Hitesh Kumar v. State Govt. of NCT of Delhi

1. By way of the present petition under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), the petitioner seeks Regular Bail in FIR No.43/2019 dated 22.02.2019 for the offences punishable under Sections 420, 34 and 174A of the Indian Penal Code, 1860 (IPC) registered at Police Station Shahdara. PROSECUTION’S CASE

2. The complaint pertains to two immovable properties located at (i) 1/4991, 1st Floor, Village Sikdarpur, Balbir Nagar, Shahdara, Delhi, 110032 and (ii) 1/4732, Gali No. 5, Balbir Nagar Extension, Shahdara, Delhi, 110032. The complainant stated that he was introduced to the accused through a property dealer and was offered both properties for sale. It was represented that the accused were the absolute owners of the said properties and were in possession thereof.

3. As per the record, the complainant agreed to purchase the properties for ₹44,00,000/- and ₹39,50,000/- respectively. Sale deeds in respect of both properties were executed and registered on 04.08.2017 before the Sub-Registrar IV-A, Shahdara. Prior thereto, a rectification deed dated 22.05.2017 was also executed in respect of Property No. 1/4991 to correct certain discrepancies in the documentation.

4. The complainant stated that prior to approaching the Court, he had submitted a complaint to the Station House Officer, P.S. Shahdara, on 07.12.2018, followed by a representation to the Deputy Commissioner of Police on 11.12.2018 under Section 154(3) of the Code of Criminal Procedure (CrPC). As no action was allegedly taken, the complainant approached the Court under Section 156(3) of the CrPC.

5. Investigation was taken up by the police and, during the course of the inquiry, certified copies of sale deeds were obtained from the office of the Sub-Registrar. It was revealed that the title in respect of Property No. 1/4991 had initially stood in the name of Mr. Yatender Garg and was transferred to petitioner by sale deed dated 19.03.2015. Thereafter, petitioner had executed a sale deed in favour of the complainant. In respect of Property No. 1/4732, the chain of title was traced from Ms. Usha Goel, who had acquired it in June 2012, to Mr. Anurag Sharma, and finally to the complainant through a registered sale deed.

6. During the course of investigation, it was gathered from responses to notices under Section 91 of the CrPC issued to Dena Bank and India Bulls Housing Finance Ltd. that the properties in question were already mortgaged at the time the sale deeds were executed in favour of the complainant. Specifically, Property NO. 1/4991 had been mortgaged to India Bulls since April 2015, and Property No. 1/4732 had been mortgaged with Dena Bank since 2014.

7. It was further noted that a separate FIR, being FIR NO. 144/2020 registered at Police Station Economic Offences Wing (EOW), was also pending against the same accused persons, alleging that they had availed loans from financial institutions by submitting forged documents of the said properties.

8. During the pendency of the investigation, Non-Bailable Warrants (NBW) were obtained against the accused, and proceedings under Section 82 of the CrPC were initiated. Both accused were declared proclaimed offenders on 02.08.2022 by the Court of the learned Metropolitan Magistrate, Shahdara.

9. The petitioner was arrested on 28.07.2023 and formally arrested in the present case on 01.08.2023.

10. Based on the evidence gathered during investigation, including sale and mortgage records, bank documents, and witness statements, a charge sheet has been filed against both accused persons.

SUBMISSIONS OF THE PARTIES

11. The learned counsel for the petitioner submitted that the investigation, insofar as it concerns the petitioner, stands concluded, and that a Charge Sheet has already been filed before the learned Magistrate. It is submitted that the petitioner’s continued incarceration serves no useful purpose as all material evidence in the case is documentary in nature.

12. It is also contended that the present case arises from the same set of facts as FIR No. 144/2020, registered at Police Station EOW, Delhi. It is submitted that the complainant in the present matter, Mr. Dincur Bajaj, has already recorded his statement and submitted documents before the investigating agency in the said FIR. The petitioner has also been arrayed as an accused therein, and the Charge Sheet in that case has also been filed. It is, therefore, submitted that any further proceedings against the petitioner on the same facts in the present FIR would amount to double jeopardy, in violation of Article 20(2) of the Constitution.

13. Opposing the grant of bail, the learned APP for the State submitted that the allegations against the petitioner pertain to a largescale conspiracy involving the fraudulent sale of immovable properties that were already mortgaged to various financial institutions, including India Bulls Housing Finance Ltd. and Dena Bank. It is submitted that the petitioner, in concert with other coaccused, executed sale deeds in favour of the complainant, misrepresenting the title and ownership of the properties, despite being fully aware that the properties were encumbered.

14. The learned APP highlighted that the petitioner, along with the co-accused, was declared a Proclaimed Offender on 02.08.2022 by the learned Metropolitan Magistrate, Shahdara, pursuant to the issuance of NBW’s and initiation of proceedings under Section 82 of the CrPC. It is submitted that the conduct of the accused in evading legal processes and failing to appear before the authorities despite repeated notices reflects a clear intention to subvert the process of law.