JUDGMENT
Mohini Kapoor, J.
1. The complainant in the case is M/s Mangalam Cement Ltd., which manufactures cement and is based at Modak, District Kota. The accused petitioner was appointed as handling and clearing agent for this company on 1st May, 1987 and the terms and conditions are incorporated in a letter of this date. Subsequently the complainant M/s Mangalam Cement lodged a report before the Judicial Magistrate First Class, Ramganj Mandi and this was sent for investigation to the Police Station, Modak under Section 156(3), Cr PC. When the SHO Police Station, Modak was investigating the case, the petitioner filed a writ petition before this Court, which is D.B. Civil Writ Petition No. 3190 of 1987. The petitioner wanted that investigation of the case by the SHO Police Station, Modak, in Ghaziabad should be stopped because this place was not within the jurisdiction of that Police Station and the offence, if any, had not been committed at that place. Another question which was raised was that the matter was of purely a civil nature and no offence was made out. This writ petition was dismissed by this Court holding that the matter was still under investigation and that the relief of anticipatory bail under Section 438, Cr.PC was available to the petitioner.
2. The petitioner moved one application under Section 438, Cr.PC and this was dismissed on 14th March, 1988 when no one was present either for the petitioner or for the complainant. At that time the lawyers were on strike. This order says that the order of the learned Sessions Judge has been perused and no case for bail is made out at this stage of pre-arrest. Now the present petition has been moved, which is the second bail application. Justice M.B. Sharma who dismissed the earlier bail application has ordered that this matter be placed before another Bench as while deciding the earlier bail application it ascaped notice that Mr. D.K. Soral was an Advocate in this case. He does not hear the cases in which Mr. Soral represents any party.
3. The earlier bail application, though dismissed in the absence of parties or their counsel, cannot be said to be dismissed without looking into the merits of the case. The order says that the order of the Sessions Judge has been read and there was no ground for granting anticipatory bail. However, the matter having been decided once does not lead to the conclusion that the matter cannot be adjudicated again. The petitioner can move the second bail application and when he has done so, the position can be examined by this Court again.
4. In this case different proceedings are pending between the parties. The accused petitioner has filed a suit for rendition of accounts in a Court at Ghaziabad and has also filed criminal complaint against the complainant for some forgery. On the other hand, the case of the non-petitioner in this complaint, out of which this application arises is that the petitioner fraudulently and dishonestly obtained money in cash from parties to whom cement was supplied and this amount has not been credited to the account of the non-petitioner complainant. On the other hand the petitioner’s case is that he has not been paid the commission which was due to him and if accounts are rendered it would be found that he is to get some money from the complainant. The investigation in the case has not progressed satisfactorily and the reason given by the learned Counsel for the complainant is that the file was called by the court in the writ petition and no investigation could be made. However, the order passed in the writ petition specifically says that the appellant could continue with the investigation. At this stage it cannot be said what would be the result of the investigation and whether any case of criminal nature can be said to be made out, but the question to be examined is whether the petitioner can be granted anticipatory bail. The main objection of the complainant is that the recovery is to be made from the petitioner and this can be done only if he is arrested and brought to the custody of the Police. In this respect it can be said that the recovery in the present case which the Police or the complainant wants to affect is nothing but money and which cannot be said to be in the nature of weapon of an offence. It may also be. mentioned that if any recovery is made on the information of the petitioner, which could be said to be under Section 27 of the Evidence Act. I do not wish to express opinion on the merits of the case because without completing investigation it is difficult to say whether the case is of civil nature or a criminal offence would also be made out. However, if the petitioner is released on anticipatory bail with proper conditions then there shall be no obstruction in the investigation of the case and it cannot be said that the case of the complainant would be affected in any manner.
5. The SHO/Arresting Officer, Investigating Officer, P.S. Modak, is therefore, directed that in the event of arrest of petitioner, he shall be released on bail, provided he furnishes bail bond in the sum of Rs. 10,000/- with two sureties in the amount of Rs. 5,000/- each to his satisfaction on the following conditions:
[i] that the petitioner shall make himself available for interrogation by a Police Officer, as and when required;
[ii] that the petitioner shall not directly or indirectly make any inducement threat or promise to any person acquainted with the facts of the case so as to disuade him from disclosing such facts to the court or to any Police Officer; and
[iii] that the petitioner shall not leave India without the previous permission of the court.
6. The petitioner shall appear before the SHO, Police Station, Modak on any date within 15 days from today.