TMI Blog2011 (8) TMI 1347X X X X Extracts X X X X X X X X Extracts X X X X ..... Harsha K3C Mall at P1, Sector 12, Karnal, Haryana. It is stated that the complainant, his friend and relatives made a total payment of ₹ 3,26,82,931/- by way of cheques and DDs between 04.10.2006 to 09.09.2008 in favour of M/s Harsha Associates Pvt. Ltd. i.e. a company of accused persons which owning commercial land at Karnal on which the multiplex was to be built. It is also stated that on 30.06.2008 the parties had executed written collaboration agreement wherein the accused persons had admitted receipt of payment made by the complainant and admitted that both parties have invested for multiplex land, constructions gadgets, equipments and other assets required for running multiplex cinema at floor No. 2nd and 3rd of the complex and share of complainant was calculated at 35% of total multiplex super area of 22,000 sq. ft. It is alleged that accused persons were neither executing the registered deed in respect of 35% share of the complainant the said multiplex nor returning amount to the complainant. 2. It is also alleged that the complainant has now come to know that accused persons had earlier entered into an agreement with one M/s Techsoft Global Ltd. on 18.09.2005 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any and M/s Techsoft Global Ltd., in which the Petitioners were restrained from creating any third party interest. Yet they had entered into collaboration agreement with the complainant and induced them to pay a total sum of ₹ 3.26 crores. Consequently, the application for grant of anticipatory bail was rejected. IInd Application 6. (a) The Petitioners feeling dissatisfied, filed second application for grant of anticipatory bail in the High Court bearing Bail Application No. 1762/2010 which came up for hearing on 12.11.2010. On the said date the matter was adjourned on the request of the counsel for the Petitioners for obtaining instructions from his client and the matter was renotified for 15-11-2010. Although, the notice was issued to file the status report. On 15-11-2010 the counsel for the Petitioners sought adjournment on the ground that the Petitioners are willing to arrive at a negotiated settlement with the complainant. The complainant was present in the Court along with his counsel and the matter was adjourned to 24-11-2010. (b) On 24-11-2010 adjournment was sought on the ground that the parties are still negotiating and the matter was further adjourned to 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n should be treated as rejection on merits because as a matter of practice, the counsel withdraws the bail application only if he finds that the Court is not inclined to exercise the discretion in his favour. IV Application 8. (a) Thereafter, the Petitioners filed an application bearing Crl.M.A. No. 325/2011 in bail application No. 1762/2010 which had already been dismissed on merits for revival of the bail application (IInd application) on the ground that the said bail application was not dismissed on merit as the counsel on 16-12-2010 had stated that he had No. instructions. Though notice on the said application was issued by this Court but perusal of the order dated 16-12-2010 does not show that the said order was not passed on merit. As has been observed by me herein above that it was a dismissal on merits and it was a mistake in my view to have entertained such an application. The application ought to have been dismissed summarily leaving the Petitioners to seek such other remedy as is permissible in law. (b) Be that as it may, the Petitioners were successful in reviving the bail application No. 1762/2010 by getting the notice issued and thereafter stating that the Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned as the Petitioners, right from the first day, were using flip flop method to obtain anticipatory bail. The matter was adjourned to 18th March, 2011. (e) On 18th March, 2011, the Petitioners made a fresh attempt and sought further time to deposit the second installment of ₹ 1 crore. The Petitioners were granted indulgence by the Court and an opportunity was granted to deposit a pay order of ₹ 25 lacs on or before 22.03.2011 and the balance amount of ₹ 75 lacs before the next date of hearing. The matter was adjourned to 06.04.2011 with the observations that in case the second installment is not deposited by the Petitioners, they shall be present on the next date. (f) Though by 06.04.2011 the amount of ₹ 25 lacs was deposited by the Petitioners but the balance sum of ₹ 75 lacs as undertaken by them was not deposited and consequently the matter was adjourned to 02.5.2011 for direction as the learned Counsel for the Petitioners once again requested for listing the matter before the learned mediator as the Petitioners were willing to explore the possibility of arriving at a negotiated settlement with the complainant. (g) On 2nd May, 2011, the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and tried to mislead the Court by showing it as first bail application when they fully knew that this is not so. VIth Application 10. After withdrawal of the so called misleading first bail application another anticipatory bail application was filed on 16.06.2011 and after arguments, the said petition was permitted to be withdrawn. It has been observed by our own High Court in Rajkumar's case (supra) that when a counsel feels that the Court is not inclined to give the relief, he seeks to withdraw the petition/application as he does not want to suffer an adverse order but such disposal are in effect on merits. VIIth application 11. Still not feeling satisfied the Petitioners filed yet another anticipatory bail application before the Court of Sessions which was dismissed on 28.7.2011 by Ms. Sarita Birbal, learned Additional Sessions Judge by a long speaking order. The learned Additional Sessions Judge has also taken note of the repeated bail application having been filed by the Petitioners apart from the fact that they are not keeping their assurances given to the Court to make the payment. VIIIth Application 12. (a)The Petitioners have now chosen to file the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y cheating the complainant, an NRI and then by repeatedly filing applications for grant of anticipatory bail on one pretext or the other without there being any change in circumstances. The Petitioners are harbouring an impression that merely because they have the money and the resources and thereby, frequently changing the counsel they can come out of the dragnet of the criminal law. The conduct as well as the modes adopted by the Petitioners is nothing but gross abuse of the processes of law. The Petitioners have wasted valuable time of the Court. It is this kind of frivolous petitions which have clogged the arteries of justice and consequently, the cases where the accused are in custody, they get relegated to the background for want of engaging counsel or proper legal assistance. 14. The power to grant anticipatory bail is concurrent both with the Court of Sessions and the High Court. As a matter of practice, the counsel files an application before the Court of Sessions and on not finding favour there, a second application is immediately filed in the High Court. Successive bail applications can be filed as has been held in the catena of judgments but then it has been observed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y bail to a person who tries to play with the processes of law. Moreover, the point which is sought to be urged by the learned Counsel for the Petitioners should have been urged by him before different Judges when the application was filed. 19. I do not find this as a fit case for exercise of discretion in favour of the Petitioners, in enlarging them on bail. On the contrary, I feel that it is a fit case as contended by the learned APP, for custodial interrogation. 20. Normally, while rejecting the anticipatory bail application, Courts do not impose any cost on the Petitioner but since it has been pointed out that the application has been filed not only under Section 438 Code of Criminal Procedure but also under Section 482 Code of Criminal Procedure, I feel that the Court will be failing in its duty in case the petition is dismissed without imposition of any cost in the light of the facts narrated above. 21. I accordingly, impose a cost of ₹ 1,00,000/- each on both the Petitioners. The aforesaid cost of ₹ 1,00,000/- shall be recovered from the Petitioners by the learned CMM, after expiry of 90 days by invoking Section 421 of Code of Criminal Procedure 22. E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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