Parminder Sharma v. State of Punjab

Mr.Suresh Goel, Advocate for the petitioner. M ehinder S ingh S ullar , J . (Oral) The epitome of the facts, which needs a necessary mention, for a limited purpose of deciding the core controversy, involved in the instant petition and emanating from the record, is that complainant Dr.Mohan Lal Sharma moved an application dated 18.2.2010 to the police for registration of case under sections 420, 406, 465, 467, 468, 471 and 34 IPC against petitioner Parminder Sharma son of Yashpal Sharma and his co-accused Kailash Sharma son of Gian Chand, inter- alia, pleading that the petitioner was a tenant under Yashpal Sharma his (complainant) father in the shop in question. He died in the year 2004 and after his death, the complainant became its landlord. Petitioner un-authorizedly and without the permission of landlord, sublet the tenanted premises to his close relative Kailash Sharma. The petitioner was stated to have hatched a criminal conspiracy with his other co-accused in order to cheat and defraud the complainant, prepared the forged rent receipts, allegedly executed by his father regarding the payment of rent for the year 2006, whereas he (his father) had died in the year 2004.

2. The case of the prosecution further proceeds that both the accused induced the complainant to part with a sum of Rs.2,20,000/- for vacation of the tenanted premises and finding no alternative, the complainant paid Rs.2,20,000/- in cash to the petitioner on 2.6.2009 and the accused promised to hand over its vacant possession up till 2.8.2009. But they failed to fulfill their commitment and mis- CRM No.M-30256 of 2010 2 appropriated the aforesaid amount. When the complainant asked them either to hand over the vacant possession of the tenanted premises or to return the amount to him, then the accused issued a bogus cheque bearing No.114375 dated 27.8.2009. The complainant presented the cheque for its encashment, but the same was dis- honoured with the remarks “Account Closed”.

3. Levelling a variety of allegations, narrating the sequence of events and on the basis of allegations contained in the complaint, the present case was registered against the accused, vide FIR No.113 dated 12.6.2010 on accusation of having committed the offence punishable under section 420 IPC by the police of Police Station Raikot, District Ludhiana, in the manner indicated here-in-above.

4. Now the petitioner has applied for anticipatory bail in the present case, invoking the provisions of section 438 Cr.PC in this respect.

5. After hearing the learned counsel for the petitioner, going through the record with his valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant petition.

6. Ex facie, the celebrated arguments of the learned counsel that the petitioner has been falsely implicated in the present case and since the complainant has filed a complaint under section 138 of the Negotiable Instruments Act (for short “the Act”), so, no offence under section 420 IPC is made out against the petitioner, in view of the observations of Hon'ble Apex Court in case Veer Prakash Sharma v. Anil Kumar Agarwal and another 2007(3) RCR (Criminal) 960 are not only devoid of merit but misplaced as well.

7. As is evident from the record that the petitioner was a tenant of the shop in question under Yashpal Sharma, father of the complainant. After his death in the year 2004, the complainant became its landlord. There are direct allegations that the accused cheated the complainant and prepared the false and forged rent receipts, allegedly executed by late Yashpal Sharma, with regard to payment of rent of the tenanted premises for the year 2006, whereas Yashpal Sharma had died CRM No.M-30256 of 2010 3 in the year 2004. They used the forged receipts as genuine.

8. Not only that, there are direct allegations that the accused illegally took Rs.2,20,000/- in cash on 2.6.2009 from the complainant in lieu of delivery of vacant possession of the tenanted premises, but neither they have handed over its vacant possession nor returned the amount. On persuasion, the accused issued a bogus cheque to the complainant, which was dis-honoured as being account closed.

9. Meaning thereby, there are direct allegations of cheating, fraud, preparing the false rent receipts and mis-appropriation of the amount against the accused. In that eventuality, mere filing of complaint under section 138 of the Act will not, in any way, exonerate the petitioner from criminal offence committed by him in the manner described here-in-above. To my mind, custodial interrogation of the petitioner is essential in order to unearth the scandal and to elicit the truth from him to complete the chain of prosecution evidence in this regard.

10. Moreover, the anticipatory bail is not to be granted as a matter of course in all cases. The grant or refusal of such bail depends on the variety of circumstances, the cumulative effect of which, should enter the judicial verdict. The power under Section 438 Cr.PC is to be exercised sparingly and in exceptional cases keeping into focus the facts and circumstances of each case. The order of anticipatory bail cannot be allowed to circumvent normal procedure of arrest and investigation of the police. The Court has also to see that the investigation in the province of the police and an order of anticipatory bail should not operate as an in- road into the statutory investigational powers of the police, in exercising the judicial discretion in granting the anticipatory bail. The Court should not be unmindful of the difficulties likely to be faced by the investigating agency and the public interest likely to be affected thereby.

11. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of CRM No.M-30256 of 2010 4 the trial of the case, the instant petition for anticipatory bail filed by the petitioner is hereby dismissed in the obtaining circumstances of the case.

12. Needless to state that nothing observed, here-in-above, would reflect, in any manner, on merits of the main case, as the same has been so recorded for a limited purpose of deciding the present petition.

26.11.2010 (Mehinder Singh Sullar) AS Judge