Research › Search › Judgment

Madhya Pradesh High Court · body

2021 DIGILAW 7 (MP)

Anita Sharma v. State of Madhya Pradesh

2021-01-06

ATUL SREEDHARAN

body2021
ORDER : Atul Sreedharan, J. 1. This order shall govern disposal of M.Cr.C. Nos. 42339/2020 and M.Cr.C. No. 42323/2020, as both these cases arise out of the same crime number. 2. The applicants are apprehending their arrest in connection with Crime No. 513/2020, P.S. Ayodhya Nagar, Bhopal, registered for offences punishable U/s. 420, 406, 120-B, 467 and 468 of the I.P.C. 3. Learned counsel for the State has taken a preliminary objection in these cases and has submitted that the matter be listed before Hon'ble Mr. Justice A.K. Shrivastava, as the cases were extensively argued before him on 09.11.2020. However, on perusing the order sheet of 09.11.2020, it does not appear that the case had been argued in detail before the co-ordinate bench and neither is the case made over to any particular bench. It is also not the case that co-ordinate bench has passed an order for or against any of the co-accused persons, or that he has passed an interim order in these applications, on account of which, the matter be sent before the same learned Judge. Subsequently, these cases were listed before other Hon'ble Judges on 18.11.2020, 25.11.2020, 02.12.2020, 22.12.2020 and 04.01.2021. On all these occasions, never once has the State made such a prayer that the cases be listed before Hon'ble Mr. Justice A.K. Shrivastava itself, as it was extensively heard by him. Learned counsel for the State has also submitted that on the previous occasions, he has not made such a prayer, as on each of those occasions, the case was adjourned at the behest of the applicants herein. However, the order dated 02.12.2020 reflects that the prayer for adjournment was strongly opposed by the learned counsel for the Objectors on the ground that the applicants' counsel was repeatedly seeking time and not arguing the cases. The Ld. Co-ordinate Bench, considering the submissions from both sides, adjourned the cases by observing that they be listed after four weeks and if it was not argued on the next date of hearing, the matter would be decided on the basis of facts pleaded in the applications. On that date, it was open for the State to have made a submission before the Court on 02.12.2020, to list these matters before Hon'ble Mr. Justice A.K. Shrivastava, but it was not done. This prayer has been made for the first time when it has been listed before this Court. On that date, it was open for the State to have made a submission before the Court on 02.12.2020, to list these matters before Hon'ble Mr. Justice A.K. Shrivastava, but it was not done. This prayer has been made for the first time when it has been listed before this Court. The Court takes exception to such pleas being made as it indirectly casts an aspersion on the Court itself. Learned counsel for the State is requested to be more cautious in future, bearing in mind that though he may not have intended to cast an aspersion on the Court, however he being an officer of the Court must take exceptional care to ensure that no submissions are made, which by necessary implication, can be construed as casting an aspersion on the Court. At this juncture, learned counsel for the State regrets having made such a request and assured this Court that he shall henceforth take care not to make submissions that may be construed as undermining the dignity of the Court. The penitence of the learned counsel for the State appears to be genuine and the error unintentional. Therefore, this Court does not wish to proceed any further on this issue. 4. Extensive arguments have been made on behalf of the parties and it would be necessary to record and consider them. The facts are as follows. The complainant is one Sunil Saini. He lodged an F.I.R. at P.S. Ayodhya Nagar, Bhopal, against the applicants and other co-accused persons. Complainant is the proprietor of M/s. Saini Indian Gas Agency. On 21.09.2020, he received a letter from the Indian Oil Corporation Limited (for short 'IOCL') and came to know that the applicant Neha Pandey had filed an application before IOCL desiring that she be made a partner in the firm of the complainant. The application and the supporting documents are annexed to this application as Annexure A/7 from page 46 till page 82. 5. An explanation was sought by IOCL from the complainant at which juncture, he comes to know that the said documents requiring the addition of Neha Pandey as a partner in the firm of the complainant, is based upon fabricated documents. It is relevant to mention here that the signatures on all these documents, purporting to be that of the complainant, are not denied. It is relevant to mention here that the signatures on all these documents, purporting to be that of the complainant, are not denied. According to the complainant, when he was setting up his Gas Agency in the year 2004, he had taken the assistance of co-accused Budhsen Sharma, who was already a proprietor of M/s. Nainika Gas Agency. It is alleged that the co-accused B.S. Sharma, being an old hand and running a Gas Agency, extended his assistance to the complainant in setting up the complainant's Gas Agency and in that direction, Budhsen Sharma is alleged to have taken the signatures of the complainant on blank papers stating that the same would be required for official work. Therefore, the case of the prosecution is that the application for reconstitution of the firm with the addition of co-accused Neha Pandey has been executed on those very blank papers allegedly signed by the complainant in the year 2004. According to the prosecution, prima-facie, the applicant Neha Pandey is guilty of fabricating false documents and sending them to IOCL for addition of her name as a partner of the firm, run by the complainant. 6. As far as applicant Anita Sharma is concerned, learned counsel for the applicant states that the entire case or the allegations levelled against her is contained in Annexure A/2 at page 19 of the application based on which, her arrest is being sought. The said document is a business agreement entered into between Sunil Kumar Saini, the complainant, who is the first part to the agreement and Mr. Kishorilal Pandey, who is the second part to the said agreement. The agreement was to provide funds to the complainant Sunil Kumar Saini by co-accused Kishorilal Pandey. The agreement required the complainant to pay 25% of his profit margin to co-accused K.L. Pandey and execute a partnership deed by which, the co-accused K.L. Pandey would be the 25% partner in the Gas Agency to be opened and operated by the complainant. In the said agreement, the applicant Anita Sharma is shown as a nominee of Mr. K.L. Pandey. Undisputedly, this document has not been signed by Smt. Anita Sharma. It has been signed by the co-accused K.L. Pandey, the complainant Sunil Kumar Saini and two witnesses to its execution, Mr. B.S. Sharma and Sunil Badhwar. 7. In the said agreement, the applicant Anita Sharma is shown as a nominee of Mr. K.L. Pandey. Undisputedly, this document has not been signed by Smt. Anita Sharma. It has been signed by the co-accused K.L. Pandey, the complainant Sunil Kumar Saini and two witnesses to its execution, Mr. B.S. Sharma and Sunil Badhwar. 7. In opposition to this, learned counsel for the Objector has drawn the attention of this Court to the written objection filed by the Objector and with specific reference to page No. 35, which is a copy of a banker's cheque in favour of IOCL, accompanying an application for reconstitution of the proprietorship firm with the inclusion of name of Ms. Neha Pandey as a partner in the said firm. The fee amount is Rs. 25,000/- and the name of the applicant given in the banker's cheque is reflected as Anita Sharma. Based on this, learned counsel for the Objector and for the State have submitted that the applicant Anita Sharma was part and parcel of a larger conspiracy to cause loss by way of cheating, effected through the execution of fabricated documents. Learned counsel for the Objectors have submitted that a strong prima-facie case has been disclosed against the applicants in the F.I.R. 8. The genesis of the problem starts from a show cause notice dated 21.09.2020 issued to the complainant/objector by the IOCL. The Company informed the complainant that an application had been received on 06.10.2020 from one Saurabh Saxena, who is the Office Secretary of Akhil Bhartiya Upbhokta Congress relating to contravention of norms pertaining to the distributorship agreement entered between the Company and the complainant on 23.06.2004. The Company called for the complainant's reply to the said notice. The notice is filed along with the objection and the same is at page 12 of the written objection dated 21.09.2020. Learned counsel for the objector submits that it was at this juncture, that the complainant came to know about the purported fraud/forgery being committed against him. 9. The main document based on which the fraud is alleged to have been committed is at page 46 of the application. It is the application alleged to have been preferred by the Applicant Neha Pandey for being made a partner in the proprietorship firm of the complainant. 9. The main document based on which the fraud is alleged to have been committed is at page 46 of the application. It is the application alleged to have been preferred by the Applicant Neha Pandey for being made a partner in the proprietorship firm of the complainant. The learned counsels for the Objector and the State have first referred to S. No. 9 of the application which relates to the "Existing constitution of distributorship". The applicant Neha Pandey has given the details that it is presently a "sole proprietor". Thereafter, they have drawn the attention of this Court to S. No. 10, which is the details of "present proprietors/partners", in which, the applicant Neha Pandey has given the name of Sunil Saini, the complainant herein. At S. No. 13, the particulars relating to the name of the new partners proposed to be inducted was to be given in which, applicant Neha Pandey has given her name. In the place of signature of the existing partners, the applicant Neha Pandey has signed her name and, in the place meant for signatures of the incoming partners is concerned, the signature of the complainant is present. As has already been stated hereinabove, the complainant has not disputed his signatures. He has admitted that his signature is genuine, but it has been taken on blank sheets of papers on which, the application for reconstitution of the firm was allegedly fabricated. Further, in the F.I.R., it has been stated very categorically by the complainant that he does not know any K.L. Pandey or any person by the name of Anita Sharma and, therefore, the agreement executed between him in the year 2004 itself is a fabricated document. 10. To dispel this claim by the objector, learned counsel for the applicants has drawn the attention of this Court to the rejoinder application filed by the applicants with specific reference to page No. 33, which is a cancelled cheque dated 13.09.2017 issued in favour of co-accused K.L. Pandey allegedly by none other than the wife of the complainant Smt. Neetu Saini for a sum of Rs. 75,000/- being the 25% share of the profit of the firm. At page 34 of the rejoinder is Annexure A/15, which is a letter of the State Bank of India dated 11.11.2020 disclosing a credit of Rs. 75,000/- being the 25% share of the profit of the firm. At page 34 of the rejoinder is Annexure A/15, which is a letter of the State Bank of India dated 11.11.2020 disclosing a credit of Rs. 75,000/- into the account of co-accused K.L. Pandey from the account of Smt. Neetu Saini. 11. The complaint against the complainant made to the IOCL also disclosed the violation of the "no parallel source of livelihood" by the complainant, it was also brought to the notice of the Company that the complainant was a qualified Architect and was still holding a license and practicing as an Architect. Attention of this Court has been drawn to the agreement entered between the complainant and the Company with specific reference to Clause 23(c)(ii), as the complainant continued to be an Architect and therefore, called upon to show-cause as to why his license ought not be cancelled. Learned counsel for the Objector has submitted that they sent a reply on 14.10.2020 itself in which, they have clarified that merely possessing a degree in Architecture or being in possession of a license to practice as one, was not a disqualifying factor as working as an Architect could not be presumed merely because the applicant held a degree and license by which he could have practiced as an Architect if he so wanted to. Learned counsel for the complainant has also stated that the complainant has applied to the relevant authority to place his license under suspension. However, the application moved by the complainant for the suspension of his license to practice was moved only on 29.09.2020 after the complainant became aware of the application put under the R.T.I. Act by one of the co-accused persons and the same was placed under suspension by the relevant authority on the same date. Learned counsel for the State also submits that the co-accused persons were granted the benefit of bail from the learned Court below and the applicants herein are seeking the anticipatory bail from this Court. 12. Learned counsel for the State in support of his arguments has relied upon several judgments of the Supreme Court, which this Court proposes to refer in this order. The first judgment is reported in (1997) 7, SCC 187 (State represented by C.B.I. Vs. Anil Sharma). 12. Learned counsel for the State in support of his arguments has relied upon several judgments of the Supreme Court, which this Court proposes to refer in this order. The first judgment is reported in (1997) 7, SCC 187 (State represented by C.B.I. Vs. Anil Sharma). The respondent in that case Anil Sharma, at the material point of time was a M.L.A. in the State Legislative Assembly of Himachal Pradesh and a Minister in the State Government. A case U/s. 13(2)(e) of the Prevention of Corruption Act, 1988 was registered against the respondent Anil Sharma for acquiring wealth more than his known sources of income. The respondent in that case was granted anticipatory bail from the High Court of Himachal Pradesh and the C.B.I. had approached the Supreme Court for cancellation. The C.B.I. stated before the Supreme Court that required the respondent in that case for custodial interrogation as the interrogation of the accused after grant of anticipatory bail would have been reduced to a formality, as the pressure of custodial interrogation is far greater and more effective. It is clearly seen that in the case before the Supreme Court, the facts were relating to amassing assets disproportionate to the known source of income and it was in that environment the Supreme Court thought that interrogation in a post-bail condition is reduced to a mere ritual and therefore, had allowed the appeal filed by the C.B.I. and set aside the order granting anticipatory bail to the respondent Anil Sharma from the High Court of Himachal Pradesh. However, in the present case, the allegation is not of having committed an offence, but what flows from the narrative of the prosecution's case is nothing more than an attempt of applicant Neha Pandey to get herself enlisted as a partner in the proprietorship firm of the complainant and nothing else. The second judgment of the Supreme Court, which has been referred to by the learned counsel for the State is reported in (2012) 9 SCC 235 (Maruti Nirutti Navele Vs. The State of Maharashtra) with specific reference to paragraph 60. That was a case in which the appellant was a founder President and the Managing Trustee of Sinhgad Technical Education Society, Pune. In that case, the respondent No. 2 was running a school and decided to run the same with the help of other educational institutions by leasing out the property. That was a case in which the appellant was a founder President and the Managing Trustee of Sinhgad Technical Education Society, Pune. In that case, the respondent No. 2 was running a school and decided to run the same with the help of other educational institutions by leasing out the property. The respondent No. 2 is stated to have approached the appellant before the Supreme Court for the same. The appellant showed interest in the property and after negotiations, there was an offer to lease out the said school building for a period of 87 years and sell one of the additional properties for a consideration of Rs. 3 Crores 50 Lacs. The respondent No. 2 filed a complaint with the Deccan Police Station, Pune, alleging that the appellant before the Supreme Court made a forgery in the lease deed dated 07.03.2011 pertaining to granting the lease for 87 years without the consent of the complainant and that a further forgery was made by making addition, alteration in the original draft agreement for lease that was prepared between the appellant and the second respondent in that case. 13. In this case, the allegation of forgery is prima-facie fanciful vague and specious, made only for the purpose of getting an FIR registered against the applicants. The complainant has not been able to show prima-facie, any loss that he has suffered on account of the alleged action of the applicants herein and neither has he disclosed how the action of the applicants, in all probability could have caused any loss to him. As regards the alleged loss being caused to the complainant, learned counsel for the Objector has stated that it is only on account of the documents sent to the IOCL by the applicants herein that he has been given a notice for cancellation of his Gas Agency. 14. The next judgment that has been referred to by the learned counsel for the State is reported in (2019) 9, SCC 24 (P. Chidambaram Vs. The Directorate of Enforcement). That was a case where the anticipatory bail was denied, as the applicant was charged of having committed the offence of money laundering and therefore, was required for custodial interrogation. The gravity of the offence coupled with its factual aspects, guided the Supreme Court to decline the bail. The Directorate of Enforcement). That was a case where the anticipatory bail was denied, as the applicant was charged of having committed the offence of money laundering and therefore, was required for custodial interrogation. The gravity of the offence coupled with its factual aspects, guided the Supreme Court to decline the bail. The next judgment that has been referred to by the learned counsel for the State is reported in (2020) 5, SCC 1, (Sushila Agrawal and others Vs. State NCT, Delhi & Another). The said judgment of the Constitution Bench resolved ambiguity arising from the previous judgment regarding the extent and scope of an order granting anticipatory bail and whether it suffered from limitations. Learned counsel for the State in this context has specifically referred to paragraph 92 of the said order, which are the set of directions/guidelines issued by the Supreme Court (from paragraphs 92.1 to 92.12 of the said judgment). The said judgment was passed in reference and besides laying down the guidelines, has over-ruled the observations in Siddharam Satlingappa Mhetre Vs. The State of Maharashtra, to the extent that no restrictive conditions at all can be imposed while granting anticipatory bail to the accused. Likewise, the judgment of the Supreme Court in Salauddin Abdul Samad Sheikh Vs. The State of Maharashtra and subsequent decision following it, which lay down restrictive conditions or terms limiting the grant of anticipatory bail to a specific period of time were also over-ruled by the Supreme Court. The said judgment only lays down a proposition of law and guidelines mentioned hereinabove and does not specifically apply to the facts circumstances of this case. 15. The judgments of the Supreme Court cannot be referred to or relied upon, as an enchanted shoe that fits every size, more so, when they relate to personal liberty and bail matters. The slightest variation in fact can render the order of the superior Court inapplicable in the facts circumstances being considered by an inferior Court. The bail applications are to be decided strictly in the light of facts of each case and effectively no 'rule of thumb', can be laid down. 16. The slightest variation in fact can render the order of the superior Court inapplicable in the facts circumstances being considered by an inferior Court. The bail applications are to be decided strictly in the light of facts of each case and effectively no 'rule of thumb', can be laid down. 16. In this case, the only two charges against the applicant Anita Sharma are that she has been named as a nominee in the purported agreement between the complainant and K.L. Pandey executed in the year 2004, which the Objector now states is a fabricated document and that he has no knowledge as to who the K.L. Pandey is, or who the applicants herein are. The other allegations against applicant Anita Sharma is that in the banker's cheque accompanying the format for the inclusion of the name of co-accused Neha Pandey in the proprietorship firm of the complainant has been given by the applicant Anita Sharma. Both these documents are grossly inadequate to prima-facie drive home any charge regarding the involvement of Anita Sharma in the aforesaid offence. In the agreement executed between K.L. Pandey and the complainant, the name of Anita Sharma only occurs as a nominee and undisputedly, the said document has not even been signed by Anita Sharma. As regards the involvement of applicant Neha Pandey is concerned, learned counsel for the Objectors and the State have submitted that the document is fabricated on two grounds, firstly that the signature of the complainant was taken on blank paper in the year 2004 and thereafter the application for reconstitution in the old format was printed over it. 17. Secondly, it is insisted that the document is fabricated because the co-accused Neha Pandey has signed in between the space provided for the signature of existing partners, while the complainant's signature is over the space meant for signing of signatures of the incoming partners. This according to the learned counsel for the Objector and the State is an act of fabrication. This Court begs. Merely because the applicant Neha Pandey has signed over a space which was meant for existing partners and that the complainant has signed over the space provided for incoming partners, does not make the said document a forged one instead, it can only be construed that the said document was improperly executed. This Court begs. Merely because the applicant Neha Pandey has signed over a space which was meant for existing partners and that the complainant has signed over the space provided for incoming partners, does not make the said document a forged one instead, it can only be construed that the said document was improperly executed. The contents of the said application purported to have been sent to IOCL by applicant Neha Pandey and discussed earlier, only goes to show that prima-facie no mens-rea was there in her mind to cheat. In this regard, the particulars mentioned at S. No. 9 of Annexure A/7 at page 45 of the application is relevant, which is an application for reconstitution of the firm. At S. No. 9, the details were to mention about the existing constitution of distributorship was required, in which, the applicant Neha Pandey has correctly filled in the sole proprietor and in S. No. 10, the details regarding the present proprietor are given as Sunil Saini, aged 49 years, the complainant herein. The truthful disclosure of correct particulars only goes to show that prima-facie the applicant Neha Pandey did not had any intention of cheating. Besides, at the risk of repetition, it is observed that the signatures of the complainant, have not been disputed by him. As regards the contention of the complainant about not knowing Neha Pandey or K.L. Pandey, the learned Senior Counsel appearing on behalf of the applicant has drawn the attention of this Court to the rejoinder affidavit filed by him in which he has annexed the photocopies of the cancelled cheques issued by Mrs. Neetu Saini, who is the wife of the complainant, to K.L. Pandey for Rs. 75,000/-, which document is at page 33 of the rejoinder filed on behalf of applicant Neha Pandey. The document at page 34 of the application is a letter from the State Bank of India to Mr. K.L. Pandey informing him that a credit of Rs. 75,000/- was made into his account through transfer from the account of the wife of the complainant Smt. Neetu Saini. It is also relevant to mention here that the genuineness of these documents has not been questioned by either the State or the Objector/Complainant. 18. Thus, prima-facie the contention of the complainant that he has no knowledge about the existence of a K.L. Pandey is factually incorrect and unbelievable. It is also relevant to mention here that the genuineness of these documents has not been questioned by either the State or the Objector/Complainant. 18. Thus, prima-facie the contention of the complainant that he has no knowledge about the existence of a K.L. Pandey is factually incorrect and unbelievable. On account of acts of the applicant Neha Pandey, admittedly, no loss has been caused to the complainant. Under the circumstances, prima-facie, this Court is of the view that merely by applying for inclusion of the name of Neha Pandey in the proprietorship firm of the complainant, will not constitute an offence as alleged against the applicant Neha Pandey. 19. The admitted documents in this case are the agreement entered into between IOCL and the complainant, which has been filed along with the application. The said documents have been signed multiple times on each page by the complainant. Upon a prima facie comparison of the said signatures with the signatures in the disputed agreement between the complainant and K.L. Pandey entered into in the year 2004, the signatures appear to be strikingly similar. That notwithstanding, as already discussed hereinabove, the contention of the complainant that he does not know K.L. Pandey has been rejected by this Court, as an incorrect statement in view of the cancelled cheque and the digital transaction by which moneys were deposited into the account of K.L. Pandey by none other than the wife of the complainant. Thus, prima-facie, the agreement between K.L. Pandey and Sunil Saini in the year 2004 appears to be a genuine document. 20. The Police has not recorded the 161 statement of the Notary who had attested the agreement of the year 2004 and neither has the statement U/s. 161 Cr.P.C. been recorded of the witness who are stated to have seen the said agreement being executed in their presence by both K.L. Pandey and the complainant Sunil Saini. Lastly, no case has been made out by any credible argument either by the Objector or the State as to why custodial interrogation of the applicants, who are ladies, are required in a case, where unrebutted facts against them prima-facie do not constitute an offence as charged by the Police. 21. Lastly, no case has been made out by any credible argument either by the Objector or the State as to why custodial interrogation of the applicants, who are ladies, are required in a case, where unrebutted facts against them prima-facie do not constitute an offence as charged by the Police. 21. In view of what has been stated and discussed elaborately hereinabove, these applications are allowed and it is directed that the applicant in M.Cr.C. No. 42339/2020 (Anita Sharma) and the applicant in M.Cr.C. No. 42323/2020 (Neha Pandey) shall be released on anticipatory bail on their furnishing a personal bond in the sum of Rs. 50,000/- each with a solvent surety in the like amount each to the satisfaction of the Arresting Officer. 22. This Court makes it abundantly clear that the observations on factual aspect of the case have only been made by this Court for deciding the application for anticipatory bail. An elaborate order was called for on account of the elaborate submissions on the part of the Ld. Counsels appearing in this case and so, the observations are based upon a prima facie appreciation of the case.