Govind Narain Johari vs State & Anr.
2013 Latest Caselaw 2302 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                                    RESERVED ON : April 04, 2013
                                    DECIDED ON : May 17, 2013

+      CRL.M.C. 820/2013 & Crl.M.A.No.2671/2013 (Stay)
       GOVIND NARAIN JOHARI                                 ..... Petitioner

+      CRL.M.C. 821/2013 & Crl.M.A.No.2673/2013 (Stay)
       GOVIND NARAIN JOHARI                                 ..... Petitioner


+      CRL.M.C. 822/2013 & Crl.M.A.No.2675/2013 (Stay)
       GOVIND NARAIN JOHARI                                 ..... Petitioner


+      CRL.M.C. 823/2013 & Crl.M.A.No.2677/2013 (Stay)
       GOVIND NARAIN JOHARI                                 ..... Petitioner
                              versus
       STATE & ANR.
                                                            ..... Respondents
                           Appearance : Mr.Arun Bhardwaj, Sr.Advocate with
                                        Mr.Aman Vachher, Mr.Bhupesh
                                       Narula and Mr.Abhishek Chauhan,
                                       Advocates in all the petitions.

                                       Ms.Fizani Husain, APP for the State.

                                       Mr.S.K.Sethi, Sr.Advocate with
                                       Mr.Harsh Jaidka and Mr.Manoj
                                       Kumar, Advocates for respondent
                                       No.2 in all the petitions.
Crl.M.C.Nos.820-823/2013                                         Page 1 of 9
        CORAM:
       MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The petitioner-Govind Narain Joshi has preferred petition

under Section 482 Cr.P.C. for setting aside the order dated 15.02.2013 of

Learned Addl.Sessions Judge whereby bail granted to him was cancelled.

2. Learned Senior counsel counsel for the petitioner urged that

the impugned order cannot be sustained as there was no material to cancel

the bail granted by the learned ACMM vide order dated 27.06.2012. The

complainant lodged false complaints to harass him after an inordinate

delay of four years. She never lodged any complainant with him

regarding quality of the articles supplied to her. He was arrested in FIR

No.218/2011 and was granted interim bail at first instance. Subsequently,

the bail was confirmed. The complainant with malafide intention lodged

another FIR No.278/2011 on similar facts. Jewellery worth `11 crores is

still in her possession. Neither did she make the payment of the jewellery

purchased for the last more than one year nor did she return it.

3. Learned Senior counsel for the complainant and learned

Additional Public Prosecutor supported the order and urged that there are

serious allegations against the petitioner whereby he cheated the innocent

complainant of crores of rupees. The Investigating Officer in FIR

No.278/2011 did not get an opportunity to seek custodial interrogation of

the accused to find out as to from where the foreign material filled in

gems and stones was procured. At the time of grant of interim bail under

Sections 465/467/471 IPC were not incorporated. The petitioner is a

habitual offender and is involved in several cases detailed in the

application. They further urged that the Investigating Officer had

obtained valuation report from government approved valuers and the

value of the jewellery sold to the complainant was ascertained `12-13

lakhs. It is further contended that the petition under Section 482 Cr.P.C.

is not maintainable to impugn the order dated 15.02.2013. Reliance has

been placed upon by the complainant on Gajanand Aggarwal Vs.State of

Orrisa (SC 2006 Cr.L.J.4618); Brij Nandan Jaiswal Vs.Munna (SC 2009

Crl.L.J.833), Puran Vs. Ram Bilas (SC 2001 Cr.L.J.2566); Noor Islam

Rana Vs.State (DHC, 2012 (2) JCC 1461), and Nazma Vs.Javed (2013 (1)

SCC (Cri)508). Learned counsel for the petitioner relied on Dolat Ram &

Ors. Vs.State of Haryana {(1995) 1 SCC 349}; Manjit Prakash and Ors.

Vs.Shobha Devi and Anr. {(2009) 13 SCC 785}.

4. I have considered the submissions of the parties and have

examined the record. FIR No. 218/2011, was lodged by the complainant-

Mrs.Kiran Nadar on 14.09.2011 under Section 420 IPC. It was mentioned

therein that she was dealing with the petitioner since 1999 by purchasing

precious Stones, Diamonds, Ruby etc. She started purchasing antique

jewellery from him. During December, 1999 to October, 2004, she

purchased a lot of jewellery. The petitioner used to bring jewellery

himself at her house. She and her husband-Shiv Nadar found the

jewellery attractive and purchased it. The petitioner assured that the

jewellery sold was embedded with original stones and gems of best

quality. She further stated that 'recently' she came to know that the

petitioner used to deal in fake jewellery also. She got necklaces checked

from gem testing laboratory and found that there was filling material

inside the Stones to enhance clarity. She was sold 'Composite' Ruby and

not 'natural' Ruby which was of very inferior quality and was of no

value. She claimed that she was cheated of `1,08,31,225/-.

5. On 13th October, 2011 the petitioner was arrested from

Jaipur, Rajasthan. The Trial Court granted three days police custody. On

17.10.2011 after the remand period was over, the petitioner was produced

and was admitted to interim bail for a period of one month. The interim

bail was extended again till 31.11.2011. On 15.11.2011 FIR No.278/2011

was lodged by the complainant in the same police station on somewhat

similar allegations. It is stated that Crl.M.C.no.3934/2011 is pending for

quashing of the said FIR. On 30.11.2011, the petitioner surrendered

before the Trial Court after expiry of interim bail. Again he was admitted

to interim bail for one day. The said bail was extended thereafter from

time to time. On 27.06.2012 the learned Additional Chief Metropolitan

Magistrate, Saket, admitted the petitioner to bail in FIR No.218/2011 and

278/2011. Complainant and State filed applications for cancellation of

bail under Section 439 (2) Cr.P.C. and vide order dated 15.02.2013 the

bail was cancelled.

6. Learned Additional Sessions Judge cancelled the bail on

merits observing that learned ACMM without considering the pros and

cons of the matter, mechanically granted the bail. There were serious

allegations of cheating and forgery against the petitioner. The

investigation was at its initial stage. The valuation report from different

government approved jeweller showed a vast difference in prices given by

the jeweller and the prices charged by the petitioner from the complainant.

The invoices bills raised by the petitioner contained forged TIN number.

There were several cases of cheating and forgery in Jaipur, Gwalior and

Delhi against the petitioner and his antecedents were not clean.

7. I have examined the order of learned ACMM whereby the

interim bail was confirmed on 27.06.2012. The Trial Court after

considering the rival contentions of the parties minutely admitted the

petitioner to bail. While admitting the petitioner to interim bail vide order

dated 17.10.2011, the learned ACMM took into consideration the expert

opinion placed by the Investigating Officer on record which showed that

the stones used in the jewellery were not composite stones of low value

and were original treated stones which were normally used in jewellery.

The Complainant/State did not challenge the said order. Vide order dated

18.11.2011 the interim bail was extended till 21.11.2011. On 21.11.2011

counsel for the complainant informed about registration of another FIR

No.278/2011 at police station NFC. The interim bail was extended for

next ten days and the case was fixed for 01.12.2011. On 30.11.2011 in

FIR No.278/2011 the petitioner surrendered before the court and was

granted one day interim bail and the matter was directed to be listed along

with FIR No.218/2011. On 01.12.2011 the petitioner gave a proposal to

buy back all the jewellery after deducting taxes paid to the government.

Counsel for the complainant sought time to seek instructions from the

complainant. The petitioner further submitted that the jewellery worth

`11-12 crores was lying with the complainant for approval which might

be returned to him so that he may use it to returning the money to the

complainant. On joint request, the matter was adjourned for 09.12.2011

and the interim bail was extended. On 21.12.2011, since there was no

written proposal given on behalf of the complainant despite repeated

opportunities, the court observed that settlement talk had failed and the

matter was fixed for 07.01.2012 for arguments on bail applications in both

the FIRs. On 13.04.2012 the applications for cancellation of bails were

moved.

8. Apparently, the complainant had business/personal

transactions with the petitioner since 1999 and had purchased jewellery

worth crore of rupees. For the first time, she lodged FIR with the police

station NFC, Delhi on 14.09.2011. She never lodged any complaint prior

to that with the petitioner having any grievance about the

fake/inferior/poor quality of the gems/stones. Without having any

correspondence and giving an opportunity to the petitioner to explain the

nature of the jewellery sold to her since long, the complainant initiated

criminal proceedings. The petitioner was arrested and remained in

custody during police remand. Thereafter, he was granted interim bail

from time to time which was never challenged by the Complainant/State.

During this period there were talks for settlement which could not

however, materialized. It has come on record that `7 cores were

deposited by the petitioner in CITY Bank vide RTGS on 17.08.2011 in

favour of the complainant. There is nothing on record to show that the

Complainant returned the jewellery for which payment of `7 crores was

made to her by the petitioner. The complainant did not explain the

inordinate delay of four years in lodging report after the last purchase of

jewellery was made in 2007. The petitioner has given detailed reply

regarding various cases registered against him. The cases mostly are with

the close relations of the petitioner. In para No.(3) he has also given

status of those cases which have either been cancelled or closure reports

have been filed. The petitioner has claimed that the jewellery worth `11

crores is still lying with the complainant which has not yet been returned

and she has not made any payment for the articles purchased by her.

9. The learned ACMM, in my considered view, has taken all

relevant considerations in mind while granting bail to the accused. The

findings of the learned Additional Sessions Judge that the order of the

Trial Court was mechanical in nature cannot be sustained. Under Section

482 Cr.P.C, this Court has ample powers to set aside the order to secure

ends of justice. The power of cancellation of bail must be exercised with

care and circumspection. Very cogent and overwhelming circumstances

are necessary for an order seeking cancellation of bail. Where there is no

variation of the terms of the order granting bail, cancellation is not

justified. It should not be done in routine manner as it jeopardizes the

personal liberty of the person. While considering an application for

cancellation of bail the court ordinarily looks for some supervening

circumstances which would reflect that the liberty granted to the accused

was misused but none exists in the present case.

10. In the light of the above discussion order dated 15.02.2013,

cancelling bail of the petitioner, is set aside. The petitioner shall remain

on bail as per the order of the learned ACMM.

11. The petitions and all pending applications stand disposed of

accordingly.

(S.P.GARG) JUDGE May 17, 2013 sa