Kashish Jain v. The State

1. Vide this order I shall dispose of the bail application filed by the petitioner Kashish Jain under section 439 Cr.P.C. for grant of regular bail in FIR no. 341/2018, PS Model Town u/s. 420/467/468/471/34 IPC.

2. Brief facts necessary for disposal of the bail application are that complainant Sanjay Garg had given first floor of his property bearing no. Z-10, Model Town on rent to co-accused Naresh Jain and Simi Jain who are parents of applicant vide rent agreement dated 24.01.2013. Thereafter both parties developed intimacy and the Jain family decided to buy the said 2019:DHC:5620 floor for which deal was finalized for Rs. 2.75 Crores. As per the agreement, co-accused Naresh Jain was to pay first instalment of Rs. 90 lacs to the complainant on or before 30.5.2015 and rest of the amount was to be paid in 12 months from the date of execution of the sale-deed. As per agreement, the said floor was sold to co-accused Naresh Jain vide sale deed dated 30.05.2015. However, at that time accused persons requested for some more time for remaining payment and accused persons handed over two cheques bearing nos. 473396 & 473397 of Rs. 10,00,000/- each drawn at ICICI Bank, Shalimar Bagh dated 24.11.2015 and 27.04.2015 issued by the co-accused Simi Jain qua the outstanding amount. Remaining amount of Rs.63,89,000/- was to be paid by co-accused Naresh Jain.

3. The complainant had thereafter approached co-accused Naresh Jain for the said remaining amount. It is, however, the case of the applicant that Naresh Jain sold the said floor to Sh. Manoj Sharma and Sh. Daya Rani in March, 2018. Thereafter, co-accused Simi Jain sent a notice to complainant claiming to be the owner of second floor of Z-10, Model Town, vide sale deed dated 30.03.2015. After going through the certified copy of the sale deed, complainant came to know that same did not pertain to him and he replied the legal notice accordingly. However, he received summons on 10.07.2018 from the Court of Ms. Vandana, Ld. CSJ/RC (North) in case titled as ‘Simi Jain v. Sanjay Garg and Others’, which is the suit for possession and recovery of rent in respect of 2nd floor of Z-10, Model Town. From the details of sale deed, the complainant came to know that second floor of the property was registered in favour of Simi Jain on the basis of forged documents and same was not bearing his photograph and signatures. He came to know in July, 2018 that the accused persons had mortgaged the suit property to Cholamandalam Finance after submitting the forged sale deed dated 31.03.2015 as collateral security and did not pay the loan deliberately and hence, receiver was appointed to take possession of the property on 25.07.2018 and thereafter the property was seized by Cholamandalam Investment and Financial Company Limited (‘Cholamandalam Ltd.’ in short).

4. Ld. Counsel for the petitioner has prayed for bail on the ground that petitioner is innocent and has been falsely implicated. He submitted that petitioner is in JC since 24.11.2018. It is further submitted that petitioner had no role in the alleged mortgage and loan transaction. The petitioner has no criminal antecedents till date, except the allegations levelled in the present FIR alleging criminal conspiracy with his parents in alleged Loan transaction with M/S Cholamandalam Ltd. In fact, the petitioner has nothing to do with the dispute in hand with the complainant, nor the petitioner has any property transaction or dealing with the complainant. It is further submitted that allegations levelled in the FIR does not pertain to the petitioner and, thus, the petitioner is rightly not named in the FIR also. However, he has been wrongfully arrested by the Investigating Officer and was immediately taken into police custody on 24.11.2018 from his work place without any cause. The petitioner is only portrayed by the Investigating Officer as a co-borrower of the alleged loan taken from Cholamandalem Ltd. by his parents and has been alleged to be a beneficiary of the alleged transaction.

5. It is further submitted by Ld. Counsel for the petitioner that as per prosecution, the alleged forgery is committed by his parents in year 2015 when the petitioner was only 21 years old. There is no evidence that petitioner committed the alleged forgery or was in conspiracy. No mandatory notice under Section 160 of the CrPC was ever issued to the petitioner for the purpose of asking the petitioner to join the investigation in pursuance to the present FIR. During the judicial custody of the petitioner, he came to know that in connected FIR NO. 277/2018, PS Sadar Bazaar, in respect of the same loan transaction with Cholamandalam Ltd., the petitioner was allegedly involved on account of same alleged allegation being the co-borrower, upon which the petitioner filed an application u/s. 437 CrPC before the court of Ms. Shefali Barnala Tandon, MM, Delhi, and the same was allowed by the Ld. MM vide order dated 21.01.2019 and the petitioner was directed to be released on bail.

6. It is further submitted that present FIR was registered at the instance of the complainant, only when the complainant failed to exhaust his relief from the civil courts and civil suit for possession and recovery is pending against the complainant filed by co-accused Naresh Jain & Simmi Jain. It is further submitted by Ld. Counsel for the petitioner that no pecuniary benefit has been derived by the petitioner. It is, therefore, prayed that petitioner be released on bail, in the interest of justice.

7. Learned Counsel for the petitioner has also relied upon following case laws in support of his contentions:i) Sanjay Chandra vs. CBI, 2012 1 SCC 40. ii) State of Rajasthan vs. Balchand, 1977 4 SCC 308. iii) H.B. Chaturvedi vs. CBI in bail appl. no. 572/2010 & Crl. M(Bail) 459/2010. iv) Gurcharan Singh vs. State (Delhi Admn) 1978 1 SCC 118.

8. I have gone through the above case law. There is no quarrel with the proposition of law laid down therein. However, these authorities are distinguishable on the basis of facts and circumstances stated therein. Moreover, it is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with. Thus, the above factors must be taken into account while considering the bail application.

9. Ld. APP for the state has opposed the application. He has submitted that in fact the petitioner is the beneficiary of the cheated amount of approximately Rs. 2.20 Crores. The amount has flowed to him being one of the beneficiary of the company. Ld. APP has further submitted that petitioner is coapplicant in the Loan which has been taken from Cholamandalam Ltd. and played an active role throughout the loan process by using forged documents. Ld. APP for the state has submitted that there is an apprehension that accused may flee from the process of law and tamper with the evidence. He has, therefore, prayed for rejection of bail application.

10. I have considered the rival submissions. The petitioner alongwith the co-accused namely Simmi Jain and Naresh Jain had jointly applied for loan from Cholamandalam Ltd. and petitioner provided his own email-id for all communications and he was in direct contact with Cholamandalam Ltd. to coordinate with them for releasing money. The Loan was applied by accused persons in the month of January 2015 without being the owner of any property and the alleged Sale Deed of second floor Z-10, Model Town-2, Delhi was prepared by his parents in the month of March 2015. Another sale deed of shop no. 3815, Gali Barna, Sadar Bazar was also fabricated by his parents. The petitioner is alleged to be a beneficiary of Rs.

2.20 Crore after disbursement of loan in the account of one Shreya International as per the consent given in Cholamandalam Ltd. Out of this total amount, Rs. 95,00,000/were transferred to N.H. International, Allahabad Bank New Friends Colony. After utilizing the cheated amount, aforesaid account was closed by the accused which prima facie shows the fact that the same was opened for sole purpose of receiving the cheated amount. While Rs. 1,72,00,000/- was transferred to different accounts of the petitioner.

11. As per the record of Allahabad Bank, New Friends Colony, the registered partnership deed of N.H. International vide Regn. No. 2627 dtd. 13.08.2012 shows that the petitioner is one of the partners along with his father Naresh Jain with 50% share each in the said partnership firm. However, upon verification from the Registrar Office the same was found in the names of Naresh Jain & one Mukti Nath Jha with equal shares and the name of the petitioner was not mentioned in that partnership deed; which shows the forgery in the partnership deed also. Two different PAN Card numbers of co-accused Naresh Jain has been used in those two partnership deed. The petitioner was even present in the subject property at the time of valuation and he was representing himself as the alleged coowner of the property in question.

12. Another FIR 277/18 u/s. 419/420/467/468/471/120-B IPC is also registered against accused persons at P.S. Sadar Bazar, Delhi as by using the same modus operendi, the petitioner and co-accuseds alleged to have grabbed the property bearing no. 3815 area 33.68 Sq. Mtrs situated at Gali Barna, Sadar Bazaar, New Delhi.

13. Certified copy of alleged sale deed of property bearing No.Z-10, 2nd floor, Model Town, Delhi vide registration No.3140, in Add. Book No.1, volume No. 5589, on pages 169- 175 dated 31.03.2015 has been obtained from concerned Subchecked/ seen, it is found that complainant Sanjay Garg is not on record the seller/ 1st Party and accused Naresh Jain is seen in alleged sale deed of said property as seller/1st party.

14. The certified copy of loan document of mortgaged property Z-10, 2nd floor, Model Town, Delhi received from Cholamandalam Ltd., Karol Bagh, reveals that the Borrower and Co-borrower(s) i.e. Mr. Naresh Jain, Mrs. Simmi Jain, Mr. Kashish jain and M/s. N.H. International made representation before the Cholamandalam Ltd. for availing a loan against property for business expansion and after mortgaging two of their properties i.e. Z-10, 2nd floor, Model Town, Delhi and shop No. 3815, Gali Barna, Sadar Bazar, New Delhi. The Cholamandalam sanctioned loan of Rs. 3,04,70,411/- under loan account no. X0HEELD00001406684 against the said alleged immovable property. The loan agreement documents from Cholamandalam Ltd., Karol Bagh, Delhi has been obtained and same has been verified and the loan amount has been disbursed in the account of M/s. Shreya International i.e. 0124001800000017, PNB Bank, Delhi at the written request of applicant Naresh Jain, Simmi Jain, Kashish Jain and NH International.