2020 (10) TMI 906 - HC - Indian Laws

Grant of Anticipatory Bail - right to get anticipatory bail, fundamental right or not - Dishonor of Cheque - section 138 of NI Act - petitioner has submitted that the present FIR is counter-blast to the complaint filed by the petitioner against the complainant under Section 138 of the NI Act - HELD THAT - The complaint was made to the police by the complainant against the present petitioner. The police even conducted a preliminary enquiry in the matter before registration of the FIR. The police prima facie found that the petitioner, in fact, has indulged in the crime in the manner alleged against her. Not only this, the police also found the documents of the complainant, which were required for sending her abroad, with the present petitioner. It has also come on record that the complainant's family had sold agricultural land for giving amounts to the petitioner in installments of ₹ 70 thousand, ₹ 10 lacs, ₹ 10 lacs, ₹ 4 lacs, ₹ 35 thousand and ₹ 10 thousand/-. Therefore, this court finds that there are specific allegations against the petitioner, which have some force as per the record, as well as, as per the preliminary enquiry, allegedly conducted by the police. Although, the counsel for the petitioner has submitted that the present FIR has been lodged as a counter-blast to the complaint filed by the petitioner against the complainant under Section 138 of the NI Act, however, it is a matter of record that the said complaint filed by the petitioner has since been dismissed and the complainant has already been acquitted of the charges in that case. Therefore, this submission of the counsel for the petitioner is totally irrelevant for the purpose of the present matter - this court does not find any ex-facie innocence on the part of the petitioner vis- -vis the allegations levelled against her. Otherwise also, since the investigation is at initial stage, therefore, the police would be require to effect recoveries of the material/evidence to unearth the true dimensions of the alleged crime by the petitioner. Hence, protecting the petitioner at this stage would hamper the free and fair investigation of the case as well. This court does not find this to be a fit case to exercise its power under Section 438 Cr.P.C so as to protect the petitioner against her arrest - Petition dismissed.

Summary

Issues:
Grant of anticipatory bail under Section 438 Cr.P.C in a case involving allegations of cheating and breach of trust.

Analysis:
The petitioner filed a second petition seeking anticipatory bail in a case registered under Sections 420 and 120-B IPC. The petitioner was accused of promising to send the complainant and her family to Canada for a sum of money but failing to do so. The petitioner also allegedly tried to involve the complainant in a criminal case under the Negotiable Instruments Act. The petitioner's counsel argued that the FIR was a counter-blast to a complaint filed by the petitioner against the complainant, which was dismissed. The counsel claimed the petitioner's innocence and family dispute as reasons for seeking bail.

The court highlighted that the right to life and liberty can be curtailed as per legal procedures. While the Cr.P.C allows arrest without a warrant, Section 438 provides for anticipatory bail in cases where innocence is apparent. However, the court emphasized that anticipatory bail is not a fundamental right but a remedy granted by the court. In this case, the police conducted a preliminary inquiry and found evidence linking the petitioner to the alleged crime. The court noted specific allegations and financial transactions supporting the complainant's claims.

The petitioner failed to prove innocence despite claiming to have advanced a loan to the complainant. The court found no merit in the petitioner's argument that the FIR was retaliatory, especially since the complainant had been acquitted in a previous case. The court emphasized the need for a fair investigation and rejected the petitioner's plea for anticipatory bail. The court dismissed the petition, stating it was not a suitable case for granting relief under Section 438 Cr.P.C.

In conclusion, the court's decision was based on the lack of evidence supporting the petitioner's innocence, the ongoing investigation, and the absence of compelling reasons to grant anticipatory bail. The judgment highlighted the importance of following legal procedures and ensuring a fair investigation in criminal cases.