Nitin Kumar Sharma v. State of NCT of Delhi

1. By way of the present petition under Section 439 read with Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023, the petitioner seeks the grant of Regular Bail in FIR No. 152/2018 dated 24.07.2018 for offence under Sections 406, 409, 420 and 120B of the Indian Penal Code, 1860 registered at Police Station Economic Offences Wing.

2. It is the case of the prosecution that the present FIR was registered on the basis of a complaint filed by Sh. R.S. Rohilla and others. As per the complainants, M/s Asian Developers Ltd. had, in the year 2012, advertised for the booking of flats and shops. Relying on such advertisement, various buyers booked units and made payments towards the same. The construction work, it is stated, continued up to December 2013 but thereafter came to a halt. It is further alleged that the accused persons executed agreements with the buyers despite being fully aware that they had no authority to sell the said units. The fact that the plot in question had been allotted solely for the purpose of constructing dwelling units for the staff of M/s Saera Auto India Pvt. Ltd. was allegedly concealed from the buyers. The builder, it is stated, had also assured time bound possession within a period of 27 months.

3. During the course of investigation, it has come on record that 48 complaints have been received from victims in the present case, and the total amount paid by them to the company is Rs. 11,72,74,888/-. The investigation has revealed that plot, where the alleged project under the name ‘Bawal Residency ’was initiated by M/s Asian Developers Ltd. had not been allotted to the said company, which instead had been allotted to M/s Saera Auto India Pvt. Ltd. The investigation has further established that M/s Asian Developers Ltd. neither had any authority nor entitlement to sell or enter into Agreements to Sell in respect of any property as mentioned in the inventory/flat/shop pertaining to the project at the said plot.

4. It is further the case of the prosecution that M/s Asian Developers Ltd., was well aware from the very inception, specifically from the date of the Agreement dated 16.11.2012 entered into with M/s Saera Auto India Pvt. Ltd. about their role and power of not being authorized to sell or execute any document for transfer of above mentioned property on the said plot. Despite having no such authority, M/s Asian Developers Ltd. went on to induce and lure members of the general public to invest in and purchase flats or shops in the project under the name ‘Bawal Residency’. It is alleged that the accused company neither returned the money nor handed over possession.

5. During the investigation, notices under Section 41A Criminal Procedure Code, 1973 (Cr.P.C.) were duly served upon the petitioner at his available addresses. However, the petitioner deliberately chose to evade his arrest. Consequently, he was declared a Proclaimed Offender on 07.09.2021. Thereafter, on 24.06.2023, the petitioner was apprehended under Section 41(1)(C) Cr.P.C. by the staff of the Special Cell, Janakpuri, Delhi Police, and was arrested in the present case on 25.06.2023. It is stated that the supplementary charge sheet qua the present petitioner has already been filed.

6. It is submitted that out of total 48 complainants, 25 complainants/victims expressed that their matters have been settled with the accused persons and they received their settlement amounts.

7. The learned counsel for the petitioner submits that the petitioner has been in custody since 24.06.2023, and that no substantial proceedings have taken place in the matter since the filing of the Charge-Sheet. He further submits that the case is presently at the stage of consideration on Charge, and given the number of witnesses cited by the prosecution and the voluminous record of the case, it is evident that the trial is likely to take considerable time to conclude in the near future.

8. He submits that the principal promoter of M/s Saera Auto India Pvt. Ltd, Manjeet Johar, is also involved in the present case and he has not been arrested till date by the investigating agency.

9. He further submits that the co-accused, namely Dinesh Sharma, who has been assigned an identical role, has already been enlarged on bail by a Co-ordinate Bench of this Court vide order dated 03.04.2024, thus, on the ground of parity alone, the petitioner is entitled to bail in this case.

10. The learned counsel submits that, out of the total number of complainants, majority have settled their claims and no grievance survives insofar as they are concerned. However, claims of the remaining few would also be settled in due course of time.

11. He submits, nonetheless, the criminal proceedings cannot be used as money recovery proceedings, and further it cannot be a consideration at the time of granting bail. In support of this contention, reliance was placed upon Bimla Tiwari vs State of Bihar,

12. He further submits that the petitioner was granted interim bail and had duly surrendered before the concerned Jail Authorities within the stipulated time. It is, thus, contended that the petitioner cannot be said to be a flight risk.

13. The learned APP appearing on behalf of the State has fairly conceded that the role attributed to the petitioner is similar to that of the co-accused Dinesh, who has already been enlarged on bail by a Co-ordinate Bench of this Court.

14. However, he submits that few FIRs of similar nature are pending against the petitioner and being a habitual offender, he is not entitled to regular bail.

15. In rebuttal, the learned counsel for the petitioner submits that the co-accused Dinesh Sharma was also involved in same FIR, in which the name of the petitioner figures and same has been considered by learned Co-ordinate Bench while granting bail to Dinesh Sharma.