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2022 DIGILAW 1646 (ALL)

Manish Gupta v. State of U. P.

2022-10-12

KRISHAN PAHAL

body2022
JUDGMENT : 1. Heard Sri G.S. Chaturvedi, learned Senior Counsel assisted by Sri Alok Ranjan Mishra, learned counsel for the applicant and Sri Sunil Kumar, learned counsel for the informant as well as Sri Vibhav Anand Singh, learned A.G.A. for the State. 2. The present anticipatory bail application has been filed on behalf of the applicant in F.I.R./Case Crime No.1532 of 2021, under Sections 177, 182, 191, 192, 193, 196, 200, 207, 209, 463, 464, 468, 471, 120-B, 420, 504 & 506 IPC, Police Station-Kotwali Shahar, District-Bulandshahr, with a prayer to enlarge him on anticipatory bail during the pendency of the trial. PROSECUTION STORY 3. An application u/s 156(3) of Cr.P.C. was filed by the first informant Mahesh Kumar, in the Court of Chief Judicial Magistrate, Bulandshahr on 20.09.2021 alleging that the informant and his brothers are the landlords and are in possession of Jagdish Cinema. The informant and his brothers had decided to rent the said cinema hall to Vipul Mittal and Atul Mittal. On 06.09.2021 at about 08:00 AM, when the informant and his brothers were preparing a rent deed with deed writer Sudhir Gupta at the Jagdish Cinema hall then at about 08:30 AM, the applicant and co-accused persons Chandra Prakash Gupta and Pradeep Kumar along with three unknown persons came there, started hurling abuses at them and are stated to have demanded a ransom of Rs.1 crore in lieu of the said rent deed/ any sale-deed. On the same day at about 11:00 AM, when the informant and his brothers reached the office of Registrar then again the said six persons met them and misbehaved with them. The Sub-Registrar showed three applications filed by the applicant and his brothers to stop the registration of the said rent deed. The informant along with the persons accompanied with him perused the said three applications and it was found that the language used in the said applications are similar and the witness in one application is the complainant in another application. Further in the said applications, it was alleged that the Court below has passed an order dated 18.9.2002 in Case No.07 of 2008, Mahendra Kumar Vs. Chavli Devi, restraining the informant and his brothers to transfer the alleged property through sale-deed or any other means. The informant apprehended that the applicant and his brothers are trying to rent the said property to someone else. Chavli Devi, restraining the informant and his brothers to transfer the alleged property through sale-deed or any other means. The informant apprehended that the applicant and his brothers are trying to rent the said property to someone else. Thereupon, the applicant showed the other documents including the order dated 5.4.2011 wherein the informant and his brothers were declared as the sole owners of the said cinema hall and thereafter, the said rent deed was registered by the Registrar in spite of the said applications filed by the applicant and his brothers. It is also alleged that the applicant and his brothers have filed fake and forged documents before the Registrar and have interfered in his official work who is a public servant. 4. The accused persons have furnished false information with intent to cause public servant to use his lawful power to the injury of another person, and have given false evidence and have used the said documents knowing them to be false, and have fraudulently claimed the property not vested in them and, thus, have committed forgery by preparing a false document for the purpose of cheating and dishonestly made a false claim in Court. Learned Magistrate had ordered for registration of FIR and after investigation, the charge-sheet against the applicant and his brothers has been filed on 03.11.2021. RIVAL CONTENTIONS 5. Learned Senior Counsel for the applicant has submitted that a Civil Suit No.97 of 1983 (Smt. Chavli Devi and others Vs. Mahendra Kumar and others) was filed for declaration regarding the ownership of property of Jagdish Cinema Hall and the same was dismissed ex-parte by learned Additional Civil Judge (Sr. Division), Court No.4, Bulandshahr vide order dated 18.9.2002. Against the said dismissal order dated 18.9.2002, Smt. Chavli Devi and others had filed Civil Appeal No.204 of 2002 which was allowed ex-parte by the Court of Additional District Judge, Court No.12, Bulandshahr vide order dated 23.1.2008. Aggrieved by the order dated 23.1.2008, an application under Order 41 Rule 21 of C.P.C. was filed by Mahendra Kumar bearing Misc. Against the said dismissal order dated 18.9.2002, Smt. Chavli Devi and others had filed Civil Appeal No.204 of 2002 which was allowed ex-parte by the Court of Additional District Judge, Court No.12, Bulandshahr vide order dated 23.1.2008. Aggrieved by the order dated 23.1.2008, an application under Order 41 Rule 21 of C.P.C. was filed by Mahendra Kumar bearing Misc. Application No.7 of 2008 in Civil Appeal No.204 of 2002 (Mahendra Kumar vs. Chavli Devi and others) on which the learned Court below vide order dated 22.2.2008 directing the respondents/plaintiffs in the original suit, not to sale out the property in question, till the next date of listing, but subsequently, the said application was dismissed on 5.4.2011 by learned Additional District Judge, Court No.8, Bulandshahr. Consequently, a First Appeal From Order (FAFO) No.2300 of 2011 (Mahendra Kumar (deceased) and others vs. Chavli Devi (deceased) and others) has been filed before this Court, which is still pending for final disposal. Learned Senior Counsel has further submitted that in the meantime, a rent deed of whole property including the residential house (the property in question) was executed by the informant Mahesh Kumar and his brothers on 6.9.2021 in favour of Atul Mittal and Vipul Mittal, sons of Ashok Mittal, which was registered in Bahi No.1, Zild No.8279, Page No.291 to 302 at Serial No.5861 in the office of Sub-Registrar, Sadar-I, Bulandshahr. 6. Learned Senior Counsel has further stated that prior to the registration of the aforesaid rent deed in favour of the Atul Mittal and Vipul Mittal, an application was given to Sub-Registrar, Sadar-I, Bulandshahr on 6.9.2021 by the applicant to restrain the informant and his brothers from exhibiting any deed regarding the property in question as the matter is stated to be subjudiced. He has further stated that thereafter the informant filed an Original Suit bearing No.1803 of 2021 (Mahesh Kumar Agarwal Vs. Pradeep Kumar and Others) before the Court of Civil Judge (Jr. Division), Court No.1, Bulandshahr wherein the applicant has been arrayed as one of the respondents. The applicant had filed a written statement in the said O.S. and the suit is pending for adjudication. Pradeep Kumar and Others) before the Court of Civil Judge (Jr. Division), Court No.1, Bulandshahr wherein the applicant has been arrayed as one of the respondents. The applicant had filed a written statement in the said O.S. and the suit is pending for adjudication. The informant and his brothers filed another Original Suit being O.S. No.2050 of 2021 before the Court below on 12.10.2021 wherein the applicant is the sole respondent/defendant with respect to the same property and the written statement has already been filed on behalf of the applicant in it. 7. Learned Senior Counsel has further stated that after the submission of charge-sheet, the cognizance has been taken by the Chief Judicial Magistrate, Bulandshahr on 16.2.2022 and non-bailable warrants have been issued against the applicant and other accused persons without considering the fact that the summons have never been served to him. He has further stated that the applicant has very much apprehension that he may be arrested in the present matter instituted at the behest of the informant. The present charge-sheet has been filed under duress without going through the fact that there is a civil litigation going on between the parties. 8. Admittedly, the parties belong to the same family and having fallen apart over partition in the ancestral property, several civil and criminal proceedings have been initiated against each other. Learned Senior Counsel has further stated that the applicant has no other criminal antecedents except the cases pertaining to the same property. The informant has agitated the recourse to civil court and the criminal court simultaneously for the alleged act committed by the applicant and his brothers. Learned Senior Counsel has placed much reliance upon the Annexure-2 filed with the supplementary affidavit dated 30.9.2022 wherein it has been stated that NBW is in operation against the applicants vide order dated 27.9.2022 which was earlier issued on 18.8.2022. 9. Learned Senior Counsel has also stated that the applicant has challenged the impugned charge-sheet by filing an Application u/s 482 Cr.P.C. No.19652 of 2022 wherein the following order has been passed on 26.9.2022:- “Heard Santosh Kumar Singh, learned counsel for applicants and Shri. Sunil Kumar, learned counsel for O.P. No.2. Learned counsel for parties fairly submits that parties are closely related to each other and there is a possibility of mediation. Learned counsel for parties fairly submits that parties are closely related to each other and there is a possibility of mediation. Considering the aforesaid fair submissions of learned counsel for parties, let the parties shall appear before this Court on 13.10.2022. Put up as fresh on 13.10.2022 at 2 P.M.” 10. Learned Senior Counsel has further argued that there is every likelihood of amicable settlement between the parties. 11. Per contra, Sri Sunil Kumar, learned counsel for the informant as well as Sri Vibhav Anand Singh, learned AGA for the State have vehemently opposed the prayer for anticipatory bail on the ground that although there is a possibility of an amicable settlement between the parties, the said application is not maintainable as there is no apprehension to the applicant of his arrest as the learned C.J.M. has observed in his order dated 27.9.2022 which read as under:- ^^Okknh eqdnek dh vksj ls vfHk;qDr ds fo:) fcuk tekurh vf/ki= o 82&83 lh0vkj0ih0lh0 dh dk;Zokgh tkjh djus dh ;kpuk dh x;h gS] ijUrq muds }kjk ekuuh; mPp U;k;ky; }kjk ikfjr vkns’k fnukafdr 26-9-2022 ls bUdkj ugha fd;k x;k gSA vr% leLr rF;ksa ,oa ifjfLFkfr;ksa ,oa ekuuh; mPp U;k;ky; }kjk ikfjr vkns’k fnukafdr 26-9-2022 o lrsUnz dqekj vfry cuke lsUVªy C;wjks vkWQ bUosLVhds'ku ,oa vU; ¼2022½ ,lŒlhŒes ekuuh; loksZPp U;k;ky; }kjk ikfjr fof/k O;oLFkk dks n`f”Vxr j[krs gq, vfHk;qDr dks U;k;fgr es U;k;ky; es mifLFkr gksus gsrq volj fn;k tkuk U;k;ksfpr izrhr gksrk gSA^ 12. Learned counsel for the informant has further stated that in the FAFO filed against the said Civil Suit, there is no stay of the proceedings. Learned counsel has placed much reliance upon Sections 70 and 438 of Cr.P.C. and stated that since the applicant has no apprehension of his arrest, the present anticipatory bail application is not maintainable and Section 438 Cr.P.C. does not apply. 13. Learned counsel for the informant has relied upon Sections 6, 23, 24, 25, 26, 29 & 30 IPC but for the sake of prolixity, the same are not being reproduced here. Learned counsel has also placed reliance upon Section 3 of the Indian Evidence Act and stated that the bar u/s 195(b)(i) of Cr.P.C. is not applicable to the present case. He has also stated that the general exception u/s 79 of IPC is also not available to the applicant. 14. Learned counsel has also placed reliance upon Section 3 of the Indian Evidence Act and stated that the bar u/s 195(b)(i) of Cr.P.C. is not applicable to the present case. He has also stated that the general exception u/s 79 of IPC is also not available to the applicant. 14. In rejoinder to the said arguments, learned Senior Counsel Sri G.S. Chaturvedi has placed much reliance upon Illustration (a) of Section 464 IPC which read as under:- “(a) A has a letter of credit upon B for rupees 10,000 written by Z. A, in order to defraud B, adds a cipher to the 10,000, and makes the sum 1,00,000 intending that it may be believed by B that Z so wrote the letter. A has committed forgery.” 15. Learned Senior Counsel has further stated that the applicant has neither forged a document nor filed it by impersonating somebody else. He has signed the said document for himself only. No offence is made out. If some statement in the said document is found false then only an offence u/s 182 IPC is made out, wherein the maximum punishment is six months. The applicant belongs to a respectable family of the area and there is no likelihood of him absconding. CONCLUSION 16. As admitted by both the parties, the matter is of family discord and civil proceedings have been going on between the parties since 1983. The applicant has challenged the filing of final report u/s 173(2) Cr.P.C. by filing an application u/s 482 Cr.P.C. wherein there is a possibility of an amicable solution to the said dispute once for all. The matter of apprehension of arrest is in the mind of the accused and there are non-bailable warrant issued against the applicant although, C.J.M., Bulandshahr has passed an order to the effect that the applicant may appear in the light of the judgment of Satender Kumar Antil vs. Central Bureau of Investigation and another, 2022 SCC Online SC 825. The application u/s 482 Cr.P.C. is pending in this Court and the offence does not fall within the category of economic offences rather it may be termed to be of making false statement before the executive officer. There is no likelihood of applicant absconding. 17. The application u/s 482 Cr.P.C. is pending in this Court and the offence does not fall within the category of economic offences rather it may be termed to be of making false statement before the executive officer. There is no likelihood of applicant absconding. 17. Considering the arguments advanced by the learned counsel for the parties, nature and gravity of the offences, facts of the case and in view of the law laid down by the Apex Court in the case of "Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98", the applicant is entitled to be granted anticipatory bail in this case. 18. Without expressing any opinion upon ultimate merits of the case either ways which may be adversely affect the trial of the case, the anticipatory bail application of the applicant is allowed. 19. In the event of arrest of the applicant, Manish Gupta, involved in the aforesaid case crime number, shall be released on bail on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Presiding Officer/Court Concerned, with the conditions that:- 1. that the applicant shall make himself available for interrogation by a police officer as and when required; 2. that the applicant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence; 3. that the applicant shall not leave India without previous permission of the court; 4. that the applicant shall not tamper with the evidence during the trial; 5. that the applicant shall not pressurize/ intimidate the prosecution witness; 6. that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted; 20. In case of breach of any of the above conditions, the court below shall have the liberty to cancel the bail granted to the applicant.