Prashant Kumar Agarwal, J. - (1.) THE complainant -petitioner has filed this application under Section 439(2) Cr.P.C. with a prayer to cancel the anticipatory bail granted to the accused -respondent by the Additional Sessions Judge No. 2, Jaipur Metropolitan vide order dated 25.11.2013 in Second Application for grant of anticipatory Bail No. 397/2013 in respect of FIR No. 538/2012 registered at Police Station JDA, Jaipur for the offences under Sections 420, 406 read with Section 120 -B IPC.
(2.) RELEVANT facts in brief for the disposal of this application may be stated as below: - (1) The petitioner lodged a report against the respondent and co -accused at Police Station JDA, Jaipur on 20.7.2012 for the offences under Sections 420, 406 read with Section 120 -B IPC on the basis of which aforesaid FIR No. 538/2012 was registered. (2) Apprehending his arrest the respondent moved application for grant of anticipatory bail under Section 438 Cr.P.C. and the same was dismissed as not pressed by the Additional Sessions Judge No. 2, Jaipur Metropolitan vide order dated 21.11.2012. (3) Subsequently the respondent moved second application for grant of anticipatory bail under Section 438 Cr.P.C. and the same was registered as Misc. Bail Application No. 397/2013 and it was allowed by the Court vide impugned order dated 25.11.2013. In these circumstances, the complainant -petitioner has filed the present petition for cancellation of the order dated 25.11.2013.
(3.) IN support of the application, learned counsel for the petitioner submitted as below: - (1) As the first application filed by the respondent for anticipatory bail was dismissed as not pressed by the Court below vide order dated 21.11.2012, the second application filed by the respondent for the same relief was legally not maintainable as it is well settled that second or successive application for grant of anticipatory bail under Section 438 Cr.P.C. is not maintainable before the Sessions Judge more particularly in view of the fact that there was no substantial change in the facts and circumstances of the case. Even if the first application filed by the respondent was not dismissed on merit, but as it was not pressed by the respondent himself it can be assumed that it was felt by the respondent that there is no chance of his application being allowed by the Court. (2) It is an admitted fact that on receipt dated 6.11.2005 the respondent also signed and although on perusal of the printed receipt it may appear that the respondent signed on it either as Manager or Accountant of the company, but on consideration of the evidence collected during investigation it is clear that the respondent pretended to be one of the Directors of the company and, therefore, he cannot escape from his liability now by saying that at the relevant time he was employed in the company only as an accountant. It is an admitted fact that at the relevant time co -accused -Shri Mahesh Chand Jain was one of the Directors of the company and he also signed on a receipt of the same type and, therefore, this fact is of no relevance that on the receipt word "Manager/Accountant" is printed. (3) The allegation against the respondent and co -accused is that after receiving an amount of Rs. 25 lacs from the petitioner, they issued a possession letter in his favour in regard to the plot in dispute, but they neither handed over the possession of the plot to the petitioner nor refunded the aforesaid amount to him. From the agreement dated 6.11.2005 allegedly executed between the petitioner and co -accused Shri Mahesh Chand Jain, it cannot be said that the aforesaid amount of Rs. 25 lacs was obtained by the accused from the petitioner only as a loan with stipulation to refund the double amount of the aforesaid amount after expiry of a period of 18 months and the possession letter was issued to the petitioner only as a security for the refund of the aforesaid amount. If the intention of the accused to issue possession letter to the petitioner was only as a security for the refund of the aforesaid amount there was no need for them to issue two receipts for the same. Otherwise also, there is no evidence made available by the respondent on record that the aforesaid amount of Rs. 25 lacs alongwith the interest has been refunded to the petitioner at any point of time. (4) From the factual report dated 1.7.2014, it is clear that the respondent after obtaining order of anticipatory bail from the Court below neither submitted the requisite bail bonds before the investigating officer nor he is cooperating with the investigation although as many as twelve notices were issued to him from time to time for the production of relevant documents and thus, the respondent is mis -using the facility given to him by the Court below.;