Mohit Tayal v. State (Govt. of NCT of Delhi)

1. This is an application seeking bail in FIR No. 198/2022 dated 15.02.2022, registered at Police Station-Mayapuri, Delhi under section 420 IPC.

2. The applicant herein (Mohit Tayal) is the son of the directors Umesh Kumar and Sangeeta Tayal (applicant in 1543/2022 and BAIL APPLN. 1565/2022 respectively).

3. As per the FIR, it is stated that the complainant approached the parents and the applicant and showed his interest in purchasing the said property as it was adjacent to his already existing industrial unit (H-932). Pursuant to the negotiations, an Agreement to Sell dated 07.03.2019 was executed. The price of the property was fixed at Rs. 81,50,000/- and the complainant over a period of time has admittedly paid Rs. 33,50,000/- Although, it is stated by learned counsel appearing for the complainant that they have paid a sum of Rs 39 lakhs.

4. It is stated in the FIR that the applicant kept on insisting and alluring the complainant about this beneficial deal and also assured him that the said property is clean, with free title and without any sort of encumbrances. It is only subsequently after paying substantial amount of money, that the complainant got to know that the property was already mortgaged with Bank of India and the said fact was hidden from the complainant.

5. Mr Modi, learned counsel appearing for the applicant states that in the present case, a. the dispute is of a civil nature, b. the complainant knew about the mortgage as he has made RTGS payments to the Bank, c. the property was sold on „as is where is basis‟ and hence the applicant is entitled to bail.

6. I am unable to agree with the contention of learned counsel for the ARORA applicant. The Agreement to Sell categorically stated “The plot is not restricted from loan, sale, lease and rent etc. Nor I have taken the loan from any Bank of Financial Institution by mortgaging the plot, that is, it is free from all type of encumbrances.” This is clearly contrary to the factual matrix especially when the property was mortgaged with Bank of India. The complainant has invested substantial amounts of money and without knowing that the property was mortgaged.

7. Although the applicant is not the director of the company on whose behalf this agreement to sell was executed, he is the witness to the agreement to sell. In fact, the property in question i.e. H- 1/933, RIICO Industrial Area, Chopanki, Bhiwadi, Distt-Alwar, Rajasthan, was initially mortgaged with the Bank of India, Hauj Khas branch against loan facility of Rs. 1.26 Crores from the bank, then a lien was created by RIICO over the said property against loan facility of Rs. 75 lacs availed by the sister concern of the alleged company in which the applicant was the proprietor. There was nothing which prevented the applicant from disclosing correct fact to the complainant.

8. In „Archana Rana vs. State of Uttar [(2021) 3 SCC 751] the Supreme Court has opined that- “7…As observed and held by this Court in R.K. Vijayasarathy [R.K. Vijayasarathy v. Sudha Seetharam, (2019) 16 SCC 739: (2020) 2 SCC (Cri) 454], the ingredients to constitute an offence under Section 420 are as follows: ARORA

(i) a person must commit the offence of cheating under Section

(ii) the person cheated must be dishonestly induced to

(a) deliver property to any person; or (b) make, alter or destroy valuable security or anything signed or sealed and capable of being converted into valuable security. Thus, cheating is an essential ingredient for an act to constitute an offence under Section 420 IPC.

8. “Cheating” is defined under Section 415 IPC. The ingredients to constitute an offence of cheating are as follows:

(i) there should be fraudulent or dishonest inducement of a person by deceiving him: The person who was induced should be intentionally induced to deliver any property to any person or to consent that any person shall retain any property, or the person who was induced should be intentionally induced to do or to omit to do anything which he would not do or omit if he were not so deceived. Thus, a fraudulent or dishonest inducement is an essential ingredient of the offence under Section 415 IPC. A person who dishonestly induced any person to deliver any property is liable for the offence of cheating.”

9. The FIR has clearly laid out that the applicant cheated the complainant by making a false inducement that the plot which was being ARORA sold by them, was free from all encumbrances. Based upon the false inducement the complainant parted with valuable security in the form of payment. Making of payment to the bank by RTGS does not mitigate the accused‟s false inducement. Similarly, „as is where is‟ has to be read in harmony with the other recitals which said that the property was free from all prior encumbrances and mortgages.

10. In view of the aforesaid reasons, I am not inclined to entertain the present bail application as all the above three grounds pale into insignificance in view of the conduct and material concealment which clearly amounts to cheating on behalf of the applicants.