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Himachal Pradesh High Court · body

2019 DIGILAW 1080 (HP)

Chander Kant v. State of Himachal Pradesh

2019-08-01

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. Since all these petitions arise out of same FIR, all were taken together and are being disposed of vide this common judgment. 2. By way of present petitions filed under S.438 CrPC, prayer has been made on behalf of the bail petitioners for grant of interim bail in case FIR No. 115, dated 30.5.2019, under Ss.417, 418, 42, 468 and 120(B) IPC registered at Police Station, Nurpur, Kangra, Himachal Pradesh. 3. Sequel to order dated 24.7.2019, SI Hans Raj has come present with the record. Status report containing details with regard to investigation of the case stands already filed on previous date. Record perused and returned. 4. Close scrutiny of the record made available to this Court reveals that on 30.5.2019, complainants, Rajat Thakur and Ruchi Thakur, submitted a complaint through Superintendent of Police, Kangra at Dharamshala, alleging therein that that vide Agreement to Sell dated 28.8.2018, bail petitioners, who are proprietors of M/s A-1 City Walk Private Limited, agreed to transfer their shares in the property/Company named above for total sale consideration of Rs.2.30 Crore but, despite complainants having paid aforesaid sum in terms of Agreement to Sell, referred to herein above, bail petitioners, with a view to cheat them, are now refusing to get the sale deed registered, as such, appropriate action in accordance with may be taken against them. On the basis of aforesaid complaint, a formal FIR came to be lodged against the bail petitioners at Police Station, Nurpur, Kangra, Himachal Pradesh, under aforesaid provisions of law. Though, the investigation in the FIR is yet to be completed, but the record reveals that during investigation, it transpired that the complainants, with a view to bail out the bail petitioners, who were under obligation to pay Rs.1,85,00,000/- to the Kangra Central Co-operative Bank Limited agreed, by way of Agreement to Sell, to pay entire amount to the Bank concerned, in lieu of the shares held by bail petitioners in the property/company concerned. Allegedly, the complainants paid entire sum of Rs.2.30 Crore to the Bank concerned in terms of Agreement to Sell arrived inter se parties, but despite that bail petitioners refused to get the sale deed registered on the ground that still a sum of Rs. 55,00,00/- is payable by the complainants. Though the terms and conditions of the Agreement to Sell suggest that a sum of Rs. 55,00,00/- is payable by the complainants. Though the terms and conditions of the Agreement to Sell suggest that a sum of Rs. 1,85,00,000/- was to be deposited in the Bank, which subsequently came to be deposited in the Registry of this Court and Rs.45,00,00/- to the bail petitioners, but, in the case at hand, entire sum of Rs.2.30 Crore came to be deposited by the complainants with the Bank concerned, against the loan liability of the bail petitioners., because No Objection Certificate (NOC) for further sale in favour of complainants was not being issued by the Bank. 5. Mr. N.K. Thakur, learned Senior Advocate duly assisted by Mr. Umesh Kanwar, Advocate, while espousing the case of the bail petitioners contended that as per agreed terms inter se parties, total consideration was Rs.2.85 Crore, whereas, in the case at hand, only a sum of Rs.2.30 Crore has been deposited by the complainants and as such, bail petitioners cannot be compelled to execute sale deed in terms of Agreement to Sell, till such time, remaining amount of Rs.55,00,00/- is paid to the bail petitioners. Mr. Thakur, learned Senior Advocate further contended that the question, whether the complainants are under obligation to pay Rs.55,00,00/- in terms of Agreement to Sell, is to be decided in the totality of circumstances, which led to the settlement inter se parties, but, definitely, criminal proceedings initiated against bail petitioners at the behest of the complainants, that too, on the allegations contained in the same are not tenable as such, bail petitioners deserve to be enlarged on bail. Lastly, Mr. Thakur, learned Senior Advocate contended that as per agreed terms, complainants are otherwise entitled to seek enforcement of Agreement to Sell by taking recourse to legal remedy. He also contended that nothing remains to be recovered from the bail petitioners and they have already joined the investigation, as such, no fruitful purpose would be served in case, their custodial interrogation, as prayed for, is granted. 6. Mr. N.K. Thakur, learned Senior Advocate, while buttressing his arguments, relied upon Rashmi Jain v. State of U.P., (2014) 13 SCC 553 to suggest that a purely civil dispute cannot be converted into criminal proceedings. 6. Mr. N.K. Thakur, learned Senior Advocate, while buttressing his arguments, relied upon Rashmi Jain v. State of U.P., (2014) 13 SCC 553 to suggest that a purely civil dispute cannot be converted into criminal proceedings. Learned Senior Advocate for the bail petitioners while relying upon Dalip Kaur v. Jagnar Singh, (2009) 14 SCC 696 , argued that non-registration of sale deed by the bail petitioners can, at best, be said to be a breach of Agreement to Sell and not a criminal breach of trust or an act of cheating, as such, present proceedings are nothing but an attempt on the part of complainants to arm-twist the bail petitioners into doing an act, which is prejudicial to their civil rights, as such, bail petitioners are entitled for grant of bail. 7. Mr. Sudhir Bhatnagar, learned Additional Advocate General appearing for the respondent-State and Mr. Ashok Chaudhary, Advocate representing complainant, while opposing prayer made on behalf of the bail petitioners for grant of bail, contended that there is no document, if any, to suggest that the complainants were under any obligation to pay amount over and above Rs.2.30 Crore as such, bail petitioners have been rightly booked under the aforesaid provisions of law. Learned counsel for the complainant further contended that a sum of Rs.1.85 Crore was deposited by complainants in the Registry of this Court, pursuant to order dated 30.10.2018 passed in CWP No. 1983 of 2018 titled A-1 City Walk Pvt Ltd vs. Kangra Central Cooperative Bank Ltd and another, having been filed by the bail petitioners. Learned counsel for the complainant further contended that the bail petitioners have not only duped the complainants but, just with a view to get rid of the loan liability, made them to pay huge sum of Rs.2.30 Crore to the Bank by concealing material facts. Lastly, learned counsel for the complainant contended that keeping in view the conduct of the bail petitioners, they do not deserve any leniency from this Court, as such, prayer having been made by them for grant of bail, may be rejected outrightly. While referring to the documents available on record, learned counsel for the complainant contended that apart from loan amount, complainants were made to purchase stamp papers worth Rs.13,18,000/- approximately for the registration of sale deed but till date, same has not been executed in terms of Agreement to Sell. 8. While referring to the documents available on record, learned counsel for the complainant contended that apart from loan amount, complainants were made to purchase stamp papers worth Rs.13,18,000/- approximately for the registration of sale deed but till date, same has not been executed in terms of Agreement to Sell. 8. Having heard learned counsel for the parties and perused material available on record, this court finds that as per Agreement to Sell dated 28.8.2018, Rs.2.30 Crore was required to be paid by the complainants enabling bail petitioners, who are proprietors /shareholders of A-1 City Walk Pvt. Ltd., to execute sale deed as such, there is no force in the argument of Mr. Thakur, learned Senior Advocate appearing for the bail petitioners that at the time of registration of sale deed sum of Rs.55,00,00/- over and above Rs.2.30 Crore already paid by the complainants, is/was required to be paid. Factum with regard to deposit of Rs.2.30 Crore with the Kangra Central Co-operative Bank Ltd. towards loan liability of the bail petitioners has not been denied by the bail petitioners, but their claim, which is not supported by any document, is that complainants are under obligation to pay an additional amount of Rs.55,00,00/-. 9. Having carefully perused/seen the documents available on record as well as conduct of the bail petitioners, this Court is not in agreement with the submission made by Mr. Thakur, learned Senior Advocate that no case, if any, is made out against the bail petitioners under the aforesaid provisions of law, but, definitely, this Court finds force in his arguments that since there is specific condition in the Agreement to Sell that in the event of failure on the part of the bail petitioners, who are the First Party to said Agreement to Sell, to execute the sale deed, complainants being the Second Party can get the same executed through process of court. Whether, amount, if any, in addition to Rs.2.30 Crore is required to be paid to the bail petitioners, is a question to be determined by trial court in the totality of evidence to be led on record by the parties, but, definitely, complainants, being Second Party in the Agreement to Sell, are well within their right to get the Agreement to Sell executed by approaching competent Court of law, as mentioned in Clause (3) of the Agreement to Sell. 10. 10. Criminal culpability as well as liability, if any, of the bail petitioners is yet to be ascertained/determined by court of law in the totality of evidence, as such, no fruitful purpose would be served in case, prayer for grant of bail is not accepted at this stage, especially when the bail petitioner have already joined the investigation. Factum with regard to deposit of Rs.2.30 Crore is not disputed by bail petitioners, rather, controversy, if any, is with regard to balance payment of Rs.55,00,00/-, which definitely cannot be ascertained in the present proceedings. Besides this, the Investigating Officer, in his report has fairly stated that the investigation is complete and nothing remains to be recovered from the bail petitioners. Moreover, when specific recourse is available to the complainants to get the sale deed registered in terms of clause (3) of the Agreement to Sell, this Court is of the view that present proceedings cannot be used to compel bail petitioners to do something, which is disputed. 11. Guilt, if any, of the bail petitioners is yet to be proved in accordance with law by the prosecution, as such, it would not be appropriate to curtail the freedom of bail petitioners for an indefinite period, especially when nothing remains to be recovered from them. Apprehension expressed by learned Additional Advocate General that in event of bail petitioners being enlarged, they may tamper with the evidence, can be best met by putting the bail petitioners to stringent conditions, as has been fairly admitted by learned counsel for the bail petitioner. 12. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh and Anr., decided on 6.2.2018 has held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under: "2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under: "2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to Police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons." 13. By now it is well settled that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation, (2012) 1 SCC 40 ; has been held as under:- "The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation, (2012) 1 SCC 40 ; has been held as under:- "The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson." 14. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 15. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218 , Hon'ble Apex Court has held as under: "This Court in Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40 , also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 16. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 16. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 17. In view of above, bail petitioners have carved out a case for themselves and as such, present petitions are allowed. Orders dated 2.7.2019 passed in each one of the petitions are made absolute, subject to the bail petitioners furnishing fresh bail bonds in the sum of Rs.2,00,000/-(Rs. Two Lakh) each with one local surety in the like amount, to the satisfaction of the Investigating Officer concerned, besides the following conditions: (a) They shall make themselves available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) They shall not leave the territory of India without the prior permission of the Court. (e) They shall surrender passport, if any, held by them. 18. It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 19. (e) They shall surrender passport, if any, held by them. 18. It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 19. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of these petitions alone. The petitions stand accordingly disposed of.