Aartichadha v. State (Govt of NCT) Delhi

1. Apprehending her arrest in a case registered against her vide FIR No.95/2017 dated 18.03.2017, PS Patel Nagar, Central District, Delhi under Section 420/406 ofIndian Penal Code, 1860 (in short 'IPC'), the petitioner has approached this court for granting her BailApplication No. 1563/2017 Page[1] of 7 2017:DHC:8460 anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (in short 'Cr.PC').

2. Learned counsel for the petitioner submits that the petitioner is a house-wife and mother of two minor children, a son studying in 10^ standard and daughter studying in 4* standard. He submits that she has been residing in the joint family with her husband. ^ He further submits that the complainant had taken over the possession of the entire property valuing more than Rs.12,00,00,000/- and did not complete the construction within the stipulated period; He ifUrtKgKsuj^^ the husband ofthe petitioner got the Sale petd^ex^^^ favour ofthe.petitioner and for that reason at the direci^ifecjiher husband she had signed the collaboration agreement. -Hei submits that the petitioner does not know details of the agi^m^i{pe further submits that the adjoining property Patel Nagar, New V- Delhi, owned by her E|^sband.;&Cfe was also given * to a Builder Mr.Deepak Manctiffla7"who is also the associate of the complainant. He submits that Mr.Deepak Manchanda had also stopped the interior worS^in theiiproperty no.8/8A as per the separate collaboration agreement. He further submits that the petitioner had also filed a civil suit for recovery of damages against the complainant on account of breach of terms and conditions of the collaboration agreement dated 03.02.2016. He fiirther submits that the dispute in question is of a civil nature. He furthersubmits that mortgage ofthe immovable property does BailApplication No.1563/2017 V not create any bar or embargo on the right of the owner to enter into a collaboration agreement oranagreement to sell.

3. Per contra, the bail application isstrongly opposed by the learned APP for the State as also by learned counsel for the complainant. It is submitted that at the time of collaboration agreement, the petitioner had assured the complainant that the property is free from all encumbrances i.e. sale, mortgage, gift, lease, family dispute, attachment, litigation, acquirement, notification etc. They point out clause 8 & 6 ofCollaboration Agreement to this effect. Coniplainant canae;;?t^|S]|w^ when officials of Dewan Hcm^i|[gf|Jj^c0;Ltd. (in short 'DHFL'). • ' ' \ ' ' '"C' •• ' visited and informed hi^ ab^tsiinoi^ of said property and outstanding liability of^ver^A^vcrpres. They submit that to further cheat the complainant,;the,ftetitioner vide Sale Deed dated.,r.^ 07.01.2017 had sold ai;^'^^|iilraGe ofthe entire first floor '"'f- '•"i''"" lefts' with construction righ|%f^e^ckM|l6or and third floor with further roof/terrace right up'toil^'for avaluable consideration of Rs.1,50,00,000/- to one Narender Kumar,Jmowing well that the possession ofthe proj3erty#^ithlfecoi^lainant. They submit that the petitioner has right to take the delivery of the property from the complainant only after paying an amount of Rs.2,50,00,000/- in case the petitioner is interested in buying back the first floor ofthe property in question.

4. It is submitted by the learned APP that the custodial interrogation of the petitioner is required for the purpose of investigation. BailApplicationNo. 1563/2017 p^ge3of[7] They also point out that even the cheque dated 03.10.2016 for a sum of Rs.30,00,000/- given to the complainant had been returned unpaid for the reason "Payment Stopped by Drawer". It is submitted by learned APP that the petitioner is not joining in the investigation and absconding from her house to avoid her arrest. She submits that even raids have been conducted at her residence and at Banaras to locate and arrest her but their attempts remained unsuccessful.

5. I have heard the learned counsel^fpr the petitioner, learned APP for the State and learned couns^nfor-tkexomplainan^

6. The petitioner is stated to lbe the:fp^er ofproperty/cottage NO. 9/9A (Old No. 41/9), WestJRateliMag^^ New Delhi-110008. On 03.02.2016, she had entereld intosa^jo'llaboration Agreement with the complainant Sh.SanjeevjjOtfer^i^y which the complainant had agreed to construct Das|Ment||jil1ii^^^^^ parking, upper ground floor, first floor, for lift and a common lift within a period of 12 months from the date ofagreement with an additional one month,as ^grace^peEiodk: The complainant had also paid a sum ofRs.55,00,000/- to thepetitioner atthattime. It is also agreed that the ownership of the entire basement, entire stilt (except for two car parking space for first floor), ground floor, second floor and third floor with roofrights shall be ofthe petitioner and the ownership of the entire first floor without roof rights along with two car parking space at stilt parking area shall be ofthe complainant. It is also agreed that after completion of BailApplication No. 1563/2017 Page 4of[7] the construction of the property, the petitioner shall make the payment of an amount of Rs.2,50,00,000/- to the complainant in consideration of buying back the first floor from the complainant and only thereafter thecomplainant shall handover thepossession ofthe propertyto the petitioner. The petitionerhad also issued a post dated cheque dated 03.10.2016 for a sum of Rs.30,00,000/in favour ofthe complainant as initial payment of buying back of the first floor ofthesaid property. The petitioner had also agreed to make the balance payment of Rs.2,20,00,000/- to the complainant atthe time of<ta]c^|)Qg^ssion ofthe said property. At the time of drawing;.\up the"coll#6ration agreement, the petitioner had assured't%iptom^^ the said property is free from all sorts of eh^u:^brahces such as sale, mortgage, gift, i„,j^, lease, family dispute,.,iiatt^bl^ein|, litigation, acquirement,; ft/'' notification etc., which^aMM'ec^ed byvfara 8 and 16 of the said Collaboration Agreeni^i^'"^^

7. Pursuant to this collabbratron agfe^^^ the complainant has raised and completed the constructiomvpf basement, stilt car parking, upper grounS In the month of December, 2016, the officers of DHFL visited the site and informed the complainant that this property is mortgaged with them by the petitioner and more than Rs.i[5],00,00,000/- is the outstanding amount. He was also directed by the officers of the said DHFL that in case the complainant proceeds with the construction, they would be lodging an FIR against him. This BmIApplication No. 1563/2017 Page[5] of 7 made the complainantstop fiirther construction ofthe secondand third floor. Further on 07.01.2017 the petitioner had sold the roof/terrace ofthe entire first floor with construction right ofthe second floor and third floor with further roofterrace right up to sky along with undivided 40% share/rights in the stilt parking area to one Shri Narinder Kumar, son of Sh. Godar Mai, resident of 28/18, West Patel Nagar, New Delhi-110008 for a V consideration amount of Rs;1,50100,000/- by way of registered Sale Deed registered on 09.0L[2].Q17. The petitioner has not paid Rs.2.[5] crores to the coniplamar§|:)^^ selling the property to Narender Kumar.

8. Keeping in view the seridi^^yS^^i^^ offence committed and gravity of the accusation,%ct that investigation is at initial stage and that the |)6tiition|phat received ahuge amount of Rs.50,00,000/- from-# by making false representation to the iM^e property is free from all sorts of encumbrances fiidiliftact that she had subsequently sold the roof^terrace of the entire first^^oor with construction rights ofthe second flo'6r^ariiithird^i(Bof with ftirther roofterrace rights up to sky to Mr.Narinder Kumar for a huge sum of Rs.1,50,00,000/-. by registered Sale Deed without making payment of Rs.2.[5] crores to the complainant andthe fact thatshe is not joining investigation and is on the run and the submission of learned APP for the State that her custodial investigation is required to recover said amount ofRs.55 lac paid to her, I do not BailApplication No. 1563/2017 Page 6of[7] r find any justifiable ground entitling the petitioner for grant of reliefofanticipatorybail to her.

9. The application is dismissed.

AUGUST 11,2017 "shmlendra" Bail Application No. 1563/2017 I • •r-: • -V V-'V' • ' •r'. •j " D', p • ii •' VINOD GOEL,J.