Deepak Kumar vs State
2009 Latest Caselaw 377 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+       Bail Application No.185/2009

%                                       Reserved on     : 30.01.2009
                                        Date of decision: 05.02.2009


       DEEPAK KUMAR                        ...PETITIONER
                                Through: Mr.M.K.Sharma, 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?                             No

2.     To be referred to Reporter or not?                              Yes

3.     Whether the judgment should be                                  No
       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

29th 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 23.09.00 he applied for credit

facility/overdraft limit of Rs. 40 lacs in the bank 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. During the normal course of business, Sanjay

Kapoor 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 against the present petitioner that the forgery of the

documents took place in connivance with him.

3. The petitioner earlier filed an application for bail before the

Additional Sessions Judge, who dismissed the same vide order

dated 12.12.2007. Thereafter, the petitioner filed the second bail

application before the Additional Sessions Judge, who dismissed the

same vide order dated 18.3.2008 observing that the petitioner is a

habitual fabricator of fake document. It is only because of his

services that main accused could commit the cheating. His interest

in the crime may be just a few thousand rupees, but the

consequences of his crime are of very high magnitude, especially,

considering the fact that he is involved in eight other cases of

similar nature. CFSL report cannot be ignored at this stage.

4. The first application filed by the petitioner for bail before the High

Court was dismissed for non-prosecution on 7th July, 2008 and the

second application filed by the petitioner for bail before this Court

was also dismissed for non-prosecution on 19.11.08. This is the

third time the petitioner has moved this Court for bail.

5. It is submitted by counsel for the petitioner that the evidence

against the petitioner is in the form of disclosure statement of co-

accused Ashok Singhal and Radhey Kishan which is inadmissible

being hit under Section 25 of the Evidence Act as it has lead to no

discovery so as to make it admissible under Section 27 of the

Evidence Act. It is also submitted that the CFSL Report is not

conclusive evidence. It is also submitted that Supreme Court in

State Vs. Navjot Sandhu 2005 SCC (Cri.) 1715 while dealing with

Section 10 of the Evidence Act held as under:-

"The law is thus well settled that the statements made by conspirators after they are arrested cannot be brought within the ambit of Section 10 of the Evidence Act, because of that time the conspiracy would have ended......."

6. It is also stated that Section 30 of the Evidence Act is not attracted

since there is no confession of co-accused during trial.

7. It is also submitted that the petitioner is on bail in all other cases

except in the present case and that co-accused Ashok Singhal,

Mange Ram and Radhey Kishan Vats have already been granted

bail.

8. It is also stated that the petitioner's family consists of sick wife and

three small children. There is also no one to do the pairvi of his

cases in different courts on different dates.

9. The learned APP has opposed the application and has stated that

during the course of investigation it has been revealed that the

present petitioner was working as Munshi in the office of Sub

Registrar, Seelampur, Delhi and probably from there he gathered

the expertise in preparing the forged documents. During the course

of investigation, he disclosed that he prepared the forged

documents in respect of property bearing No. 53, Road No. 77,

Punjabi Bagh, New Delhi in his own handwriting and provided the

same to co-accused persons for availing finance facility from the

bank. He also received Rs.20,000/- as fee for creating forged

documents in the present case. This fact has been verified by CFSL

report. Thus, prima facie, the involvement of the petitioner in this

case, whereby a nationalized bank has been cheated for more than

Rs. 70 lakhs, stands established. It may be that the evidence of

prosecution is yet to be recorded, but at this stage granting

indulgence to the persons like the petitioner by releasing them on

bail would be putting a premium on their conduct and may also

harm the smooth progress of the trial. There is also possibility of

the petitioner likely to indulge in similar crime again. It is submitted

that the role of the present accused cannot be treated as similar to

that of Ashok Singhal, who only acted as a conduit whereas the

present petitioner is himself a forger and is also involved in seven

other cases.

10. Taking into consideration the aforesaid facts and circumstances

which enabled accused Sanjay Kapoor to cheat the Bank and

permitted him to avail enhanced limits on the basis of forged

documents which is the handi work of the petitioner and the report

of CFSL which pin points the role of the petitioner as a forger and

likelihood of the petitioner in indulging in similar crimes, I do not

think it appropriate to release the petitioner on bail for the time

being.

11. Bail Application No. 185/2009 is accordingly dismissed.

MOOL CHAND GARG, J.

FEBRUARY 05, 2009 dc