ASHOK KUMAR GUPTA Vs. STATE OF ODISHA

JUDGEMENT

(1.) The petitioner Ashok Kumar Gupta has filed this application under section 438 of Code of Criminal Procedure seeking for pre-arrest bail in connection with Kharavela Nagar P.S. Case No.188 of 2016 registered under sections 294, 323, 354, 420, 427, 468, 471 of the Indian Penal Code which corresponds to C.T. Case No.2702 of 2016 pending in the Court learned S.D.J.M., Bhubaneswar.

(2.) One Pravati Swain, wife of the petitioner filed a complaint petition in the Court of learned S.D.J.M., Bhubaneswar on 13.5.2016 against the petitioner and one Sanjay Narayan Sahoo, who is an advocate of Bhubaneswar Bar. The said complaint petition was referred to the Inspector in charge, Kharavela Nagar police station under section 156(3) of Cr.P.C. to for registration of the case and investigation and accordingly on 12.06.2016, the aforesaid Kharavela Nagar P.S. Case No.188 of 2016 was registered. It is the case of the complainant-victim that the petitioner, who is her husband, illegally married to another lady and severely tortured her demanding more dowries for which one F.I.R. was lodged by her against the petitioner who was an employee of Oriental Bank of Commerce. Since the service of the petitioner would have been affected due to institution of the first information report, in order to save his service, he made an attempt for amicable settlement. The victim, the petitioner and their respective family members decided to dissolve the marriage between the victim and her husband and it was agreed upon that the victim would be paid a sum of Rs.35,00,000/- (rupees thirty five lakh) as permanent alimony by the petitioner. The victim engaged co-accused Sanjay Narayan Sahoo as her advocate who was known to her to safeguard her interest. The co-accused was engaged as an advocate in Civil Proceeding No.32 of 2016 which was filed by the victim and the petitioner jointly under section 7 of the Family Courts Act, 1984 read with section 28 (1) of this Special Marriage Act, 1954 in the Court of Judge, Family Court, Bhubaneswar. It is the case of the victim that on the advice of the co-accused advocate, she signed the divorce petition and agreement for permanent alimony and received only Rs.9.5 lakh on 11.01.2016 but the petitioner in criminal conspiracy with the co-accused advocate cheated her sum of Rs.18.5 lakh. Both the accused persons denied their liability to pay money to the victim after taking fraudulent illegal deed of divorce. On the deed of divorce, the co-accused advocate took her signatures illegally giving her an impression regarding receipt of payment of Rs.7 lakh in the month of March 2016. The victim engaged a new advocate doubting the conduct and character of the accused persons and through her new advocate, she came to know that fraud/cheating has been practised on her. On 12.05.2016 when the victim asked the petitioner about such fraud/cheating, he abused her in filthy language, pushed and dragged her before public with intent to disrobe her and threatened to kill her. During course of investigation, Investigating Officer examined the victim and other witnesses, seized a marriage certificate of the victim with the petitioner, a xerox copy of non- judicial paper of agreement for permanent alimony in between the victim and the petitioner and their joint photographs. It was found that an illegal mutual divorce deed in between the victim and the petitioner was procured without explaining the contents of the deed to the victim and both the petitioner and the co- accused advocate fraudulently by making forged documents, put signatures of the victim thereon and filed a divorce case in the learned Family Court, Bhubaneswar. It was further found that the petitioner had already married to another lady, namely, Preeti Gupta and he wanted the victim to be out of his way forever. A judgment copy of the Family Court holding the divorce deed as illegal, void and inoperative was also seized. It appears that on 18.05.2017 finding prima facie evidence against the petitioner, the Investigating Officer arrested him and released him on bail in view of the interim order passed by this Court in ABLAPL No.5276 of 2017. Though a condition was stipulated in the interim order that the petitioner shall appear before the Investigating Officer for the purpose of investigation as and when required and accordingly, the Investigating Officer directed the petitioner to appear before him once in a week on Monday to cooperate with the investigation of the case but the petitioner flouted such condition, which is revealed from the case diary dated 22.05.2017, 29.05.2017, 05.06.2017, 12.06.2017. The ABLAPL No.5276 of 2017 was withdrawn on 03.04.2018 to file a better application and accordingly, this application was filed on 05.04.2018.

(3.) Mr. Satyabrata Sutar, learned counsel appearing for the petitioner contended that the victim is an educated lady and she is working as Asst. Manager in Andhra Bank at Power House Branch, Bhubaneswar and she has deliberately suppressed her status in the complaint petition as well as in the original mutual divorce proceeding. It is contended that the victim married the petitioner on 08.08.2013 before the Sub-Registrar, Bhubaneswar but after the marriage, dispute arose between the parties. When the victim came to know about the marital status of the petitioner, she lodged an F.I.R. against the petitioner and other in-laws' family members and accordingly, Bhubaneswar Mahila P.S. Case No.347 of 2015 was registered under sections 498-A, 417, 342, 494, 506/34 of the Indian Penal Code read with section 4 of the Dowry Prohibition Act. It is further contended that after lodging of the F.I.R. by the victim, the matter was amicably settled between the parties and as per their own decision, a divorce proceeding was filed. It is further contended that as per the agreement between the parties, a sum of Rs.9,50,000/- (rupees nine lakh fifty thousand only) was transferred from the account of the petitioner to the account of one Panchu Swain who is the father of the victim on 11.01.2016 on the date of filing of the divorce petition. Subsequently on 19.03.2016 the petitioner issued four cheques in favour of the victim, total amounting to Rs.7,00,000/- (rupees seven lakh only) which was also encashed by the victim. It is contended that the victim and the petitioner executed a mutual divorce deed before the D.S.R., Bhubaneswar on 19.03.2016 and in the said deed of divorce, there was no mention regarding the quantum of any permanent alimony to be paid to the victim. It is contended that the victim never produced any original document with regard to permanent alimony as alleged either before the Court or before the Investigating Officer and therefore, the conduct of the victim is suspicious. It is further contended that after filing of the F.I.R., the victim filed a petition before the learned Judge, Family Court, Bhubaneswar for declaration of the registered divorce deed dated 19.03.2016 as fraudulent and void with a further prayer for permanently restraining the petitioner in using the divorce deed for any purpose and also for recovery of Rs.18,50,000/- (rupees eighteen lakh fifty thousand only) from the petitioner and the said proceeding was registered as C.P. No.330 of 2016 which was ultimately dismissed on 16.01.2017. It is further contended that after engaging a new counsel, the victim has instituted a false complaint case against the petitioner and her previous advocate to harass them on the accusation of preparation of forged document and cheating. It is further contended that if there was any outstanding dues to be paid to the victim towards permanent alimony, she could have instituted appropriate proceeding for recovery of such amount from the petitioner. There is no element of cheating and everything has been stage managed to give a dispute of purely civil nature, the colour of a criminal case with malafide intention. It is further contended that there is no chance of absconding or tampering with the evidence and for the alleged misconduct of the co- accused advocate, the petitioner cannot be held responsible. Mr. Priyabrata Tripathy, learned Addl. Standing Counsel appearing for the State vehemently opposed the prayer for bail and contended that the conduct of the petitioner is highly suspicious and he was in hand in glove with the co-accused advocate and conspired with him and created forged documents in order to cheat the victim, who without knowing the niceties of law reposed trust on her advocate and believed him and signed on different documents as told to her on good faith and she was unaware about the ill intention of the petitioner and also her advocate. It is contended by the learned counsel for the State that knowing full well that a mutual divorce petition can only be entertained before the learned Judge, Family Court, Bhubaneswar, a divorce deed as per mutual consent was prepared on the advice of the co-accused advocate wherein nothing was mentioned about the permanent alimony deliberately and the victim put her signatures thereon on good faith as advised by her advocate. It is contended that after coming to know about the illegal activities of the petitioner and the co-accused advocate, the victim filed Civil Proceeding No.330 of 2016 before the learned Judge, Family Court, Bhubaneswar for declaring the registered deed dated 19.03.2016 purporting divorce as fraudulent and void and also permanently restraining the petitioner from using the divorce deed 19.03.2016 for any purpose and for recovery of rupees eighteen lakh fifty thousand from the petitioner. The learned Judge, Family Court, Bhubaneswar vide order dated 16.01.2017 declared the registered deed 19.03.2016 as illegal, void and inoperative and restrained the petitioner permanently from using the said deed till a decree of divorce dissolving the marriage between the victim and the petitioner is pronounced by a competent Court, however, the prayer of the victim for recovery of rupees eighteen lakh fifty thousand from the salary of the petitioner stood dismissed. The learned State counsel submitted that the co-accused advocate Sanjaya Narayan Sahoo approached this Court by filing an application under section 438 of Cr.P.C. vide ABLAPL No.5399 of 2017 but the same was rejected as per order dated 01.05.2018. He challenge the order before the Hon'ble Supreme Court in a petition for Special Leave to Appeal (Crl.) No.4425 of 2018 which was dismissed as withdrawn as per order dated 16.05.2018 and two weeks' time was granted to the said co-accused to surrender. He further submitted that the petitioner also approached this Court earlier for anticipatory bail in ABLAPL No.5276 of 2017 which was dismissed as withdrawn as per order dated 03.04.2018. It is contended that in view of the nature and gravity of the accusation, the petitioner is not entitled to be released on anticipatory bail. Though Mr. Srinivas Mohanty, Advocate and his associates filed power for the informant-victim but none appeared at the time of hearing of the bail application.