* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: June 06, 2013
% Date of Decision: June 07, 2013
+ Bail Appln.1017/2013
MOHINDER PAL SINGH SAHNI ..... Appellant
Through: Mr.Hariharan, Sr.Advocate with
Mr. M.P.Sinha, Advocate
versus
STATE ..... Respondent
Through: Mr.Mukesh Gupta, APP for State.
Inspector Dinesh Kumar, P.S. Tilak
Marg
CORAM:
MR. JUSTICE R.V. EASWAR
JUDGMENT
R.V. EASWAR, J.:
This is an application filed by one Mohinder Pal Singh Sahni under
Section 438 of the Cr.P.C. in case F.I.R. No.308/2005 registered in P.S. Tilak
Marg under Section 420/467/468/471 of the IPC.
2. The facts giving rise to the filing of the bail application in brief are that
in the year 1997 the complainant Harnam Singh filed a complaint against the
applicant under Section 138 of the Negotiable Instruments Act. The applicant
is a Non-resident Indian settled in Kuwait. In connection with the complaint,
the applicant filed exemption applications seeking exemption from personal
appearance on 26.5.1999 and 10.6.1999 on the basis of two OPD medical
Bail Appln.1017/2013 Page 1 of 6 slips dated 20.5.1999 and 7.6.1999 respectively. Exemption was granted on
the basis on these certificates. On 22.9.2003 the complaint under Section 138
was withdrawn.
3. On 1.3.2005, on the basis of another complaint filed by the
complainant alleging that the medical certificates were forged, the
summoning court issued orders summoning the applicant. In addition thereto,
the complainant preferred another complaint alleging forgery and fabrication
of the medical certificates and this was registered on 29.07.2005 as FIR
bearing No.308/2005.
4. Against the aforesaid FIR the applicant filed a petition before this
Court under Section 482 of the Cr.P.C. which was however withdrawn. A
second petition was filed under Section 482 which is stated to be pending
disposal.
5. In the meantime, the applicant had also preferred Crl. M.C. 3193/2005
against the summoning order passed on 1.3.2005. By order dated 30.5.2013,
this Court (S.P.Garg, J.) quashed the summoning order and allowed the
petition.
6. Apprehending arrest in the FIR filed by the complainant, the applicant
seeks anticipatory bail.
7. The learned counsel for the applicant strongly relies on the order of
this Court cited above and states that the basis for the issue of summons and
Bail Appln.1017/2013 Page 2 of 6 the basis for the registration of the FIR being the same, and the summons
having been quashed, there is nothing which survives in the FIR and,
therefore, the applicant is entitled to be enlarged on bail. He points out that
there is inordinate delay in filing the FIR which has not been explained. It is
further pointed out that he is 68 years of age and is willing to join the
investigation for which purpose he may be put to terms.
8. On the other hand, the learned APP contends that as per the
correspondence with the Indian Embassy in Kuwait, the medical certificates
would appear to have been forged and thus a case of forgery has been prima
facie made out. He submits that the originals of the medical certificates were
never filed and were withheld from the Court. The investigation into the case
is afoot and the applicant has failed to join the same. It is also pointed out
that the originals are to be recovered from the applicant in order to establish
the case of forgery.
9. In his brief rejoinder, the learned counsel for the applicant states that
even on 5.4.2013 the applicant had communicated with the investigating
officer which shows his bonafide. He further points out that the complainant
had withdrawn the complaint under Section 138 against the applicant and
there is nothing to show that any benefit was obtained by the applicant by the
use of the certificates. He also submitted that there is no question of Section
Bail Appln.1017/2013 Page 3 of 6 468 of the IPC being applicable and so far as Section 471 is concerned, the
same is bailable.
10. On a careful consideration of the matter, I am of the view that the
applicant is entitled to anticipatory bail. As rightly pointed out by the learned
counsel for the applicant, the basis for the summoning order dated 1.3.2005
and the basis for the FIR are the same. The summoning order has been
quashed by a judgment of this Court. I have carefully studied the judgment.
This court has held as under:-
(a) It is unclear whether at the time of seeking exemption on behalf
of the applicant, the complainant had raised any objection or suspected
the genuineness of the medical certificates.
(b) The complaint was filed in July, 2002 after a delay of three
years for which there is no explanation.
(c) It is not clear whether the complainant challenged the
exemption granted to the accused.
(d) The application filed by the complainant under Section 340
Cr.P.C. was withdrawn.
(e) There is no finding of the court concerned that the accused had
sought exemption on forged/fabricated documents.
Bail Appln.1017/2013 Page 4 of 6
(f) The original medical certificates are not on record and the hand-
writing expert (Private) merely examined the photocopies of the
originals.
(g) There was no cogent material before the trial court except the
bald statement of the complainant to form a prima facie opinion that
the certificates were forged.
(h) No coercive action was taken by the trial court against the
accused.
The above finding of this Court impinge on the present proceedings also
which arise out of the FIR filed on the same facts and material.
11. Copies of the correspondence with the Indian Embassy in Kuwait have
been filed by the learned APP. There is no categorical statement in the
communication dated 27.11.2012 in file No.22/172/11-10454 issued by the
Ministry of Foreign Affairs, Consulate Department to the effect that the
medical certificates were forged or fabricated. All that is stated is that the
medical certificates cannot be approved because they are not attested by the
concerned authorities and not signed by two doctors and the director of the
hospital as required by the ministerial decisions and that the certificates were
issued more than 13 years ago and there is no record in Al-Razvi Hospital or
medical file before or after 1999. There is nothing in this communication
from which forgery or fabrication can be established.
Bail Appln.1017/2013 Page 5 of 6
12. For the above reasons, the applicant is enlarged on bail, subject to the
execution of a personal bond for `50,000/- with one surety for the like amount
to the satisfaction of the SHO/IO concerned. The applicant is directed to join
the investigation as and when required. He shall also make available his
contact telephone number, fax number and E-mail ID to the SHO/IO
concerned. Subject to these conditions, anticipatory bail is granted and the
bail application is allowed in the above terms.
Dasti, under the signature of the court master.
(R.V. EASWAR) VACATION JUDGE June 07, 2013 Bisht
Bail Appln.1017/2013 Page 6 of 6
