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2024 DIGILAW 43 (GUJ)

PANKAJ KANJIBHAI KACHHADIYA v. STATE OF GUJARAT

2024-01-05

DIVYESH A.JOSHI

body2024
ORDER : 1. Rule returnable forthwith. Mr. Hardik Soni, the learned APP waives service of notice of rule for and on behalf of the respondent-State. 2. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-original accused has prayed to release him on anticipatory bail in the event of his arrest in connection with the FIR registered at the Chalala Police Station, Amreli being No. 11193013230300 of 2023 for the offence punishable under Sections 406, 420 and 114 of the IPC. 3. The learned advocate Mr. Virat Popat appearing on behalf of the applicant has submitted that it is alleged in the complaint that a sale-deed was duly executed between the present applicant-accused and the erstwhile owner of the land somewhere in the year 2016 and some of the amount of sale consideration as mentioned in the sale-deed has yet not been paid by the applicant-accused and with these kind of allegations, the present complaint has been registered after a lapse of seven years. Learned advocate Mr. Popat has further submitted that the present complaint is nothing but a sheer abuse of process of law filed just with a view to harass the present applicant-accused because the present applicant-accused had purchased the property somewhere in the year 2016 by paying the amount as agreed upon by both the parties for which a registered sale deed also came to be executed on 08.06.2015 in the office of the Sub-Registrar in the presence of the applicant-accused, complainant and the erstwhile owner of the property. Learned advocate Mr. Popat has also submitted that it is clearly mentioned in the sale-deed itself by the vendor that the entire amount of sale consideration has been paid by the vendee. Learned advocate Mr. Popar has also submitted that the complainant has also filed a suit before the competent Civil Court and the said suit is pending before the Civil Court. It is further submitted that the applicant-accused has filed reply in the said suit specifically stating that before execution of the sale deed, the entire amount of sale consideration was paid to the erstwhile owner through four different cheques, the details of which, is clearly mentioned in the sale deed. It is further submitted that the applicant-accused has filed reply in the said suit specifically stating that before execution of the sale deed, the entire amount of sale consideration was paid to the erstwhile owner through four different cheques, the details of which, is clearly mentioned in the sale deed. It is also stated in the said reply by the applicant that out of the four cheques, two cheques were deposited by the erstwhile owner and other two cheques were lost by the original owner and, therefore, the original owner asked the applicant-accused to pay the outstanding amount in cash which was accordingly paid by the applicant-accused in cash. It is further submitted that if there was any outstanding amount to be paid by the applicant-accused, then why no action was taken by the complainant side at the relevant point of time and have waited for such a long period of seven years because the cheques were issued in the year 2016. Learned advocate Mr. Popat has further submitted that it is the specific case of the complainant that they themselves have appeared before the office of the Sub-Registrar and executed the sale deed. It is further submitted that a declaration in the form of acceptance of the amount has also been signed by the complainant side at the time of execution of the sale deed. Under the circumstances, learned advocate Mr. Popat appearing for the applicant prays that the applicant may be enlarged on bail on any suitable terms and conditions. 4. Learned APP Mr. Hardik Soni appearing on behalf of the respondent-State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. Learned APP Mr. Soni has submitted that a very systematic fraud has been committed by the applicant-accused with the complainant. Firstly, the applicant-accused gained the confidence of the complainant and got executed the registered sale deed without paying the outstanding amount of the sale consideration and, thereafter, started evading to pay the outstanding amount. Learned APP Mr. Soni has submitted that considering the role attributed to the applicant-accused, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused. 5. Learned advocate Mr. Learned APP Mr. Soni has submitted that considering the role attributed to the applicant-accused, this is a fit case wherein discretionary power of this Court is not required to be exercised in favour of the applicant-accused. 5. Learned advocate Mr. Aditya Acharya who appears on behalf of the original complainant has also opposed the present application and submitted that over a period of time, a tendency is developed in the Amreli District that innocent and gullible citizens are being cheated by a particular group of people by getting executed a registered sale deed in their favour by giving false promises and assurances that first they will give half payment of the amount of consideration and the outstanding amount would be paid in a due course. Same pattern is also adopted by the applicant-accused in the case on hand. It is further submitted that after execution of the registered sale deed, the applicant-accused has given assurance to the complainant that within no time, he will pay the outstanding amount. However, initially, under one pretext or the other, he used to seek time from the complainant side. Thereafter, for some time, the applicant-accused started refusing to give reply to the complainant’s demand and, thereafter, he started openly saying that he will not pay the outstanding amount of sale consideration and the complainant side may go wherever they want to go to register the complaint. Therefore, the complainant was constrained to register the complaint against the applicant-accused. It is further submitted that the present applicant-accused has also preferred anticipatory bail application before the trial court where the applicant made a statement that he is ready and willing to pay the outstanding amount. Thus, if the applicant-accused has already paid the outstanding amount of sale consideration, then whey he has made a statement before the court that he would again pay such a huge amount. The said statement of the applicant-accused itself fortifies the stand of the complainant. Learned advocate Mr. Acharya has submitted that, considering the above stated factual aspects, the present application may not be entertained and the same be rejected. 6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the applicant is entitled to the anticipatory bail under Section 438 Cr.P.C.? 7. 6. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for my consideration is whether the applicant is entitled to the anticipatory bail under Section 438 Cr.P.C.? 7. Before adverting to the rival submissions canvassed on either side, I must look into the relevant statutory provisions of the Indian Penal Code: Offence of criminal breach of trust punishable under Section 406, IPC. (i) Entrustment of the property or any dominion over property with accusation. (ii) The person entrusted dishonestly misappropriating or converting to his own use that property; or dishonestly using or disposing that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust or willfully causing sufferance to any other person so to do.” Offence punishable under Section 420, IPC. To constitute the said offence there must be deception i.e. the accused must have deceived someone; that by such deception the accused must induce a person (i) to deliver any property; or (ii) to make, alter, destroy a whole or part of the valuable security or anything which is signed or sealed and which is capable of being converted into a valuable property; or (iii) that the accused must have done so dishonestly. 8. After referring to the aforesaid relevant provisions, I would like to quote with profit certain decisions of the Hon’ble Apex Court on the subject. 9. The Hon’ble Supreme Court while dealing with the petition involving the question of exercise of jurisdiction under Section 482 of the Cr.P.C. in the case of Paramjeet Batra vs. State of Uttarakhand and Others, (2013) 11 SCC 673 , held thus: “12. While exercising its jurisdiction under Section 482 of the Code of the High Court has to be cautious. This power is to be used sparingly and only for the purpose of preventing abuse of the process of any court or otherwise to secure ends of justice. Whether a complaint discloses a criminal offence or not depends upon the nature of the facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. Whether a complaint discloses a criminal offence or not depends upon the nature of the facts alleged therein. Whether essential ingredients of criminal offence are present or not has to be judged by the High Court. A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.” 10. Similarly, the Hon’ble Apex Court, in the case of Vesa Holdings Private Limited and Another vs. State of Kerala and Others, (2015) 8 SCC 293 , it was held that: “13. It is true that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may be available to the complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose the criminal offence of cheating or not. In the present case there is nothing to show that at the very inception there was any intention on behalf of the accused persons to cheat which is a condition precedent for an offence under Section 420 IPC. In our view the complaint does not disclose any criminal offence at all. The criminal proceedings should not be encouraged when it is found to be mala-fide or otherwise an abuse of the process of the court. The superior courts while exercising this power should also strive to serve the ends of justice. In our opinion in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed an error in refusing to exercise the power under Section 482 of the Criminal Procedure Code to quash the proceedings.” 11. In our opinion in view of these facts allowing the police investigation to continue would amount to an abuse of the process of the court and the High Court committed an error in refusing to exercise the power under Section 482 of the Criminal Procedure Code to quash the proceedings.” 11. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others, (2011) 1 SCC 6941, wherein the Hon'ble Apex Court reiterated the law laid down by the Constitutional Bench in the case of Shri Gurubaksh Singh Sibbia and Others, (1980) 2 SCC 665 . 12. Now coming back to the case on hand, it appears from the materials on record that the transaction in question took place somewhere in the year 2016 and the first information report has been lodged in the year 2023, i.e. after a huge delay of seven years, which in the opinion of this Court, appears to be an afterthought. It also appears that a civil suit is also filed by the complainant for cancellation of the sale deed in question which is pending for final adjudication and without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicants. Moreover, on perusal of the sale deed it appears that in the sale deed itself it is stated that the vendor has received the full amount of sale consideration from the applicant-accused. The details of the cheques against the amount paid is also very clearly mentioned in the sale deed. It is worth noting that the transaction in question took place in the year 2016 and if any amount was outstanding or not paid by the applicant-accused to the complainant, the complainant could have initiated appropriate proceedings at the relevant point of time. Why the complainant side has waited for so many years to register the complaint. Moreover, as stated above, the civil suit is also pending for final adjudication between the parties. SCOPE AND AMBIT OF SECTION 438 Cr.P.C. 13. Section 438 Cr.P.C. provides an opportunity to a person to move an application for direction that if he is to be arrested in a case and the said person has reasons to believe that he shall be arrested then he may be released on bail. SCOPE AND AMBIT OF SECTION 438 Cr.P.C. 13. Section 438 Cr.P.C. provides an opportunity to a person to move an application for direction that if he is to be arrested in a case and the said person has reasons to believe that he shall be arrested then he may be released on bail. It is cardinal principle of law that every law is designed to promote and further the ends of justice. Statutory interpretation, purpose and the spirit of the provision must be gathered from its intendment. A plain reading of the provision of Section 438 Cr.P.C. as amended in State of Uttar Pradesh would show that the only restriction provided is under Section 438 (6) of the Cr.P.C. which says that the provision will not apply to accusations of offences which are stated in Section 438 (6) (a) & (b) of the Cr.P.C. and in absence of any specific restrictions on the exercise of the power to grant anticipatory bail clearly indicates that the legislature intended to confer and has in fact conferred a very wide discretion on the High Court and the Court of Sessions to grant anticipatory bail. 14. The Law Commission of India in the 41st Report reiterated the principles concerning bail. One of the relevant principles in this regard is that “bail is a matter of discretion if the offence is non-bailable.” Discretion in Section 438 Cr.P.C. should not be exercised with regard to an offence punishable with death or imprisonment for life unless the Court at that very stage is satisfied that such a charge is false or groundless. Under Section 438, Cr.P.C. discretionary power has been conferred on the Court to grant pre-arrest bail. The judicial discretion vested in the Court requires it to be appropriately exercised with the proper application of mind in determining whether a case is a fit case for grant of anticipatory bail or not. FINAL ANALYSIS 15. Under Section 438, Cr.P.C. discretionary power has been conferred on the Court to grant pre-arrest bail. The judicial discretion vested in the Court requires it to be appropriately exercised with the proper application of mind in determining whether a case is a fit case for grant of anticipatory bail or not. FINAL ANALYSIS 15. Considering the fact that the impugned FIR has been lodged/filed by the power of attorney holder of the original owner of the property after a period of almost seven years from the date of alleged incident and when nothing is on record that, in between, the complainant side had taken any steps to initiate any criminal proceedings and/or lodged an FIR against the applicant-accused, I am of the opinion that at least a case is made out by the applicant for grant of anticipatory bail under Section 438, Cr.P.C. Many a time, delay may not be fatal to the criminal proceedings. However, it always depends upon the facts and circumstances of each case. However, at the same time, a long delay like seven years as in the present case can certainly be a valid consideration for grant of anticipatory bail. That apart, there are some other factors which the Court has taken note while arrived at the aforesaid conclusion. The transaction in question is of the year 2016. The document is a registered sale deed duly executed before the office of the Sub-Registrar in the presence of all the parties concerned. In the said document itself, which is a registered document, it is mentioned that the vendor is executing the sale deed after receiving the total sale consideration from the vendee, the details of which with cheque numbers has also been mentioned in the said sale deed. Nowhere in the said sale deed, it is mentioned that any amount is outstanding or due to the vendor of the said deed. Further, if there was any nonpayment on the part of the applicant-accused, then the complainant side, as stated above, could have initiated appropriate proceedings at the relevant point of time and whey they have waited for such a long period of time in registering the complaint. Thus, I am of the view that the present application deserves consideration. 16. Further, if there was any nonpayment on the part of the applicant-accused, then the complainant side, as stated above, could have initiated appropriate proceedings at the relevant point of time and whey they have waited for such a long period of time in registering the complaint. Thus, I am of the view that the present application deserves consideration. 16. In the result, the present application is allowed by directing that in the event of arrest of the applicant herein in connection with the FIR registered at the Chalala Police Station, Amreli being No. 11193013230300 of 2023, the applicant shall be released on bail on his furnishing a personal bond of Rs. 15,000/- (Rupees Fifteen thousand only) with one surety of the like amount on the following conditions that he shall: (a) cooperate with the investigation and make himself available for interrogation whenever required. (b) remain present at the concerned Police Station on 12.1.2024 between 11.00 a.m. and 2.00 p.m. (c) 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/them from disclosing such facts to the court or to any police officer. (d) not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police. (e) at the time of execution of bond, furnish the address to the Investigating Officer and the Court concerned and shall not change the residence till the final disposal of the case till further orders. (f) not leave India without the permission of the Court, and if having passport, shall deposit the same before the trial Court within a week. (g) it would be open to the Investigating Officer to file an application for remand if he considers it just and proper and the learned Magistrate would decide the same on merits. 17. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the rights of the accused to seek stay against an order of remand if, ultimately, granted, and the powers of the learned Magistrate to consider such a request in accordance with law. 18. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to the other conditions of this anticipatory bail order. 19. At the trial, the trial Court shall not be influenced by the prima-facie observations made by this Court while enlarging the applicant on bail. Rule is made absolute to the aforesaid extent. 20. Direct service is permitted.