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Ashok Kumar Gupta vs State Of Odisha on 19 April, 2019

IN THE HIGH COURT OF ORISSA, CUTTACK

ABLAPL NO. 4804 OF 2018

An application under section 438 of the Code of Criminal
Procedure in connection with Kharvelnagar P.S. Case No.188 of
2016 corresponding to C.T. Case No.2702 of 2016 pending in the
Court S.D.J.M., Bhubaneswar.
—————————-

Ashok Kumar Gupta …….. Petitioner

-Versus-
State of Odisha ……. Opp. Party

For Petitioner: – Mr. Satyabrata Sutar
A.K. Mohanty, A. Kailash
S.N. Sahoo, A. Sailaza
S.Mohan Rao, A.K. Parida

For State of Odisha: – Mr. Priyabrata Tripathy
Addl. Standing Counsel

For Informant: – Mr. Srinivas Mohanty
K. Patra, S.R. Mohapatra
S. Nayak
——————————-

P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO

—————————————————————————————————

Date of Order: 19.04.2019

—————————————————————————————————

S. K. SAHOO, J. 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
2

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
3

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
4

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
5

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
6

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
7

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
8

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
9

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.
10

4. It appears that during course of investigation, the

164 Cr.P.C. statement of the victim was recorded on

12.07.2017. In her statement recorded under section 164

Cr.P.C., the victim has stated, inter alia, that when dissention

started with the petitioner, she agreed for a mutual divorce with

permanent alimony of Rs.50,00,000/- (rupees fifty lakh) only

and accordingly, she instructed her advocate who was known to

her to prepare a divorce agreement with a sum of

Rs.50,00,000/- (rupees fifty lakh) only. The advocate took her

signatures in Vakalatnama, stamp papers and also in blank

papers but prepared an agreement for permanent alimony of

Rs.35,00,000/- (rupees thirty five lakh) only. The original

agreement was not given to the victim and after ten days, a

xerox copy of the agreement was given to her. She further

stated that Rs.9.5 lakh was given to her by way of cheques and

in the agreement, it was written that Rs.15.5 lakh would be

given in the month of February 2016 which was not given to her.

In March 2016, cheques amounting to Rs.7,00,000/- (rupees

seven lakh) only in total were given to her and some of her

signatures were taken in the Marriage Registration Office in the

deed of divorce and it was told to her that notice would be issued

to her and the balance amount of Rs.8.5 lakh would be given to

her afterwards. It is further stated that her advocate avoided
11

receiving phone calls from her and she came to know from the

petitioner that there has already been divorce between them for

which she filed a petition to cancel the deed of divorce. It is

further stated in her 164 Cr.P.C. statement that after she lodged

F.I.R. against the co-accused advocate, he came to her Branch

Office and threatened her to kill and she also received a legal

notice on behalf of the co-accused advocate demanding ten

percent of the alimony which she received from her husband.

5. On going through the case records and documents

produced by the respective parties, it appears that an agreement

for permanent alimony was executed between the victim and the

petitioner on 11.01.2016 before Sri P.K. Nanda, Notary Public,

Bhubaneswar wherein it is mentioned that due to

misunderstanding between the parties, they decided to divorce

each other and divorce suit bearing C.P. No.32 of 2016 was filed

before the Family Court, Bhubaneswar. It is further indicated

that the petitioner agreed to pay a sum of Rs.35,00,000/-

(rupees thirty five lakh) to the victim and on that day, he paid a

sum of Rs.9,50,000/- (rupees nine lakh fifty thousand) to the

victim by way of a cheque. It is further indicated that the

petitioner shall pay a further sum of Rs.15,50,000/- (rupees

fifteen lakh fifty thousand) to the victim in the month February
12

2016 and before the close of C.P. No.32 of 2016 filed before the

Marriage Officer, Bhubaneswar, the petitioner would pay

Rs.10,00,000/- (rupees ten lakh) to the victim towards

permanent alimony/compensation.

According to the victim as per her 164 Cr.P.C.

statement, by taking her signatures in stamp papers and blank

papers, such a document was prepared.

If the victim had specifically instructed to her

advocate to prepare divorce agreement with a sum of

Rs.50,00,000/- (rupees fifty lakh), there was no earthly reason

on the part of the advocate to prepare an agreement for

permanent alimony with a sum of Rs.35,00,000/- (rupees thirty

five lakh) without intimating the victim in that respect. The

victim was not provided with the original of the agreement for

permanent alimony instantly but after ten days, she was given a

xerox copy. It appears that the agreement paper was purchased

by the petitioner on 11.01.2016 from C.R. Prusty, Stamp Vender

and he has also received the original agreement on 11.01.2016

which would be evident from the endorsement made in the

agreement.

On 11.01.2016 a petition for divorce by mutual

consent under section 28 of the Special Marriage Act, 1954 was
13

filed before the Judge, Family Court, Bhubaneswar by the

petitioner and the victim which was registered as Civil

Proceeding No.32 of 2016. In the said petition, there is no

mention about any fixation of permanent alimony between the

parties which is to be given by the petitioner to the victim. An

agreement for permanent alimony was also executed between

the petitioner and the victim before the Notary Public,

Bhubaneswar on 11.01.2016 in which filing of Civil Proceeding

No.32 of 2016 finds place.

On 19.03.2016 a divorce deed per mutual consent

was presented before the Registering Officer, Bhubaneswar in

which the petitioner was the first party and the victim was the

second party and in this divorce deed, nothing was mentioned

about the fixation of permanent alimony. According to the victim,

this mutual divorce deed was procured illegally without

explaining the contents of the deed to her and when she came to

know about the same, she filed a petition before the Judge,

Family Court, Bhubaneswar vide Civil Proceeding No.330 of 2016

to declare the divorce deed dated 19.03.2016 as fraudulent and

void and also with a prayer to restrain the petitioner from using

the divorce deed for any purpose and for recovery of

Rs.18,50,000/- from the petitioner.

14

The learned Judge, Family Court, Bhubaneswar vide

judgment and order dated 16.01.2017 in Civil Proceeding No.330

of 2016 declared the divorce deed document dated 19.03.2016

as illegal, void and inoperative and the petitioner was also

permanently restrained from using the said deed till a decree of

divorce dissolving the marriage between the parties is

pronounced by a competent Court. However, the prayer of the

victim for a direction to the petitioner for recovery of

Rs.18,50,000/- (rupees eighteen lakh fifty thousand) from his

salary was not accepted.

6. In view of the forgoing discussions, it prima facie

appears that there is ring of truth in the statement of the victim

that her Vakalatnama along with her signatures in stamp papers

and blank papers were collected by the co-accused advocate.

The conduct of the petitioner and the co-accused advocate is

highly suspicious. Reflection of permanent alimony of

Rs.35,00,000/- (rupees thirty five lakh only) instead of

Rs.50,00,000/- (rupees fifty lakh only) in the agreement for

permanent alimony dated 11.01.2016, non-mentioning of the

permanent alimony amount in the petition filed before the

learned Judge, Family Court, Bhubaneswar in Civil Proceeding

No.32 of 2016, presentation of a divorce deed as per mutual
15

consent on dated 19.03.2016 before the Registering Officer,

Bhubaneswar without mentioning the permanent alimony

amount, which was declared to be illegal and void and

inoperative by the learned Judge, Family Court, Bhubaneswar in

Civil Proceeding No. 330 of 2016 prima facie indicates that the

petitioner in connivance with the co-accused advocate created

forged document to cheat the victim. It is strange to see that

one place in the agreement for permanent alimony which is

dated 11.01.2016, it is mentioned that Civil Proceeding No. 32 of

2016 is pending before the learned Family Court, Bhubaneswar

whereas in another place it is mentioned that the said

proceeding is pending before the Marriage Officer, Bhubaneswar.

It is equally strange that even though Civil Proceeding No.32 of

2016 was filed on 11.01.2016 but the quantum of permanent

alimony was not mentioned therein. It is equally suspicious as to

when a petition for decree of divorce by mutual consent under

section 28(1) of the Special Marriage Act, 1954 was pending

before the Competent Court in Civil Proceeding No.32 of 2016, a

divorce deed as per mutual consent was presented before the

Registering Officer, Bhubaneswar on 19.03.2016.

7. Adverting to the tactical and enthralling contentions

raised by the respective parties and after evaluating the
16

available materials on record with utmost care and caution and

taking into account the nature and gravity of the accusation, the

availability of the prima facie material against the petitioner to

constitute the ingredients of the offences, the manner in which

the petitioner in connivance with the co-accused advocate

betrayed the trust reposed by the victim and prepared forged

documents and the possibility of tampering with the evidence, I

am not inclined to exercise the discretionary power under section

438 of the Code by granting pre-arrest bail to the petitioner.

Accordingly, the ABLAPL application being devoid of

merits, stands dismissed.

………………………….

S. K. Sahoo, J.

Orissa High Court, Cuttack
The 19th April 2019/Sukanta

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