Delhi High Court

Ranbir Singh Kharab & Anr. vs State (Nct Of Delhi) on 27 May, 2009

Author: Mool Chand Garg

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       BAIL APPN. No. 417/2007

%                                     Date of reserve : 19.05.2009
                                      Date of decision: 27.05.2009


       RANBIR SINGH KHARAB & ANR.                              ...PETITIONERS


                                        Versus

       STATE (NCT OF DELHI)                                    ...RESPONDENT


                                        WITH

+       BAIL APPN. No. 2634/2007


       MRS. ANITA & ANR.                                       ...PETITIONERS

                                        Versus

       GOVT. OF NCT OF DELHI (STATE)                           ...RESPONDENT

       Present:-       Mr. K.K. Sud, Sr. Adv. with Mr. Sunil Kapoor, Mr. Atul Sahi,
                       advs. for the petitioners.
                       Mr. Navin Sharma, APP for the State.
                       Mr. Rajat Katyal, APP with Mr. Navinder Nath Gautam for
                       the State.
                       Mr. B.P. Singh Dhakray, Mr. Shakti Singh Dhakray, Mr. D.K.
                       Sharma, advs. for the respondents.
                       Inspector Ravi Shankar, I.O., EOW Cell

       CORAM:
       HON'BLE MR. JUSTICE MOOL CHAND GARG

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

2.     To be referred to Reporter or not?                                   Yes

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

:      MOOL CHAND GARG, J.

1. This order shall dispose of the two bail applications filed under

Section 438 Cr.P.C. seeking anticipatory bail by husband and wife in

case FIRs No.329/2006 registered under Sections 409/420/120B IPC &

FIR NO. 761/2007 registered under Sections 409/420/120B/506 IPC at

P.S. Uttam Nagar which later on were investigated by the EOW, Cell,

Qutub Enclave Mehrauli, New Delhi

2. According to the petitioners, they are law abiding and peace

loving citizens. One of them, namely, husband was also elected as

MLA from Najafgarh as an independent candidate. It has been

submitted that the aforesaid FIR has been registered against the

petitioners only at the behest of losing candidates. It is submitted that

the complainant in the FIRs are one Praveen Dahiya who is real

nephew of the petitioner being son of his brother-in-law, basically to

force the petitioners to repay the loan which was allegedly obtained by

petitioner, Anita from her brother in the year 1999. In fact, after

election of Ranbir Singh for Legislative Assembly, the complainant and

his father misused the trust and confidence reposed in the petitioner

for their monetary gain and this is the reason that these FIRs were

registered. It is submitted that prosecution was also sought to be

made of the petitioners on the basis of dishonor of cheques for which

notice were issued to him in the year 2004. The proceedings were

contested by the petitioners and it is thereafter the complainant

approached the MM by filing the complaint and obtained directions

under Section 156(3) Cr.P.C. Since the police refused to comply with

those directions, a contempt notice was issued and then the present

FIRs were registered by the police without proper appreciation of the

true facts. The petitioners then applied for grant of anticipatory bail

before the Additional District and Sessions Judge which was gratned

only to the extent that the petitioners were protected from arrest for a

period of three months and if the I.O. wanted to arrest them, he was

directed to give them seven day's notice. This was subject to the

petitioners joining the investigation. However, it appears that

according to the prosecution the petitioners did not join the

investigation and as such prosecution decided to arrest them and gave

a notice dated 01.02.2008 and it is thereafter the petitioners filed the

present application.

3. It is submitted that the FIR does not make out a case of cheating

as the allegations do not make out ingredients of Section 415 Cr.P.C. It

is also submitted that the incident alleged against the petitioners had

taken place in 1999 whereas the FIR has been registered on

25.04.2006 which is politically motivated.

4. The petitioners have also filed written synopsis and have also

relied upon the following judgments:-

(i) T.T.Antony Vs. State of Kerala & Ors., 2001(6) SCC 181;

(ii) Gudikanti Narasimhulu & Ors. Vs. Public Prosecutor High Court of AP, 1978 (1) SCC 240;

(iii) Babu Singh & Ors. Vs. State of U.P., 1978(1) SCC 579;

(iv) Gurbaksh Singh Vs. State of Punjab, AIR 1980 SC 1632;

(v) Parvinderjit Singh & Anr. Vs. State (U.T. Chandigarh), JT 2008 (11) SC 560;

(vi) B.Suresh Yadav Vs. Sharifa Bee & Anr., 2007(9) SLT 94.

5. It has been contended that in the facts of the case two FIRs have been

registered which could not have been done in view of the judgment in

T.T.Antony's case (supra). It is also submitted the petitioner who is a public

personality has been implicated falsely and therefore, is entitled to protection

in view of judgment delivered in the case of Gurbaksh Singh's case (supra). It

is also submitted that even otherwise they are entitled to anticipatory bail in

the light of the principles laid down in other judgments. They have joined the

investigation and no fruitful purpose will be served if they are sent to judicial

custody.

6. While opposing the bail applications, the respondents submitted

that:

"the accused petitioner Ranbir Singh Kharab and his wife Anita Kharab were running a finance company in the name of Jyoti Fair Financt Ltd. at G-1/589, Daal Mill Road, Uttam Nagar, New Delhi. Accused Ranbir Singh Kharab and his wife Smt. Anita induced the complainants to invest money in their above- mentioned finance company on the assurance that good interest will be paid regularly/on daily basis etc. or the amount will be double in three years and money will be returned as and when required. They also instigated the complainant to convince their friends and relatives to invest their money in above said finance company. Believing the words of Ranbir Singh and his wife the complainant along with their friends/relatives invested their money with the above-mentioned finance company. In this way the accused petitioner collected Rs.1.83 crore (approx.) from the 13 complainants of FIR No.329/2006 and Rs. 1.25 crores (approx) from the 4 complainants of FIR No.761/07 both P.S. Uttam Nagar as mentioned below.

Sl.No.       NAME OF                TOTAL             MODE OF                REMARKS
         COMPLAINANT/VICT          AMOUNT          PAYMENT/PROOF
               IMS                GIVEN TO
                                  ALLEGED
1.       Sh.Praveen Dahiya        Rs.23 lacs     Handwritten       receipt   Proved by GEQD result.
                                                 signed by Anita Kharab.
2.       Sh.Ranbir Singh Dahiya   Rs.22 lacs +   A        receipt     cum    The      petitioner   gave
                                  Rs.     1.78   declaration executed by     cheques of Rs.1.34 crores
                                  crores         the petitioners has been    from his personal account

given for Rs.1.78 crores. to the victim against the They also mortgaged amount of Rs. 1.78 crores.

property no. G-1/112, The cheques got bounced
Uttam Nagar, ND with and cases u/s 138 N.I. Act
the victim R.S. Dahiya has been filed by the
against the above victim. In such case the
mentioned amount of petitioner has been
Rs.1.78 crores but sold convicted by the court at
the property without Rohtak.
repaying the amount.
3. Sh.Girdhari Lal Rs. 15lacs Having receipt cum --
declaration executed by
the petitioner RS Kharab
on two stamp papers. As

per the record of
Treasurer, Delhi those
stamp papers have been
issued in the name of
R.S. Kharab.
4. Sh. Jaipal Malik Rs. 25 lacs Cash --
5. Sh. Kuldeep Singh Rs.20.20 Cash Land of worth Rs. 2.41
lacs lacs had been given to him
by the petitioner Anita
Kharab.

Amount remained
Rs.17.79 lacs
6. Sh. Vinod Rs.16.50 Cash
lacs

7. Sh. Akshay Rs.21.10 Cash
lacs

8. Rajvati w/o Sh. Sajjan Rs.6 lacs Cash
Singh

9. Beena w/o Sh. Rs.4.20 lacs Cash
Dharamvir

10. Sh. Attar Singh Rs.19 lacs Cash

11. Omvati W/o Sh. Ram Rs.5.50 lacs Cash
Chander

12. Mrs. Rajesh W/o Rs.2.50 lacs Cash
Randhir Singh

13. Bijender Singh Rs.3.15 lacs Cash The petitioner RS Kaharab
Offered to sell his
Ambassador Car as
repayment of the amount
and executed from 29 &
30 in this regard. The
GEQD result has proved
the signatures of the
petitioner on the above
said documents.

FIR NO.761/2007, P.S. Uttam Nagar

1. Sh. A.S. Hooda Rs.95 lacs Passboks of Jyoti Fair
Finance Ltd. showing the
transactions of amount
invested in the alleged
company and the amount
received by the
complainant as interest
on daily/monthly basis
(Balance amount shown
in receipts is 29.84 lacs.)

Receipt on the letterhead
of Jyoti Fair Finance
Ltd. given by the
petitioner Anita Kharab

2. Sh. Nishant Rs.3 Lacs The amount has been
paid by cheque by the
victim from his personal
account and the same has
been credited in the
personal account of the
petitoner R.S. Kharab
with Corporation Bank.
Reply from both the
banks have corroborated
the transaction

3. Sh. Gazey Singh Rs.20 Lacs The bank transactions of The petitioner RS Kharab
both the banks, i.e., of gave a cheque of Rs.20
the complainant and of lacs from his personal
the alleged company account to Sh. Gaxey

have established that the Singh as repayment of the amount of Rs.6 lacs was cheated amount but the paid by the complainant same got bounced and a from his account and the case u/s 138 NI Act has same was credited in the been filed accordingly.

                                              account     of    accused
                                              company, i.e., Jyoti Fair
                                              Finance and the same
                                              was     withdrawn      by
                                              petitioner Anita Kharab

4.      Sh. Ajmer Singh         Rs.3.5 lacs   One receipt on the          Prove by GEQD result.
                                              letterhead of Jyoti Fair
                                              Finance signed by Anit
                                              Devi and Another receipt
                                              on a stamp paper
                                              executed by R.S. Kharab

7. It is also submitted on behalf of the respondents that there are

different victims/complainants in both the FIRs. In the statement made

by the victims under Section 161 Cr.P.C., it has been specifically stated

that no receipts were given to the investors by the petitioners to all of

them and were given only to some on the pretext of claiming close

relationship. The cheques issued by Sh. Ranbir Singh Kharab for

repayment of the amount to victims namely Ranbir Dahiya and Gaje

Singh, bounced on presentation. In fact, in one of such cases the

petitioner, Ranbir Singh has even been convicted by Rohtak Court

despite his plea that his cheque book was stolen. (Later on his appeal

has been allowed after the case was compromised on payment of

money). During the course of investigation the petititioner has not co-

operated with the prosecution and had given vague information about

his bank accounts and cheque books. His version about the loss of

cheque book is factually wrong, the petitoner has misappropriated the

amount taken from the victims on false assurances such as giving

them daily interest and monthly interest which runs in crores of

rupees. It has been clearly stated by the victims that both the

petitioners are responsible for cheating and fraud played upon the

investors inasmuch as one claims to be a Director of the Company

whereas Ranbir Singh Kharab is the husband had been actively

indulging in procuring advances from various investors most of whom

were his near relations and probably invested the money on trust but

at the time when the money was taken, the petitioners had no

intention to repay the same. In fact, the conduct of the petitioner,

Ranbir Singh who even mentioned his Pan Account No.AMRPS1095G

with the election officer was found to be false as the same belongs to

one Baldhari Saini which shows that the petitioner is not coming with

clean hands and wants to hide his whereabouts and particulars relating

to the properties and bank accounts which must be having the amount

taken from the investors on false assurances. It is submitted that the

allegations make out cases against the petitioners under Section

409/420/120B IPC in view of the conduct of the petitioners who are not

even co-operating with investigation, they are not entitled to

anticipatory bail as prayed for. It is also submitted that it is a fit case

where the custodial interrogation of the petitioners is necessary for

elucidating the facts and disclosure of bank accounts and other

properties which would have been purchased by them by

misappropriating the money of the investors.

8. Reference has been made to a judgment delivered by the

Supreme Court in the case of State Rep. by CBI Vs. Anil Sharma

(1997) 7 SCC 187. The relevant observations made in the aforesaid

case are as under:

6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation- oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.

7. The High Court has approached the issue as though it was considering a prayer for granting regular bail after arrest. The learned Single Judge of the High Court reminded himself of the principle that "it is well settled that bail and not jail is a normal rule" and then observed thus:

"Unless exceptional circumstances are brought to the notice of the Court which may defeat the proper investigation and fair trial, the Court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life. In the present case, no such exceptional circumstances have been brought to the notice of this Court which may defeat proper investigation to decline bail to the applicant."

9. Reference has been made to number of judgments on behalf of

the respondents delivered in the case of Adri Dharan Das Vs. State of

West Bengal (2005) 2 SCC 303, Narinderjit Singh & Anr. Vs. Union of

India & Ors. 2001 VIII AD (SC) 499, Enforcement Officer, Ted, Bombay

Vs. Bher Chand Tikaji Bora & Anr. 2000 (1) Crimes 33 (SC).

10. In the case of Adri Dharan Das (Supra) which is the judgment

delivered by the Apex Court, following observations have been made

which may be taken into account for consideration of granting

anticipatory bail in given facts:

16. Section 438 is a procedural provision, which is concerned with the personal liberty of an individual who is entitled to plead, innocence, since he is not on the date of application for exercise of power under Section 438 of the Code convicted for the offence in respect of which he seeks bail. The applicant must show that he has 'reason to believe' that he may be arrested in a non-bailable offence. Use of the expression 'reason to believe' that he may be arrested in a non-bailable offence. Use of the expression 'reason to believe' shows that the applicant may be arrested must be founded on reasonable grounds. Mere "fear" is not 'belief' for which reason it is not enough for the applicant to show that he has some sort of vague apprehension that some one is going to make an accusation against him in pursuance of which he may be arrested. Grounds on which the belief on the applicant is based that he may be arrested in non- bailable offence must be capable of being examined. If an application is made to the High Court or the Court of Session, it is for the Court concerned to decide whether a case has been made out of for granting the relief sought. The provisions cannot be invoked after arrest of the accused. A blanket order should not be generally passed. It flows from the very language of the section which requires the applicant to show that he has reason to believe that he may be arrested. A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant's apprehension that he may be arrested is genuine. Normally a direction should not issue to the effect that the applicant shall be released on bail "whenever arrested for whichever offence whatsoever". Such 'blanket order' should not be passed as it would serve as a blanket to cover or protect any and every kind of allegedly unlawful activity. An order under Section 438 is a device is secure the individual's

liberty' it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusations likely or unlikely. On the facts of the case, considered in the background of legal position set out above, this does not prima facie appear to be a case where any order in terms of Section 438 of the Code can be passed.

11. In the case of Enforcement Officer, Ted, Bombay (supra) while

interpreting the scope of granting relief under Section 438 Cr.P.C. in

respect of white collar crimes, it was observed:

"The criteria and questions to be considered for exercising power under Section 438 of Cr.P.C. has been recently dealth with in Dukhishyam Benupani, Asstt. Director, Enforcement Directorate (FERA) Vs. Arun Kumr Bajoria. The white-collar criminal like the respondent agaisnt whom the allegation is that he has violated the provisions of the Foreign Exchange Regulation Act is a menace to the society and therefore unless he alleges and establishes in the materials that he is being unnecessarily harassed by the investigating agency, the Court would not be justified in invoking jurisdiction under Section 438 Cr.P.C. and granting anticipatory bail. In the facts and circumstances of the present case, in our considered opinion, the High Court was wholly unjustified in invoking jurisdiction under Section 438 and granting anticipatory bail to the respondent. We, therefore, set aside the impugned order of the High Court. The appeal is acdordingly allowed."

12. I have analysed the written synopsis furnished on behalf of the

petitioner as well as the ratio of judgments relied by them. In the

present case, the fact brought on record during the course of

investigation points out that the petitioners have cheated the innocent

people and particularly those who were their close relations by giving

false assurances for amounts, which run in crores of rupees. They

have repaid the loan amount only to those who approached the

Criminal Courts in prosecution under Section 138 of the N.I. Act that

also on the basis of bounced cheques issued by Ranbir Singh Kharab in

discharge of his liability. Thus, they are not entitled to any

discretionary relief from this Court. In fact, in such a case custodial

interrogation is necessary because this may disclose the factual

position of the financial affairs of the petitioners which may entitle the

prosecution to seize the properties and also to take appropriate action

with respect to the bank accounts of the petitioners and/or their

relations which accounts might have been used for siphoning away the

money of the complainants.

13. The present case is not a case of counter FIRs but it is a case of

two FIRs having been registered alleging cheating to different

individuals. In fact, every offence of cheating constitutes an

independent offence and therefore, the arguments on behalf of the

petitioners that in this case because two FIRs have been registered

that vitiates the interrogation is not sustainable. The principles of

other judgments regarding grant of bail does not protect the

petitioners for the reasons stated above. The facts of this case very

glaringly show as to how influence by a public personality has been

misused in persuading innocent relations to shell out their hard earned

money with false promises like interest on daily basis and on monthly

basis which is without the petitioners knowing well will not be possible.

Moreover, the money has been swindled away and misappropriated by

purchasing various properties, which has been procured from the

complainants.

14. In Narinderjit Singh Sahni's case (supra), the Apex Court took

note of the judgment delivered in the case of Gurbaksh Sigh (supra)

also but taking into consideration that a number of persons have been

cheated made the following observations:-

7. The relief spoken of however pertains to Section 438 of Criminal Procedure Code. It is noteworthy that the 41 st report of the Law Commission recommended for the first time inclusion of a provision for what is called anticipatory bail (vide Section 438 Cr.P.C.). Section 438 contemplates an application by a person on an apprehension of arrest in regard to the commission of a non-bailable offence; the object being to relieve a person from unnecessary harassment or disgrace and it is granted when the Court is otherwise convinced that there is no likelihood of misuser of the liberty granted since he would neither abscond nor take such step as t avoid due process of law.

25. The instant petition under Article 32 has been at the instance of Shri B.B. Sharma who happened to be the Chairman and Managing Director of Hoffland group of Companies. The latter has been engaged in accepting deposits and giving loans to public. The petitioner as appears has promoted 40 firms companies having 50 branches all over the country. Till 1997 the petitioner company said to have made payment with interest on maturity but thereafter the company suffered huge losses because of downtrend in the business of financial-service companies and added together is the termination of registration as financial managers by SEBI-the problem according to the petitioner has been reason of subsequent closure of company's A/cs by main banker viz., Oriental Bank of Commerce and post dated cheques of the Company were returned unpaid and resultantly several FIRs were lodged. In January, 1998 on the factual score, it appears that petitioner was arrested but subsequently released on bail in the month of February itself. Diverse criminal proceedings have started against the petitioner was granted bail in some FIRs in Delhi and also at Mumbai, Pune, Chandigarh, Udaipur, Gurgaon, Ghaziabad, Ludhiana, Dehradun and Ambala but could not avail such privilege to be released on bail as he was in judicial custody in similar FIRs by other depositors. The principal grievance of the petitioner being that though in judicial custody for the last 21 months but the petitioner can never be released as the situation presently stands by reason of several production warrants pending in different States like Uttar Pradesh, Rajasthan, Kerala, Punjab and Karnataka. It is petitioners definite case that imperative is the question of release as then only he can look after the interest of investor by evolving a scheme of revival. The petitioner as a matter of act, it has been contended, has to be shuttled from one place to another all over the country as presence of the petitioner suddenly becomes mandatory at every other place and on every date of hearing. It is this state of affairs which Mr. Shanti bhushan appearing in support of the petitioner highlighted and contended that the same is unjust and violative of the fundamental rights under Article 21 of the Constitution.

58. We are, therefore, unable to agree with the method adopted by this Court in Writ Petition (Crl.) No. 256 of 1999 and Writ Petitions (Crl.) Nos. 72-75 of 2000 since in our opinion to adopt the method would be giving a premium to the accused persons. Right of an accused to have speedy trial is now recognised as a right under Article 21. Even it has been extended to investigation of offences against child offenders in the case of Sheela Barse (I) v. Union of India10. The procedural fairness required by Article 21, including the right to a speedy trial, has, therefore to be observed throughout and to be borne

in mind. In course of hearing, we had requested the learned Additional Solicitor-General to evolve a scheme for expeditious disposal of criminal cases of the nature with which we are concerned in the present batch of cases. But no concrete proposal came till the conclusion of the hearing of these matters. While, therefore, we are not granting any relief to the accused persons on the reasons already indicated, we would commend upon the Central Government to evolve certain formula or procedure, so that the accused will not complain of undue harassment on account of protraction of their cases and the persons deceived who have filed complaints, will be satisfied with the early conclusions of the trial.

59. True, there are certain orders passed by this Court wherein special directions have been given but this Court while passing the orders has not only been extremely careful but was cautious enough to record therein that the order was passed on the special facts and the circumstances in the issue and the same ought not to be treated as a precedent -- in the wake of recording of such a caution and the order being in the specific facts of the matter in issue, question of the same being treated as a judicial precedent would not arise, in any event in the view as noticed hereinabove, the said orders as a matter of fact have lost their significance.

60. As regards the issue of a single offence, we are afraid that the fact situation of the matters under consideration would not permit to lend any credence to such a submission. Each individual deposit agreement shall have to be treated as a separate and individual transaction brought about by the allurement of the financial companies, since the parties are different, the amount of deposit is different as also the period for which the deposit was effected. It has all the characteristics of independent transactions and we do not see any compelling reason to hold it otherwise. The plea as raised also cannot have our concurrence.

15. Moreover, it is also well settled that there is a difference between

regular bail and anticipatory bail. Anticipatory bail is to be granted

only to those persons who are able to show that they are not involved

in the case, subject matter of the enquiry or that they have been

falsely implicated and there is likelihood of harassment by police

officials, which is not the case in hand. The whole purpose of filing of

these bail applications by the petitioners is thus to keep themselves

away from the police and to avoid interrogation so that their misdeeds

may not be revealed and the misappropriated property may not be

unearthed. Thus, the case of Babu Singh (supra) also has no

application to the facts of this case. Thus, the petitioners are not

entitled to be released on anticipatory bail, as prayed for by them. The