Gauhati High Court
Puja Sharma vs The State Of Assam And Anr on 29 October, 2021
Author: Rumi Kumari Phukan
Bench: Rumi Kumari Phukan
Page No.# 1/8
GAHC010036622021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/124/2021
PUJA SHARMA
D/O. MITRA LAL SHARMA, R/O. H/NO. 44, P.B. ROAD, SUWAGPUR,
REHABARI, OPPOSITE JOHNSON MARBLES, GHY-8, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE PUBLIC PROSECUTOR, ASSAM
2:SHNGAKAR BARI
S/O. SHRI SBAPAN BARI
R/O. H/NO.14
SIX MILE
PANJABARI
KHANAPARA
GHY- 22 AND PRESENTLY RESIDING AT H/NO.15
KAILSH NAGAR
BYE LANE NO.1
OPP. NAMGHAR PATH
PANJABARI
GHY- 37
DIST. KAMRUP(M
Advocate for the Petitioner : MR. N DEKA
Advocate for the Respondent : PP, ASSAM
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:: BEFORE ::
HON'BLE MRS. JUSTICE RUMI KUMARI PHUKAN
ORDER
29.10.2021 Heard Mr. N. Deka, learned counsel for the applicant as well as Mr. N. Sharma, learned counsel representing the opposite party no.1/State.
2. By way of this application under Section 439 (2) CrPC, the applicant has prayed for cancellation of the anticipatory bail granted by this Court to the opposite party no.2 in connection with Paltan Bazar P.S. Case No.1310/2019, registered under Section 120(A) /406 /420/ 506 IPC vide orders dated 04.03.2020 and 15.10.2020 in A.B. No.807/2020 against violation of the undertaking given by the opposite party no.2 while obtaining the said bail.
3. Briefly stated, one Ms. Puja Sharma, (applicant herein) lodged an FIR on 18.11.2019 before the Commissioner of Police, Kamrup, Guwahati Metro, alleging inter alia that she along with her two relatives paid advance amount of Rs.10,57,375/- to the accused/opposite party no.2 for the purchase of three number of Flats. However, the accused/opposite party no.2 neither returned the money nor handed over the documents in respect of the Flats to be purchased. After repeated request, the accused accused/opposite party no.2 issued three number of cheques towards payment of said advance to the extent of Rs.10,00,000/- (Rupees Ten Lakhs) but the said cheques were bounced. On the basis of the aforesaid FIR, the Paltan Bazar P.S. Case No.1310/2019 was Page No.# 3/8 registered against the accused person.
4. The accused/opposite party no.2 preferred the pre-arrest bail application before this Court denying the allegations contending that there was no such agreement between the parties to provide Flats and in fact the informant Puja Sharma and two of her relatives made a proposal before him to invest the money in the business of accused/opposite's (petitioner in AB/807/2020) Firm namely- "APSF" with a condition that the opposite party no.2/petitioner would provide 30% per annum over the proposed invested money. It is further contended that as the accused/opposite party no.2 had running short of money, he accepted the proposal and accordingly the informant and her relatives deposited the aforesaid amount into the account of "APSF" up-to the month of June, 2019. However, the informant has falsely depicted a story in the FIR with oblique purpose. The informant subsequently demanded to return back the money as they (she and her relatives) decided not to deal with the proposal further but the accused/opposite party no.2 was unable to return the money immediately as the amount was invested in the business. On repeated request of the informant, he issued three numbers of cheques to her and her relatives but due to non-availability of funds, cheques could not be encashed. The accused/opposite party no.2, however, submitted that he is ready to make the payment if 3/4 months are allowed to him.
5. At the time of hearing of the bail application, submission was made on behalf of the accused/opposite party no.2 that he is ready to pay the 50% of the amount and also agreed to pay the remaining amount within short time, this Court granted him the interim bail (in view of his undertaking) with direction to appear before the I/O within 15 days and to deposit 50% of the amount (of Rs.10,57,375/-) within one month. The accused/opposite party no.2 on Page No.# 4/8 subsequent dates (not exactly within time as directed) paid cash amount of Rs.2,00,000/- (Rupees Two Lakhs) and issued a cheque of Rs.3,29,000/- (Rupees Three Lakhs Twenty Nine Thousand) to the informant and gave an undertaking to pay the remaining amount.
6. On the basis of such status report submitted by the I/O that accused/opposite party no.2 has already paid an amount of Rs.5,29,000/- to the informant and is ready to pay the remaining amount, interim bail granted by this Court was made absolute vide order dated 15.10.2020.
7. The informant/applicant now has come forward with the present application for cancellation of the bail granted to the accused/opposite party no.2 on the ground that the accused/respondent was granted bail only because of the specific undertaking given to this Court but however after obtaining the order of bail he has not paid any single penny for which the applicant issued a notice to pay the balance of Rs.5,28,375/- (Rupees Five Lakhs Twenty Eight Thousand Three Hundred Seventy Five) only but despite receipt of notice on 23.11.2020, he did not pay the amount and thus has failed to honour the undertaking given to this Court. Therefore, conduct of accused/opposite party no.2 amounts to violation of terms and conditions of order of bail and his bail is liable to be cancelled under the provision of Section 439 (2) CrPC.
8. The accused/opposite party no.2 filed affidavit-in-opposition contending inter alia that the present application is not maintainable in law as well as facts and no case is made out for invoking the provision under Section 439(2) CrPC. Reiterating the same facts as given in his bail application, it is submitted that the said amount was paid by the informant as an investment in the business of the accused Firm, but not for providing Flats. The accused/opposite party no.2 also admitted about his agreement to return the money and issuance of 3 Page No.# 5/8 cheques and bouncing of cheques because of non-availability of fund in the account.
9. It is submitted that as the applicant has already acknowledged the receipt of the amount of Rs.5,29,000/-, now aggrieved to the order 04.03.2020 and 15.10.2020. So far as regard the payment of remaining amount, it is submitted that due to the pandemic caused by COVID-19, the entire business of the accused/opposite party no.2 has collapsed and he is still grappling with uncertainty to revive his business. Because of dearth of funds, he could not pay the balance amount as agreed upon but his effort is still going on to raise the funds to clear up dues to the applicant. He, however, denied the receipt of the notice sent by the applicant. Moreover, in the final order dated 15.10.2020, there was no specific direction to pay the amount in certain period and hence failure to pay the remaining amount is not amounting to violation of terms and conditions of the bail as alleged in the application.
10. Accused/opposite party no.2 further submits that rejection of bail and cancellation of bail is quite different as cancellation of bail necessarily involves the review of the decision already made and can by and large be permitted, only if, by reason of supervening circumstances, it would be no longer conducive to a fair trial to allow the accused to retain his freedom during the trial. It contends that there is no allegation from any quarter that there is flight risk or there is any likelihood of absconding on the part of the accused/opposite party no.2 nor there is any supervening circumstances warranting cancellation of bail granted earlier.
11. I have considered the submissions of the learned counsel for both the parties and the respective contention that has been raised by the parties.
Page No.# 6/8 Admittedly, in the present case the accused/opposite party no.2 did not deny the acceptance of money from the informant but only refuted the ground for making payment. Without going to the factual matrix, this part of admission on the part of the accused petitioner of taking money with an undertaking to return the same, this Court inclined to consider his bail prayer. In fact, as per the initial order passed by this Court, the accused paid 50% of the amount to the informant but remaining part could not be paid and still he is willing to pay the remaining amount. In view of the conduct of the accused/opposite party no.2 that he makes the part payment of the amount as directed by this Court and also willing to pay the remaining amount, this Court was of the opinion that his custodial interrogation is not required and his interim bail was made absolute thereby granting privilege of pre-arrest bail.
12. It is to be noted that from the very inception of the case, the accused/opposite party no.2 acknowledged his liability, although on a different pretext. On the other hand, there is no documentary evidence that the money was paid by the informant on inducement to provide Flats and on that view of the matter, this Court was persuaded with the submission of the accused person that the parties have some monetary transaction. The Court at the time of passing the final order on 15.10.2020 did not provide any specific time limit to pay the remaining amount. On the other hand, the accused/opposite party no.2 has explained that due to financial constraint because of downfall of business in pandemic period, he could not pay the remaining amount but still he is trying to raise the fund towards return of the remaining amount to the informant.
13. The learned counsel for the applicant has relied upon the decision of Suman Chadha and Another v. Central Bank of India , reported in 2021 SCC OnLine SC 564. In the Suman Chadha (supra), it has been held that -
Page No.# 7/8 "Undertaking given by the party should be seen in the context in which it was made and the benefit that accrued to the undertaking party and the detriment/injury suffered by the counter party. It is open to the court to see whether the subsequent conduct of the alleged contemnor would tantamount to an aggravation of the contempt already committed. The subsequent conduct of the party may throw light upon one import aspect namely whether it was just the inability of the party to honour the commitment or it was part of a larger design to hoodwink the court and/or accused/petitioner actually plying a fraud upon the court."
14. On the other has, the learned counsel for the accused/opposite party no.2 has relied upon the decisions of the State through the Delhi Administration v. Sanjay Gandhi, reported in 1978 0 AIR (SC) 961 2001; State of Manipur v. Pheiroijam Joy Singh, 2001 2 GauLR 331; Bhagirathsinh Judeja v. State of Gujarat, 1984 0 AIR (SC) 372 and State of Assam v. Chandan Baruah , reported in 2009 2 GauLR 674 - to submit that High Court can cancel the bail only when there are very cogent and overwhelming circumstances. It has been held by the Hon'ble Supreme Court that the power to grant bail is not to be exercised as a punishment before the trial is being invoked.
15. Coming to the facts of the present case, it is to be noted that there was no specific undertaking by the accused/opposite party no.2 to pay the remaining amount at the time of granting the privilege of pre-arrest bail and considering his earlier conduct that he paid the 50% of the amount after filing of the bail application as per direction of this Court and considering his willingness to pay the remaining amount, this Court made the interim bail absolute. The accused/petitioner has also contended that due to financial constraint, he is unable to pay the remaining amount.
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16. The devastating pandemic under COVID-19 has affected the livelihood of millions of people and due to closure of day-to-day activities during lockdown, sufferings of persons engaged in business cannot be denuded. Only because of inability to pay the amount, the same cannot be taken as a fraud upon the court and a design to hoodwink the court and it is a case of inability of a person to fulfil his commitment. In the given facts and circumstances and the plausible explanation given by the accused/opposite party no.2, this court is of the opinion that it is not a fit case for cancellation of bail.
Resultantly, the application lacks merit and stands dismissed.
JUDGE Comparing Assistant