Sanjeev Desai vs State
2007 Latest Caselaw 899 Del

JUDGMENT

S. Ravindra Bhat, J.

1. The applicant seeks anticipatory bail. He is named as accused in two separate FIRs. The present report is registered at P.S. Vasant Vihar. The accusations against him are that he committed offences under Section 409/420 IPC. The complainant in FIR (No. 349/2005) in Bail Application No. 836/2006 is Shri Gajendra Singh. The complaint was made on 12.9.2005. It was alleged by the informant that the applicant, claiming to be a consultant agreed to have the constructions completed upon a plot in DLF. The complainant alleged that an amount of Rs. 2.5 lakhs was paid to the applicant and as per his advice Ganesh Construction was hired. The house was to be built plan under instructions of the applicant and running payment were be made by M/s Surya Kiran Build Trade Pvt. Ltd. Thereafter, payments were made to the applicant through cheques and cash by M/s Surya Kiran Build Trade Pvt. Ltd. for making payments to Ganeshji Construction. Payment of Rs. 2 lakhs, Rs. 30.45 lakhs, Rs. 20 lakhs, Rs. 15 lakhs were made.

2. The complainant further alleged that besides that he made payments in the sum of Rs. 5 lakhs in the presence of Sh. Vimal Pratap Singh Agarwal, Rs. 10 lakhs in the presence of Capt. K.S. Solanki, Rs. 15 lakhs in presence of Vimal Pratap Singh, Rs. 10 lakhs in presence of Shri Raj Kumar, Proprietor Ganeshji Construction. All these payments were made in the year 2003. Despite these, the applicant had stopped visiting the construction site; he was not even available at his office. Ganeshji Constructions stopped working on the project on the pretext that a large amount was due to them. The construction was delayed due to non-payment. This resulted in M/s Surya Kiran Build Trade Pvt. Ltd asking the applicant to return the money to the company. The applicant neither returned money to the company nor the complainant.

3. The complainant alleged that upon enquiry it was found that the applicant was neither an architect nor worked for any company. M/s S.K.B. Trade Pvt. Ltd. hired the services of another construction company in order to complete the project.

4. The complainant urged that in the month of Feb 2004, one Capt. K.S. Solanki (complainant in another Bail Application No. 837/2006) had insisted the applicant to provide an account, which he gave in his own hand writing giving the details of expenses incurred by him. He had also mentioned the amount received by him from the complainant and others for construction and money as given to M/s Ganeshji Construction. The break up of the amount received/incurred indicated that the cash was spent for materials to be used in construction in two projects ie at DLF and Vasant Vihar.

5. The complainant alleged that the applicant had not spent the money on construction at DLF nor gave it to the contractor. This, according to his statement, written in his handwriting in the presence of witnesses. The complainant alleged that the amount was not spent for the purpose it was given for, but was misappropriated by the applicant for his own use. He also cheated the company, M/s Surya Kiran Build Traders Pvt. Ltd., which had paid him a sum of Rs. 25 lakhs as fee for his services, believing he is an architect.

6. In Bail Application No. 837/2006 the applicant is arrayed as accused in the second FIR (No. 32/2005) at P.S. Vasant Vihar, dated 13.9.2005. The accusations against him are that he committed offences under Section 409/420 IPC. The complainant in this FIR, Capt. K.S. Solanki, alleges that the applicant, claiming to be a consultant/architect agreed to have constructions completed in respect of a plot at Vasant Vihar. A sum of Rs. 50,000/- was paid to him as fee and upon his advice G.R. Decorators was hired for construction purposes. The house was to be built under the plan and instructions of the applicant; running payments were to be made by applicant with the responsibility for planning & supervising and completing the project on time.

7. The complainant alleged that payments were made to the applicant for making further payments to G.R. Decorators. Besides that other payments were made in the presence of the proprietor of G.R. Decorators. The applicant had stopped visiting the construction site and it was revealed that G.R. Decorators had stopped construction due to non-payment. A large amount was due to them. The complainant alleged that the applicant had not done his duties as per the understanding. The company insisted that the applicant fulfilll his obligation or return the money to the company. However, the applicant did not proceed with either option. Here too, the the complainant alleged that upon enquiry it was found that the applicant was neither an architect nor worked for any company. This made the company hire services of another construction company in order to complete the project.

8. Mr. Sandeep Sethi, learned senior counsel urged that earlier, another complaint was preferred in police station Chanakya Puri, but after inquiry the police found that there was no cheating or misappropriation, and the matter was dropped. Thereafter, virtually on similar allegations, but in the pretext of construction site being at Vasant Vihar, the complaint got other FIRs registered in the Vasant Vihar Police station, through another person. The disputes between parties were really civil in nature, if at all, and no criminality or criminal behavior was attributable to the applicant. Counsel urged that the applicant was merely a consultant, and huge amounts were paid through cheques directly to the contractors and suppliers, a fact which has not and cannot be denied. It was submitted that the allegations about the petitioner not divulging his true profession, and of his having obtained monies which were to be paid to suppliers, furnisheres and contractors was incorrect, and not corroborated by any circumstance. It was urged that the so called handwritten statements were not an admission of having received amounts in cash, but of the applicant making estimates, for various expenses, and also including the fee or commission payable to him.

9. It was also urged that the applicant is an MBA and a consultant; he never represented himself to be an architect. Learned Counsel relied upon some documents to show that huge sums of money, in excess of Rs. 60 lakhs were paid directly to various contractors or suppliers, and the applicant had no involvement in those transactions. Reliance was placed upon the admitted ledger account of the complainant in proceedings under Bail Application No. 836/06, to say that substantial amounts were paid to GR Decorators, and not the applicant. Likewise in FIR 349/05, PS Vasant Vihar, it was contended that the allegations were utterly groundless, as the Municipal Corporation of Delhi had been requested to issue an occupancy certification, which was being processed by it. A copy of the communication in that regard, is on record. Counsel urged that this clearly pointed to the construction having been practically completed in Vasant Vihar. It was urged that in the face of these facts, the allegations of commission of offences alleged, were unfounded, and false.

10. Learned Counsel for the state opposed grant of bail in both the cases. It was submitted that merely because the previous complaint against the applicant was not proceeded with, there was no inhibition if there were materials available with the police, to proceed and lodge an FIR, if the facts so warranted. Counsel relied upon the statements in the two FIRs, i.e Nos. 349/05 and 352/05, PS Vasant Vihar. These showed that the applicant held himself out as agent, agreeing to get constructions done at two different places, viz DLF and Vasant Vihar. In both the cases, the applicant was neither the architect, contractor, or involved in any construction activity. He managed to secure huge amounts in the pretext of having to pay cash to decorators, furnishers, for supplies, marble, etc. However those amounts were misappropriated. Counsel relied upon the statements of the two complainant and certain charts to say that according to a statement, the amount paid was Rs. 96 lakhs. It was urged that investigation had revealed that payments had not been made to Ganeshji constructions, who stated that they were owed the sum of Rs. 50 lakhs. On the other hand, the applicant, even after obtaining substantial amounts in cash, withheld and misappropriated them. In these circumstances, no leninencey could be shown, and the bail applications had to be rejected.

11. The applicant in both the bail applications is accused of having committed similar offences, i.e. obtaining huge amounts in cash, for the purpose of getting constructions completed, and paying various concerns, for supplies and works, but misappriating them. It may be that some civil elements may be present in the disputes, but what is of relevance at the stage of considering evidence for granting, or refusing bail, is whether prima facie material in support (or not in support) of the accused having committed the offence. Here, the allegations of the complainant and the police are that the applicant misappropriated amounts to the tune of Rs. 2.3 crores. It has also been urged that construction at Vasant Vihar was not completed; the owner had to employ another contractor to do so. This caused additional financial to the complainant. The allegations in the FIR 349/05 are also that the petitioner secured a huge amount in cash, but did not pass it on to the contractors and suppliers.

12. The liberty of a citizen is of utmost importance, in a constitutional democracy in like India. It should be curtailed only when necessary. Therefore, when a person claims bail, on the ground of his having suffered incarceration, he has a right to be heard. Yet, the court considering the grant of bail, has to see the nature of the offence, the allegations against the accused, and whether there is anything prima facie to connect him with the offence. Grant of anticipatory bail is a matter of discretion, to be exercised judiciously after having taken a broad view of the circumstances

13. The complaints and the result of investigations point to the role of the applicant as a facilitator or agent (consultant) for having the plots of the complainants, constructed upon. According to the complainant the applicant received small amounts, in cheques, admittedly towards his entitlements. The arrangement was not reduced into writing. The complainant urged that the work was not done, and on the other hand, huge cash amounts were paid to the petitioner, for onward transmission to other contractors and suppliers. The supplier/ contractor, during the investigation, reveled that substantial outstanding amounts were payable to him.

14. In this case, though there could be inter se disputes which could be tested in the civil court, yet there are certain factual elements which the court has to keep in mind. The version of the contractor supports that of the complainants. Though some records exist showing payment of amounts in cash to Ganeshji constructions, or GR Enterprises, yet both complaints mention of paying further amounts directly, in cash to the applicant. At this stage, the court has to consider the overall perspective. In view of the overall circumstances of the case, and having considered the materials on record, I am of the opinion that the applicant cannot be granted relief in these cases.

15. For the above reasons, the applications for grant of bail under Section 438 cannot be accepted. They are accordingly dismissed.