Prashant Kumar Agarwal, J. - (1.) Heard learned counsel for the parties.
(2.) The complainant-petitioner has moved this application under Section 439(2) Cr.P.C. for cancellation of bail granted to the accused-respondent-Shri Anil Vajpayee in S.B.Criminal Misc.Bail Application No.9213/2011 by the Co-ordinate Bench vide order dated 12.10.2011 in respect of Regular Criminal Case No.552/2011 pending for adjudication before the Additional Chief Judicial Magistrate No.9, Jaipur Metropolitan, Jaipur arising out of FIR No.416/2010 registered at Police Station Gandhi Nagar, Jaipur. Brief relevant facts for the disposal of this application may be stated as below:- (i) FIR No.416/2010 came to be registered at Police Station Gandhi Nagar, Jaipur for the offence under Section 420 read with Section 120-B IPC against the accused-respondent at the instance of the petitioner Shri Hanuman Singh wherein it was alleged that the respondent playing fraud upon him and some other persons obtained several lacs of rupees from them mis-representing that huge profits will be gained by investing the amount in the business run by the respondent. During the course of investigation the respondent was arrested on 04.10.2010 and after investigation charge-sheet was filed against him for offences under Section 420 and 406 read with Section 120-B IPC on 30.11.2010. As many as three applications filed by the respondent for grant of bail were dismissed by the Co-ordinate Bench of this Honble Court vide orders dated 15.11.2010, 23.02.2011 and 31.05.2011 respectively. (ii) During the course of trial, on 02.09.2011 statement of petitioner Shri Hanuman Singh was recorded by the trial Court as PW2 and that of two other aggrieved persons Shri Ajay Singh and Shri Ram Singh were also recorded as PW3 and PW4 respectively. (iii) On 02.09.2011 itself an application seeking permission of the Court to compound the offences alongwith compromise was jointly filed by the petitioner the aforesaid two aggrieved persons Shri Ajay Singh and Shri Ram Singh and the accused-respondent through their counsels before the trial Court and the learned Court after verifying the fact of compromise attested it on the same day. It is to be noted that in the compromise filed alongwith the application for permission to compound the offences, it was not made clear on what terms and conditions the parties have entered into compromise and only the fact of compromise and settlement of dispute between the parties was stated in it. It was not stated either in the application or in the compromise that in compliance of the settlement certain Demand Draft and cheques are to be given by the accused-respondent to the petitioners and aforesaid two aggrieved persons. (iv) On 02.09.2011 an application was also filed by the accused-respondent in the trial Court to seek permission of the Court to sign as many as nine cheques (the details of which were given in the application) on the ground that he being in judicial custody permission of the Court is required to sign the cheques. Alongwith the application all nine cheques were also produced before the Court. The learned trial Court after hearing the accused respondent passed an order to the effect that the cheques produced by the accused-respondent may be sent to the Central Jail, Jaipur so that the respondent can sign upon them and it was further directed that the same may be sent back to the Court alongwith the respondent on 03.09.2011. (v) In compliance of the aforesaid order/direction signature of the respondent were obtained on all the cheques and they were produced before the trial Court on 03.09.2011. Vide order dated 03.09.2011 the learned trial Court again sent all the aforesaid signed cheques back to the Central Jail, Jaipur with a direction that the same may be given to the accused-respondent at the time of his release from the jail and a receipt thereof may also be obtained from him and the same may be sent to the Court as and when it is obtained. (vi) The accused-respondent moved Criminal Misc. For the Bail Application for grant of bail under Section 439 Cr.P.C. before this Court and the same was allowed by the Co-ordinate Bench vide order dated 12.10.2011 mainly on the ground that the matter has been amicably settled between the parties and the compromise has also been filed before the trial Court which has been duly attested. (vii) An application was filed by the complainant-petitioner before the trial Court on 19.05.2012 with a prayer that compromise deed dated 02.09.2011 executed between the accused respondent, the complainant and aforesaid two other aggrieved persons may be taken on record. Reply to the application was filed by the respondent on the same day and vide order dated 21.05.2012 the application filed by the petitioner was dismissed by the trial Court and the compromise-deed dated 02.09.2011 filed alongwith the application was ordered to be returned to the petitioner. It is to be noted that the said compromise-deed dated 02.09.2011 was executed on stamp paper purchased on 01.09.2011 in the name of petitioner Shri Hanuman Singh only. (viii) In the meanwhile an application under Section 216 Cr.RC. for amendment of charge was filed by the prosecution before the trial Court and the same was allowed vide order dated 19.12.2012 in the manner that the charges against the accused-respondent for offences under Section 420 and 406 IPC to the extent of two other aggrieved persons namely Shri Rajendra Singh Rathore and Shri Chandra Prakash survive to be tried and the remaining witnesses of prosecution were ordered to be summoned. (ix) A Demand Draft fur Rs. 5 lacs was issued by the Union Bank of India Branch at Jodhpur on 08.08.2011 in the name of petitioner-Shrf Hanuman Singh at the instance of wife of the accused-respondent. It is pertinent to note that at that time the respondent was in judicial custody at Central Jai, Jaipur. An intimation was given to the bank on 06.09.2011 to stop payment of the aforesaid demand draft by the reason that the same has lost. The petitioner deposited the aforesaid demand draft in his bank for payment on 05.09.2011, but the payment could not be made by the reason that the purchaser of the demand draft has made instructions to stop payment on the ground that it has been lost. (ix) FIR No.40/2-12 was lodged by the accused-respondent on 22.02.2012 at Police Station Galta Gate, Jaipur against the complainant-petitioner and some other persons for the offences under Sections 406,420,468,471 read with Section 120-B IPC in which it was also alleged that he was compelled to put his signatures on some blank papers and by misusing them compromise-deed dated 02.09.2011 has been falsely prepared. (x) All the nine signed cheques were given to the respondent-accused by the jail authorities at the time of his release from the jail as directed by the trial Court vide order dated 03.09.2011. (xi) At the time of filing of application for compromise on 02.09.2011 before the trial Court or any time thereafter till the filing of compromise-deed (Annexure-2) dated 02.09.2011 on 19.05.2011, it was not brought to the knowledge of the trial Court that the aforesaid cheques have been signed by the respondent-accused with a purpose to give them to the petitioner and the aforesaid two other aggrieved persons in compliance of terms and conditions at which the parties have entered into compromise. In the application filed by the respondent for signature on the cheques also, no such fact was mentioned. (xii) On the basis of an application and indemnity bond filed by the wife of the respondent duplicate demand draft in lieu of the original was issued by the Jodhpur Branch of the Union Bank of India on 05.09.2011 and lateron on her request the duplicate demand draft was cancelled and the amount of the same was credited in her savings account. (xiii) Particulars of the cheques as mentioned in the compromise-deed date 02.09.2011 (Annexure-2) are the same as mentioned in the application filed by the accused-respondent before the trial Court on 02.09.2011 to grant permission to put signatures upon them. (xiv) The complainant-petitioner in his statement recorded by the trial Court on 02.09.2011, apart from other facts, also stated that compromise has taken place between the parties and post dated cheques and a demand draft is to be given by the accused-respondent to him in compliance thereof. Similarly, the two other aggrieved persons also in their statements recorded as PW3 and PW4 stated that post dated cheques are to be given by the respondent in compliance of the compromise arrived at between the parties. It is to be noted that the aforesaid fact was not disputed by the respondent in cross-examination. It is also to be noted that none of these witnesses stated that the terms and conditions of the compromise have been reduced into writing. (xv) All the nine cheques which were produced before the trial Court on 02.09.2011 for the purpose of signatures of the respondent were totally blank without bearing the name of the payee, the date and the amount.
(3.) In support of this application for cancellation of bail, learned counsel for the petitioner has raised the following grounds:- (1) Although, compromise-deed (Annx.2) dated 02.09.2011 executed between the parties was not produced, before the trial Court on 02.09.2011 the date on which the application to grant permission to compound the offences alongwith another compromise was jointly filed and statements of the petitioner and two other aggrieved persons were recorded, but from the overall evidence and material available on record it is clear that the terms and conditions upon which the dispute between the parties was settled and they entered into compromise were reduced in writing in the form of compromise-deed dated 02.09.2011 (Annx.2) and in compliance thereof the aforesaid demand draft for Rs. 5 lacs was handed over to the petitioner by the respondent on 02.09.2011 itself and the aforesaid 9 cheques were to be given to him and the aforesaid two other aggrieved persons at the time of release of the respondent from jail but the respondent violated the terms and conditions of the compromise and did not give cheques to the petitioner and the other, aggrieved persons. So far as the demand draft is concerned on a false pretext of loss of the same, wife of the respondent got a duplicate demand draft issued from the Jodhpur Branch of the Union Bank of India and when the petitioner presented the original demand draft for payment in his bank, payment could not be made by the reason that it was reported to be lost. (2) No plausible explanation has been furnished by the respondent in what circumstances the aforesaid demand draft was purchased by her wife in the name of the petitioner and in what circumstances it came into his possession. In absence thereof, it is to be believed that the demand draft for Rs. 5 lacs was got issued in the name of petitioner in compliance of the terms and conditions of settlement arrived between the parties. (3) Compromise-deed dated 02.09.2011 (Annx.2) has mention of detailed particulars of all 9 cheques which were presented by the respondent on 02.09.2011 before the trial Court with a prayer to put his signatures upon them. The application filed by the respondent with the aforesaid prayer also have mention of the same cheques which indicates that the cheques were presented before the trial Court for signature for the sole purpose of to hand over them to the petitioner and two other aggrieved persons in compliance of the terms and conditions incorporated in the compromise dated 02.09.2011 (Annx.2). (4) It has not been explained by the respondent when he was in judicial custody at that time then for what purpose the aforesaid 9 cheques were got signed by him for a huge amount of Rs. 5 lacs and in absence of any plausible explanation the case of the petitioner is to be believed that they were issued in compliance of the settlement arrived between the parties. It cannot be believed that such a huge amount was required by the respondent at one time for family expenses. (5) The petitioner and two other aggrieved persons in their respective statements recorded by the trial Court on 02.09.2011, apart from other facts, clearly stated that in compliance of the compromise arrived between the parties the respondent has agreed to hand over demand draft and cheques to them. These statements remained un-controverted in cross-examination indicating that at that time the respondent was agreed that in compliance of the terms and conditions of the compromise he has to give demand draft and cheques to the petitioner and the two other aggrieved persons. (6) Although, compromise filed by the parties was attested by trial Court and as a consequence thereof the accused-respondent was to be acquitted from the charges levelled against him to the extent of the petitioner and the aforesaid two aggrieved persons with whom the dispute was settled, but as the respondent failed to comply the terms and conditions of the compromise even after attestation of the compromise by the trial Court and his release from jail in compliance of the order of bail, the petitioner, being one of the victims of the fraud committed by the respondent by not complying the terms and conditions of the compromise, is entitled to file application for cancellation of bail under Section 439(2) Cr.RC. and the same cannot be dismissed only on the ground that the petitioner now has no locus standi to file application for cancellation of bail. Otherwise also, this Court suo moto can exercise his jurisdiction to cancel bail already granted to the respondent. (7) Non compliance of terms and conditions of compromise arrived between the parties is a valid ground for cancellation of bail already granted to an accused and it is not confined only to the ground of misuse of liberty by the accused. On the other hand, learned counsel for the accused- respondent controverting the grounds raised by the petitioner submitted as below:- (i) The alleged compromise-deed dated 02.09.2011 (Annx.2) is a forged and fabricated document which the accused-respondent has never executed. It appears that the same has been falsely executed by the petitioner by misusing blank signed papers of the respondent. This document has been executed on a stamp paper which was purchased on 01.09.2011 only in the name of petitioner-Shri Hanuman Singh. On 02.09.2011 the respondent was admittedly in judicial custody and permission of the trial Court was not sought to put signature of respondent on it. Whereas the legal position is that when an accused is in judicial custody he cannot sign on any paper without the permission of the Court concerned or the competent jail authority and that is why a separate application was filed by the respondent with a specific prayer to grant permission so that respondent can put his signatures on the aforesaid cheques. (ii) It is an admitted fact that alongwith the application for grant of permission to compound the offences, separate compromise-deed was also jointly filed by the parties before the trial court but neither in the application nor in the compromise filed alongwith it terms and conditions of the settlement were mentioned and terms and conditions of the compromise were not brought into the knowledge of the trial Court by the petitioner and the other aggrieved persons. In such circumstances the respondent was not liable to comply any terms and conditions of the compromise and it cannot be said that the he violated the same and by playing fraud upon the petitioner and the other persons induced them to enter into compromise and got bail order in his favour. It has not been explained by the petitioner that if compromise-deed (Annexure-2) was in existence on 02.09.2011, for what reasons it was not produced before the trial Court and an unconditional compromise for attestation was filed. (iii) The respondent was ordered to be released on bail vide order dated 12.10.2011 passed by the Co-ordinate Bench of this Court in S.B.Criminal Misc. for the Bail Application No.9213/2011 and the present application for cancellation was filed by the petitioner on 26.04.2012. Although, copy of said compromise-deed dated 02.09.2011 was also produced alongwith the present application, but when it was seen that the same has not been filed before the trial Court till date, it was filed before the trial Court alongwith an application only on 19.05.2012 with a sole purpose that it can be shown to this Court that the aforesaid compromise-deed dated 02.09.2011 is also available on the file of the trial Court. It is an admitted fact that the trial Court vide its order dated 21.05.2012 refused to take it on record and it was returned to the petitioner. (iv) It is an admitted fact that the aforesaid demand draft was not purchased by the respondent, but it was got issued by his wife from the Jodhpur Branch of the Union of India and at that time the respondent was in judicial custody at Central Jail, Jaipur. He is not obliged to explain in what circumstances and for what reasons the demand draft was purchased in the name of petitioner. (v) As the respondent was in judicial custody for a long period, application was filed by him on 02.09.2011 before the trial Court to grant permission to put his signatures on the aforesaid cheques as money was required by him for family expenses. It was not unnatural on the part of the respondent to sign as many as 9 cheques at a time. Only by the reason that so many cheques were signed for the purpose by the respondent at one time it cannot be presumed that the same were signed for the purpose to be handed over to the petitioner and some other persons at the time of his release from jail in compliance of terms and conditions of compromise (vi) The Forth Application for grant of bail was filed by the accused-respondent not only on the ground of compromise but some other grounds were also taken in it. Alongwith the application copy of application dated 02.09.2011 and compromise was also filed. Although, counsel for the complainant-petitioner was present when the bail application was heard and allowed but this fact was not brought before this Court that compromise-deed (Annx.2) has also been executed between the parties. Copy of the same was also not produced before this Court. This indicates that at that time this compromise-deed was not in existence and it was falsely prepared only after filing of present application for cancellation of the bail. The prayer for grant of bail made on behalf of the respondent was not opposed, (rather the fact of compromise was admitted by the learned counsel for the petitioner-complainant) despite the fact that payment of Rs. 5 lacs could not be made to the petitioner by the reason that the demand draft was reported to be lost by the wife of the respondent. If in terms and conditions arrived between the parties payment of Rs. 5 lacs was to be made by the respondent to the petitioner by way of demand draft, there was no reason for the petitioner not to oppose the prayer for bail made by the respondent in Forth Bail Application. This fact was also not brought to the knowledge of the Honble Court that the respondent is required to hand over 9 signed cheques to the petitioner and two other aggrieved persons at the time of his release from the jail. Infect if the respondent was obliged to hand over the cheques in the aforesaid manner, the complainant-petitioner through his counsel would have persuaded the Co-ordinate Bench to incorporate the aforesaid condition in the bail order. (vii) As the respondent, petitioner and two other aggrieved persons settled their dispute and entered into compromise without any terms and conditions and the compromise jointly filed by them before the trial Court on 02.09.2011 was duly attested, the natural consequence thereof is that the respondent stood acquitted from the charges framed against him to their extent and, therefore, the petitioner cannot be said to be an aggrieved person entitled to file the present application for cancellation of bail and the same is liable to be dismissed on that ground only. The trial against the petitioner is still going on only by the reason that the charges against him were amended by the trial Court vide order dated 19.12.2012 to the extent of two other aggrieved persons namely Shri Rajendra Singh Rathore and Shri Chandra Prakash. How the bail granted to an accused can be cancelled at the instance of a person to the extent of him the accused has already been acquitted. (viii) Bail granted to the respondent in the presence of the counsel for the petitioner, rather with his consent, cannot be cancelled on the basis of a compromise-deed which was never made part of the record of the trial court, which was never taken into consideration and attested by the court while according permission to compound the offences for which charges were framed against the respondent.;