Ravi Pratap Singh vs State Of U.P. Thru. Addl. Chief ...
2022 Latest Caselaw 22667 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 19.12.2022
 
Delivered on 23.12.2022
 
Court No. - 27
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13739 of 2022
 
Applicant :- Ravi Pratap Singh
 
Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. / Prin. Secy. Home Lko
 
Counsel for Applicant :- Radhika Singh,Sudhanshu S. Tripathi
 
Counsel for Opposite Party :- G.A.,Anurag Tripathi
 

 
Hon'ble Shree Prakash Singh,J.

1. Heard Sri Prashant Chandra, learned Senior Counsel assisted by Ms. Mahima Pahwa and Ms.Anuradha Singh, learned counsel for the applicant and Sri Anurag Tripathi, learned counsel for the informant, Sri Aniruddh Kumar Singh-I, learned A.G.A. for the State of U.P. and perused the material placed on record.

2. The instant bail application has been filed on behalf of the applicant with a prayer to release the applicant on bail during the trial in Case Crime No.129 of 2020, under Section 419, 420, 467, 468, 471 I.P.C., P.S.-Kotwali City, District Pratapgarh.

3. As per the prosecution story, the applicant, who is the maternal uncle of the informant, had allegedly taken loan on the property of the informant and other family members from Urban Co-operative Bank Ltd., Pratapgarh and this fact came into the knowledge of the informant, when he came to live at his residence situated at District Pratapgarh. The land is mortgaged in CCL Account No.112 as a guarantee. Once the information was sought by the informant from the Bank, it was informed that Rs.1,62,52,570/- is the amount, which is payable to the Bank. When the informant has gone through the mortgage deed, he found that there is no photo of the informant as well as his brother and there is no signature or thumb impression of them but committing cheat and fraud, the applicant/accused get forged sign and pasted photo of the informant and his brother and, thus, cheat and fraud has been committed by the applicant as he is the beneficiary of the aforesaid loan amount.

4. Learned counsel for the applicant contends that the applicant is innocent and he has falsely been implicated due to ulterior motive. He added that the property, which is said to be unlawfully mortgaged and thereafter misappropriated by taking loan, situates at Pratapgarh and the said property was jointly owned by the family of the informant and the applicant as the sister of the applicant is married to the father of the informant and there were cordial relations in between the families and Amarendra Bahadur Singh, the brother-in-law of the applicant was acting as 'Defacto Karta' of the family wherein the applicant was also part. He further submits that brother of the informant, namely, Abhay Singh, who was appointed as an IAS Officer, while being posted as District Magistrate, Bulandshahar, called the applicant and instructed him that he should own Rs.47 lakhs cash, which was recovered by CBI raid but the applicant has denied and, thereafter, rift started between them and, now that has come to the climax and, resultantly, the instant F.I.R. has been lodged with a view to get the applicant implicated anyhow in the criminal matters. Now, this is the point of initiation of confrontation between the informant's family and the applicant as their relations became sour.

5. He added that mortgage of the aforesaid property was done in the year 1998 in a cordial atmosphere and with the consent of all the family members including 'Defacto Karta', namely, Amarendra Bahadur Singh, and as soon as the applicant did not accept the uncalled for instructions of Abhay Singh (IAS), the brother of Akshay Singh then on his instructions, the F.I.R. was lodged on 4.10.2019 bearing Case Crime No.862 of 2019 under Sections 147, 419, 420, 452, 386, 323, 305, 506 and 512 I.P.C.

6. After the aforesaid F.I.R. was lodged the same was assailed in the Writ (M/B) No.28655 of 2019 and the arrest of the applicant was stayed and when the informant and his brother Abhay Singh could not succeed to send the applicant in jail, they hatched the applicant in criminal conspiracy and again has lodged the present F.I.R. on 11.2.2020 approximately on the same set of facts, using his influence in the police Department and, thereafter, the applicant was got arrested and was sent to jail.

7. He submits that from perusal of the F.I.R., it is prima facie evident that incident is said to have taken place on 30.11.1998 and being aggrieved, the informant has lodged the F.I.R. in year 2020, though there is no plausible explanation regarding the delay and laches. On 2.5.2021, when father of the informant Amarendra Bahadur Singh died, on account of Covid-19, thereafter, the applicant while mounting pressure over the police, got him booked behind the bars on 14.9.2022. He added that it is noticeable fact that until Amarendra Bahadur Singh was alive, the applicant was not sent to jail as he was very much against the actions of his sons.

8. He further added that informant and his brother while using their influence, tried to strengthen the charge sheet and, thus, the basis of framing of the charges is one of the fact that the Forensic Examination Report supports the version of the prosecution as the signatures of the informant and his brother do not match and, thus, it has been tried to establish that the applicant has committed offence of forgery. The statments of the chance witnesses, namely, Anil Singh, Anil Kumar Srivastava, Jagdish Chandra Sharma and Harkesh Bahadur Singh have also been recorded but, under the duress of the brother of the informant, they had denied and supported the version of the prosecution and they have become hostile with the applicant. So far as the Forensic Examination report is concenred, the same indicates that the Forensic Expert while examining /comparing the signatures on the mortgage deed and the sample signatures of the informant and his brother, could not determine the opinion. During the course of his argument, he has placed reliance on Judgment of the Apex Court in the case of Chennadi Jalapathi Reddy Vs. Baddam Pratapa Reddy (Dead) through Legal Representatives and another, (2019) 14 Supreme Court Cases 220 and has referred paras 10 and 11, which are extracted as under:-

"10. By now, it is well settled that the court must be cautious while evaluating expert evidence, which is a weak type of evidence and not substantive in nature. It is also settled that it may not be safe to solely reply upon such evidence, and the court may seek independent and reliable corroboration in the facts of a given case. Generally, mere expert evidence as to a fact is not regarded as conclusive proof of it. In this respect, reference may be made to a long line of precedents that includes Ram Chandra v. State of U.P.2, Shashi Kumar Banerjee v. Subodh Kumar Banerjee3, Magan Bihari Lal v. State of Punjab4 and S. Gopal Reddy v. State of A.P.5

11. We may particularly refer to the decision of the Constitution Bench of this Court in Shashi Kumar Banerjee3, where it was observed that the evidence of a handwriting expert can rarely be given precedence over substantive evidence. In the said case, the court chose to disregard the testimony of the handwriting expert as to the dsputed signature of the testator of a will, finding such evidence to be inconclusive. The court instead relied on the clear testimony of the two attesting witnesses as well as the circumstances surrounding the execution of the will."

9. Referring the aforesaid Judgment, he submits that law has been settled that while evaluating expert evidence, the Court has to be cautious enought that without any corroborative and substantial evidence, the expert opinion is always a ''weak type of evidence'. He submits that in the instant matter, genesis of the charge sheet is the opinion of the hand writing expert and further there is no any substantial and corroborative evidence which could substantiate the story of the prosecution.

10. He next submits that Kamla Kant Tiwari, who is also named in the F.I.R., the then General Manager and had very good rleations with the father of the informant and as the son of Kamla Kant Tiwari is also now posted as the General Manager in that Bank concerned and with a view to take favour, the prosecution agency was influenced by the brother of informant, to drop the name of Kamla Kant Tiwari. He submits that the credentials of the informant are also under big question as while working as the Deputy Manger at Indian Trade Promotional Organization (ITPO), New Delhi, he was caught red handed while taking bribe for handing over allotment letter of setting up stall at Pragati Maidan and an F.I.R. under Section 7 of the Prevention of Corruption Act was lodged against him on 17.2.2020.

11. Adding his arguments, he submits that the applicant was kept on paying the installment of the loan to the Bank upto 4.10.2019, i.e., the date when the F.I.R. was lodged against the applicant, which shows the bona fide of the applicant that he never deviated from any kind of terms and conditions and he was carrying on the business on the common co-operation of all the family members, which was indulged into the headship of Amarendra Bahadur Singh. He also added that Sri Kamla Kant Tiwari, the then General Manager, who is co-accused in the instant matter, has made his statement on 10.4.2020 but did not make single allegation against the applicant. He further submits that in fact, civil proceeding with respect to time barred debt of National Urban Co-operative Bank against the outstanding amount is pending before the court of civil competence but the informant with a view to mount pressure over the applicant, is trying to give colour of criminality to a civil dispute. He next added that the charge sheet has been filed in this matter, as such, there is no possibility of either his fleeing away from the investigation proceedings or tampering with the evidences and the applicant has well co-operated in the investigation proceedings and there was no single instance that he has ever flouted any instructions of the Investigating Officer.

12. He lastly added that the sole purpose of lodging the F.I.R. is not only to take revenge but also to forcibly grab the property of the applicant and his family wherein the applicant is running the business and, on the other hand, he is also trying to take hold of the business and the joint family property with a purpose to demonstrate to the C.B.I. authorities that the unaccounted cash, which was recovered during raid by the C.B.I., was the income from the business, which was being run on the property in question. Further this is also an action of retalliation as the applicant had sought information through moving the application under the RTI Act regarding misuse of the official position of the brother of the informant who is holding the position of an I.A.S. Officer. He further added that the applicant has no previous criminal antecedent except the one wherein the arrest of the applicant was stayed and further added that the applicant is a law abiding citizen and he is languishing in jail since 9.11.2022. He submits that the applicant undertakes that in case he is granted bail, he will not misuse the liberty and will co-operate in the trial proceedings.

13. On the other hand, learned counsel for the informant has vehemently opposed the contention aforesaid and submits that the applicant is a fraudulent person. Taking the benefit of kindness of the father of the informant as well as his family members, the applicant has got morgaged their land and taken huge loan amount, betraying the informant and his family members. He next added that no profit has ever been taken from the business so set up by the applicant while using the mortgage deed on the property of the informant and his family members. He added that it is startling fact that the informant and his brother, who were minor at the time of mortgage, have been shown to have put their signatures though that was neither required nor desired which shows dishonest intention of the applicant though by the said act, the applicant has got stuck in his own conspiracy.

14. He further submits that it is very clear from the forensic expert report that the signatures of the informant and his brother could not be tallied and, i.e., a documentary evidence against the applicant and that is substantial evidence of the forgery committed by him. Four witnesses have also denied the signature of the informant and his brother over the mortgage deed. He next submits that in fact, the applicant is the beneficiary of the forged signature and the documents, which was misused by him and, thus, he cannot deny his involvement in committing the offence. He further submits that the applicant has concocted the story by putting the fact that the instant F.I.R. has been lodged in retaliation to the fact that the applicant had denied to accept the onus of the amount, which was allegedly recovered by the C.B.I. from his brother. He added that his brother never called him and there is no evidence or proof with respect to the fact that the applicant has ever been called by the brother of the informant and there was no such requirement for calling him.

15. He further added that while mortgaging the property of the informant and his family, liability of huge loan amount has been fastened, thus, the property of the informant, his brother and the family is at stake. He further added that the applicant is a fraudulent person and he has committed forgery. There is documentary proof against the applicant and if he is been released on bail, he will tamper with the evidences and would abscond from the trial proceedings and, thus, the applicant is not entitled to be released on bail.

16. Per contra, learned A.G.A. appearing for the State has also supported the version of the informant and submits that after thorough investigation, the applicant was found involved in committing the cheat and found and charge sheet has been filed against him, thus, he is not entitled for any relief.

17. Considering the submissions of the learned counsel for the parties and after perusal of the material placed on record, it reveals that the property of the informant and his family members was mortgaged wayback in the year 2001 and, thereafter, apparently there was no objection by Amarendra Bahadur Singh, the father of the informant and and the other family members with respect to the aforesaid mortgage. This Court has also noticed the fact that the applicant is in close relation with the informant, as the sister of the applicant was got married with the father of the informant and, as such, Amarendra Bahadur Singh is brother-in-law of the applicant, and the informant and his brother are the nephews of the applicant. Thus, prima facie, it seems that under the mutual understanding of running a business, property of the informant, his brother and other family members were got mortgaged.

18. This Court has further noticed the fact that except apart, the informant and his brother, no one has made any complaint with regard to any cheat or forgery, which is said to have been committed by the applicant though there were other members whose properties have been mortgaged. Further, apparently there seems to be no reason that why family members including the informant and his brother were keeping mum for the last more than 20 years over the fact that their properties were mortgaged with the bank and, on the basis of the same, the applicant is running the business. The informant and his brother were minor, as such, the senior member of the family did not ask for their consent and, thus, after 20 years, whatsoever be the reason that may be known to the informant and his brother, on one morning, they started asking the applicant that under what authority, he has mortgaged their property. Sometimes, the businesses are been run with mutual consent of the persons, who are having cordial relations but, time and again, it has been experienced that due to mutual misunderstanding, such matters are been given colour of criminality and, thus, in instant matter also, after having at glance of the history of the case, likewise situation has occurred.

19. During course of the arguments, it has also been brought into the knowledge of this Court that the applicant kept on depositing all the interest on the loan amount uptil 2019, i.e., prior to the lodging of the F.I.R. against the applicant by the informant, which clearly shows bona fide of the applicant and it is strong presumption that there was no any criminal intent of the applicant to commit cheat or fraud with the informant and, thus, prima facie the ingredients of the Section 419, 420, 467, 468, 471 I.P.C. do not seem to be attracted in the instant matter.

20. This is one of the glaring fact that the son of the then General Manager, namely, Kamla Kant Tiwari, who is now working as General Manager in the same bank. The informant and his brother colluded with the son of the co-accused and got diluted the allegations against Kamla Kant Tiwari with a view to take favour from his son. Further credentials of the informant is also doubtful as an F.I.R. was lodged against him on 17.2.2020 under Section 7 of the Prevention of Corruption Act wherein the C.B.I. had raided and trapped him. As per assertion of the learned counsel for the applicant, the C.B.I. has also raided and lodged an F.I.R. on 29.6.2019 under Section 120-B, 379, 420 I.P.C. read with Section 13(2) and 13(1)(d) of the Prevention of Corrupution Act, 1988 read with Section 21 of the Mines and Mineral (Development and Regulation) Act, 1957. Abhay Singh (IAS), the brother of the informant, seems to be the key player in the instant matter who has put his influence, while lodging the F.I.R. thereby got boarded the applicant in jail. Further the applicant has no previous criminal antecedent except the one case, wherein the arrest of the applicant was stayed. Charge sheet has been filed, thus, there seems to be no possibility of fleeing away of the applicant from the investigation proceedings or further there is no chance of tampering with the evidences. Further the applicant is a law abiding citizen and he is languishing in jail since 9.11.2022.

21. Considering the submissions of learned counsel of both sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering larger mandate of the Article 21 of the Constitution of India and, without expressing any view on the merits of the case, I find it to be a case of bail.

22. Let the applicant Ravi Pratap Singh involved in the aforementioned 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:-

(1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial;

(2) 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. He 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;

(3) 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.; and

(4) 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, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code.

23. The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison.

24. It is clarified that the observations made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the merits of the case.

Order Date :- 23.12.2022

Ram Murti