amount dated 22.2.2017 and he prayed that further period of two months for the payment of the same, but even then applicant presented the aforesaid cheque for encashment. It was further submitted that the cheuqe was dishonored not because of respondent did not intend to make payment of it but by the reason that he could not make arrangement for its amount. It was also submitted that by way of compromise as well as order passed by this Court liberty was given to the applicant to pursue a legal remedy in case the cheque is dishonored and applicant has already pursued remedy under Section 138 of N.I. Act for which he sent notice dated 1.3.2017 to respondent through his counsel and, therefore, he is not entitled to seek cancellation of bail granted to the respondent. It was also pointed out that after investigation charge-sheet has already been filed against the respondent for the aforesaid offences and he has been released by the trial Court on regular bail under Section 437 Cr.P.C. and, therefore, in the changed facts and circumstances of the case the order of anticipatory bail cannot be cancelled. 6. It was also pointed out that after investigation charge-sheet has already been filed against the respondent for the aforesaid offences and he has been released by the trial Court on regular bail under Section 437 Cr.P.C. and, therefore, in the changed facts and circumstances of the case the order of anticipatory bail cannot be cancelled. 6. On consideration of submissions made on behalf of the respective parties and the material made available on record and in view of the condition of the compromise entered between the parties and also in view of the liberty given by this Court while granting benefit of anticipatory bail to respondent vide order dated 22.11.2016 and more particularly in view of the fact that the cheque dated 22.2.2017 is dishonored due to insufficient amount in the account for which it was issued, I find it a fit case in which discretion conferred upon this Court under Section 439 (2) Cr.P.C. is to be exercised. The applicant could not deprived of his right to avail remedy under Section 439(2) Cr.P.C. merely because notice dated 1.3.2017 has been sent on his behalf to respondent seeking payment of amount of the aforesaid cheque. 7. Consequently, the application for cancellation of bail under Section 439 (2) Cr.P.C. is allowed and the order of anticipatory bail passed in favour of the respondent is cancelled.