TMI Blog2009 (3) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... e said property is already mortgaged during the year 2004 with the Punjab National Bank and that in fact parties have already obtained an order of attachment. Even the documents with regard to the ownership of the property are lying with another financial institution from whom the appellants have received consideration. There appears to be hypothecation in respect of the said property which was entered into with the private financer. It is alleged that the appellants while entering into the said agreement with the complainant never brought to his notice about the mortgage of the property. The aforesaid allegations are serious but the same are required to be considered by the court in accordance with and in the light of correct position o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Single Judge of the Punjab Haryana High Court in Criminal Original Petition No. 16601 of 2008 whereby the High Court allowed the application filed by the appellants under Section 438 of the Code of Criminal Procedure, 1973 (for short the Code ) and granted the relief of anticipatory bail as prayed. The appellants are aggrieved due to imposition of alleged onerous condition for grant of anticipatory bail. 3. A complaint was filed by one A. Nizam Bash S/o Late M. Abdul Salam, Respondent No. 2 contending inter alia that the appellants and another person namely Karuppasami are legal heirs of one Raju and that they owned a house which is located at Coimbatore. In the said complaint, the Complainant alleged that on coming to know that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuted the sale deed in respect of said property in favour of Chitra wife of Sivaji and Kumudha wife of Chinnasamy in 1998. The aforesaid fact of alleged fraudulent transfer of property was concealed. They also allegedly concealed the fact that they received a sum of ₹ 11,50,000/- from Punjab National Bank by means of pledging the documents and that a decree was passed against Kumudha and Chitra regarding the pledged properties. It is thus alleged that the accused concealed the real fact and fraudulently received a sum of ₹ 32.5 lakhs as sale consideration and thereby cheated the complainant and his son-in- law and his wife. 5. On receipt of the aforesaid complaint, a case was registered treating the said complaint as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or grant of anticipatory bail other than those contained in Sub- section (2) of Section 438 of the Code of Criminal Procedure shall remain stayed. 10. Notice issued was served on the respondent and therefore, the matter was listed for hearing before us on which we heard the learned counsel appearing for the parties at length. 11. Learned counsel appearing for the appellants submitted before us that the conditions imposed by the High Court while granting anticipatory bail to the appellants were not only onerous but also unreasonable. It was also submitted that conditions imposed by the High Court for granting anticipatory bail on their deposit of ₹ 32,00,000/- amounts to putting a fetter on the order granting anticip ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d into with the private financer. It is alleged that the appellants while entering into the said agreement with the complainant never brought to his notice about the mortgage of the property. The aforesaid allegations are serious but the same are required to be considered by the court in accordance with and in the light of correct position of law. 15. It appears that in the aforesaid facts and circumstances, the High Court passed the impugned order with the intention of protecting the interest of the complainant in the matter. In our considered opinion, the approach of the High Court was incorrect as under the impugned order a very unreasonable and onerous condition has been laid down by the Court as a condition precedent for grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for his failure to raise funds for honouring the cheques issued by him, the court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police . 17. It is not disclosed from the record that the High Court considered the entire facts of the case in proper perspective and proceeded to dispose of the prayer for anticipatory bail oblivious of the facts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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