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.
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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
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Order: 19.04.2019
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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.
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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
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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
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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