Shivam Kanodia vs State Of U.P. And Anr.
2023 Latest Caselaw 3457 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 13069 of 2021
 

 
Applicant :- Shivam Kanodia
 
Opposite Party :- State Of U.P. And Anr.
 
Counsel for Applicant :- Vaibhav Upadhyay,Sanju Verma
 
Counsel for Opposite Party :- Govt. Advocate,Abhishek Singh
 

 
Hon'ble Karunesh Singh Pawar,J.

The present Anticipatory Bail Application has been filed under Section 438 Cr.P.C. seeking anticipatory bail in Case Crime No. 86 of 2021, under Sections 419, 420, 467, 468, 471, 506 IPC at Police Station-Chinhat, District-Lucknow.

Heard learned Counsel for the applicant, Shri Akhand Kumar Pandey, Advocate holding brief of Shri Abhishek Singh, learned counsel for the complainant and learned A.G.A. for the State/respondent as well as perused the record.

Gist of the controversy has been noticed by this Court while granting interim protection to the applicant vide order dated 16.11.2021, which is extracted below:-

"The Vakalatnama filed by Sri Abhishek Singh, Advocate on behalf of opposite party no. 2 / complainant is taken on record.

Heard the counsel for the applicant, the A.G.A. representing the State and Sri Abhishek Singh, the counsel for opposite party no. 2 / complainant - informant.

The present Criminal Misc. Anticipatory Bail Application has been filed under Section 438 Cr.P.C. seeking anticipatory bail in Case Crime No. 86 of 2021, under Sections 419, 420, 467, 468, 471, 506 IPC at Police Station-Chinhat, District-Lucknow during pendency of trial.

The FIR version is that the informant - Praveen Kumar is the owner of Plot No. 333 (area 0.0791 hectares) after having purchased the same from one Bhupendra Singh Yadav but Sandeep Kanodia, the father of the applicant and a co-accused in the case, was trying to take forcible possession of the said plot and threatening the complainant / informant. It has been further stated in the FIR that on being asked to show the document relating to his title Sandeep Kanodia refused but the first informant had been able to get from the office of the Registrar a gift deed dated 18.12.2020 executed by Sandeep Kanodia in favour of his son Satyam Kanodia, who is also a co-accused in the case, whereby Sandeep Kanodia has gifted the aforesaid plot to his son Satyam Kanodia. It has been alleged in the first information report that the map attached to the gift deed is incorrect and does not correctly reflect the boundaries of the plot and the error has been made with the intention to encroach on the aforesaid plot of which the informant is allegedly the owner. The applicant Shivam Kanodia and another co-accused in the case, Shreyansh Kanodia, are the executing witness of the registered gift deed dated 18.12.2020.

It was argued by the counsel for the applicant that the informant claims ownership on the basis of a sale deed executed in his favour by one Bhupendra Singh Yadav. The said sale deed was executed and registered on 1.3.2021. The FIR has been lodged on 27.1.2021. It was argued that in view of the aforesaid, the first informant was not the owner of Plot No. 333. The recital in the sale deed shows that at the time of its execution, the vendor was in possession of Plot No. 333, therefore, the informant was not in possession of the said plot on the date the first information report was lodged. It was argued that on the date of the first information report, the complainant / informant had no right or interest in the plot and, therefore, no offence was committed against the informant on the said date. It was further argued that the gift deed executed by Sandeep Kanodia in favour of Satyam Kanodia relates to 335-Sa and not Plot No. 333. It was argued that from the allegations made in the first information report as well as from the facts on record, it is evident that no false document was prepared and, thus, no forgery as defined under Section 463 IPC has been committed and at the most, in case, the informant is found to be the owner of the disputed plot, the gift deed would be void transferring no property to the donee but the facts do not constitute any offence under Sections 467, 468 and 471 IPC. It was further argued that there is no inducement by Satyam Kanodia, i.e., the donee to either the informant or Sandeep Kanodia resulting in the gift deed and, thus, no offence of cheating under Section 420 IPC has been committed. It was argued that there is no allegation of any impersonation and, thus, no offence under Section 419 IPC is made out against the accused in the case. It was further argued that in any case, the dispute regarding the validity of the gift deed was a dispute between Satyam Kanodia and Sandeep Kanodia and does not affect any alleged legal right of the informant over the disputed plot. It was further pointed out by the counsel for the applicant that the allegations made in the first information report is regarding encroachment over the disputed plot by Sandeep Kanodia and the title of Sandeep Kanodia is not dependent on the gift deed dated 18.12.2020 as in the said gift deed Sandeep Kanodia is the donor and, therefore, the said gift deed could not have been a factor enabling Sandeep Kanodia to encroach over the disputed plot. It was argued that in any case the applicant is only the attesting witness of the gift deed dated 18.12.2020 and the attesting witness only proves the execution of a document and is not a witness of the title of the donor or the vendor of the property. It was argued that there is no evidence of any conspiracy between the applicant and other co-accused in the case, especially Sandeep Kanodia and Satyam Kanodia in preparation of the document with the intention to encroach over Plot No. 333. It was lastly argued that in any case, the dispute is a civil dispute which relates to boundaries of the different plots and cannot be determined in criminal proceedings and the first information report has been lodged only to humiliate the applicant and other co-accused in the case by getting them arrested. It was argued that the applicant is innocent and has committed no crime.

The Additional Government Advocate and the counsel for the informant have opposed the application.

The counsel for the complainant / informant has argued that a proclamation under Section 82 Cr.P.C. has already been issued declaring the applicant an absconder and, therefore, the present application is not maintainable. In support of his contention, the counsel for the complainant has relied upon the judgment of the Supreme Court reported in Prem Shankar Prasad vs. State of Bihar & Anr. (2021) SCC OnLine SC 955. It was further argued that Plot No. 335Sa as referred in the gift deed dated 18.12.2020 does not exist on the spot and the said document has been created only to encroach over Plot No. 333 as would be evident from the fact that the gift deed shows the boundaries of Plot No. 333 as the boundaries of Plot No.335Sa. It was argued that from the allegations made in the first information report and the evidence on record, it is apparent that offences under Sections 419, 420, 467, 468, 471, 506 IPC have been committed by the applicant and the other co-accused and, therefore, the present application is liable to be dismissed. The counsel for the complainant has also handed over a photo-copy of the proclamation allegedly issued under Section 82 Cr.P.C. on 26.10.2021 and the same has been taken on record and shall form part of the records of the case.

I have considered the rival submissions of the counsel for the parties.

It is apparent that the applicant is only an attesting witness of the gift deed dated 18.12.2020 and the attesting witness only testifies to the execution of the document and is not a witness of title. The allegations in the FIR do not disclose any inducement to the complainant or any delivery of property by the complainant to the accused or any impersonation having been done by the accused in the case, especially the applicant. The dispute is, prima facie, a civil dispute and any controversy regarding the boundaries of the plot and the existence of Plot No. 335Sa is liable to be resolved in civil proceedings and cannot be determined in criminal proceedings. There is no allegation of any preparation of any false document. In the circumstances, it is apparent that prima facie no offence under Sections 419, 420, 467, 468 and 471 IPC is made out against the applicant. The Court has also taken note of the fact that the complainant got ownership of Plot No. 333 by virtue of the sale deed executed on 1.3.2021 while the first information report was registered on 27.1.2021 when the complainant had no right or interest over the disputed plot.

So far as the maintainability of the application is concerned, the photo-copy of the alleged proclamation issued under Section 82 Cr.P.C. and handed over to Court by the counsel for the complainant does not specify the time and place where the applicant was required to appear. No proclamation can be issued under Section 82 Cr.P.C. without specifying the time and place where the alleged absconder is asked to appear by the court concerned. In view of the aforesaid, the photo-copy of the alleged proclamation handed over by the counsel for the complainant cannot be relied upon, at this stage without a counter affidavit from the State, to hold that the application is not maintainable.

In view of the aforesaid, the matter requires consideration.

The Additional Government Advocate may file his counter affidavit/objection within three weeks from today.

Considering the circumstances of the case, it is appropriate that the applicant be granted interim protection till the next date of listing.

In view of above, it is provided that in case of arrest of the applicant- Shivam Kanodia shall be released on anticipatory bail in the above-mentioned case on his furnishing a personal bond of Rs. 25,000/- with two sureties each in the like amount to the satisfaction of the Station House Officer of the Police Station concerned/ Investigating Officer subject to the following conditions:-

(1) The applicant shall make himself available for interrogation or for discovery of any fact by a police officer as and when required;

(2) The applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police officer.

List on 15th December, 2021.

Order Date :- 16.11.2021."

Learned counsel for the applicant submits that as far as objection regarding maintainability of the application on the ground that notice under Section 82 Cr.P.C. has been issued, the same is misconceived for two reasons. First, in the Rejoinder Affidavit he has filed the notice issued to the applicant which shows that it has been issued without application of mind. No time, place, etc. have been mentioned in the said notice it appears to have been issued on a proforma. Second, as per the admitted case of the prosecution that after the interim protection was granted to the applicant he appeared and got statement recorded under Section 161 before the Investigating Officer and also filed two sureties before the Investigating Officer.

Learned A.G.A. as well as learned counsel for the complainant have opposed the bail prayer.

Considering the facts that the applicant is attesting witness of the gift deed, prima facie dispute appears to be civil dispute; the applicant has cooperated in the investigation; further undertakes to cooperate in the investigation; has explained the criminal history of one case, it would be expedient in the interest of justice that the liberty of the applicant may be protected in view of dictum of Apex Court in re: Sushila Aggarwal Vs. State (NCT of Delhi)-2020 SCC online SC 98.

In view of the above, the anticipatory bail application is allowed. It is provided that in the event of arrest, the applicant shall be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the arresting officer/investigating officer/S.H.O. concerned with the following conditions:-

(i) That the accused-applicant shall make himself available for interrogation by police authorities as and when required and will cooperate with the investigation.

(ii) That the accused-applicant shall not, directly or indirectly make any inducement, threat and promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer.

(iii) That the accused-applicant shall not leave India without the previous permission of the Court.

In case of breach of any of the above conditions or in case it is otherwise found for any other reason the bail is required to be canceled, it shall be open for the State or the appropriate authority to move application for cancellation of bail/vacation of this order in accordance with law.

Order Date :- 3.2.2023

Madhu