Heeralal Agarwal vs State Of U.P.
2022 Latest Caselaw 11380 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 70
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32173 of 2022
 

 
Applicant :- Heeralal Agarwal
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Pradeep Kumar Mishra,Eshan Lamba
 
Counsel for Opposite Party :- G.A.,Nipun Singh
 

 
Hon'ble Manish Mathur,J.

1. Heard Mr. Vinay Saran learned Senior Advocate assisted by Mr. Eshan Lamba, learned counsel for applicant, learned Additional Government Advocate appearing on behalf of respondent-State and Mr. Anup Trivedi, learned Senior Advocate assisted by Mr. Nipun Singh, learned counsel appearing for the complainant, who is a clerk with the Agra Development Authority.

2. This first bail application has been filed with regard to Crime No.282 of 2022, under Sections 420, 467, 468, 471 IPC, registered at Police Station Sikandara, District Agra.

3. As per contents of FIR, allotment was finalized in favour of one Smt. Radha Devi on 25.07.1987. The said lady had already executed a registered power of attorney in favour of applicant on 07.08.1985 pertaining to the property in question. The FIR states that subsequently an application was filed by applicant seeking execution of sale-deed in favour of the original allottee whereafter another sale-deed was executed on 06.03.2021 in favour of one Tikum Singh and mutation in favour of the said person has also been made on 03.07.2021. The FIR states that for the purposes of execution of sale-deed in favour of the original allottee, certain documents and affidavit were required to be submitted which the applicant did by means of affidavit dated 01.01.2021 but the said affidavit was a forgery since the photograph appended to the application was not of the original allottee. The FIR also states that the original allottee was thereafter contacted by the Development Authority and she denied having made any application for execution of sale-deed in her favour.

4. Learned counsel appearing for applicant submits that the applicant has been falsely implicated in the charges levelled against him and particularly since the FIR has been lodged owing to a complaint made by the applicant dated 06.09.2021 to the Commissioner Agra Division pertaining to irregularities in allotment of plots by the Development Authority. It is submitted that a bare perusal of the FIR will make it evident that even as per said narration, applicant is the holder of a registered power of attorney executed in his favour by the original allottee, which has neither been revoked nor cancelled till date. It is further submitted that even the Development Authority does not deny the fact that the applicant was acting at the behest of original allottee in terms of the registered power of attorney. It is further submitted that the FIR itself does not disclose any cause of action having accrued to the Development Authority with regard to the sections imputed against the applicant. It is thus submitted that once the initial registered power of attorney in favour of applicant has not been disputed, rather admitted by the complainant itself, there is no occasion for having the FIR registered against him.

5. Learned counsel appearing on behalf of Development Authority has opposed the bail application with the submission that from a bare perusal of the FIR, it is evident that the applicant has submitted a forged application dated 01.01.2021 for execution of sale-deed in favour of original allottee. It is submitted that upon examination of complaint received by the Development Authority, the original allottee was contacted who has denied having submitted any such application on 01.01.2021. Furthermore, it is submitted that even from a perusal of the sale-deed executed in favour of Tikum Singh on 06.03.2021, it would be evident that a property worth approximately Rs.45,00,000/- has been sold by the applicant for a meager sum of approximately Rs.3,00,000/-. It is thus submitted that cheating on the part of applicant is thus quite established particularly from a perusal of the purcha filed along with the case diary indicating payments in lieu of property having been made by the applicant to the Development Authority since the year 1991, which was way before the execution of sale-deed in favour of the said Tikum Singh. It has also been submitted that a number of FIRs have been lodged against the applicant by various persons on the same charges, which clearly makes out the fact that the applicant is habitual offender.

6. It has further been submitted that upon a subsequent raid on the premises owned by the police, a huge number of non-judicial stamps, revenue stamps and 48 old files of Development Authority were recovered.

7. Learned counsel for complainant has sought time for filing of counter affidavit/ objection to bring on record the documents whereby case of cheating against the applicant would be established.

8. Upon consideration of submissions advanced by learned counsel for parties and perusal of material available on record, the prayer of learned counsel for complainant seeking time for filing of objections is not being entertained primarily for the reason that this Court sitting in jurisdiction of bail is not required to adjudicate upon veracity or genuineness of documents allegedly filed by applicant, which would be a subject matter for trial court to consider on the basis of evidence. As such, the prayer for bringing such documents on record is declined.

9. From a perusal of contents of FIR, it is evident that the Development Authority themselves are admitting the execution of registered power of attorney dated 07.08.1985 in favour of applicant by the original allottee, Smt. Radha Devi.

10. Learned counsel for applicant had drawn attention to the letter dated 05.01.2021 said to have been issued by the Deputy Registrar, Sadar Agra to the Development Authority confirming and corroborating the registration of the aforesaid power of attorney in favour of applicant. Even the original allottee, Smt. Radha Devi in her statement recorded under Section 161 Cr.P.C. has admitted the execution of aforesaid power of attorney in favour of applicant. The execution of sale-deed by the Development Authority in favour of original allottee appears to have taken place in pursuance to the power of attorney executed in favour of applicant. The said power of attorney is also said to be existing as on date since it has neither been revoked, modified or cancelled by the original allottee till date.

11. So far as allegations pertaining to cheating against the applicant with regard to property sold to said Tikum Singh is concerned, the said would not be a matter to be considered at the stage of this bail application which pertains only to filing of a forged application dated 01.01.2021 for execution of sale-deed in favour of the original allottee.

12. It is also undisputed that till date no suit has been filed either by the original allottee or even by the Development Authority for cancellation of the said sale-deeds. As such, prima facie, subject to evidence being led at trial, the allegations made against the applicant appeared to be purely civil in nature which is being sought to be given a criminal colour.

13. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-

"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."

"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

14. It is also relevant that the Development Authority has executed sale-deed in favour of the original allottee and not the applicant in pursuance to initial allotment made and not on the basis of the application dated 01.01.2021. So far as allegation of cheating is concerned pertaining to sale-deed executed in favour of Tikum Singh, it has been submitted that no FIR has been lodged by the original allottee against the applicant and the said cause even otherwise is unrelated to the Development Authority.

15. Considering the aforesaid, a case for grant of bail is made out, the bail application as such is allowed.

16. Let applicant,Heeralal Agarwal, involved in the aforesaid case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

Order Date :- 29.8.2022

Subodh/-