2020 (7) TMI 616 - HC - Indian Laws

Grant of anticipatory bail - cheating - sale of Gold - total mismatch as regards the contents of the FIR and the investigation which has been carried out on the basis of the FIR - HELD THAT - Admittedly, the FIR was registered with allegation of cheating with the complainant regarding the sale of gold by the complainant and his mother Usha Rani with the firm M/s. Kartike Gold Enterprises owned by petitioner No.1. Later on, by registering two DDR Nos.49 and 50 dated 19.06.2020, certain new facts on the basis of the complaints given by the petitioners were added in the present FIR, a procedure which is unknown to the criminal law. There is no such provision in Cr.P.C. for amending the contents of the FIR wherein new allegations are with regard to different transactions like the agreement to sell as set up by the complainant. This Court is of the considered opinion that the entire case is based upon the documentary evidence for which the custodial interrogation of the petitioners is not required - this petition is allowed and the petitioners are directed to be released on interim bail, to join the investigation, subject to the conditions envisaged under Section 438(2) of the Code of Criminal Procedure, 1973.

Summary

Issues:
Grant of anticipatory bail in FIR involving Sections 420, 465, 467, 468, 471, 120-B of IPC based on mismatch between FIR contents and investigation, amendment in FIR through Rapats, dispute over General Power of Attorney (GPA) and agreement to sell, allegations of fraud and cheating, civil suits and complaints under N.I. Act pending, dispute over property transactions, custodial interrogation necessity, documentary evidence basis.

Analysis:

The petition sought anticipatory bail in FIR involving various sections of IPC due to discrepancies between the FIR contents and subsequent investigation. The court noted the mismatch and observed that amending FIR with new facts through Rapats was procedurally incorrect as per criminal law, emphasizing that such amendments are not provided for in Cr.P.C. The court highlighted the ongoing civil and criminal litigations between the parties, indicating a potential motive behind registering the FIR to exert pressure on the petitioners.

The dispute revolved around a General Power of Attorney (GPA) and an agreement to sell, with the petitioners accused of fraud and cheating in property transactions. The complainant alleged that the petitioners attempted to sell property based on a cancelled GPA, receiving earnest money under fabricated agreements. The court acknowledged the admitted dispute over transactions and readiness of petitioner No.1 to deposit the disputed amount, signaling good faith. It noted that the claims between the parties were primarily civil in nature, with pending suits for recovery and lack of necessity for custodial interrogation based on documentary evidence.

The court granted interim bail to the petitioners, directing them to join the investigation and deposit the disputed amount within two months before the trial Court/Illaqa Magistrate. The conditions under Section 438(2) of Cr.P.C. were imposed, ensuring compliance and protection of the petitioners' rights. The deposited amount was to be secured in FDRs to earn interest, pending the final outcome of the case. The decision was based on the documentary evidence and the absence of a compelling need for custodial interrogation, highlighting the civil nature of the disputes and the lack of criminal intent evident from the record.