Full Text
HIGH COURT OF DELHI
Date of Decision: 25.11.2019
NEERAJ SHARMA ..... Petitioner
Through: Mr. Pramod Kumar Ahuja, Adv.
Through: Mr. Hirein Sharma, APP for State with SI Vijay Kumar, PS – Prashant
Vihar Mr. Sanjay Suri, Adv. for complainant/ R-2
JUDGMENT
1. Vide the present petition, petitioner seeks anticipatory bail in FIR NO. 36/2018 dated 14.01.2018 registered at Police Station – Prashant Vihar, District Rohini, Delhi for the offences punishable under Section 420 read with Section 34 IPC.
2. Case of the petitioner as averred in the present petition is that the complainant started the work from September, 2009 and did not complete the same within 8 months and left the construction work in between and went to Bombay and thereafter Smt. Sneh Lata Sharma got the work 2019:DHC:6306 completed in 2013 after using all her sources. The time was never extended by the Complainant with the deceased Sneh Lata Sharma after entering into agreement. In the agreement, the petitioner’s signature were obtained as one of the witnesses and on the first and second page also, which were not required at all. The petitioner was not the owner of the property and the agreement was only between the deceased – Sneha Lata Sharma and complainant – Mohan Lal Bansal and not with the petitioner. The signature of the deceased was not obtained on the last page of the Agreement.
3. The whole construction was to be carried out by the complainant and he was to get profit on the sale of the Floors as he was to construct four floors with parking and lift, which he never completed & left the construction in between i.e. in March 2010 itself.
4. The petitioner’s mother (Smt. Sneh Lata) got the construction completed through contractor after incurring huge losses in the construction project and it took her 3 years time to get everything rectified/changed or reconstructed because of complainant not using good material for construction. When, in fact, the time was of the essence in the contract and complainant was to complete the construction work within 8 months from 01.08.2009 but he left the construction within a period of 7 months and did not turn up thereafter.
5. It is further stated in the present petition that after spending huge expenses, the petitioner's mother sold upper ground floor to one Smt. Neetu Rana & First Floor to her daughter namely Smt. Sonu Sethi against sale consideration. Both the sale deeds were executed and signed by Smt. Sneh Lata Sharma as owner and there was no role of the present petitioner or any other family member in any manner in the execution of the Sale Deeds.
6. Mr. Ahuja, learned counsel appearing on behalf of the petitioner submits that as on date, the second and third floor of the subject matter of the property are lying vacant and complainant has been trying his best to create hurdles/hindrances so that the property of Smt. Sneh Lata Sharma (since deceased) be not sold by petitioner and has been convincing the local property dealers/estate agents not to purchase the property because of the dispute which has been falsely created by the complainant.
7. It is further submitted that the complainant filed the civil suit before the District Judge, Rohini Courts for a sum of ₹1,50,00,000/- (Rupees One Crore Fifty Lakhs) against the present petitioner, which is pending in the Court of learned Additional District Judge, Rohini, Delhi and pending for disposal. The petitioner has to file the written statement though he has already moved the application under Order 7 Rule 11 of C.P.C.. The suit which has been filed by the complainant is barred by time and that is the reason the application has been moved by the petitioner for rejection of the plaint.
8. It is further submitted that despite the fact that the dispute between the petitioner and the complainant is purely of civil nature, therefore, there was no question to lodge the FIR against the petitioner on 14.01.2018 with the Police Station – Prashant Vihar.
9. To strengthen his arguments, learned counsel for petitioner has relied upon the case of Ravindra Saxena vs. State of Rajasthan, (2010) 1 SCC 684, whereby the Hon’ble Supreme Court has held that the High Court ought not to have left the matter to the Magistrate only on the ground that the challan has now been presented. There is also no reason to deny anticipatory bail merely because the allegation in this case pertains to cheating or forgery of a valuable security. The merits of these issues shall have to be assessed at the time of the trial of the accused persons and denial of anticipatory bail only on the ground that the challan has been presented would not satisfy the requirements of Sections 437 and 438 Cr.P.C.
10. Also relied on the case of The Commissioner of Police & Ors. vs. Devender Anand & Ors. in Criminal Appeal No. 834/2017, whereby the Hon’ble Supreme Court has held that criminal proceedings initiated by the complainant is nothing but an abuse of the process of law for settling a civil dispute. No case is made out for taking cognizance of the offence under Section 420/34 IPC after the civil dispute to be settled by the civil case, therefore, the Court should not reject the anticipatory bail.
11. The case of the complainant that he is a Senior Citizen and is retired Government Officer. He was living alone as he had no son and his wife expired in the year 2010. In the year 2009, the accused Nos. 1 to 3, namely, Neeraj Sharma, Madhu Sharma and Monika Sharma who were living in his adjoining flat, contacted him and talked about construction of their plot bearing No.E-144, area measuring 80.78 sq. meters, Prashant Vihar, Delhi- 34 and the same plot was in the name of Sneh Lata Sharma, who was mother of the accused nos. l to 3. The whole family of the accused no.l including the sisters, wife, mother and father requested him to construct the plot from his funds. In this regard, an agreement for construction of four floors plus car parking over the said plot was executed between Sneh Lata Sharma (since deceased) and complainant on 01.08.2009 with the consent of whole family of accused nos. l to 3.
12. As per the agreement, complainant constructed four floors and car parking and spent an amount of ₹50 Lakhs approximately. The complainant constructed the entire building and then the complainant became partner/ shareholder in entire building to the extent of 1/2 share/profit along with Sneh Lata. She was owner of the said plot, but when the construction was carried out, she was joint shareholder with him, hence she had no sole right to sell any portion of the property in question. After the completion of entire construction work, the accused nos. l to 3 became dishonest and in order to grab the benefit/share of the complainant, they hatched a conspiracy with each other as well as in collusion with the accused No.4 and 5 and deceased Sneh Lata. The accused nos. l to 3 had instigated her mother Sneh Lata with malafide intention to transfer the upper ground floor of the building in the name of accused no. 4 in collusion with the accused no.5, to which they have no right to transfer the upper ground floor in favour of the accused no.4 vide Sale Deed no.4177 dated 14.06.2013, without consent and permission of the complainant.
13. When the complainant became the shareholder of the property in question, then the accused nos. l to 3 and their mother had no right to mention in the said Sale Deed no.4177 that "property is free from all sorts of encumbrances such as liens, charges, claims, liabilities, acquisitions, injunctions or attachments from any court of law, gifts, mortgages, demands, notices, notifications, legal disputes, differences, decree and flaws etc, prior to sale and the vendor is fully entitled/ empowered to dispose of the same".
14. Thus, all the accused knew that the complainant had constructed the entire property under his supervision, arranged materials, engaged contractors and spent a huge amount and is the partner/shareholder in the property in question and despite knowing all facts, accused show themselves as exclusive owners of the property in question in order to grab the share of the complainant. The accused used the previous sale deed which was in the name of deceased Sneh Lata as genuine and on the basis of the said sale deed, they fraudulently further transferred the said property in question as Sneh Lata and her family members were not full owners of the property in question after the construction of the property by complainant as per the agreement. Thus, the case of the complainant is that accused nos. l and 2 knowingly, deliberately and with malafide intention and by using the fabricated documents, with an ulterior motive to sell the share of the complainant in the name of accused no.4 in collusion with the accused no.5.
15. Learned counsel for the petitioner has pointed out that the notice dated 07.10.2013 was issued only to the mother of the petitioner but not to the petitioner. Since the mother of the petitioner has expired, therefore, the petitioner has been implicated falsely in the present case after her death.
16. On the other hand, learned APP appearing on behalf of the State submits that the custodial interrogation of the petitioner is required to find out true nature of the cheating committed in the present case from the documents placed on record, including the Sale Deed dated 14.06.2013. The petitioner/ accused had signed as a witness thereon in which it is stated that the property is free from all sorts of encumbrances. As per the agreement dated 01.08.2009 between the mother of the petitioner and the complainant regarding the construction of four floors in plot No. E-144, area measuring
80.78 sq. meters, Prashant Vihar, Delhi-34 and as per the terms of the said agreement, profit was to be shared equally between the parties.
17. As submitted by the learned counsel for petitioner that an amount of ₹5 lakhs has already been paid in favour of the complainant, who spent only an amount of ₹35 lakhs. It is not in dispute that the petitioner is on interim protection since 09.04.2018 and has been joining investigation during interim protection as and when called by the IO. It is also not in dispute that the petitioner is a witness to the agreement and to each and every receipt of payment, the petitioner’s signatures are there. The MOU for construction of the building (4 floors) was between the mother of the petitioner and complainant, despite the complainant spent huge amount for construction of the building and subsequently, he became the shareholder, however, without her consent, two floors of the same have been sold in June, 2013 but no amount is paid to the complainant.
18. It is not in dispute that if a case is of civil nature, then the other party cannot misuse the law by lodging a criminal complaint against the opposite party. But I am of the opinion that if an innocent person has been cheated and caused loss with malafide intention, which is in the present case, then there is no bar on filing civil as well as criminal case against the defaulter (petitioner herein). In the present case, if the complainant succeeds, the petitioner/ accused would get the imprisonment as punishment but no amount would come in favour of the complainant. Therefore, the complainant filed suit for recovery within limitation so that he would get the amount. Simultaneously, since the petitioner had cheated in connivance with his mother and other accused, therefore, to teach the lesson and send the message to the society that such person cannot go free from the clutches of the law.
19. In the present case, as admitted by the petitioner, the complainant has spent ₹35 lakhs and of that ₹5 lakhs have already been paid. The said fact has been disputed by the learned counsel for the complainant and submits that complainant has spent ₹50 lakhs and only an amount of ₹5 lakhs has been received.
20. On perusal of the legal notice dated 07.10.2013, it is found mentioned in Para 5 that son of the deceased once again asked the complainant to furnish records related to total expenditure. In Para 8, it is specifically stated that the mother of the petitioner and the petitioner being her representative who gave active assistance to her mother in construction of the plot, as per the agreement, left the construction site in February, 2010 without giving any information to the complainant. In the same Para, it is further stated that in the beginning, both Neeraj (petitioner herein) and his father used to quarrel at the site for attending the site. After their quarrel, they used to leave the site in anguish, leaving the complainant alone to handle all the work. Thus, the petitioner played an active role in getting the construction done and thereafter, the mother of the petitioner sold the flat with consent of the petitioner and without the knowledge and consent of the complainant.
21. Since the petitioner has been enjoying interim protection granted by this Court pursuant to order dated 09.04.2018, therefore, the required document has not handed over by the petitioner to IO of the case. Therefore, I am of the considered view that in the present case, the custodial interrogation of the petitioner is required to recover the documents and the amount siphoned off by the petitioner by cheating the complainant.
22. In view of the above, if in such case, anticipatory bail is granted, there will be great prejudice to the complainant and very wrong message will go to the public at large. Therefore, I find no merit in the present case, the application is accordingly dismissed.
23. Before parting with this petition, it is pertinent to mention here that directions were passed by this Court in Bail Application No. 2109 titled ‘Anil Kumar vs. State’ to the Commissioner of Police to issue directions to the Investigating Officers to bring updated and complete file to the Court when summoned in a bail matter or any other matter. Accordingly, a Circular No. 12/2019 dated 24.10.2019 was issued by the Commissioner of Police, Delhi as under: “In view of above, all DCPs/ Districts and Units are directed to ensure that:-
(i) Any Police Officer, who is dealing a bail matter, any other Court matter shall bring updated and complete case files to the concerned Court along with the response, when summoned in a bail or any other matter.
(ii) The IO must be well aware of the crux of the statements recorded under Section 161 Cr.P.C. and shall be present in the Court well before time to brief the Government Counsel/PP/APP properly so that he/she could argue the matter before the Court and satisfy the conscience of the concerned Court.
(iii) The reply shall be carefully examined by the SHO or
(iv) It must be ensured that the IO must personally appear before the Court and he/she must not be substituted ordinarily. Meticulous compliance of the above directions must be ensured.”
24. In the present case, when this Court asked about the case diary and the statement of the witnesses recorded till date from the SI Vijay Kumar, who is personally present in Court, he submits that the original IO is busy in the Trial Court to give the evidence and also submits that in the file, which he produced, statements of the witnesses recorded under Section 161 Cr.P.C. is not there. Thus, there was no assistance from the learned Prosecutor in this matter due to the lack of knowledge of the police official present in the Court in this matter. It is pertinent to mention here that vide Circular No. 12 of 2019 dated 24.10.2019, all the DCPs (District and Units) were directed to ensure the compliance as noted above. Since no steps have been taken by the DCP, Rohini District, therefore let the said officer be personally present in Court to explain as to why he has not been supervising the work as per the Circular No. 12 of 2019 dated 24.10.2019.
25. For the aforesaid purpose, renotify on 28.11.2019.
26. I again remind to all the IOs/SHOs/DCPs concerned to comply with the aforementioned Circular in its letter and spirit when matter comes before the Court.
27. Let the order passed by this Court be transmitted to Commissioner of Police, Delhi for taking steps accordingly.
JUDGE NOVEMBER 25, 2019 PB