Full Text
HIGH COURT OF DELHI
RAMESH KUMAR .....Petitioner
Through: Mr. Sarvesh Bisaria, Advocate.
Through: Mr. Pradeep Gahalot, APP for the State
Gulabi Bagh.
Mr. Vikas Khatri & Ms. Khushboo Pathak, Advocates for respondent NO. 2/ complainant.
JUDGMENT
1. This petition has been filed seeking anticipatory bail in FIR NO. 322/2021 under Sections 420/406/34 of the Indian Penal Code, 1860 (“IPC”) registered at P.S. Gulabi Bagh, Delhi.
2. The FIR was registered basis a complaint of Sh. Vinay Kumar and Sandeep Kumar accusing the petitioner Ramesh Kumar, Ashwani, Mahesh Kumar and Vinod for cheating and criminal breach of trust.
3. The issue relates to property bearing no. C-14, Sanjay Nagar, Gulabi Bagh, Delhi-110007. The petitioner, who is the owner of the property, in order BAIL APPLN. 313/2022 2 of 14 to redevelop this property measuring approx. 130 sq yards, met one builder namely Ashwani, in the month of October 2018, through brokers namely Mahesh Kumar and Vinod.
4. On 10th December 2018, the petitioner and builder Ashwani agreed to redevelop the said property in collaboration. Builder Ashwani gave Rs. 1 lac in cash as token money to the petitioner and mutually agreed that builder or his nominee will get two floors of the redeveloped structure, one floor in lieu of construction cost and another floor subject to payment of Rs. 55 lacs.
5. On the same day, another meeting was held between builder Ashwani and complainants Vinay and Sandeep in presence of the broker Mahesh Kumar, where the complainants agreed to purchase the second floor of the redeveloped structure. Rs. 1 lac in cash was given by the complainants to builder Ashwani as token money.
6. Thereafter, on 14th December 2018, complainants gave Rs. 10 lacs in cash to builder Ashwani and an agreement was executed between the complainant Vinay and builder Ashwani in respect of second floor of the property.
7. On 17th December 2018, another handwritten agreement was executed between builder Ashwani and the petitioner, where it was mentioned that the petitioner will give second floor of the redeveloped structure to the builder in view of Rs. 55 lakhs, out of which owner Ramesh Kumar had already received Rs. 5 lacs.
8. A notarized collaboration agreement was executed between builder Ashwani and petitioner on 19th December 2018. As per that agreement, BAIL APPLN. 313/2022 3 of 14 petitioner would have the entire upper ground floor and third floor with consequential rights, while builder Ashwani would have the entire first floor and second floor with consequential rights.
9. In the meantime, complainants Vinay and Sandeep had given a total of Rs. 17 lacs through various cheques in the name of the petitioner upon instructions of Ashwani prior to starting the construction at the aforesaid property.
10. By 8th January 2019, the complainants had given a total Rs. 33 lacs to the petitioner and builder by means of cash and cheques. On 23rd January 2019 the petitioner received an amount of Rs. 32 lacs in his bank account from one Richa. On 30th January 2019 another notarized agreement was executed between petitioner and builder, where they made a change in terms of conditions at serial no. 4, stating that the petitioner had already received Rs. 54 lacs from the builder Ashwani in respect of the first floor of the property and after receiving the remaining amount of Rs. 1 lac, the petitioner would execute sale deed in favour of the second party or his nominee.
11. Subsequently, on 6th February 2019, the petitioner executed sale deed in respect of the first floor of the property in favour of Richa, to which builder Ashwani was a witness.
12. The complainants had by this time paid a total amount of Rs. 35 lacs including Rs. 17 lacs given through cheque to the petitioner. However, the construction at the site was at halt. Only stilt parking, upper ground floor and first floor had been constructed. The second and third floors were not in existence. BAIL APPLN. 313/2022 4 of 14
13. As per the status report filed in 2022, the builder and the petitioner joined the investigation and were asked to disclose original documents, however, both of them provided only self-attested photocopies. During the course of investigation, the petitioner and builder acknowledged the receipt money from the complainants. Additional status report was subsequently filed noting that the Court had directed the parties to hand over the required documents to the IO.
14. The builder produced some documents but did not produce the original collaboration agreement, which was subsequently provided. The original collaboration agreement was compared to the photocopies provided by the builder and the petitioner. It was noticed that there was an addition/ alteration at page 4 clause 16 in the photocopies and at page 5 clause no. 26.
15. The original documents were found to be differing from the photocopies which had been originally provided; ex facie, it seems that there was an addition/ alteration in the documents. In the bail application, the photocopies were filed, which were altered and at variance from the original documents. Parties were referred to Mediation Centre by the Court vide order dated 19th May, 2022; however, no settlement was arrived at.
16. On 24th November 2022, this Court noted that without prejudice to rights and contentions, the builder Ashwani undertook to deposit a sum of Rs.13 lacs within 8 weeks whereas petitioner was ready to deposit a sum of Rs. 22 lacs with the Court. Taking into account the undertaking, the petitioners were admitted to bail on conditions. The petitioner had applied before this Court seeking extension of time to make the requisite deposit of Rs. 22 lacs. BAIL APPLN. 313/2022 5 of 14
17. By order dated 8th February 2023, the application was disposed of by this Court granting extension of time by 3 days, failing which the anticipatory bail shall automatically stand revoked.
18. The petitioner challenged orders dated 24th November 2022 and 8th February 2023 before Supreme Court, contending that the condition imposed was onerous and the petitioner and the builder were both ready to provide any clarification for purpose of completion of the investigation and had also joined the investigation.
19. Petitioner contended that he was unable to enjoy his own property, which was to be redeveloped by the builder and the condition for deposit was challenged before the Supreme Court. Supreme Court noted that the deposit of Rs. 22 lacs was in excess of what the petitioner had received from the complainants, by cheques drawn in his favour.
20. After traversing the law in this regard, Supreme Court held by decision dated 04th July 2023, that imposing the payment of Rs. 22 lacs as a condition precedent for the grant of bail was not correct and the matter was remitted back to this Court for re-consideration of the application for anticipatory bail.
21. When this Court started rehearing the application for anticipatory bail on merits, a few clarificatory facts came on record. The receipt of Rs. 22 lacs by petitioner was a composite of Rs. 17 lacs which had been given by cheque by complainant Vinay to the petitioner and Rs. 5 lacs cash which was acknowledged through a receipt dated 19th December, 2018.
22. The fact that this Rs. 5 lacs had indeed been received from Ashwani Kumar towards the second floor of the property was confirmed by another BAIL APPLN. 313/2022 6 of 14 receipt, dated 17th December 2018, also signed by petitioner and has been placed before the Court through additional status report of 31st August 2024. Thus, there was no quarrel to the fact that Rs. 22 lacs had been received by petitioner towards the second floor of the property, while the builder had received Rs. 18 lacs out of which Rs. 13 lacs had been deposited back in the Court, pursuant to order dated 24th November 2022.
23. Counsel for petitioner essentially argued that they were joining and cooperating in the investigation, but were not in a position to comply with the condition of deposit of Rs. 22 lacs and were, therefore, seeking anticipatory bail. It was further argued that the petitioner had in fact been duped by the builder who had refused to construct the additional floors of the property.
24. APP for the State, however, pointed out that after having paid Rs. 35 lacs to the builder as well as the petitioner, out of which the petitioner had received Rs. 22 lacs, the second floor of the property was neither constructed nor was in existence and the complainant had effectively been cheated of his monies, without having received the property for which he had transacted for.
25. On the other hand, petitioner had taken benefit of the upper ground floor, and the builder had got the first floor of the property. The petitioner having received Rs. 55,00,000/- from the builder executed a sale deed of the first floor in respect of one Richa to which the builder was witness. What had effectively transpired was that both the petitioner and the builder had got the shares of the property, i.e. the upper ground floor and the first floor. The builder having utilized the money which had been paid by the complainants towards the transaction for the first floor, the second floor was not built at all and the petitioners were not ready to pay back any money. BAIL APPLN. 313/2022 7 of 14
26. Effectively, looking at from the petitioner’s point of view, he received Rs. 5 lacs as earnest money, Rs. 32 lacs from Richa through RTGS against the first floor, Rs. 17 lacs from complainant through cheque, amounting to a total of Rs. 54 lacs which he stated was against the first floor of the property.
27. No agreement to sell of the second floor had been made by petitioner with the complainant though he had received Rs. 17 lacs from complainant Vinay. The builder, though, stated that he had received Rs. 35 lacs from complainant and agreement was executed between the builder and complainant Vinay Kumar for second floor of the property but the construction was not complete.
28. The builder stated that he had filed a civil suit against the petitioner and had deposited the original agreement therein.
29. It was further found during the investigation that; firstly, entire upper ground floor had been sold to one Vriti Gupta for Rs. 32 lacs on 27th May 2019; secondly, first floor was sold to one Richa for Rs.32 lacs on 30th January 2019; thirdly, second floor was to be given to the complainant after construction; fourthly, the third-floor rights were also sold to one Gulzar Ahmed on 02nd January 2023 which was signed by petitioner even after the said issues were pending before the Court.
30. Besides, a comparison of the photocopies of the collaboration which have been tendered by the petitioner and that of the original was found to have substantial interpolation in clause 16 in a blank space as under: BAIL APPLN. 313/2022 8 of 14 While the clause 16 of the original agreement was produced as under:. Clause 16 of the self-attested photocopy which was filed with the bail petition is as under:
31. APP for State, therefore, stated that there was a deliberate attempt to interpolate the agreement in order to show rights regarding the second floor.
32. Counsel for petitioner, however, argued that the interpolation was at the behest of the builder; moreover the agreement with Gulzar Ahmed was never executed and never acted upon. They had filed a complaint against the BAIL APPLN. 313/2022 9 of 14 builder under Section 200 and later an application under Section 156 (3) of the Code of Criminal Procedure, 1973 (“C.r.P.C.”) had also been filed.
33. Additionally, a civil suit no. 1227/2023 which has been filed for decree of Rs. 1.93 crores in favour of petitioner against the builder Ashwani. The project had been abandoned in 2019 and they themselves had been duped by the builder, where detailed facts have been noted from the point of view of the petitioner.
34. APP for State, however, stated that there was a possibility that the petitioner shall abscond having received the monies for each of the floors of the property and having no interest which was tied to the property. Whereas, counsel for petitioner stated that evidence was documentary in character and, therefore, there was no reason that custodial interrogation was required. Analysis
35. The principles for grant of anticipatory bail have been laid down in a well cited judgment in Siddharam Satlingappa Mhetre v. State of Maharashtra (2011) 1 SCC 694; the following extract of the said judgment is instructive in this regard:
BAIL APPLN. 313/2022 10 of 14
(iv) The possibility of the accused's likelihood to repeat similar or other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”
36. The Supreme Court by its order in Ramesh Kumar v. State (NCT of Delhi) (2023) 7 SCC 461 (the SLP filed by the petitioner), has ruled on the fact of deposit of money by the petitioner and using it as a pre-condition for BAIL APPLN. 313/2022 11 of 14 bail. The following paragraphs of the decision of the Supreme Court are instructive in this regard:
BAIL APPLN. 313/2022 12 of 14 payment/deposit by the accused be considered before grant of an order for bail. In exceptional cases such as where an allegation of misappropriation of public money by the accused is levelled and the accused while seeking indulgence of the court to have his liberty secured/restored volunteers to account for the whole or any part of the public money allegedly misappropriated by him, it would be open to the court concerned to consider whether in the larger public interest the money misappropriated should be allowed to be deposited before the application for anticipatory bail/bail is taken up for final consideration. After all, no court should be averse to putting public money back in the system if the situation is conducive therefor. We are minded to think that this approach would be in the larger interest of the community. However, such an approach would not be warranted in cases of private disputes where private parties complain of their money being involved in the offence of cheating.” (emphasis supplied)
37. Considering it is a ‘private dispute’, there would be no purpose served further deliberating on the issue of deposit by petitioner, already being assessed by the Supreme Court. The residual issue, on merits, is whether the anticipatory bail application be accepted or not, in context of the fact that the custodial interrogation may be necessary.
38. A perusal of the status report would show that almost all documentary evidence has already been secured by the IO, as noted above. Whether these facts would amount to cheating and breach of trust and therefore, invite charges against the petitioner under Section 420/406 of IPC would be a question, which would be subject to further proceedings. BAIL APPLN. 313/2022 13 of 14
39. Moreover, the petitioner has joined the investigation and has been posed detailed queries as per the interrogation report, which has been appended with the status report dated 31st August 2024. There is no impediment in the IO continuing the investigation and further summoning the accused petitioner for further investigation, which the petitioner is obliged to join and cooperate with.
40. As regards the possibility of the petitioner to flee from justice, the petitioner can be subjected to requisite conditions. There is no averment by the prosecution that there are previous involvements against the petitioner.
41. The petitioner has been joining the investigation and has undertaken before the Court to continue to do so. Notably, Supreme Court had also noted that petitioner/appellant shall be bound to cooperate with the Investigating Officer as and when he is called upon to do so.
42. The Supreme Court has also left the door open for compounding of offences under Section 420 IPC with the permission of the Court, if such a situation arises.
43. APP’s reliance upon the decision in Sumitha Pradeep v. Arun Kumar C.K. 2022 SCC OnLine SC 1529 for rejecting anticipatory bail, may not be totally relevant considering the said case was relating to offences under the Protection of Children from Sexual Offences Act, 2012 (“POCSO”) alleging sexual assault on a 12 year old.
44. In light of the above, the Court is of the considered opinion that the petitioner is entitled to anticipatory bail. Consequently, in the event of arrest the petitioner be released on bail on furnishing a personal bond in the sum of BAIL APPLN. 313/2022 14 of 14 Rs. 1,00,000/- with one surety of the like amount subject to the satisfaction of the arresting officer/IO/SHO concerned, further subject to the condition that the petitioner will join investigation as and when directed and not influence any witness/complainant/victim or tamper with evidence of the case.
45. Accordingly, petition is allowed. Pending applications (if any) are rendered infructuous.
46. Judgment be uploaded on the website of this Court.
ANISH DAYAL, J