Sanjay Kapoor vs State
2009 Latest Caselaw 376 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI


+       Bail Application No.1766/2009


%                                        Reserved on     : 30.01.2009
                                         Date of decision: 05.02.2009


       SANJAY KAPOOR                        ...PETITIONER
                                 Through: Mr.Rajesh Harnal, Adv.

                                 Versus

       STATE                                    ...RESPONDENT
                            Through: Mr.Navin Sharma, APP for State
                            SI Rajeev Bhardwaj, EOW/Crime


CORAM:
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?                 Yes


2.     To be referred to Reporter or not?                  Yes

3.     Whether the judgment should be                      Yes
       reported in the Digest?


MOOL CHAND GARG, J.

1. This order shall dispose of the bail application filed under Section

439 Cr.P.C. in case FIR No. 118/2006 under Sections

406/419/420/467/468/471 r/w Section 120-B IPC registered at Police

Station Rohini, Delhi. The petitioner has been in custody since

27th May, 2007.

2. Briefly stated the facts of the case are that Sh.Siva Raman, Branch

Manager of the South Indian Bank Ltd. lodged a complaint that one

Sanjay Kapoor Proprietor M/s Sanjay Kapoor and Co., 18-C, Janyug

Apartment, Sector -14, Rohini, Delhi was maintaining a current

account with the bank. On 23.09.2000 he applied for credit

facility/overdraft limit of Rs. 40 lacs by creating charge over the

stock and book debts of M/s Sanjay Kapoor and Co. in favour of the

bank. Sanjay Kapoor also offered a collateral security by

mortgaging the property No. 53, Road No. 77, Punjabi Bagh, New

Delhi shown to have been registered in the name of one Balkishan

Monga. On 03.11.00, Sanjay Kapoor along with his father in law

Shri K.C. Chaudhary and one person came to the bank and

introduced him as Balkishan Monga r/o C-30, Gulmohar Park

purported to be owner of the above property No.53, Road No. 77,

Punjabi Bagh, New Delhi. The alleged Balkishan Monga also offered

the creation of mortgage on the above property against the credit

facility of Sanjay Kapoor whereas K.C. Chaudhary stood as

guarantor of Sanjay Kapoor to obtain the credit facility. The alleged

Balkishan Monga also submitted copy of sale deed NO. 5138 dated

25.04.63 in his favour executed by Refugee Cooperative Housing

Society Ltd. in respect of above mentioned property. Later on in

the month of July 2001, Sanjay Kapoor applied for enhancement of

credit limit to Rs. 65 lacs and as such on 06.09.01, the complainant

Bank sanctioned a credit limit upto Rs. 50 lacs to Sanjay Kapoor.

The necessary documents in this regard were once again executed

by Sanjay Kapoor, his father in law KC Choudhary and the alleged

Balkishan Monga. Shri Sanjay Kapoor than availed the cash credit

overdraft limit (CCOL) of Rs. 46 lac (aprox.), credit on local discount

cheque (LDC) of Rs. 11 lacs (approx.). In the month of March, 2004

the complainant Bank sent notice to Sanjay Kapoor to repay the

above outstanding amount but inspite of repeated demand, he did

not settle the accounts. It is alleged that the present petitioner in

conspiracy with other accused persons availed the CC Limit and fled

away without paying the dues of bank causing a loss of Rs. 71.03

lacs to the complainant bank on the basis of the aforesaid forged

documents.

3. The petitioner had also filed an application for bail before the

Additional Sessions Judge, who dismissed the same vide order

dated 9.7.2008 by rightly observing that the petitioner is the direct

beneficiary of the cheated amount. Considering the magnitude of

the fraud no ground for bail is made out. Now the petitioner filed

the present petition.

4. It is submitted by learned counsel for the petitioner that the

petitioner is B.Com (Hons.) from Delhi University and a permanent

Tax payer to the Government of India for the last many years and

belongs to a respectable family. His family consists of his wife, five

year old daughter and an old ailing septuagenarian mother. The

petitioner has clean antecedents and has no previous history of

being involved in any other case of any nature whatsoever till date.

All offences alleged against the petitioner are triable by Magistrate.

Incarceration of petitioner in jail would serve no useful purpose.

5. It is also submitted that in the charge sheet dated 16.8.2007 and

the supplementary charge sheet dated 5.1.2008 filed after

obtaining report of the CFSL it is admitted by prosecution that the

petitioner has not impersonated any other person. He has neither

made any false documents nor forged the signatures of any person

on any documents relied on by the prosecution. It is also submitted

that no signatures in the hands of the petitioner as an impersonator

were found appearing or present on any of the alleged forged/false

document. As such, no offence under Section 419/467/468 is made

out against the petitioner. The offence under Section 471 IPC is

bailable. Moreover co-accused Ashok Singhal, Mange Ram and

Radhey Kishan Vats have already been granted bail notwithstanding

the fact that co-accused Ashok Singhal is a habitual offender and

has voluminous criminal record, he has been granted bail by this

Court.

6. It is also submitted that the petitioner opened a current A/c No.

1242 with the complainant bank on 18.6.1999. After some time he

requested the bank to grant Cash Credit Overdraft Limit (CCOL) of

Rs. 40 lacs against lien on the FDRs of Rs. 17 lacs of Shri K.C.

Choudhary, the father in law of the petitioner, original deposits of

Rs. 5 lacs made by the petitioner, hypothecation of stocks, lien on

book debts and deposits with the bank, but bank asked for a

collateral security in the form of mortgage of immovable property.

The petitioner did not have any immovable property in his name. It

was under these circumstances that the petitioner, after talking to

the Bank, was introduced to Ashok Singhal, who told the name of

the mortgagor as Bal Kishan Monga s/o late Shri Gora Mal Monga

and the particulars of the property. It is also stated that the

petitioner did not know Ashok Singhal, Mange Ram or other co-

accused personally and as such remained oblivious of the fact that

Mange Ram is not Bal Kishan Monga. In fact, the petitioner saw

accused Radhey kishan and Deepak for the first time when they

were produced in Court with the petitioner during remand

proceedings. It is also stated that the petitioner had already paid

back to the complainant bank a sum of Rs. 25,00,000/-. Had the

petitioner intended to cheat, he would not have made deposits of

Rs. 5 lacs of his own, deposits of FDRs of Rs. 17 lacs of his 76 year

old father in law as security. There is nothing incriminating against

the petitioner except the statements of co-accused, which are

otherwise also inadmissible in evidence.

7. The submission made by learned counsel for the petitioner cannot

be accepted on the face of it, for the simple reason that the

petitioner himself offered collateral security of the property bearing

No. 53, Road No. 77, Punjabi Bagh, New Delhi as belonging to one

Balkishan Monga whereas the said property had been sold to M/s.

P.P. Jewellers on 18.3.1999 and in the year 2003 the property was

sold to one Harpreet Singh by M/s P.P. Jewellers. Based upon the

aforesaid collateral security, the petitioner availed enhanced

financial limits and in fact, the equitable mortgage was credited of

the aforesaid property on behalf of the petitioner and in this

connection the other co-accused persons, namely, Ashok Singhal

and Radhey Kishan also accompanied Mange Ram who posed

himself as Balkishan Monga before the Bank Manager and thereby

supported the version of the petitioner that the aforesaid sale deed

had been rightly executed and that Balkishan Monga, who is the

non-existent person, is the owner of the property. Based upon the

aforesaid representation of the petitioner, further limits were

sanctioned to the tune of Rs. 50 lacs on 6.9.2001 and the aforesaid

limit has been utilized by the petitioner and in this manner the

petitioner even today is indebted to the complainant bank to the

tune of Rs. 71.03 lakhs (as on 8.3.2005) and the bank has also

taken steps for recovery of the aforesaid amount. In these

circumstances, prima facie, it is borne out that the petitioner is

guilty of the offence. No doubt, the offence alleged against the

petitioner so far as cheating is concerned is triable by the

Metropolitan Magistrate and the punishment up to 7 years can be

awarded in respect of some of the offences, the factum of cheating

a Public Sector Bank, in fact, tantamount to cheating the society at

large. These white color crimes are more serious than even the

hurt cases.

8. In the case of Gurcharan Singh and Ors. Vs. State (Delhi

Aministration [(1978) 1 SCC 1180), it is held that the over-riding

considerations in granting bail which are common both in the case

of Section 437(1) and Section 439(1) Cr.P.C. are the nature and

gravity of the offence; the position and the status of the accused

with reference to the victim and the witnesses; the likelihood , of

the accused fleeing from justice; of repeating the offence; of

tampering with witnesses; the history of the case as well as of its

investigation and other relevant grounds which, in view of so many

valuable factors, cannot be exhaustively set out.

9. Learned counsel for the petitioner wants to take the benefit of the

bail granted to Ashok Singhal and has drawn my attention to page

25 of the paper book i.e. the charge sheet where it is stated that

Ashok Singhal on the basis of the forged documents of property No.

53/77, West Punjabi Bagh, New Delhi himself availed credit limit of

Rs. 30 lacs by producing similar fake documents of property before

Andhra Bank, Vishwas Nagar in his account of M/s Nikhil Trading

Company. After availing the same property in his bank account at

Vishwas Nagar successfully to avail the credit limit he forwarded

another set of documents of the same property to the petitioner

with the help of Radhey Kishan, Deepak and further Radhey Kishan

had also arranged an impersonator Mange Ram to sign the

documents as B.K. Monga. The said Ashok Singhal was involved in

many other cases, yet he has been released on bail.

10. I have gone through the orders releasing Ashok Singhal on bail.

Yet I do not find that the case of the petitioner can be treated

paramateria to the case of Ashosk Singhal. At this stage, therefore, I

do not find it a fit case to release the petitioner on bail. Nothing

stated here in would prejudice the trial on merits.

11. The bail application is accordingly dismissed.

MOOL CHAND GARG, J.

FEBRUARY 05, 2009 dc