Sanjay Gupta & Rajiv Gupta v. State

(viii) Receipts dated 15.04.2018 and 23.05.2018 evidencing payment ofsociety charges by Sharvan Kumarforthe subjectpropertyto the Multan Residents Welfare Association;

(ix) Public Notice dated 06.07.2018 published in the 'Hindustan

Times' newspaper, issued by one of the petitioners i.e. Rajiv Gupta, inviting objections from the public at large to the proposed transfer ofthe subjectproperty;and

(x) Building Sanction dated 03.08.2018 issued by the Building

Department of North DMC,granting sanetion for erection of building on the subject property, issued in favour of Sharvan Kumar.

8. Ms. John contends that based on a verification of the above documents,in original,Sharvan Kumar was able to satisfy the petitioners as regards his title, ownership and right to convey the subject property in favour of the petitioners; and it was only after undertaking such duediligence exercise that the petitioners agreed and deeided to purchase the subject property. Senior counsel further contends that the sale consideration of Rs. 2.15 crores disclosed in the sale deed dated 17.10.2018 was indeed paid by the petitioners to Sharvan Kumar; and although there were some hiccups in completing paymentsince some cheques issued bythe petitioners were initially dishonoured,subsequently,the entire amount was paid by the petitioners by way of RGTS transfers and cheques to Sharvan Kumar. Petitioners admit though, that a small element of sale consideration comprising Rs. 15 lacs was paid to Sharavan Kumar in cash. Senior counsel also points-out that the sale deed has also been duly stamped, with requisite Bail Appl.Nos. 1251 & 1256/2019 page[5] of10 stamp duty payable as per the circle rates applicable to the subject property and the category ofthe colony.

9. On point of fact, it is stated that after obtaining the sanctioned building plan, the petitioners have constructed four floors upon the land comprised in the subject property.

10. On another note, senior counsel contends that two civil suits have come to be filed against the petitioners,one by Sharvan Kumar and the other by Ram Niwas Gupta in this court, making civil claims against the petitioners, which suits are pending adjudication.

11. The principal allegations in the suit bearing CS(OS) No. 185/2019 filed by Sharvan Kumar is that the actual sale consideration agreed upon, which is claimed to be more than Rs.[6] crores in the suit, was never paid and that certain cheques issued by the petitioners to Sharvan Kumar were dishonoured; and also that the purchasers were to give one floor of the subject property to Sharvan Kumar, which they have not done. On these allegations Sharvan Kumar has made certain claims against the purchasers, namelythe petitioners herein. In this suit,an interim order dated 02.04.2019 has come to be passed, whereby the petitioners, who are defendants in the suit, have been restrained from parting with possession and from creating any third-party interests in one ofthe floors ofthe subject property.

12. In the other suit bearing CS(OS)No. 198/2019 filed by Ram Niwas Gupta the principal contention is that the subject property is owned by the plaintiff, who is the complainant in the FIR; and that the subject property has been transferred on the basis offorged and fabricated documents. In the Bail Appl.Nos. 1251 & 1256/2019 page[6] of10 second suit, by way ofinterim order dated 05.04.2019,the petitioners, who are defendants in the suit, have been restrained from carrying-out any construction as also from transferring, alienating or parting with possession ofthe subject property.

13. For purpose ofconsideration ofthe present anticipatory bail petitions however,whatis noteworthy is only the following: (a)The petitioners have admittedly aequired the subject property by way of a sale deed, which is duly stamped and registered and for which a consideration of Rs. 2.15 crores as detailed in the document is stated to have been paid by the petitioners to Sharvan Kumar; (b)It is not the prosecution case, or indeed the contention of the plaintiffs in the two suits, that sale deed dated 17.10.2018 has not been executed by Sharvan Kumar in favour ofthe petitioners; the allegation is that Sharvan Kumar was not the owner of the property and that the antecedent documents oftitle on the basis of which Sharvan Kumar claims ownership are forged and fabricated. The other plea of failure of consideration payable by the petitioners to Sharvan Kumar,is notthe basis ofthe allegation of criminality; nor indeed does this plea lie in the mouth of the complainant who was not the person who sold the subject property to the petitioners; (c)The first accused named in the FIR, that is Sharvan Kumar, was subject to police custody only for two days; and thereafter he has merely been cooling his heels injudieial custody; Bail Appl.Nos. 1251 & 1256/2019 page7of 10 (d)From the time of registration of the FIR until now, the investigating officer has not attempted to seek remand of the petitioners; nor is it the prosecution case that the petitioners have evaded investigation.

14. Ms. John also points-out that during the pendency of the bail application before the Additional Sessions Judge, the petitioners were granted interim protection again arrest vide order dated 04.04.2019, which was extended from time-to-time;and that the petitionersjoined investigation on no less than 12 occasions, which though,is disputed by the prosecution, to say that the petitioners participated in investigation only 5 times. Thereafter the anticipatory bail application was dismissed vide order dated 13.05.2019. She further states that one of the main incriminating circumstances sought to be canvassed by the prosecution is that the person who introduced Sharvan Kumar to the petitioners, Piyush Goyal, and at whose instance the petitioners and Sharvan Kumar entered into the transaction, is a person against whom the petitioners have registered a separate FIR and who is also a co-accused in the present FIR,which smacks ofcriminal conspiracy and wrong-doing. Ms.John disputes this on point of fact, to say that the FIR registered against Piyush Goyal is not by the petitioners but by other family members ofthe petitioners, with whom the petitioners have inimical relations.

15. Opposing the present anticipatory bail petitions, Ms. Rajni Gupta, learned APP for State argues that the petitions must be rejected since the petitioners have, by indulging in forgery and fabrication of documents, purchased a property worth about Rs. 7 crore for a sum ofonly about Rs.[2] Bail Appl.Nos. 1251 & 1256/2019 page 8 of10 core; and investigation in the matter is still underway. She also submits that although the prosecution had sought extension of Sharvan Kumar's police remand,the same was declined and it is in these circumstances that Sharvan Kumar is now in judicial custody. On being asked a pointed question as to why the prosecution requires 'custodial interrogation' of the petitioners however,she offers no cogent reason.

16. In the foregoing facts and circumstances,while scrupulously avoiding any comment on the merits ofthe case,the court is satisfied that; firstly,the petitioners have concededly acquired the subject property by paying a substantial sum of around Rs. 2.15 crores, which amount stands-up well against the published circle rates of the subject.property in the colony in question. Secondly, investigation in the present case would involve scrutiny, forensic examination etc. of documents that are already available with the prosecution and there would be no requirement ofany recoveries to be made. Thirdly, the prosecution has taken no proactive steps to seek custodial interrogation ofthe petitioners ever since the registration ofFIR on 29.03.2019;for which reason, evidently no useful purpose would be served by making,such request at this stage. Fourthly, there appears to be a predominant element of civil dispute in the present matter, pursuant to which two civil suits have already been filed making claims based on title, ownership, failure of consideration and such-like aspects in relation to conveyance of the subject property, including a suit by the complainant himself. Lastly,there is no allegation that the petitioners have attempted to flee from justice; or that have not co-operated in the investigation; or that they have attempted to either tamper with evidence or intimidate witnesses. Bail Appl.Nos. 1251 & 1256/2019 page9of 10. V

17. Prima-facie thereforetheeourtfindsno egregious criminalculpability^ on the petitioners part that would warrant custodial interrogation. The courtis therefore satisfied thatthe petitioners have made-outa casefor grant of anticipatory bail. It is accordingly directed that in the event of their arrest, the petitioners shall be released upon furnishing a personal bond in the sum of Rs. 50,000/- each, with one surety of the like amount, to the satisfaction ofthe Investigating Officer.

18. It is made clear that nothing contained in this order shall be construed as a reflection ofopinion on the merits ofthe case. The petitioners are also directed to co-operate in the investigation, fairly and sincerely; and to not tamper with evidence or intimidate witnesses or do any other act that may delay,impede or prejudice the course ofinvestigation.

19. The petitions are disposed of in the above terms. Pending applications,ifany,stand disposed of.

20. Dasti.