IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Misc. No. M- 30875 of 2008
Date of decision: January 06, 2009
Ravinder Kumar
.... Petitioner
Versus
State of Punjab
.... Respondent
Present: Mr. A.K. Goel, Advocate for the petitioner.
***
S.S. SARON, J.
Heard counsel for the petitioner.
The present petition under Section 438 CrPC has been filed seeking
direction to the Arresting Officer to release the petitioner on bail in the event of his
arrest in a case registered against him for the offence punishable under Section 420
IPC.
The complainant Amit Kumar filed a complaint against the petitioner
inter alia alleging that the complainant had on the representation of the petitioner
purchased a house for a consideration of Rs.7,50,000/-. The petitioner had agreed to
get the sale deed executed in favour of the complainant on 28.2.2006. However, he
did not get the sale deed executed and instead he (petitioner) returned the amount of
Rs.7,50,000/- by way of a cheque dated 23.5.2006 which was also dishonoured. In
this manner, it is alleged by the complainant that the petitioner had cheated him.
Learned counsel for the petitioner on the last date of hearing had taken
instructions as to whether the petitioner was prepared to return the sale consideration.
Learned counsel for the petitioner has submitted that he has been instructed to state
that the petitioner never executed any agreement with the complainant and that the
entire case as set up by the complainant is false.
Crl. Misc. No. M- 30875 of 2008 [2]
After giving my thoughtful consideration to the matter, it may be noticed
that it has not been seriously disputed by the petitioner that he had issued a cheque
for an amount of Rs.7,50,000/-. His contention is that the complainant instead of
filing a complaint under Section 138 of the Negotiable Instruments Act, 1881 and a
suit for specific performance of contract on the basis of the alleged agreement to sell,
has filed the present case. The said contention is devoid of any merit as it is evident
that in case no agreement had been entered into between the parties, there was no
reason for the petitioner to issue a cheque of Rs.7,50,000/- to the complainant. This
having been done would show that there was some kind of settlement or at least
understanding between the parties with regard to purchase of a house. The fact
whether the complainant has not resorted to the process of filing complaint under
Section 138 of the Negotiable Instruments Act, 1881 or has not filed a civil suit for
specific performance is quite inconsequential as the allegations of cheating are prima
facie shown to be made out. Besides, it may be noticed that the present is a case
where pre-arrest bail is sought by the petitioner. It is well-known that considerations
governing the Court’s decision on an application seeking pre-arrest bail under
Section 438 CrPC are materially different from that seeking post-arrest bail or for
that matter even seeking suspension of sentence pending appeal before a higher
Court. In a case of pre-arrest bail, the advantage of custodial interrogation of
eliciting more useful information and material is to be kept in view. The exercise of
power to grant pre-arrest bail is somewhat extra-ordinary in character.
In view of the above, there is no merit in the petition and the same is
accordingly dismissed.
(S.S. SARON)
JUDGE
January 06, 2009
amit