Asha Madan v. State (GNCT of Delhi)

1. This is a petition filed by the petitioner under Section 439 Cr.P.C. seeking regular bail in case FIR No. 63/2019 under Sections 420/468/471/201/506/174A/34 IPC registered at Police Station PashimVihar, Delhi.

2. Briefly stated, the facts of the case are that the complainant, in the month of January 2018, came in contact with the petitioner through one Mr. Mahesh Sharma as he wanted to purchase a flat in Punjabi Bagh Apartments. Upon this, the petitioner offered him to sell a flat No. 162, Punjabi Bagh Apartments, claiming that the said flat was allotted to one Channi Ram who is a resident of Rajasthan and in order to show his bonafides, petitioner showed the complainant, a letter issued by DDA whereby the said flat was allotted to Channi Ram and also the Agreement to Sell executed by said Chhani Ram in favour of the petitioner qua the said flat. Thereafter, deal was finalized for a sum of Rs.1,50,00,000/-(one Crore Fifty Lakhs) and a sum of Rs.80,00,000/- was paid to the Rakesh Madan @ Rakesh Arora and his wife (Asha Madan @ Dolly @ Asha Arora i.e. petitioner herein) as part payment. Later on, Rs. 50,00,000/- were paid to Rakesh Madan@ Rakesh Arora and further Rs.15,00,000/- were transferred in the bank account of the Smt. Asha Madan (petitioner herein) and also a sum of Rs.7,50,000/- were transferred in the joint bank account of the Rakesh Madan @ Rakesh Arora and his wife (Asha Madan @ Dolly@ Asha Arora i.e.petitioner herein) and the balance amount was paid in cash. It is further alleged that in order to show his bona-fides, husband of the petitioner i.e. Rakesh Madan@ Rakesh Arora showed him challan, according to which money was deposited with DDA on behalf of said Chhani Ram for the payment of the said flat. The complainant further stated that after taking Rs.80,00,000/- both the accused started avoiding the complainant and when the complainant visited at the office and residence of the accused persons, he came to know that both the accused are absconding. Thereafter, on 11.02.2019, FIRNo.63/2019 under Sections 420/468/471/201/506/174A/34 IPC was registered at Police Station PaschimVihar West, Delhi and the investigation was taken up.

3. I have heard the Ld. Counsel for the petitioner, Ld. APP for the State assisted by the Ld. Counsel for the complainant, perused the Status Report filed by the State and also perused the records of this case.

4. It is submitted by the Ld. Counsel for the petitioner that the petitioner is falsely implicated and has been made accused in the present case only to pressurize her husband, who is allegedly stated to be the main accused. It is also submitted that the applicant is an old aged lady having severe health issues. It is further submitted that no role or involvement is attributed to the applicant and she is judicial custody since 22.03.2021 only because the applicant is the holder of joint bank account in which part of the alleged cheated amount is stated to be deposited. It is further submitted that chargesheet has already been filed and the applicant is not required for investigation purposes. It is further submitted that applicant has deep roots in the society and there are no allegations with regard to joining and cooperating in investigation or tampering with the evidence. Lastly, it is prayed that the applicant be released on bail.

5. Ld. Counsel for the petitioner has placed reliance on ‘Gurbaksh Singh Sibbia Vs. State of Punjab’, (1980) 2 SCC 565 and ‘Arnesh Kumar

V. State of Bihar and another’, (2014) 8 SCC 273.

6. On the other hand, Ld. APP for the State has strongly opposed the bail application and has argued on the lines of the Status Report. It is submitted by the Ld. APP that allegations against the petitioner are serious in nature. It is further submitted that when enquiries were made from DDA with regard to flat in question, it was found that said flat was not allotted to Chhani Ram. It is further submitted that the alleged Agreement to Sell was sent to FSL and the signature on the said Agreement to Sell was of the husband of the petitioner and thus it is clearly established that petitioner and her husband both in connivance have cheated the complainant. It is further submitted that though the chargesheet has been filed, bail may not be granted to be petitioner at this stage as charges are yet to be framed. It is lastly submitted that there are various previous involvements of the husband of the petitioner and subsequently if the bail is granted to the petitioner, she may abscond and may temper with the evidence.

7. In the instant case, as per the medical status report received along with the nominal roll from the jail authorities, the petitioner is the lady of 56 years of age and she is suffering from Systemic Hypertension (increased blood pressure) and low back ache. Further, a bare perusal of the status report filed by the state clearly shows that there is no specific role assigned to the petitioner but rather specific allegations are against the husband of the petitioner. It was the husband of the petitioner who has his signature on the alleged agreement to sell as mentioned in the status report and has received the alleged cheated amount. Merely because the petitioner is a joint bank account holder with her husband who is alleged to be the main accused in this case in which the part of alleged cheated amount is deposited, does not mean that petitioner also has equally and actively participated in the commission of the said offence. Moreover, there is nothing before this court which shows that there are allegations of tempering with the evidence and the petitioner is a flight risk. The evidence filed along with the chargesheet is documentary in nature.

8. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. NCT, Delhi and another (2001) 4 SCC 280). There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits.

9. In Jayendra Saraswathi Swamigal v. State of Tamil Nadu (2005) 2 SCC 13, it was held as under:-

10. Therefore, keeping in view the entire circumstances and the fact the petitioner is in judicial custody since 22.03.2021, the present bail application is allowed and the petitioner is admitted to bail on following conditions:

(i) The Petitioner shall furnish personal bond in the sum of

(ii) The petitioner shall provide her mobile phone number to the concerned Jail Superintendent and SHO of the concerned police station at the time of release, which shall be kept in working condition at all times;