RAMESH KUMAR versus STATE OF NCT OF DELHI on 4 July 2023

[2023] 9 S.C.R. 1165 : 2023 INSC 596

RAMESH KUMAR

v.

THE STATE OF NCT OF DELHI

(Criminal Appeal No. 1741 of 2023)

JULY 04, 2023

[S. RAVINDRA BHAT AND DIPANKAR DATTA, JJ.]

Code of Criminal Procedure, 1973 – s.438 – Anticipatory Bail– Payment of amount as a condition precedent for grant of bail –Legality of – An FIR was registered u/ss. 420, 406 r/w s. 34 – As perthe FIR, an agreement to sell was executed by and between thebuilder and the complainants – Complainants had made paymentof Rs. 17,00,000/- by issuing cheques favouring the appellant-ownerallegedly on the instructions of the builder – Complainants werenot handed over the floor which they intended to purchase –Apprehending arrest, the appellant moved an application u/s 438Cr.P.C. before the trial court, which was dismissed – Appellantapproached High Court – High Court granted bail to the appellantupon a condition of depositing Rs. 22,00,000/- – Appellant failedto deposit the said amount – Bail granted to the appellant u/s. 438Cr.P.C. got revoked – On appeal, held: The conditions to be imposedmust not be onerous or unreasonable or excessive – All suchconditions that would facilitate the appearance of the accusedbefore the investigating officer/court, unhindered completion ofinvestigation/trial and safety of the community assume relevance –However, inclusion of a condition for payment of money by theapplicant for bail tends to create an impression that bail could besecured by depositing money alleged to have been cheated – Thatis really not the purpose and intent of the provisions for grant ofbail – It is in exceptional cases such as where an allegation ofmisappropriation of public money by the accused is levelled andthe accused while seeking indulgence of the Court to have his libertysecured/restored volunteers to account for the whole or any part ofthe public money allegedly misappropriated – This approach wouldbe in the larger interest of the community – However, such anapproach would not be warranted in cases of private disputes whereprivate parties complain of their money being involved in the offenceof cheating – In the instant case, the High Court ought to have

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Arealized that having regard to the nature of dispute between theparties, which is predominantly civil in nature, the process of criminallaw cannot be pressed into service for settling a civil dispute – If atall the offence alleged against the appellant is proved resulting inhis conviction, he would be bound to suffer penal consequence(s)but despite such conviction he may not be under any obligation toBrepay the amount allegedly received from the complainants.

Disposing of the appeal, the Court

Conclusion

Disposing of the appeal, the Court

HELD: 1. Sub-section (2) of section 438 of the Cr. PC doesempower the high court or the court of sessions to impose suchCconditions while making a direction under sub-section (1) as itmay think fit in the light of the facts of the particular case andsuch direction may include the conditions as in clauses (i) to (iv)thereof. However, a reading of the precedents laid down by thisCourt referred to above makes the position of law clear that theconditions to be imposed must not be onerous or unreasonableDor excessive. In the context of grant of bail, all such conditionsthat would facilitate the appearance of the accused before theinvestigating officer/court, unhindered completion of investigation/trial and safety of the community assume relevance. However,inclusion of a condition for payment of money by the applicant forEbail tends to create an impression that bail could be secured bydepositing money alleged to have been cheated. That is reallynot the purpose and intent of the provisions for grant of bail. Inexceptional cases such as where an allegation of misappropriationof public money by the accused is levelled and the accused whileseeking indulgence of the court to have his liberty secured/Frestored volunteers to account for the whole or any part of thepublic money allegedly misappropriated by him, it would be opento the concerned court to consider whether in the larger publicinterest the money misappropriated should be allowed to bedeposited before the application for anticipatory bail/bail is takenGup for final consideration. After all, no court should be averse toputting public money back in the system if the situation isconducive therefor. This approach would be in the larger interestof the community. However, such an approach would not bewarranted in cases of private disputes where private partiescomplain of their money being involved in the offence of cheating.H[Para 26][1178-E-H; 1179-A-C]

2. Turning to the facts here, it is found that the version inthe FIR, even if taken on face value, discloses payment throughcheques of Rs.17,00,000/- (Rupees seventeen lakh) in the nameof the appellant and not Rs.22,00,000/- (Rupees twenty-two lakh).The court is not been able to comprehend how the High Courtarrived at the latter figure as payable by the appellant and whythe appellant’s counsel as well agreed with such figure. Primafacie, there appears to be some sort of a calculation error. Also,prima facie, there remains some doubt as regards the conduct ofthe appellant in receiving cheques from the complainants withoutthere being any agreement inter se. Be that as it may, the HighCourt ought to have realized that having regard to the nature ofdispute between the parties, which is predominantly civil innature, the process of criminal law cannot be pressed into servicefor settling a civil dispute. Even if the appellant had undertakento make payment, which was a last ditch effort to avert losing hisliberty, such undertaking could not have weighed in the mind ofthe High Court to decide the question of grant of anticipatorybail. The tests for grant of anticipatory bail are well delineatedand stand recognized by passage of time. The High Court wouldhave been well-advised to examine whether the appellant was tobe denied anticipatory bail on his failure to satisfy any of suchtests. It does seem that the submission made by counsel on behalfof the appellant before the High Court had its own effect, althoughit was far from being a relevant consideration for the purpose ofgrant of bail. [Para 27][1179-D-H]

3. It also does not appear from the materials on record thatthe complainants have instituted any civil suit for recovery ofmoney allegedly paid by them to the appellant. If at all the offencealleged against the appellant is proved resulting in his conviction,he would be bound to suffer penal consequence(s) but despitesuch conviction he may not be under any obligation to repay theamount allegedly received from the complainants. This too is anaspect which the High Court exercising jurisdiction under section438 of the Cr. PC did not bear in mind. Under the circumstances,the High Court fell in grave error in proceeding on the basis ofthe undertaking of the appellant and imposing payment ofRs.22,00,000/- (Rupees twenty-two lakh) as a condition precedentfor grant of bail. [Paras 28, 29][1180-A-C]

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AGurbaksh Singh Sibbia and others vs. State of Punjab(1980) 2 SCC 565 : [1980] 3 SCR 383 – followed.

Mahesh Candra vs. State of U.P. (2006) 6 SCC 196;Munish Bhasin vs. State (NCT of Delhi) (2009) 4 SCC45 : [2009] 2 SCR 806; Sumit Mehta vs. State (NCT ofBDelhi) (2013) 15 SCC 570 : [2013] 10 SCR 125; DilipSingh vs. State of Madhya Pradesh (2021) 2 SCC 779;Bimla Tiwari vs. State of Bihar (2023) SCC OnLine SC51 – relied on.

Case Law Reference

From the Judgment and Order dated 24.11.2022 of the High CourtEof Delhi at New Delhi in BA No.313 of 2022.

Sarvesh Bisaria, Ms. E. R. Sumathy, Prakash Chandra Sharma,Ashish Azad, Advs. for the Appellant.

K. M. Nataraj, ASG, Shreekant Neelappa Terdal, Yashraj SinghBuldela, Veer Vikrant Singh, Vinayak Sharma, Dr. N. Visakamurthy,FSudhir Mendiratta, Vikas Khatri, Anmol Singh, Advs. for the Respondent.

The Judgment of the Court was delivered by DIPANKAR DATTA, J.

Leave granted.G

2. A disquieting trend emerging over the years which has gainedpace in recent times necessitates this opinion. It has been found by us inmultiple cases in the past several months that upon First InformationReports being lodged inter alia under section 420 of the Indian PenalCode, 1860 (“the IPC”, hereafter), judicial proceedings initiated byHpersons, accused of cheating, to obtain orders under Section 438 of the Code of Criminal Procedure, 1973 (“the Cr. PC”, hereafter) areunwittingly being transformed into processes for recovery of the quantumof money allegedly cheated and the courts driven to impose conditionsfor deposit/payment as pre-requisite for grant of pre-arrest bail. Thepresent case is no different from the others and it is considered appropriateto remind the high courts and the sessions courts not to be unduly swayedby submissions advanced by counsel on behalf of the accused in thenature of undertakings to keep in deposit/repay any amount while seekingbail under section 438 of the Cr. PC. and incorporating a condition inthat behalf for deposit/payment as a pre-requisite for grant of bail.

3. The bare facts relevant for a decision on this appeal, gatheredfrom the impugned judgment of the Delhi High Court, are these. Theappellant before us is the owner of an immovable property. With anintention to re-develop the same, he had entered into three agreementswith one Ashwani Kumar (“the builder”, hereafter) dated 10[th] and 19[th]December, 2018 and 30[th] January, 2019. In terms of the agreement dated19[th] December, 2018, the builder was required to construct a multi-storiedbuilding in which the appellant would have ownership rights in respect ofthe 3[rd] floor and the upper floor, apart from Rs.55,00,000/- (Rupees fifty-five lakh) to be paid to him by the builder, whereas the builder wouldhave rights to deal with the 1[st] and the 2[nd] floors together with otherrights as described therein. In pursuance of the aforesaid agreement,the builder entered into an agreement to sell and purchase/bayana dated14[th] December, 2018 with Vinay Kumar and Sandeep Kumar (“thecomplainants”, hereafter) in respect of the 2[nd] floor of the proposedbuilding (without roof rights) but other rights as described therein for asum of Rs. 60,00,000/- (Rupees sixty lakh). The complainants hadallegedly paid to the builder Rs. 11,00,000/- (Rupees eleven lakh) [Rs.1,00,000/- (Rupees one lakh) as token money and Rs. 10,00,000/- (Rupeesten lakh) as earnest money], at the time of execution of the agreementdated 14[th] December, 2018. Thereafter, on the instructions of the builder,the complainants on different dates allegedly made payments of additionalamounts to the appellant as well as the builder, in cash as well as bycheques, totaling to Rs. 35,00,000/- (Rupees thirty-five lakh).

4. Allegedly, the complainants failed to comply with the terms andconditions of the agreement dated 14[th] December, 2018 triggeringinstitution of a civil suit by the builder against the complainants seekingcancellation of such agreement and forfeiture of the amount of Rs.

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A13,00,000/- (Rupees thirteen lakh). This was purportedly upon invocationof clause 8 of the said agreement. It is also a matter of record that thebuilder has instituted another civil suit inter alia against the appellant forspecific performance of the agreements dated 10[th] and 19[th] December,2018. However, from the materials on record, we have failed to ascertainthe dates of institution of the civil suits.B

5. The complainants were not handed over possession of thesecond floor which they intended to purchase. As late as on 18[th]November, 2021, the complainants sought to put the investigativemachinery in motion by lodging a complaint with the Station HouseOfficer, Police Station Gulabi Bagh, Delhi. The said complaint wasCregistered as FIR No.322 of 2021 under sections 420/406/34 of the IPC.Therein, the appellant, the builder and a broker were shown as accused.

6. It is worthwhile to note from the FIR that despite there beingan agreement to sell executed by and between the builder and thecomplainants, the complainants had made payment of Rs. 17,00,000/-D(Rupees seventeen lakh) by issuing cheques favouring the appellantallegedly on the instructions of the builder.

7. Since the complainants had effected payment of substantialamount of money to the appellant and the builder having failed to deliverpossession of the second floor of the proposed building, the complainantsEfelt cheated and urged the police to investigate the crime committedinter alia by the appellant and the builder.

8. Apprehending arrest, the appellant moved the relevant criminalcourt [MACT-02 (CENTRAL)] seeking an order under section 438 ofthe Cr. PC. Initially, on 30[th] November, 2011, the Presiding Officer grantedFinterim protection from arrest to the appellant, subject to his cooperatingwith the investigating agency, upon being informed by the investigatingofficer that no agreement was executed by and between the appellantand the complainants. However, for reasons assigned in the subsequentorder dated 18[th] January, 2022, the application was dismissed by theGPresiding Officer and interim protection earlier granted to the appellantwas withdrawn.

9. In the background of the aforesaid facts and circumstances,the appellant approached the High Court seeking an order under section438 of the Cr. PC. Similar approach was made by the builder. The HighCourt by its common order dated 24[th] November, 2022 granted bail toH

the appellant and the builder, subject to certain conditions. One of theconditions imposed by the High Court for grant of bail reads as follows:

“(e) as undertaken, the petitioners/builder Ashwani Kumar shalldeposit a sum of Rs. 13,00,000/- (Rs. Thirteen lacs only) and theowner Ramesh Kumar shall deposit a sum of Rs. 22,00,000/- (Rs.Twenty-two lacs), with the learned Trial Court, in the form ofFDR in the name of the Court initially for a period of one yearwith an automatic renewal clause, within 4 weeks.”

The undertaking referred to in the aforesaid extract is traceableto paragraph 6 of the impugned judgment, reading as follows:

“6.0. In rebuttal, Ld. Counsel for the petitioners submitted thatthe petitioners are ready to join investigation and explain. Ld.Counsel also submitted that without prejudice to their respectiverights and contentions, the builder undertakes to deposit a sum ofRs. 13 lacs within 8 weeks and owner Ramesh Kumar is ready todeposit a sum of Rs. 22 lacs with the Court.”

10. Expressing his difficulty in arranging for funds to deposit Rs.22,00,000/- (Rupees twenty-two lakh), the appellant had applied beforethe High Court under section 482 of the Cr. PC seeking extension oftime to make the requisite deposit. By an order dated 8[th] February, 2023,the said application was disposed of by the High Court granting extensionof time by 3 (three) days, failing which it was directed that anticipatorybail granted to the appellant shall automatically stand revoked.

11. The appellant is aggrieved by the aforesaid condition [clause(e)of paragraph 9.0. of the impugned judgment and order] imposed by theHigh Court and is now before us seeking revocation of the same whileurging that the other part of the order be maintained.

12. According to counsel for the appellant, the condition imposedis onerous and is not called for having regard to the satisfaction recordedby the High Court in paragraph 8.0. that the appellant has joinedinvestigation and that both the appellant and the builder are ready toprovide any clarification/explanation for the purpose of completion ofinvestigation. It is further contended on behalf of the appellant that he isa victim of a conspiracy hatched by and between the builder and thecomplainants with the result that he is still unable to enjoy his own propertywhich was required to be redeveloped by the builder within the timestipulated in the relevant agreement. Finally, it has been contended on AB

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Abehalf of the appellant that having regard to the decision of this Court inMunish Bhasin vs. State (NCT of Delhi)[1], the impugned conditionimposed for grant of bail requiring deposit of Rs.22,00,000/- (Rupeestwenty-two lakh) in the form of FDR in the Trial Court is bad in law andliable to be set aside.

B13. The appeal has been opposed by counsel for the State.According to him, the impugned condition was imposed because theappellant through his counsel had volunteered to keep in deposit Rs.22,00,000/- (Rupees twenty-two lakh) without prejudice to his rights andcontentions. Now that the High Court had proceeded to make its orderbased on such undertaking and also that the appellant had applied forCextension of time which was granted, it is not an appropriate case wherethis Court should interfere in the exercise of its jurisdiction.

14. Having heard the parties and on perusal of the materials onrecord, there seems to be little doubt that the appellant had volunteeredto deposit Rs. 22,00,000/- (Rupees twenty-two lakh) without prejudiceDto his rights and contentions and that he had also applied for extension oftime to make such deposit which was also granted; but having failed toarrange for sufficient funds, he is questioning the condition imposed bythe High Court for grant of pre-arrest bail.

15. In course of hearing before the High Court, a status reportEhad been submitted with regard to the progress of investigation. Suchreport disclosed that the construction of the proposed building hadprogressed only up to the 1[st] floor and obviously, therefore, the 2[nd] andthe 3[rd] floors were still not in existence. From such status report, it istherefore clear that neither was the floor which the complainants intendedFto purchase is complete nor the floors in respect whereof the appellantcould exercise his rights were in existence.

16. A strikingfeature of the case is that although the appellantthrough his counsel had undertaken to deposit a sum of Rs. 22,00,000/-(Rupees twenty-two lakh) with the trial court, the FIR version is that theGappellant had received separate cheques in his name for a total amountof Rs.17,00,000/- (Rupees seventeen lakh) [Rs. 5,00,000/- (Rupees fivelakh) on 20[th] December, 2018, Rs. 2,00,000/- (Rupees two lakh) on 28[th]December, 2018, Rs. 4,00,000/- (Rupees four lakh) on 28[th] December,2018, Rs. 1,00,000/- (Rupees one lakh) on 28[th] December, 2018, and 1 (2009) 4 SCC 45H

Rs.5,00,000/- (Rupees five lakh) on 21[st] February, 2019]. That theappellant had received through cheques a total amount of Rs.17,00,000/- (Rupees seventeen lakh) was also noticed by the Presiding Officerwhile dismissing the appellant’s application by the order dated 18[th]January, 2022. However, there can be no doubt that counsel on behalf ofthe appellant had submitted before the High Court that he was ready todeposit a sum Rs. 22,00,000/- (Rupees twenty-two lakh), which primafacie happens to be in excess of what the appellant is alleged to havereceived from the complainants by cheques drawn in his favour on theinstructions of the builder. We are not concerned at this stage with allegedpayments made by the complainants to the builder.

17. Legality of the impugned condition is what we are now taskedto examine and decide.

18. It would be appropriate at this stage to note certain precedentsin the field governing the discretion of the courts to grant anticipatorybail.

19. We start with Gurbaksh Singh Sibbia and others vs. Stateof Punjab[2], a Constitution Bench decision of this Court. It was heldthere as follows:

“26. We find a great deal of substance in Mr Tarkunde’s submissionthat since denial of bail amounts to deprivation of personal liberty,the court should lean against the imposition of unnecessaryrestrictions on the scope of Section 438, especially when no suchrestrictions have been imposed by the legislature in the terms ofthat section. Section 438 is a procedural provision which isconcerned with the personal liberty of the individual, who is entitledto the benefit of the presumption of innocence since he is not, onthe date of his application for anticipatory bail, convicted of theoffence in respect of which he seeks bail. An over-generousinfusion of constraints and conditions which are not to be found inSection 438 can make its provisions constitutionally vulnerablesince the right to personal freedom cannot be made to depend oncompliance with unreasonable restrictions. The beneficentprovision contained in Section 438 must be saved, not jettisoned.No doubt can linger after the decision in Maneka Gandhi [ManekaGandhi v. Union of India, (1978) 1 SCC 248], that in order to meet 2 (1980) 2 SCC 565

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Athe challenge of Article 21 of the Constitution, the procedureestablished by law for depriving a person of his liberty must befair, just and reasonable. Section 438, in the form in which it isconceived by the legislature, is open to no exception on the groundthat it prescribes a procedure which is unjust or unfair. We ought,at all costs, to avoid throwing it open to a Constitutional challengeBby reading words in it which are not to be found therein.”

20. This Court in Mahesh Candra vs. State of U.P.[3] was dealingwith a case where the relevant high court had directed payment ofRs.2,000/- (Rupees two thousand) to be made to the victim (daughter-in-law) as a condition for grant of anticipatory bail. It was ruled by thisCCourt as follows:

“3. As a condition for grant of anticipatory bail, the High Courthas recorded the undertaking of the petitioners to pay the victimdaughter-in-law a sum of Rs 2000 per month and failure to do sowould result in vacation of the order granting bail. […] We fail toDunderstand how they can be made liable to deposit Rs 2000 permonth for the maintenance of the victim. Moreover, while decidinga bail application, it is not the jurisdiction of the court to decidecivil disputes as between the parties. We, therefore, remit thematter to the High Court to consider the bail application afresh onEmerit and to pass an appropriate order without imposing anycondition of the nature imposed by the impugned order.”

21. This Court in Munish Bhasin (supra), referred to by counselfor the appellant, had the occasion to observe as follows:

“10. It is well settled that while exercising discretion to release anFaccused under Section 438 of the Code neither the High Courtnor the Sessions Court would be justified in imposing freakishconditions. There is no manner of doubt that the court havingregard to the facts and circumstances of the case can imposenecessary, just and efficacious conditions while enlarging anGaccused on bail under Section 438 of the Code. However, theaccused cannot be subjected to any irrelevant condition at all.***

12. While imposing conditions on an accused who approaches thecourt under Section 438 of the Code, the court should be extremelyH3 (2006) 6 SCC 196

chary in imposing conditions and should not transgress its jurisdictionor power by imposing the conditions which are not called for atall. There is no manner of doubt that the conditions to be imposedunder Section 438 of the Code cannot be harsh, onerous orexcessive so as to frustrate the very object of grant of anticipatorybail under Section 438 of the code.

13. In the instant case, the question before the Court was whetherhaving regard to the averments made by Ms Renuka in hercomplaint, the appellant and his parents were entitled to bail underSection 438 of the Code. When the High Court had found that acase for grant of bail under Section 438 was made out, it was notopen to the Court to direct the appellant to pay Rs. 3,00,000 forpast maintenance and a sum of Rs. 12,500 per month as futuremaintenance to his wife and child. In a proceeding under Section438 of the Code, the Court would not be justified in awardingmaintenance to the wife and child.”

22. Sumit Mehta vs. State (NCT of Delhi)[4] arises out of a decisionof the High Court granting anticipatory bail but inter alia on the conditionthat the appellant, accused of commission of offences punishable undersections 420/467/468/471 of the IPC, deposits an amount ofRs.1,00,00,000/- (Rupees one crore) in fixed deposit in the name of thecomplainant. The point that fell for consideration is captured in paragraph6, which reads as follows:

“6. The only point for consideration in this appeal is whether thecondition of depositing an amount of Rs 1,00,00,000 in fixed depositfor anticipatory bail is sustainable in law and whether such conditionis outside the purview of Section 438 of the Code?”

After hearing the parties, this Court made the following pertinentobservations:

“11. While exercising power under Section 438 of the Code, thecourt is duty-bound to strike a balance between the individual’sright to personal freedom and the right of investigation of the police.For the same, while granting relief under Section 438(1),appropriate conditions can be imposed under Section 438(2) so asto ensure an uninterrupted investigation. The object of putting suchconditions should be to avoid the possibility of the person hampering 4 (2013) 15 SCC 570

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the investigation. Thus, any condition, which has no reference tothe fairness or propriety of the investigation or trial, cannot becountenanced as permissible under the law. So, the discretion ofthe court while imposing conditions must be exercised with utmostrestraint.

12. The law presumes an accused to be innocent till his guilt isproved. As a presumably innocent person, he is entitled to all thefundamental rights including the right to liberty guaranteed underArticle 21 of the Constitution.

13. We also clarify that while granting anticipatory bail, the courtsare expected to consider and keep in mind the nature and gravityof accusation, antecedents of the applicant, namely, about hisprevious involvement in such offence and the possibility of theapplicant to flee from justice. It is also the duty of the court toascertain whether accusation has been made with the object ofinjuring or humiliating him by having him so arrested. It is needlessto mention that the courts are duty-bound to impose appropriateconditions as provided under sub-section (2) of Section 438 of theCode.

14. Thus, in the case on hand, fixed deposit of Rs 1,00,00,000 fora period of six months in the name of the complainant and to keepthe FDR with the investigating officer as a condition precedentfor grant of anticipatory bail is evidently onerous and unreasonable.It must be remembered that the court has not even come to theconclusion whether the allegations made are true or not whichcan only be ascertained after completion of trial. Certainly, in nowords are we suggesting that the power to impose a condition ofthis nature is totally excluded, even in cases of cheating, electricitypilferage, white-collar crimes or chit fund scams, etc.

15. The words ‘any condition’ used in the provision should not beregarded as conferring absolute power on a court of law to imposeany condition that it chooses to impose. Any condition has to beinterpreted as a reasonable condition acceptable in the factspermissible in the circumstance and effective in the pragmaticsense and should not defeat the order of grant of bail. We are ofthe view that the present facts and circumstances of the case donot warrant such extreme condition to be imposed.”

23. We may next take note of two decisions of this Court of recentorigin.

24. In Dilip Singh vs. State of Madhya Pradesh[5], this Courtsounded a note of caution in the following words:

“3. By imposing the condition of deposit of Rs 41 lakhs, the HighCourt has, in an application for pre-arrest bail under Section 438of the Criminal Procedure Code, virtually issued directions in thenature of recovery in a civil suit.

4. It is well settled by a plethora of decisions of this Court thatcriminal proceedings are not for realisation of disputed dues. It isopen to a court to grant or refuse the prayer for anticipatory bail,depending on the facts and circumstances of the particular case.The factors to be taken into consideration, while considering anapplication for bail are the nature of accusation and the severityof the punishment in the case of conviction and the nature of thematerials relied upon by the prosecution; reasonable apprehensionof tampering with the witnesses or apprehension of threat to thecomplainant or the witnesses; reasonable possibility of securingthe presence of the accused at the time of trial or the likelihood ofhis abscondence; character, behaviour and standing of the accused;and the circumstances which are peculiar or the accused andlarger interest of the public or the State and similar otherconsiderations. A criminal court, exercising jurisdiction to grantbail/anticipatory bail, is not expected to act as a recovery agent torealise the dues of the complainant, and that too, without any trial.”

25. Yet again in Bimla Tiwari vs. State of Bihar[6], this is what theCourt said:

“9. We have indicated on more than one occasion that the processof criminal law, particularly in matters of grant of bail, is not akinto money recovery proceedings but what has been noticed in thepresent case carries the peculiarities of its own.

10. We would reiterate that the process of criminal law cannot beutilised for arm-twisting and money recovery, particularly whileopposing the prayer for bail. The question as to whether pre-arrest bail, or for that matter regular bail, in a given case is to be5 (2021) 2 SCC 7796 (2023) SCC OnLine SC 51

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Agranted or not is required to be examined and the discretion isrequired to be exercised by the Court with reference to the materialon record and the parameters governing bail considerations. Puttingit in other words, in a given case, the concession of pre-arrest bailor regular bail could be declined even if the accused has madepayment of the money involved or offers to make any payment;Bconversely, in a given case, the concession of pre-arrest bail orregular bail could be granted irrespective of any payment or anyoffer of payment.

11. We would further emphasize that, ordinarily, there is nojustification in adopting such a course that for the purpose of beingCgiven the concession of pre-arrest bail, the person apprehendingarrest ought to make payment. Recovery of money is essentiallywithin the realm of civil proceedings.”

26. Law regarding exercise of discretion while granting a prayerfor bail under section 438 of the Cr. PC having been authoritatively laidDdown by this Court, we cannot but disapprove the imposition of a conditionof the nature under challenge. Assuming that there is substance in theallegation of the complainants that the appellant (either in connivancewith the builder or even in the absence of any such connivance) hascheated the complainants, the investigation is yet to result in a charge-Esheet being filed under section 173(2) of the Cr. PC, not to speak of thealleged offence being proved before the competent trial court inaccordance with the settled procedures and the applicable laws. Sub-section (2) of section 438 of the Cr. PC does empower the high court orthe court of sessions to impose such conditions while making a directionunder sub-section (1) as it may think fit in the light of the facts of theFparticular case and such direction may include the conditions as in clauses(i) to (iv) thereof. However, a reading of the precedents laid down bythis Court referred to above makes the position of law clear that theconditions to be imposed must not be onerous or unreasonable orexcessive. In the context of grant of bail, all such conditions that wouldGfacilitate the appearance of the accused before the investigating officer/court, unhindered completion of investigation/trial and safety of thecommunity assume relevance. However, inclusion of a condition forpayment of money by the applicant for bail tends to create an impressionthat bail could be secured by depositing money alleged to have beencheated. That is really not the purpose and intent of the provisions forH

grant of bail. We may, however, not be understood to have laid down thelaw that in no case should willingness to make payment/deposit by theaccused be considered before grant of an order for bail. In exceptionalcases such as where an allegation of misappropriation of public moneyby the accused is levelled and the accused while seeking indulgence ofthe court to have his liberty secured/restored volunteers to account forthe whole or any part of the public money allegedly misappropriated byhim, it would be open to the concerned court to consider whether in thelarger public interest the money misappropriated should be allowed to bedeposited before the application for anticipatory bail/bail is taken up forfinal consideration. After all, no court should be averse to putting publicmoney back in the system if the situation is conducive therefor. We areminded to think that this approach would be in the larger interest of thecommunity. However, such an approach would not be warranted in casesof private disputes where private parties complain of their money beinginvolved in the offence of cheating.

27. Turning to the facts here, what we find is that the version inthe FIR, even if taken on face value, discloses payment through chequesof Rs.17,00,000/- (Rupees seventeen lakh) in the name of the appellantand not Rs.22,00,000/- (Rupees twenty-two lakh). We have not beenable to comprehend how the High Court arrived at the latter figure aspayable by the appellant and why the appellant’s counsel as well agreedwith such figure. Prima facie, there appears to be some sort of acalculation error. Also, prima facie, there remains some doubt as regardsthe conduct of the appellant in receiving cheques from the complainantswithout there being any agreement inter se. Be that as it may, the HighCourt ought to have realized that having regard to the nature of disputebetween the parties, which is predominantly civil in nature, the processof criminal law cannot be pressed into service for settling a civil dispute.Even if the appellant had undertaken to make payment, which we areinclined to believe was a last ditch effort to avert losing his liberty, suchundertaking could not have weighed in the mind of the High Court todecide the question of grant of anticipatory bail. The tests for grant ofanticipatory bail are well delineated and stand recognized by passage oftime. The High Court would have been well-advised to examine whetherthe appellant was to be denied anticipatory bail on his failure to satisfyany of such tests. It does seem that the submission made by counsel onbehalf of the appellant before the High Court had its own effect, although AB

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Ait was far from being a relevant consideration for the purpose of grant ofbail.

28. It also does not appear from the materials on record that thecomplainants have instituted any civil suit for recovery of money allegedlypaid by them to the appellant. If at all the offence alleged against theBappellant is proved resulting in his conviction, he would be bound tosuffer penal consequence(s) but despite such conviction he may not beunder any obligation to repay the amount allegedly received from thecomplainants. This too is an aspect which the High Court exercisingjurisdiction under section 438 of the Cr. PC did not bear in mind.

C29. Under the circumstances, we hold that the High Court fell ingrave error in proceeding on the basis of the undertaking of the appellantand imposing payment of Rs.22,00,000/- (Rupees twenty-two lakh) as acondition precedent for grant of bail.

30. We are not unmindful of the fact that the High Court was ledDby the appellant himself to an order granting bail with imposition of theimpugned condition; hence, we are inclined to remit the matter to theHigh Court in line with the approach adopted by this Court in MaheshChandra (supra) and direct re-consideration of the application for pre-arrest bail and a decision on its own merits in the light of the observationsmade herein, as early as possible but preferably within 31[st] August, 2023.EIt is ordered accordingly.

31. Till such time further orders are passed by the High Court, theappellant’s liberty shall not be infringed by the investigating officer. Inthe meanwhile, however, the appellant shall be bound to cooperate withthe investigating officer, as and when he is called upon to do so.F

32. Before concluding, we need to dispose of IA 94276 of 2023.It is an application for intervention at the instance of the complainants,who seek to assist the Court on the ground that any order passed on theappeal without giving opportunity of hearing to them would cause graveprejudice.

G

33. We hold that at this stage, the complainants have no right ofaudience before this Court or even the High Court having regard to thenature of offence alleged to have been committed by the appellant unless,of course, a situation for compounding of the offence under Section 420,IPC, with the permission of the Court, arises.H

RAMESH KUMAR v. THE STATE OF NCT OF DELHI[DIPANKAR DATTA, J.]

34. The appeal stands disposed of on terms as aforesaid. Theapplication for intervention stands dismissed.