Madhya Pradesh High Court
Jainarain Chouksey vs The State Of Madhya Pradesh on 25 January, 2017
MCRC-995-2017
(JAINARAIN CHOUKSEY Vs THE STATE OF MADHYA PRADESH)
25-01-2017
Shri Siddharth Gupta, learned counsel, for the applicant.
Shri Pushpendra Yadav, learned Government Advocate, for the
respondent-State.
Shri Anil Khare, learned senior counsel with Shri Harjas Singh Chhabra, learned counsel, for the complainant-objector.
At the outset of hearing of the case, learned counsel for the parties have stated with one voice that there is no need of requisitioning the record of mutation proceedings of the land in dispute from the concerned revenue court as directed by a co-ordinate Bench of this court on previous date of hearing i.e. 24.01.2017 because copies of the relevant documents and the orders of the mutation proceedings are available on record.
In view of the above oral joint statement made by learned counsel for the parties across the Bar, the said court order dated 24.01.2017 is hereby recalled.
On due consideration I.A. No.1892/2017, moved on behalf of the applicant, is allowed and the documents annexed therewith are taken on record.
On due consideration I.A. No.1655/2017, moved on behalf of the complainant-objector, is allowed and the documents annexed therewith are taken on record.
Heard arguments on bail plea at length.
Perused case diary and material on record.
This is the first bail application filed by the applicant under Section 438 of the Cr.P.C. for grant of anticipatory bail as he apprehends his arrest in Crime No.549/2016 registered at Police Station Aishbaag Bhopal against him for the offences punishable under Sections 420, 467, 468 and 471 of the IPC.
According to the prosecution, on 15.12.2016 complainant-objector Suprabhat Chouksey lodged a written report that he is the former President/Chairman and presently a member of Governing body of the duly registered SBI Employees Co-operative Housing Society (for short 'the SBI Society'). The SBI Society has got 12.74 hectares land equivalent to 31.48 acres land of its ownership comprising in six survey numbers situated at village Banjari, Tehsil Huzur, district Bhopal. Applicant-accused Jainarain Chouksey had ceased to be the President of the SBI Society since the year 2011. He is even not a member of its Governing body since 2011. He prepared a forged resolution dated 03.02.2013 of the Managing Committee of the SBI Society to the effect that it has authorized him to sell a parcel of land measuring 6.450 hectares equivalent to 15.93 acres land (for short 'the land in dispute') comprising in two survey numbers to the H.K. Kalchuri Education Trust (for short 'the Trust'). Thereafter, he sold the land in dispute to the Trust vide a registered sale-deed dated 30.03.2013 through its trustee Ashish Jaiswal, whereas he has never been the trustee of the Trust. He is biological son of the applicant and that he has gone into adoption. At the time of execution of the sale-deed of the land in dispute, the applicant was the Managing Trustee of the Trust. In the sale-deed, it is mentioned that the land in dispute was sold to the Trust with the concurrence of the Managing Committee of the New Vallabh Co- operative Housing Society (for short 'the Vallabh Society') of which the applicant is also the President. Thus, the applicant has transferred the land in dispute of the SBI Society worth crores of rupees, as per the guidelines issued by the Collector Bhopal, by forged and fabricated documents and fraudulent means and thus he has benefited himself and his biological son Ashish Jaiswal, putting the SBI Society and his members in the loss of crores of rupees.
Learned counsel for the applicant submits that the applicant is a senior citizen of around 70 years of age and that he is a patient of old age ailments. He is constantly under medical supervision. He is a permanent resident of Bhopal city. He submits that the applicant is currently the Managing Trustee of the Trust. The Trust runs and manages the LNCT group of institutions in the States of Madhya Pradesh and Chhattisgarh. He is also the Chairman and Director of the LNCT group of institutions. The group is running more than 30 Professional Educational Institutions in the Madhya Pradesh and the Chhattisgarh States. As such, the applicant has a good reputation and conspicuous standing in the field of education. He submits that this is the first ever criminal case registered against the applicant. He submits that the complainant-objector is the son of his late younger brother Suresh Chouksey who passed away in January, 2016. Thus, the relation between the applicant and the complainant-objector is the Tau (uncle) and the Nephew. He submits that after the death of Suresh Chouksey, the properties disputes have been arisen. The complainant-objector wants a lion's share in the joint properties. Thus, the real dispute between the complainant-objector and the applicant is of purely civil nature and that he has lodged the FIR making and twisting real facts. He submits that the marriage of the applicant's daughter is to be solemnized on 19.02.2017. He, therefore, submits that this bail application of the applicant be decided in the aforestated backdrop sympathetically.
He submits that the background facts of the case are that the Vallabh Society had entered into a sale-agreement with one Abdul Rashid for purchase of around 73 acres of land through a sale-agreement dated 30.06.1995. The entire land owned by the SBI Society including the land in dispute is a part thereof. Thereafter, the Vallabh Society purchased the land from him by five registered sale-deeds in January, 2004 after having entered into compromise with him in the course of litigation. At the relevant time, the applicant was the Chairman of the Vallabh Society. It transferred through two registered sale-deeds a total of 32 acres of land to the SBI Society out of 73 acres of the total land in the month of July, 2003. At that time, late Suresh Chouksey was the president of the SBI Society. Again said Abdul Rashid raised disputes at the time of mutations of the land in the names of the Vallabh Society and the SBI Society. He filed the civil suit against both the societies for cancellation of all the five sale-deeds executed by him. However, he lost the civil suit. Thereafter, he filed an appeal. During the pendency of appeal, a compromise was arrived at between the parties on 13.08.2008. According to the compromise, 55 acres of land will remain with the Vallabh Society and remaining 18 acres of land will be given back to said Abdul Rashid. The Vallabh Society shall pay him sale- considerations of 55 acres of land. The total value of the said land was at that time 3.88 crores rupees. He submits that the Vallabh Society and the SBI Society were not having enough financial liquidity and funds to pay 3.88 crores rupees to said Abdul Rashid. Thereupon, the SBI Society agreed to sell around 20 acres (7.5 hectares) of land out of 32 acres of the land of its ownership to the Trust. In this connection, an Ikrarnama dated 29.10.2007 is executed in which there are four parties namely the Vallabh Society, the SBI Society, the Trust and said Abdul Rashid with his mother Shakeena B. Thereupon, the Trust paid the total sale- consideration on behalf of the SBI Society and the Vallabh Society to said Abdul Rashid. He submits that at that time late Suresh Chouksey was over-all in-charge of the SBI Society and as such everything was in his personal knowledge. At that time the complainant-objector was nowhere in picture, however through his father late Suresh Chouksey he had knowledge of all the said events/happenings. In the circumstances, the Governing body of the SBI Society has authorized him to transfer the land in dispute to the Trust through the registered sale-deed. He submits that the Trust is a duly registered public trust, date of registration 13.01.1999, under the M.P. Public Trust Act, 1955. He submits that the land in dispute has been sold to the Trust, therefore, the complainant-objector has wrongly made an allegation that the applicant and his son Ashish Jaiswal have monetarily benefited themselves. He submits that the applicant is the Managing Trustee of the Trust. In this capacity, he has power to nominate any person a temporary trustee of the Trust as per the trust-deed. Having exercised this power, the applicant has appointed Ashish Jaiswal the temporary trustee of the Trust. Thus, it is wrongly stated in the FIR that Ashish Jaiswal is not a trustee of the Trust. He submits that the complainant- objector has filed a civil suit being No.RCS-A/00777/2016 before the Fifth Additional District Judge Bhopal regarding the land in dispute. The suit is pending. He submits that all those documents which the complainant-objector has alleged to be forged and fabricated by the applicant are available in the government files. He submits that learned Government Advocate has stated in the course of arguments that the custodial interrogations of the applicant are required. However, he has not stated the reasons therefor. Under the circumstances, no custodial interrogations of the applicant are required. He submits that in the course of arguments, learned counsel for the complainant-objector and learned Government Advocate have stated that the FIR against the applicant is registered upon the outcome of the preliminary enquiry. They have alleged that in the course of enquiry, the applicant has not co-operated with the enquiring police officer. In this respect, he submits that if either of them shows that the enquiry officer got any notice served upon the applicant or his family members, he would immediately withdraw this anticipatory bail application. He has alleged that the enquiry officer had conducted the enquiry against the applicant keeping him in dark. In the circumstances, the applicant could not put up his case before him. He lastly submits that he assures this court on behalf of the applicant that the applicant would co-operate whole heartedly the Investigating Officer in the investigation of the case and that he would abide by all the conditions to be imposed by this court. Upon these submissions, he prays for grant of anticipatory bail to the applicant. Learned senior counsel for the complainant-objector submits that the complainant-objector has sought information in form No.16 from the incumbent President of the SBI Society. According to which, no meeting of the Managing Committee of the SBI Society was held on 03.02.2013 and the said committee has not passed a resolution on that date. Thus, the resolution dated 03.02.2013, on the basis of which the applicant had transferred the land in dispute to the Trust, is forged by him. He submits that since Ashish Jaiswal, who is the biological son of the applicant, is not a permanent member of the Trust, the sale of the land in dispute through him to the Trust shows his malafideness. He submits that present cost of the land in dispute runs crores in rupees. Therefore, a mammoth magnitude of the forgery is committed by the applicant. Upon these submissions, he prays forcefully that the applicant does not deserve to get benefit of anticipatory bail.
Learned Government has also argued the matter almost on the same lines. He submits that since the applicant committed forgery of huge magnitude in terms of money, his custodial interrogations are required. In this regard, he places reliance upon a decision rendered by the Supreme Court in the case of Maruti Nivrutti Navale Vs. State of Maharashtra and another (2012) 9 SCC 235. It is pertinent to mention here that this court has questioned him as to what purposes the applicant's custodial interrogations are required when all the documents, which the complainant-objector and the prosecution have alleged to be forged and fabricated by the applicant, are available in original in the Government files. Learned Government Advocate has not given a convincing answer whereof.
Having taken into consideration the facts and circumstances of the case, the submissions raised on behalf of the parties by their counsel and having pored over all the documents submitted by the parties, but without expressing any opinion on merits of the case, I am of the view that it is a fit case for grant of anticipatory bail under Section 438 Cr.P.C. to applicant Jainarain Chouksey subject to certain stringent conditions as enumerated infra.
It is consequently directed that the applicant shall appear before the Investigating Officer of the case on or before 20.02.2017 for interrogations and submission of documentary proofs of his permanent residential address and contact numbers, if any. The Investigating Officer is ordered that if he arrests the applicant in the case, in that event he will release him forthwith on bail immediately upon his furnishing a personal bond in the sum of 5,00,000/- (only five lacs) rupees with two solvent sureties of the same amount of Bhopal city to his satisfaction.
This order will remain operative subject to compliance of the following conditions by the applicant.
(i) That, he will fully co-operate with the Investigating Officer in the investigation of the case and he will appear as and when he (I.O.) will require his presence before him for further interrogations. However, it will be obligatory on the part of the IO to give him an advance notice at least two days mentioning the place of appearance, time and date.
(ii) That, he will not indulge himself in extending inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the IO of the case, later to the court concerned.
(iii) That, he will surrender his original passport to the IO of the case. If he does not posses the passport, then he will state the said facts on his duly sworn in affidavit. The IO is directed that if the applicant hands over his passport to him, then he will give him a receipt thereof.
(iv) That, till the completion of the investigation of the case, he will not leave the limits of the Municipal Corporation Bhopal for more than two days without the written permission of the IO.
(v) That, he will not leave India on any travel documents and without the previous written permission of the IO of the case.
(vi) That, he will as Managing Trustee of the Trust would not alienate the land in dispute by any means nor will he create any third party interest in it without due permission of the court in which the suit regarding the land in dispute is pending.
The applicant is forewarned that if he breaches any of the aforesaid conditions, then this order will be cancelled in accordance with law. Certified copy as per rules.
(RAJENDRA MAHAJAN) JUDGE ac/-