Harish Kathuria & Anr. vs State
2011 Latest Caselaw 4014 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   BAIL APPL. NO.1135/2011

                                     Date of Decision : 18.8.2011

HARISH KATHURIA & ANR.             ...... Petitioners
                    Through: Mr.   R.P.Luthra,  with
                             Mr.Vikas Chadha and
                             Mr.Rahul Singh, Advs.

                                 Versus

STATE                                      ......    Respondent
                                Through: Mr. Naveen Sharma,
                                         APP
                                         Mr.B.S.Dhir, Adv. for
                                         Respondent no.2


CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment ?            YES
2.     To be referred to the Reporter or not ?  YES
3.     Whether the judgment should be reported
       in the Digest ?                          YES

V.K. SHALI, J. (Oral)

1. This is the 7th application rather seventh attempt by the

petitioners to obtain the anticipatory bail.

2. At the outset it must be stated that the petitioners have

indulged in the gross abuse of the processes of law and

therefore, deserve to be dealt with heavily for misusing the

processes of law of the Court.

3. Briefly stated the facts given by the learned Sessions Judge in

order dated 01.11.2010 are as under:

"1. The present case has been registered under sections 406/409/420/120B IPC on the basis of a complaint dated 20.05.2010 filed by the complainant- Shri Ashok Verma. It is stated that complainant is resident of England UK and he had entered into a collaboration agreement with the accused persons whereby the parties had agreed to construct three multiplexes at 2nd and 3rd floor in the name of Harsha K3C Mall at P1, Sector 12, Karnal, Haryana. It is stated that the complainant, his friend and relatives made a total payment of `3,26,82,931/- by way of cheques and DDs between 04.10.2006 to 09.09.2008 in favour of M/s Harsha Associates Pvt. Ltd. i.e. a company of accused persons which owning commercial land at Karnal on which the multiplex was to be built. It is also stated that on 30.06.2008 the parties had executed written collaboration agreement wherein the accused persons had admitted receipt of payment made by the complainant and admitted that both parties have invested for multiplex land, constructions gadgets, equipments and other assets required for running multiplex cinema at floor no. 2nd and 3rd of the complex and share of complainant was calculated at 35% of total multiplex super area of 22,000 sq. ft. It is alleged that accused persons were neither executing the registered deed in respect of 35% share of the

complainant the said multiplex nor returning amount to the complainant.

2. It is also alleged that the complainant has now come to know that accused persons had earlier entered into an agreement with one M/s Techsoft Global Ltd. on 18.09.2005 for selling out the entire second and third floor along with roof rights in the same complex for total amount of `4.75 crores and an initial payment of `11 lakh was made by M/s Techsoft Global Ltd. in favour of M/s Harsha Associates Pvt. Ptd. through a cheque dated 18.09.2005 which was encashed by M/s Harsh Associates Pvt. Ltd. on 20.09.2005, it is stated that a dispute arose between accused persons and said M/s Techsoft Global Ltd. in the court of Civil Judge (Jr. Division), Karnal, Haryana. It is further stated that vide order dated 19.10.2006 Ld. Civil Judge in that suit restrained the accused persons to alienate the suit property i.e. multiplexes at 2nd and 3rd floor in Harsha K3C Mall situated at P1 Sector 12 Karnal, Haryana by way of sale/mortgage charge/lien gift etc which order was confirmed by appellate court and by the Hon'ble high Court of Punjab & Haryana in Crl. Rev. No. 22/07 and 23/07.

3. The case of the complainant in the complaint is that the fact of pendency of litigation in respect of subject matter was not disclosed to the complainant by the accused persons and complainant along with family members and relatives paid a sum of `3,26,82,931/- between 04.10.2006 to 09.09.2008 to the accused persons and thus, the accused persons are guilty of committing offence of cheating. It is also stated that when the complainant asked to return of the money, the accused persons obstructed the

entry of the complainant in the premises.

4. It is also alleged that the amount received by the accused persons from the complainant was to be utilized towards liquidating liability of the accused persons towards HUDCO but this was not done by the accused persons."

4. On the basis of the aforesaid allegations, FIR no.121/2010,

under Section 406/409/420/120-B IPC was registered by the

Economic Offences Wing, Delhi Police and the matter is still at

the investigation stage.

Ist Anticipatory Bail Application

5. The Petitioners apprehending their arrest, filed an application

for grant of anticipatory bail before the Court of Sessions

which was disposed of on 01.11.2010 by an elaborate order

running into almost five pages, where it was observed that

the collaboration agreement dated 30.6.2008 which was

entered into by the petitioners was silent about the pendency

of the civil suit between the petitioner's company and M/s

Techsoft Global Ltd., in which the petitioners were restrained

from creating any third party interest. Yet they had entered

into collaboration agreement with the complainant and

induced them to pay a total sum of `3.26 crores.

Consequently, the application for grant of anticipatory bail

was rejected.

IInd Application

6. (a) The petitioners feeling dissatisfied, filed second application

for grant of anticipatory bail in the High Court bearing Bail

Application no. 1762/2010 which came up for hearing on

12.11.2010. On the said date the matter was adjourned on

the request of the counsel for the petitioners for obtaining

instructions from his client and the matter was renotified for

15-11-2010. Although, the notice was issued to file the

status report. On 15-11-2010 the counsel for the petitioners

sought adjournment on the ground that the petitioners are

willing to arrive at a negotiated settlement with the

complainant. The complainant was present in the Court

along with his counsel and the matter was adjourned to 24-

11-2010.

(b) On 24-11-2010 adjournment was sought on the ground

that the parties are still negotiating and the matter was

further adjourned to 16-12-2010.

(c) On 16-12-2010, the learned counsel representing the

petitioners stated that the brief has been taken back by the

petitioners and he has not received any instructions in the

matter and consequently he was not able to assist the court

on merits.

(d) So far as the, counsel for the complainant is concerned,

he made his submission that despite the assurance having

been given by the petitioners that they are willing to explore

the possibility of arriving at a settlement no concrete proposal

was offered by the petitioners and it was alleged that the

petitioners are deliberately dragging the matter for one

reason or the other.

(e) It was also pointed out that Civil Judge, Karnal had

restrained the petitioners from creating any third party

interest in the property in question on 19-10-2006 which

order was upheld by Punjab and Haryana High Court. This

was much prior to the date of entering into the collaboration

agreement yet the petitioners received a sum of

`3,26,82,931/- from the complainant for agreeing to transfer

the 2nd and 3rd floor of the said property or the interest

therein in favour of the complainant, in gross violation of the

injunction order, when they could not have done so. Having

regard to the aforesaid facts and circumstances of the case,

the application was dismissed.

(f) No doubt, when this order was passed the counsel for the

petitioners stated that his brief has been taken back, but that

does not make it an order of dismissal in default or non-

prosecution. It was an order passed on merits. It is a

common knowledge that ordinarily while granting or refusing

the bail, the Court refrain from examining the statement of

the witnesses or other evidence gathered, minutely, as it may

prejudice either of the parties.

IIIrd Application

7. Thereafter, the petitioners made a 3rd attempt for grant of

anticipatory bail by filing bail application bearing

No.1964/2010 which was dismissed as withdrawn while

reserving the right to seek their remedies in accordance with

law. Since, copy of the said application is not placed on

record it is not clear as to whether the factum of the rejection

of the earlier two bail applications was mentioned there or

not. Further, our own High Court in case titled Rajkumar Vs.

State (NCT of Delhi) 128 (2006) DLT 264 has held that as a

matter of fact, dismissal of bail application as withdrawn

should be treated as rejection on merits because as a matter

of practice, the counsel withdraws the bail application only if

he finds that the Court is not inclined to exercise the

discretion in his favour.

IV Application

8. (a) Thereafter, the petitioners filed an application bearing

Crl.M.A.no. 325/2011 in bail application no. 1762/2010 which

had already been dismissed on merits for revival of the bail

application (IInd application) on the ground that the said bail

application was not dismissed on merit as the counsel on 16-

12-2010 had stated that he had no instructions. Though

notice on the said application was issued by this Court but

perusal of the order dated 16-12-2010 does not show that

the said order was not passed on merit. As has been

observed by me herein above that it was a dismissal on

merits and it was a mistake in my view to have entertained

such an application. The application ought to have been

dismissed summarily leaving the petitioners to seek such

other remedy as is permissible in law.

(b) Be that as it may, the petitioners were successful in

reviving the bail application no. 1762/2010 by getting the

notice issued and thereafter stating that the petitioners are

prepared to settle the matter with the complainant in order to

purchase peace. It seems that it was perhaps the offer of the

petitioners to settle the matter that may have prompted the

Court to issue the notice on the application.

(c) The matter was taken up on 12-01-2011 wherein the

counsel for the respondent/complainant made a statement

that the petitioners have informally agreed to pay to the

complainant a total sum of `7.35 crores towards full and final

settlement of the inter se disputes and the learned counsel for

the petitioners also stated that the petitioners are ready and

willing to deposit 50%. of the said amount i.e. `7.35 crores in

the Registry without prejudice to their rights and contentions.

The learned counsel for the petitioners further stated that `20

lac shall be deposited in the Registry on 12-1-2011 itself and

additional sum of `30 lacs shall be deposited on next day i.e.

13-1-2011 and remaining amount shall be deposited in three

equal installment of `1 crore each. First installment was

payable on 01-02-2011. The matter was adjourned to 2nd

February, 2011.

(d) On 2nd February, 2011, the learned counsel for the

petitioners stated that an amount of `50 lacs stands deposited

with the Registry and insofar as the first installment for sum

of `1 crore payable by the petitioners on or before 01-02-

2011 is concerned, he has got a demand draft prepared and

the same shall be deposited in the Registry during the course

of the day. The matter was referred to the Mediation Centre

in order to arrive at a settlement and it was adjourned to

03.03.2011 with a view to report about the settlement. On

03.03.2011, it was observed by the Court that the second

installment of `1 crore which was due and payable on

01.03.2011 could not be deposited by the petitioners.

Instead, an application bearing Crl.M.A. no.2451/2011 was

filed seeking modification of the order dated 12.01.2011 on

the ground that the petitioners are facing a financial crunch

and therefore, they are not in a position to deposit the

balance amount of `2 crores. The said miscellaneous

application was dismissed with observation that there is no

justification for entertaining such an application for

modification of the order in less than two months. Obviously,

and rightly so, the application was not to be entertained as

the petitioners, right from the first day, were using flip flop

method to obtain anticipatory bail. The matter was adjourned

to 18th March, 2011.

(e) On 18th March, 2011, the petitioners made a fresh attempt

and sought further time to deposit the second installment of `

1 crore. The petitioners were granted indulgence by the Court

and an opportunity was granted to deposit a pay order of `25

lacs on or before 22.03.2011 and the balance amount of `75

lacs before the next date of hearing. The matter was

adjourned to 06.04.2011 with the observations that in case

the second installment is not deposited by the petitioners,

they shall be present on the next date.

(f) Though by 06.04.2011 the amount of `25 lacs was

deposited by the petitioners but the balance sum of `75 lacs

as undertaken by them was not deposited and consequently

the matter was adjourned to 02.5.2011 for direction as the

learned counsel for the petitioners once again requested for

listing the matter before the learned mediator as the

petitioners were willing to explore the possibility of arriving at

a negotiated settlement with the complainant.

(g) On 2nd May, 2011, the learned counsel stated that the

settlement talks between the parties have failed and balance

amount of `75 lacs could not be deposited and consequently,

the matter was adjourned to 30th May, 2011.

(h) On 30th May, 2011, the learned counsel for the petitioners

sought the permission to withdraw the petition with liberty to

approach the 'Trial Court'. Accordingly, the petition was

dismissed as withdrawn with liberty to approach the 'Trial

Court'.

Vth Application

9(a). It may be pertinent here to observe that the petitioners

instead of approaching the trial court made a fresh attempt by

filing an application for grant of anticipatory bail under Section

438 Cr.P.C. before the court of Sessions and it was mentioned

in the said application that this is a first application for grant

of anticipatory bail though after some submissions it was

stated that due to the inadvertence, the application has been

shown as the first application for grant of anticipatory bail

though four attempts had already been made by the

petitioners before the Court of Sessions and the High Court.

(b) It may be pertinent here to mention that the order dated

30.05.2011 clearly granted permission to withdraw the

application with liberty to approach the 'Trial Court'.

(c) The offences under Section 406, 409, 420 and 120B IPC

which was registered against the petitioners are offences

which can be tried by the Metropolitan Magistrate and

therefore, the said Court would be a 'Trial Court'. Meaning,

thereby that the application was permitted to be withdrawn

with the liberty that the petitioners would either approach the

Trial Court that is the Magisterial Court or surrender before

the said Court in terms of Section 437 Cr.P.C. and apply for

grant of regular bail.

(d) Section 437 clearly lays down that a person who is

brought or who appears of his own can apply for grant of

regular bail. Seen in this light when the petitioner sought the

withdrawal of the application with liberty to go to the 'Trial

Court', obviously, it was clear that he would surrender before

the Trial Court and apply for regular bail. On the contrary,

the petitioners tried to act smart and instead of appearing

before the trial court they chose to file an anticipatory bail

application before the Court of Sessions and tried to mislead

the Court by showing it as first bail application when they fully

knew that this is not so.

VIth Application

10. After withdrawal of the so called misleading first bail

application another anticipatory bail application was filed on

16.06.2011 and after arguments, the said petition was

permitted to be withdrawn. It has been observed by our own

High Court in Rajkumar's case (supra) that when a counsel

feels that the Court is not inclined to give the relief, he seeks

to withdraw the petition/application as he does not want to

suffer an adverse order but such disposal are in effect on

merits.

VIIth application

11. Still not feeling satisfied the petitioners filed yet another

anticipatory bail application before the Court of Sessions

which was dismissed on 28.7.2011 by Ms. Sarita Birbal,

learned Additional Sessions Judge by a long speaking order.

The learned Additional Sessions Judge has also taken note of

the repeated bail application having been filed by the

petitioners apart from the fact that they are not keeping their

assurances given to the Court to make the payment.

VIIIth Application

12(a)The petitioners have now chosen to file the present petition

before the High Court for grant of anticipatory bail which is

the 8th attempt in succession without there being any change

of circumstances between the first and the last application. It

has been contended by the learned counsel for the petitioners

that the present application for grant of anticipatory bail is

still maintainable on account of the fact that the criminal law

cannot be made an engine of oppression. It is contended that

the dispute between the petitioners and the complainant is

essentially a civil dispute and therefore, they deserve to be

enlarged on anticipatory bail. It was also contended that

merely because the petitioners or their counsel could not

appear earlier, the correct facts should not debar the

consideration of the present bail application.

(b) Learned counsel for the petitioner sought to place reliance

on the judgment of the Apex Court in case titled Madhavrao

Jiwaji Rao Scindia and another Vs. Sambhajirao

Chandrojirao Angre and others AIR 1988 Supreme Court

(c) I have gone through the judgment. In the aforesaid

judgment the question which was before the Court was

whether a complaint which was registered against the trustee

and the office bearers of a trust for offences under Section

406, 467 IPC deserves to be quashed in the facts and

circumstances of the said case or not. The Apex Court had

observed that the Court cannot be utilized for any oblique

purpose and where in the opinion of the Court, chances of an

ultimate conviction are bleak, no useful purpose is likely to be

served by allowing a criminal prosecution to continue,

therefore, the FIR was quashed.

13. The judgment cited by the learned counsel is not applicable to

the facts of the present case as there is a distinction between

the quashing of an FIR and the grant of anticipatory bail.

Different considerations are to be borne in mind while

considering these two separate reliefs. Therefore, this

contention of the petitioners is without any merit. So far as

the other two submissions, the criminal law being used as an

engine of oppression or the dispute being civil in nature, are

concerned, they are only a desperate and crude attempt of

the petitioners to insulate their liberty which cannot be

permitted to be done by raising these frivolous and belated

pleas. On the contrary, the conduct of the petitioners had

been highly reprehensible. Firstly, by cheating the

complainant, an NRI and then by repeatedly filing applications

for grant of anticipatory bail on one pretext or the other

without there being any change in circumstances. The

petitioners are harbouring an impression that merely because

they have the money and the resources and thereby,

frequently changing the counsel they can come out of the

dragnet of the criminal law. The conduct as well as the

modes adopted by the petitioners is nothing but gross abuse

of the processes of law. The petitioners have wasted valuable

time of the Court. It is this kind of frivolous petitions which

have clogged the arteries of justice and consequently, the

cases where the accused are in custody, they get relegated to

the background for want of engaging counsel or proper legal

assistance.

14. The power to grant anticipatory bail is concurrent both with

the Court of Sessions and the High Court. As a matter of

practice, the counsel files an application before the Court of

Sessions and on not finding favour there, a second application

is immediately filed in the High Court. Successive bail

applications can be filed as has been held in the catena of

judgments but then it has been observed that there must be

change in circumstances which warrant fresh consideration of

the application. Successive bail applications without there

being any change in circumstances is not only to be

deprecated but is in effect a gross abuse of the processes of

law which must be visited with some amount of sanction by

way of cost for wasting the time of the Court. There are

cases of persons who are languishing in jail for wanting their

appeals to be heard for want of time while as unscrupulous

persons like the petitioners, who have embarked on a forum

shopping or rather be called a bench hopping, are wasting

the time of the Court.

15. Keeping in view the aforesaid facts, I feel that once the bail

application is rejected by the court of sessions the accused

may file second bail application in the High Court without

there being any change in circumstances but after having

availed of the aforesaid two remedies, the petitioner shall

henceforth clearly indicate the number of anticipatory bail

applications filed by him after taking into consideration the

first two applications (one before the Court of Sessions and

the other before the High Court). This number must be given

irrespective of the forum in which it is filed. Secondly a

paragraph should be specifically incorporated in the beginning

or in the last of the application indicating clearly the change in

circumstances which has necessitated the filing of the fresh

anticipatory bail application after the rejection of the last one.

16. At this stage, the learned counsel for the petitioners has

contended that the petitioners or their counsel might have

committed blunder in not presenting the facts in proper

perspective, but still this Court must examine that on the

basis of the allegations made by the complainant, no offence

under various Sections in which the FIR was registered, is

made out.

17. At this stage, I do not intend to go into the question of

examination on the merits of the case, however, keeping in

view the fact that this is the 8th attempt of the petitioners

seeking grant of anticipatory bail before different Sessions

Judge and High Court. Moreover, it is too late now to contend

that no case is made out.

18. I feel that the petitioners have indulged in forum shopping

and have grossly abused the processes of law. The purpose

of Section 438 Cr.P.C. is not to grant anticipatory bail to a

person who tries to play with the processes of law. Moreover,

the point which is sought to be urged by the learned counsel

for the petitioners should have been urged by him before

different Judges when the application was filed.

19. I do not find this as a fit case for exercise of discretion in

favour of the petitioners, in enlarging them on bail. On the

contrary, I feel that it is a fit case as contended by the

learned APP, for custodial interrogation.

20. Normally, while rejecting the anticipatory bail application,

Courts do not impose any cost on the petitioner but since it

has been pointed out that the application has been filed not

only under Section 438 Cr.P.C. but also under Section 482

Cr.P.C, I feel that the Court will be failing in its duty in case

the petition is dismissed without imposition of any cost in the

light of the facts narrated above.

21. I accordingly, impose a cost of `1,00,000/- each on both the

petitioners. The aforesaid cost of `1,00,000/- shall be

recovered from the petitioners by the learned CMM, after

expiry of 90 days by invoking Section 421 of Cr.P.C.

22. Expression of any opinion may not be treated as an

expression on the merits of the case. Further, a copy of this

order be sent to the Registrar General of this Court to bring it

to the notice of the Deputy Registrar (Filing) so that in future

anticipatory bail contains the requisite information as stated

above.

23. Dismissed.

                                                       V.K. SHALI,J


       AUGUST         18, 2011
       B/RN