Gaurav Chaudhary vs State Of Haryana & Ors.

Manisha Batra, J.

The present petition has been filed under Section 482 read with Section 439(2) of the Code of Criminal Procedure, 1973 seeking

cancellation of anticipatory bail granted to respondent No.3 by the Court of learned Additional Sessions Judge, Gurugram vide order dated 29.06.2021 in case bearing FIR No.203 dated 27.05.2021, registered under Sections 406, 420, 467 and 471 IPC at Police Station DLF Phase-I, Gurugram. A further prayer has been made for constitution of a Special Investigation Team for further enquiry into the matter and for a direction to respondents No.1 and 2 to prosecute respondents No.4 and 5 on the basis of the representation/application dated 30.06.2021.

Brief facts of the case relevant for the purpose of disposal of this petition are that the aforementioned FIR was registered on the basis of a written complaint submitted by the petitioner/complainant Gaurav Chaudhary alleging therein that a plot bearing No.G-3/20, Phase-I, DLF City, Gurugram was initially purchased by Smt. Arvinder Kaur Anand from DLF Hotels Limited vide sale deed No.3440 dated 09.09.1985. The said property was thereafter sold to Smt. Sheela Sobti vide sale deed No.3147 dated 01.12.1986, who further sold the same to Shri Ved Prakash Malik and his wife Smt. Savitri Malik vide sale deed No.7592 dated 21.09.1994. It was further alleged that on 05.09.2020, respondent No.3-Rajesh Malik approached the complainant stating that he intended to sell the aforesaid property. Respondent No.3 showed him a deed purportedly executed by his sisters, namely Neetu Suri and Rashmi Khanna, in his favour and represented that he was the sole owner of the property. He further represented that the said deed was genuine, the property stood in his name and that the sale deed and mutation papers were also in his favour. On the basis of the aforesaid representations, the complainant entered into an agreement to sell with respondent No.3 for a total consideration of Rs.5,55,11,000/- and paid Rs.41,00,000/- as earnest money through two cheques. The date for registration of the sale deed was fixed on or before 19.12.2020. The complainant alleged that thereafter, on making inquiries from the Municipal Corporation, Gurugram, he came to know that the property was recorded in the name of Shri V.P. Malik and that respondent No.3 was not its sole owner. He further alleged that the relinquishment deed shown to him was false and forged. On making inquiries from the sisters of respondent No.3, they informed him that they had never executed any such deed in favour of their brother in respect of the property in question.

As per the further allegations, respondent No.3 had dishonestly prepared the false deed and forged the signatures of his sisters. It was alleged that respondent No.3, by representing himself to be the sole owner and by using the said deed as genuine, induced the complainant to enter into the agreement to sell and to part with Rs.41,00,000/-. The complainant also referred to a letter issued by DLF Limited stating that respondent No.3 had been authorised only as an addressee for maintenance bills and other records relating to the plot. On these allegations, the FIR was registered and investigation proceedings were initiated.

Apprehending his arrest, respondent No.3 moved an application before the Court of learned Additional Sessions Judge, Gurugram. Vide order dated 22.06.2021, the learned Court noticed the allegations regarding the agreement to sell, payment of Rs.41,00,000/- and the alleged forged relinquishment deed. It was argued before the learned Court on behalf of respondent No.3 that the property had devolved upon him and his two sisters and that both sisters had executed relinquishment deeds in his favour. It was also argued that fresh relinquishment deeds had subsequently been registered on 02.04.2021. It was further argued before the learned Court that respondent No.3 had been taken to the police station on 12.06.2021 and had been forced to sign a document regarding sale of the property at a reduced rate of Rs.85,000/- per square yard. Respondent No.3 also expressed his willingness either to return the earnest money of Rs.41,00,000/- with interest or to execute the sale deed in favour of the complainant in terms of the original agreement to sell. He also undertook to join investigation and produce the relevant documents. The learned Additional Sessions Judge granted interim anticipatory bail to respondent No.3 on 22.06.2021 subject to his joining the investigation and other conditions. Thereafter, the Investigating Officer reported that respondent No.3 had joined investigation and had produced the necessary original documents. The Investigating Officer stated that he had no objection if the interim anticipatory bail was made absolute. Consequently, vide order dated 29.06.2021, the interim anticipatory bail was made absolute. Aggrieved thereof, the petitioner/complainant has filed this petition seeking cancellation of bail granted to respondent No. 3.

Learned Senior Counsel for the petitioner has argued that the aforesaid order granting anticipatory bail to respondent No.3 deserves to be set aside as the learned Additional Sessions Judge had not properly considered the serious allegations made against him. It is argued that from the very beginning, respondent No.3 had represented himself to be the sole owner of plot No.G-3/20 and had induced the petitioner to enter into the agreement to sell by showing him a relinquishment deed which was forged. Learned Senior Counsel further argued that respondent No.3 had subsequently obtained fresh relinquishment deeds from his sisters on 02.04.2021 only after the complaint had been made and the police had started investigating the matter. This subsequent document did not wipe out the alleged offence committed at the time when the original agreement to sell was entered into. It is further argued that the petitioner had also obtained an opinion from a handwriting expert, according to which the signatures appearing on the disputed deeds did not tally with the admitted signatures of the sisters of respondent No.3. The police had failed to properly investigate this aspect and had wrongly given no objection to the grant of anticipatory bail.

It is further argued that after obtaining anticipatory bail, respondent No.3 issued a legal notice dated 30.06.2021 cancelling the agreement to sell dated 05.09.2020 as well as the settlement arrived at on 12.06.2021/14.06.2021 and also sought forfeiture of the earnest money of Rs.41,00,000/-. Such conduct showed that respondent No.3 had misused the concession granted to him. A reference is made to another agreement to sell allegedly entered into by respondent No.3 in respect of property No.37-A, DLF City, Phase-II, Gurugram to contend that the subsequent purchaser had also raised a dispute regarding the relinquishment deeds, which shows that the conduct of respondent No.3 was not confined to the present transaction. It is also submitted that respondent No.4 and respondent No.5 had also acted in connivance with respondent No.3 and, therefore, they were required to be prosecuted. However, the police had not conducted a proper investigation and that a Special Investigation Team was required to be constituted for a proper investigation into the allegations of forgery and cheating. With these submissions, it is urged that the petition deserves to be allowed, thereby cancelling the bail of respondent No. 3 and granting other reliefs as prayed for.

On the other hands, learned senior counsel appearing for respondent No.3/accused has argued that no ground for cancellation of anticipatory bail, granted to him, has been made out. It is submitted that the dispute essentially arose out of an agreement to sell dated 05.09.2020 relating to aforesaid plot. The petitioner had deliberately concealed material facts from this Court. In fact, the petitioner himself had entered into an agreement to sell with one Amarjit Singh on 04.03.2021 in respect of the same property but had not disclosed the said fact in his original complaint. It is argued that this conduct showed that the present criminal proceedings had arisen out of a dispute relating to the sale transaction. The petitioner had also concealed the complete document relating to the settlement dated 12.06.2021, which was actually executed at Police Station DLF Phase-I on 12.06.2021 and not on 14.06.2021, as alleged by the petitioner. It is further argued that the final report under Section 173(2) Cr.P.C. has already been filed by the police on 30.07.2021 and the prosecution had found no offence under Sections 406, 467 and 471 IPC. Challan has been presented against respondent No.3 only for the offence under Section 420 IPC. Respondent No.3 had joined investigation and had produced the original documents required by the Investigating Officer. Nothing further was required to be recovered from him. There is nothing on record to show that he has misused the concession of bail in any manner. Therefore, there is no justification for interfering with the order dated 29.06.2021. Hence, it is urged that the petition is liable to be dismissed.

Learned counsel appearing for respondent No.5, who is sister of respondent No.3, has argued that she had no connection whatsoever with the transaction between the petitioner and respondent No.3. It was argued that there was no transaction, dealing or communication between the petitioner and respondent No.5 and that she had never made any representation to the petitioner regarding the property or the relinquishment deeds. Respondent No.3 had himself played fraud upon respondent No.5 and had attempted to deprive her of her share in the estate of her father. It is argued that respondent No.5 had never executed the relinquishment deeds dated 04.08.2016 allegedly bearing her signatures and that the said documents were forged and fabricated. In fact, respondent No.3 had induced respondent No.5 to execute certain registered documents in respect of other properties by representing that the properties would ultimately be divided equally amongst the three siblings. On 12.06.2021, when respondent No.5 reached Police Station DLF Phase-I, she came to know that respondent No.3 had used her forged signatures on the relinquishment deeds. It is argued that respondent No.5 had specifically informed the police that she had not executed the disputed deeds and that her signatures had been forged. It is further argued that the rival claims regarding the signatures, relinquishment deeds and Will were matters which required proper adjudication in accordance with law and no direction is required to be given for prosecution of respondent No. 4 or 5 in this petition. Hence, it is urged that the petition is liable to be dismissed.

Learned State counsel argued that during investigation the police had obtained the relevant property records from the Municipal Corporation, Gurugram and DLF Universal Limited. The bank records relating to the payment of Rs.41,00,000/- by the petitioner were also obtained and the statements of relevant witnesses were recorded. Learned State counsel further argued that respondent No.3 had initially been asked to join investigation. Thereafter, on 12.06.2021, he was brought to the police station for enquiry. His sisters, namely Neetu Suri and Rashmi Khanna, also reached the police station. Subsequently, respondent No.3 joined investigation, produced the relevant relinquishment deeds and was released on bail. Learned State counsel further submitted that the police had conducted the investigation fairly and diligently and that no offence under Sections 467, 468 and 471 IPC had been found against respondent No.3. Since respondent No.3 had joined investigation, a statement was made before the Court concerned regarding the same, which resulted into making his interim bail into absolute one.

This Court has heard the rival submissions of learned counsel for the parties, besides going through the material placed on record.

Before delving into the contentions as raised by learned counsel for the parties, this Court considers it necessary to discuss certain principles which govern the cancellation of bail as enunciated by Hon’ble Supreme Court in various pronouncements. Reference can firstly be made to Myakala Dharmarajam vs. the State of Telangana, (2020) 2 SCC 743, wherein it was observed that an order for cancellation of bail can be made only where such order suffers from serious infirmities resulting in miscarriage of justice. If the Court granting bail ignores relevant material indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail. Reliance can further be placed upon Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1, wherein it was observed that while considering an application for grant of anticipatory bail, the Court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses) or likelihood of his absconding. It was also observed that whether to grant bail or not is a matter of discretion of the Court. Similar position of law had been laid down in Dolat Ram and others vs. State of Haryana, 1995 SCC (1) 349.

In view of the proposition of law as laid down in the above discussed authorities, it is clear that the discretion under Section 439(2) Cr.P.C. (which corresponds to Section 483(3) of BNSS) is to be exercised only if it is proved that bail has been granted to an accused of a heinous crime in a manner, which smacks of arbitrariness, capriciousness or perversity and on being satisfied on the basis of material placed on record that the accused has actually misused such liberty. On applying the above discussed principles of law to the facts of the present case, it is revealed that no ground warranting cancellation of anticipatory bail granted to respondent No.3 is made out. The learned Additional Sessions Judge, while granting interim anticipatory bail, had taken note of the allegations, including the agreement to sell, payment of Rs.41,00,000/- and the allegation regarding the disputed relinquishment deed. The interim protection was thereafter made absolute only after the Investigating Officer reported that respondent No.3 had joined the investigation and had produced the necessary original documents. The Investigating Officer had also specifically stated that he had no objection to the interim bail being made absolute.

The main grievance of the petitioner is with regard to the genuineness of the relinquishment deeds and the subsequent conduct of respondent No.3. These issues involve disputed questions of fact, which cannot, at this stage, be treated as established merely on the basis of the allegations made by the petitioner or the private handwriting expert's opinion relied upon by him. It is also not the case of the petitioner that respondent No.3, after being granted bail, has threatened any witness, tampered with the evidence, absconded or otherwise misused the concession of bail. The issuance of the legal notice dated 30.06.2021 cancelling the agreement to sell or seeking forfeiture of the earnest money cannot be treated as misuse of the concession of anticipatory bail. Such conduct may give rise to consequences in appropriate civil or criminal proceedings, but it does not furnish a sufficient ground for cancellation of bail in the absence of any material showing that the liberty granted by the Court was misused.

It is also relevant that during investigation the police collected the relevant property and bank records and recorded statements of the concerned witnesses. Respondent No.3 joined the investigation and produced the relevant documents. The final report was thereafter filed against him only under Section 420 IPC, as the investigating agency did not find sufficient material for offences under Sections 406, 467 and 471 IPC. Whether the case ultimately results in conviction or acquittal is a matter to be considered by the trial Court on the basis of evidence led before it.

The prayer for constitution of an SIT also does not call for interference by this Court. The material placed on record shows that investigation has already been completed and the final report has been presented. Similarly, the prayer for directing prosecution of respondents No.4 and 5 cannot be granted merely on the basis of allegations made by the petitioner, particularly when their role and the genuineness of the documents are themselves disputed questions requiring examination in accordance with law. Moreso, such prayer cannot be entertained in a petition, which has been filed seeking cancellation of bail granted to an accused. Thus, neither any serious infirmity or perversity in the order dated 29.06.2021 has been demonstrated nor has any subsequent misuse of the concession of bail by respondent No.3 been established.

In view of the discussion as made above, the petition does not satisfy the settled parameters for cancellation of bail. Consequently, the same is dismissed.

However, it is made clear that the observations made hereinabove are only for the purpose of deciding the present petition and the same shall not be construed as expression on the merits of the case.