Radhey Sham Singhal And Anr vs State Of Haryana And Another
2022 Latest Caselaw 16137 P&H

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CRM-M-46210 of 2022

      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH



                                   CRM-M-46210 of 2022
                                   Reserved on: -01.12.2022
                                   Date of pronouncement: - 08.12.2022


Radhey Sham Singhal and another
                                                                ......Petitioners

                     Versus


State of Haryana and another
                                                              ......Respondents


CORAM: HON'BLE MR. JUSTICE NAMIT KUMAR

Argued by: -
               Mr. G.C. Shahpuri, Advocate,
               for the petitioners.

               Mr. Vikrant Pamboo, DAG, Haryana.

               Mr. P.S. Ahluwalia, Advocate,
               and Mr. Deepak Tuteja, Advocate,
               for respondent No.2.

NAMIT KUMAR, J.

This petition has been filed by the petitioners under

Section 482 Cr.P.C. for quashing of the order dated 15.09.2022

(Annexure P-8) passed by the Additional Sessions Judge, Karnal,

whereby regular bail granted to them vide order dated 28.08.2020 in

case FIR No.260 dated 04.08.2020 under Sections 120-B, 406, 420,

467, 468, 471, 506 IPC registered at Police Station Taraori, District

Karnal, has been cancelled.

Brief facts of the case are that on 04.08.2020,complainant

Ravi Kumar Gupta moved an application before the police alleging

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therein that his son Akshay aged 20 years had become permanently

disabled in a road accident in the year 2017. Sandeep (petitioner No.2)

induced the complainant to get his son treated from some big hospital

abroad and stated that his brother-in-law RadheyShyam (petitioner

No.1) and Amit Kumar, his partner are having friends and business

relations in America and Australia and they would assist the

complainant in getting the treatment of his son abroad. Believing

petitioner No.2, complainant gave medical report of his son to him and

a few days later, petitioner No.2 stated that his son would require

treatment in a big hospital situated in New York City, America and he

has already talked with the doctors in the hospital who had given

assurance that the son of complainant would fully recover. He further

stated that the treatment in America would take about one to two years

and suggested that the complainant with his entire family goes to

America during the said period. He assured that the complainant would

only need to get visa issued and the rest of the work shall be undertaken

by RadheyShyam (petitioner No.1) and Amit. He further stated that a

sum of `3.5 crores would be expended in the treatment, out of which a

sum of `2 crores is to be paid initially, thereafter a sum of `1 crore is to

be paid and finally a sum of `50 lacs is to be paid after the treatment is

completed. The said amount would include the expenses for a house,

job in a company, treatment of son of complainant and issuance of

Green Card to the complainant. Thereafter, in furtherance of criminal

conspiracy Sandeep (petitioner No.2) introduced complainant to

RadheyShyam (petitioner No.1) and Amit and stated that the three of

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them were running a big company in the name of S.R. Logistics. Then,

all three of them assured the complainant that they were associated with

various trusts and companies in connection with their business and they

would use their contacts to get the work of complainant done. The

complainant arranged a sum of `2 crores from his business and by

borrowing from his family members and relatives and gave the said

amount to Amit and Sandeep (petitioner No.2) on 10.10.2019 and

receipt of the amount was also issued by said persons in presence of

Kunal Chopra. The complainant was given assurance that with the help

of a trust situated at Chandigarh and a company Rajesh Exports, New

Delhi, belonging to a friend of the accused, they would get the entire

work done. On 11.10.2019 Sandeep (petitioner No.2) told the

complainant that his work had commenced and all the said persons

RadheyShyam (petitioner No.1), Amit and Sandeep (petitioner No.2)

showed him a mail sent by Rajesh Exports and certain papers issued by

Canara Bank bearing signatures of one Amit Singh as Branch Manager

in which the factum of transfer of funds `3.5 crores in the name of

Prachin Shree Shiv Mandir Charitable Trust had been recorded.

Thereafter, on the demand of accused the complainant arranged another

sum of `1 crore from his business and relatives and handed over the

same to the accused on 19.10.2019 and the accused issued a receipt

even with respect to the said amount. On 29.10.2019, the visa of

complainant and his family members was received and upon asking, the

accused assured that the work of complainant would be completed in

the month of December, 2019. However, the accused kept delaying the

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matter and on repeated asking, the accused called the complainant to

Mumbai where he was introduced to some persons and they assured to

complete the work by 15.03.2020. However, even uptil 15.03.2020, the

accused did not make any progress on the work of complainant and

upon inquiry, it was found that all the documents handed over by the

accused to the complainant were forged. Thereafter the complainant

demanded his money back from the accused, however, they threatened

to kill him. In this manner, it was alleged that all the said persons in

criminal conspiracy with each other had cheated him of valuable

consideration amount and forged documents in order to support their

act of cheating and necessary action be taken against them. On the basis

of said application, aforementioned FIR was registered. Police

commenced the investigation. Statements of witnesses were recorded.

Petitioners-accused were arrested on 05.08.2020 and their disclosure

statements were recorded in pursuance to which a sum of 70,000/- and

30,000/- was recovered at the instance of petitioners-accused

respectively.

Thereafter, petitioners moved an application before the

Court of learned Additional Sessions Judge, Karnal, for grant of regular

bail on the basis of compromise. Consequently, on the statement of

complainant-Ravi Kumar Gupta in the Court to the effect that a

compromise has been effected between him and the petitioners,

whereby petitionershave undertaken to make the entire payment within

a period of six months, petitionerswere granted regular bail by learned

Additional Sessions Judge, Karnal, vide order dated 28.08.2020

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(Annexure P-4). However, complainant-Ravi Kumar Gupta

approached the Court of learned Additional Sessions Judge, Karnal, by

way of an application under Section 439(2) Cr.P.C. for cancellation of

bail granted to the petitioner vide order dated 28.08.2020 alleging

therein that the petitionershave violated the terms and conditions of the

compromise entered into between the parties on the basis of which they

secured bail with an dishonest intention. Learned Additional Sessions,

Karnal, after satisfying itself that the petitionershave violated the terms

and conditions of the compromise and secured bail with an dishonest

intention by playing fraud upon the Court, cancelled their bail vide

order dated 15.09.2022 (Annexure P-8). Hence, this petition.

Mr. G.C. Shahpuri, learned counsel appearing on behalf of

the petitioners submits that the impugned order dated 15.09.2022

(Annexure P-8) is totally wrong and unsustainable as the petitioners

had never issued any cheque to the complainant, however, under the

garb of compromise dated 13.08.2020 (Annexure P-2), they obtained

the cheque from the wife of petitioner No.1 which had been presented

by the complainant to the bank and had been dishonoured for which the

complainant has filed complaint under Section 138 of the Negotiable

Instruments Act. He further submits that the bail has been cancelled by

the same Court which granted the bail which is improper as it would

amount to reviewing its own order which is not permissible under the

law. He further submits that at the time of grant of bail, the Court did

not impose any terms and conditions with regard to the factum of

compromise that in case of any violation of the said compromise the

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complainant would be at liberty to file application for cancellation of

bail and since there was no such condition in the order granting bail to

the petitioners, the impugned order is totally erroneous and is liable to

be set aside. He further submits that the petitioners were enlarged on

regular bail after the Court considered the merits of the case and,

therefore, cancellation of bail is not permissible under the facts and

circumstances of the present case. To support his contentions, learned

counsel for the petitioners places reliance upon the judgments of the

Hon'ble Supreme Court in BimanChatterjee v. SanchitaChatterjee

and another, (2004) 3 Supreme Court Cases 388; Special Leave to

Appeal (Crl.) Nos.4202-4203/2020 (G. Selvakumar v. The State of

Tamil Nadu etc.)decided on 01.10.2020 and of this Court in CRM-M-

40903 of 2021 (Suresh Kumar v. State of Haryana and another)

decided on 04.10.2021.

Per contra, Mr. P.S. Ahluwalia, learned counsel appearing

on behalf of respondent No.2 submits that the impugned order dated

15.09.2022 (Annexure P-8) cancelling the bail of the petitioners is

perfectly legal and valid as the petitioners were granted the concession

of regular bail keeping in view the compromise dated 13.08.2020

(Annexure P-2) and since the terms of the compromise have been

violated as the cheque of Rs.25.00 lacs given by the petitioners has

been dishonoured, therefore, cancellation of bail of the petitioners is

fully justified as there was dishonest intention on the part of the

petitioners to secure bail from the Court on the basis of compromise

and the same amounts to fraud played not only with the respondents

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herein but with the Court also. In support of his contentions, learned

counsel placed reliance upon the judgments in Pankaj S. Bansal v.

ArunkumarRamswarupAggarwal, 2020(2) NIJ 102 : 2021(1) BC 150

(Bombay); CRM-M-19983 of 2022 - ShraddhaKhandelwal v. The

State of Haryana and another (P&H); SurjeetKaur v. State, 2015(5)

R.C.R.(Criminal) 798 (Delhi); CRM-M-42259 of 2020 -

KumariJuhiRai v. State of Bihar (Patna) and Jai Krishan v. The State

of Punjab, 2010(1) R.C.R.(Criminal) 249 (P&H).

I have heard learned counsel for the parties and perused

the record.

The petitioners were extended the concession of regular

bail by the Court of learned Additional Sessions Judge, Karnal, vide

order dated 28.08.2020 and while granting bail, contention of learned

counsel for the applicant/accused (present petitioners) was recorded

that the complainant-Ravi Kumar Gupta had entered into a compromise

with the accused, copy of which was appended with the bail application

duly attested by the Deputy Superintendent of Prison, District Prison,

Karnal on 13.08.2020. He further submitted that complainant-Ravi

Kumar Gupta is present in Court and he is ready to make a statement

with regard to the factum of compromise and that he has no objection

in case the applicants-accused are granted the concession of bail.

Consequently, complainant-Ravi Kumar Gupta made a statement to the

effect that a compromise has been effected between him and the

applicants-accused whereby the applicants-accused have undertaken to

make the entire payment within a period of six months and in view of

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the compromise, complainant has no objection in case the applicants-

accused are granted the concession of regular bail by the Court. The

Court while granting bail to the petitioners has recorded "in view of the

aforesaid and having regard to the statement made by complainant-Sh.

Ravi Kumar Gupta in the Court in the light of allegations in the FIR, no

useful purpose would be served by keeping the applicants-accused

further behind bars.

So far as judgment relied upon by learned counsel for the

petitioners in BimanChatterjee(supra) is concerned, the said judgment

has been considered by the Bombay High Court in Pankaj S.

Bansal'scase (supra) and it has been observed as under: -

"46. Learned counsel for the respondents has placed reliance upon the judgment of the Apex Court in the case of BimanChaterjee v. SanchitaChatterjee&anr. reported in 2004 CriLJ 1451, the Hon'ble Supreme Court had observed that-

"non-fulfilment of the terms of the compromise cannot be the basis of granting or cancelling a bail. The grant of bail under the Criminal Procedure Code is governed by the provision of Chapter XXXIII of the Code and the provision therein does not contemplate either granting of a bail on the basis of an assurance of a compromise or cancellation of a bail for violation of the terms of such compromise"

In the facts of the case, there was no written compromise and the bail was granted after noticing the fact that there was possibility of compromise. It was pointed out that there was negotiations going on for finalisation of

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compromise and therefore, question of appellant contravening the terms of compromise did not arise."

The said judgment in the case of BimanChatterjee(supra)

has also been considered by the Patna High Court in the case of Kumar

JuhiRai (supra) wherein it has been held as under: -

"17. In the case of BimanChatterjee (Supra) the facts were entirely different. In that case neither a compromise was arrived at between the parties nor was any undertaking given by the accused before grant of bail. In that background it was held that the bail of an accused cannot be cancelled on violation of assurance of entering into a compromise between the parties. In the considered opinion of this Court, the reliance placed by the learned counsel appearing on behalf of opposite Party nos.2 to 4 on the case of BimanChatterjee (Supra) is completely misconceived and that will not salvage the opposite party nos.2 to 4 in the present case."

Therefore, the judgment of the Hon'ble Supreme Court in

BimanChatterjee'scase (supra) is not applicable to the facts and

circumstances of the present case.

Other judgments relied upon by learned counsel for the

petitioners are also of no help to him.

Fraud vitiates everything

Petitioners played a fraud with the Court and also with

respondent No.2-complainant-Ravi Kumar Gupta by firstly

compromising the matter with the complainant vide compromise dated

13.08.2020 (Annexure P-2) and on the basis of the said compromise the

petitioners filed an application for grant of regular bail and it was the

contention of their counsel before the Court below that since the matter

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has been compromised and the complainant is ready to give a statement

before the Court with regard to settlement and therefore, the petitioners

may be granted the concession of regular bail. Considering the

compromise coupled with the statement of the complainant before the

Court, the Court of learned Additional Sessions Judge, Karnal,

extended the concession of regular bail to the petitioners. However,

lateron petitioners violated the terms and conditions of compromise as

the cheque issued in terms of the compromise wasdishonoured. This

Court in the case of Jai Krishan (supra) has held that fraud vitiates

everything and no person can be beneficiary of his own fraud and the

beneficial order secured from the Court by playing fraud being

outcome of the fraud has to go. The relevant portion of the said

judgment is as under: -

"9. The question whether the accused has misused the concession of bail becomes a secondary question in this case. The primary question is whether the accused has secured the bail by fraud and misrepresentation and on the basis of the manipulated record. I have referred to the record in detail which clearly establishes that during the period between 2006-07 there was no serious ailment with the petitioner. However, he attempted to approach the doctor. Upto the month of July, 2007, no serious ailment was shown. It was only in July, 2007 that the disease of epilepsy was inserted in the diagnosis and some tablet was prescribed. It appears that this was done by the doctor in connivance with the accused to help him in securing bail from the court. The report of the Board of Doctors comprising of four experts from the PGI, Chandigarh is an indicator in this regard. One fails to understand why four senior doctors from the PGI, Chandigarh should give a wrong opinion and a false report against the accused. It is settled that no person can be beneficiary of his own fraud.

Fraud vitiates everything. From the registers produced, it appears that there has been tampering. The report of the doctor was the sole basis for grant of bail. No material has been produced on record that after being granted bail, the accused is under continuous treatment. The medical

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report was only a device to secure bail. Notwithstanding the fact that whether the accused has misused the liberty of bail or not, he cannot he given the benefit of his fraud. The accused and the doctor had the courage to mislead the High Court. I have no doubt in mind that such a person deserves no sympathy. The mere fact that the bail has been procured with fraud is sufficient to recall the order of bail. It is now the unanimous judicial opinion that fraud vitiates all acts. Even if a beneficial order is procured from a Court by playing fraud, the order itself being outcome of the fraud has to go.

10. It is the constitutional as also social obligation of the Court to prevent the perpetuation of fraud. In the case of AbhilashVinodkumar Jain (Smt.) v. Cox & Kings (India) Ltd. and others, 1995(3) RCR (Criminal) 397 : 1995(3) RRR 215 : (1995)3 SCC 732, Hon'ble Supreme Court has observed as under :-

"18.....In interpreting a beneficent provision, the Court must be for ever alive to the principle that it is the duty of the court to defend the law from clever evasion and defeat and prevent perpetration of legal fraud."

11. Again in the case of A.V. PapayyaSastry and others v. Government of A.P. and others, 2007(2) RCR (Civil) 431 : 2007(2) RAJ 451 : AIR 2007 Supreme Court 1546, the Hon'ble Supreme Court has observed as under :-

"39..... Once it is established that the order was obtained by a successful party by practicing or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every Court, superior or inferior...."

12. While reiterating the aforesaid settled proposition of law, in the case of A.V. PapayyaSastry and others v. Govt. of A.P. and others, (2007) 4 SCC 221, the Hon'ble Supreme Court has observed as under :-

"21. Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed;

"Fraud avoids all judicial acts, ecclesiastical or temporal".

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22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or interior. It can be challenged in any Court, at any time, in appeal, revision, writ, or even in collateral proceedings.

23. In the leading case of Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502, Lord Denning observed :

"No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud."

24. In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p.644, explaining the nature of fraud, do Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to shown that the court was 'mistaken', it might be shown that it was 'misled'. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.

25. It has been said; Fraud and justice never dwell together (frauset jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolusneminipatrocinaridebent).

26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of 'finality of litigation' cannot be stretched to the extent of an absurdity that it can heutilised as an engine of oppression by dishonest and fraudulent litigants.

27.In S.P. Chengalvaraya Naidu (dead) by LRs. v. Jagannath (dead) by LRs. &Ors., 1994(1) RRR 253 : (1994)1 SCC 1 : JT 1994(6) SC 331, this

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Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The high Court however, set aside the order of the trial court, observing that "there was no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence". B approached this Court.

28. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the high Court as 'wholly perverse', Kuldip Singh, J. stated :

"The courts of law are meant for imparting justice between the parties. One who comes to the court, approached this Court.

33. Allowing the appeal and setting aside the orders, this Court stated :

"15. It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would he limited to the issues formulated from the pleadings made till then.

16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of

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such a dimension as would affect the very basis of the claim.

17. The allegation made by the appellant Insurance Company, that claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without Further probe into the matter, for, the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards. Claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company. If we fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to serious miscarriage of justice".

As is stated hereinabove, petitioners have played fraud

with complainant-Ravi Kumar Gupta as on the pretext of getting

treatment of his son, who was permanently disabled, from abroad

extracted money from him. Thereafter on the basis of compromise

with the complainant they got regular bail from the Court of learned

Additional Sessions Judge, Karnal, vide order dated 28.08.2020 but did

not fulfil the terms and conditions of the compromise. Moreso, the

cheque issued for part payment of `25lacs has also been dishonoured.

Petitioners have played fraud with the complainant as well as with the

Court below.

In view of the above, present petition is dismissed being

devoid of any merit.

                                                (NAMIT KUMAR)
08.12.2022                                          JUDGE
R.S.

                    Whether speaking/reasoned          :     Yes/No

                    Whether Reportable                 :     Yes/No


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