Vipen Kumar Parwanda vs State
2010 Latest Caselaw 3680 Del

     *            IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                       Date of Reserve: 30th July, 2010

                                    Date of Order: 9th August , 2010

                                     + Bail Appln. 1191 of 2010
%                                                                               09.08.2010
         Vipen Kumar Parwanda                                          ...Petitioner
         Through: Mr. Manish Makhija, Advocate

         Versus

         State                                                    ...Respondent
         Through: Mr. Sunil Sharma, APP for State with SI B. Prakash

                                               AND
                                     + Bail Appln. 1196 of 2010

%
         Sarita Parwanda                                      ...Petitioner
         Through: Mr. Pramod Kumar Dubey and Mr. Madhur Jain, Advocates

         Versus

         State                                                    ...Respondent
         Through: Mr. Sunil Sharma, APP for State with SI B. Prakash



         JUSTICE SHIV NARAYAN DHINGRA

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

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?


                                              ORDER

1. By this order, I shall dispose of the above two bail applications, one preferred by

husband under Section 438 Cr.P.C for grant of anticipatory bail and the other preferred

by wife under Section 439 Cr.P.C for regular bail. Both are involved in a case under

Sections 420/468/448 read with Section 34 IPC.

2. The focal point of entire alleged crime is a property bearing number A-8, Pocket

Bail Appln. 1191 and 1196 of 2010 Page 1 Of 6 139, Kalkaji Extension, New Delhi-110019, which has a basement and three floors.

According to complainant vide sale agreement dated 1st April 1994 executed by husband

and wife along with a possession letter, payment of consideration receipt, Will, GPA,

SPA, affidavits and indemnity bonds the second floor of the said property was sold to

him and payment was received by applicants by cheques of equal value in favour of both

the owners. Subsequently, basement, ground floor and terrace of second floor were also

sold to complainant by executing similar documents on 1st July, 1994 and payment was

received in lieu thereof by both husband and wife through cheques. Despite having sold

the property to complainant, both the accused persons pledged the entire property to

Jammu & Kashmir Bank, Connaught Place Branch, New Delhi for taking loan. This loan

amount was not paid and Jammu and Kashmir Bank filed a recovery suit against both of

them. Subsequent to that, both husband and wife sold the first floor of the said property

to Rajesh Bindra i.e. brother-in-law of wife and got the sale deed registered with the

Office of Sub-Registrar on 26th August 2007. This was done despite the fact the whole of

the property was mortgaged with Jammu and Kashmir Bank. Mr. Rajesh Bindra, brother

in law of the husband to whom the first floor was sold, again mortgaged this first floor of

the property to DBS Cholamanglam Bank and took a loan of Rs.1,53,00,000/- on 30th

May, 2009. When he mortgaged the first floor, the entire property was already lying

mortgaged with Jammu and Kashmir Bank. Mr. Rajesh Bindra had mortgaged this

property to DBS Cholamanglam Bank on the ground that he was the owner of the said

property. He, however, executed an affidavit dated 5th December 2009 that the property

was not his property and stated that the sale deed dated 26th September 2009 with

respect to first floor of the said property was a private arrangement between him and the

two accused persons/ petitioners herein and this document had no value and it stood

cancelled immediately on execution. Neither he nor anyone through him had any claim,

right, title in the said property and the said property belonged to two accused persons

who were competent to deal with it and free to sell, mortgage or create any third party

Bail Appln. 1191 and 1196 of 2010 Page 2 Of 6 interest in whole of the said property. This affidavit of Mr. Rajesh Bindra is part of the bail

application. The said property was again sold to the complainants.

3. A complaint was filed by Mr. Ashish Uppal, Mr. Manoj Kumar and Mr. Surender

Kumar as well in December 2009 at Police Station Kalkaji against both husband and wife

on account of receiving hefty consideration from them for sale of the aforesaid property

at Kalkaji to them. It was alleged that they learnt that Mr. Rajesh Bindra was the owner of

the first floor of the said property. It was also discovered that both the accused persons

had sold the second floor of the property for consideration to their daughter Ms. Sonia

Grover and a fresh sale deed of ownership was created and a loan would be obtained

from the bank. The said property was sold to them despite the fact the property was not

even owned by them and was already lying mortgaged with Jammu and Kashmir Bank.

Ms. Sonia Grover also gave an affidavit in favour of her parents, accused herein, stating

that the sale deed executed in her favour was a sham sale deed. Both husband and wife

had executed an agreement to sell in favour of Mr. Ashish Uppal, Mr. Manoj Kumar and

Mr. Surender Kumar on 25th October 2009 and received consideration of Rs.25 lac from

them through various cheques, details of which are available on record.

4. The complainant herein alleged that he was in possession of the said property

and both husband and wife broke open the locks of second floor and handed over

physical possession to Mr. Ashish Uppal, Mr. Manoj Kumar and Mr. Surender Kumar.

The police on the basis of complaint registered a case of criminal trespass, defrauding of

banks, forgery of documents, fraud (being played upon the banks), dishonest

inducement on the basis of forged documents of the said property.

5. It is submitted by counsel for the petitioners/accused that the wife was in judicial

custody since 19th June, 2010. The entire story given by the complainant was a

Bail Appln. 1191 and 1196 of 2010 Page 3 Of 6 concocted one in order to grab the property in question. The fact was that the applicant

wife and her husband were living in the said property from the very beginning and the

complainant's father was a former business partner of husband in a business. During

duration of partnership, some unlawful documents were created and forged by the

complainant's father and various documents were misused. Now the complainant wants

to grab the said property. The property in question was neither sold nor the possession

thereof was ever handed over to complainant. The property was mortgaged to Jammu

and Kashmir Bank for obtaining business loan with full knowledge of complainant's

father. The complainant's allegation that mortgaged was done subsequent to sale and

illegally, was a farce. It is submitted that father of complainant was one of the

respondents in an action brought by the bank for recovery of its dues before Debt

Recovery Tribunal. It is also submitted that the complainant had filed a civil suit number

1541 of 2009 on 25th November 2009 before the Senior Civil Judge, New Delhi against

the applicants praying that the disputes between the parties be referred to arbitration

under Section 8 of Arbitration & Conciliation Act, 1996 since the applicants and her

husband had failed to execute sale deed pursuant to the agreement to sell. The

objections to this suit were filed and it was told to the Court that the documents relied

upon by the complainant were forged. Otherwise there was no reason for the

complainant to wake up after 15 years of execution of documents and to lay claim over

the property.

6. Grant of bail by the Court has to be considered on its own merits. During

arguments, the position regarding various documents executed by the applicant and her

husband were sought to be clarified. It was not denied by the counsel for the applicants

that the various documents, as stated in para 2 above were executed by the applicants.

What was argued by the counsels for the applicants was that these documents though

executed, were not to be acted upon. They were executed under some mutual

Bail Appln. 1191 and 1196 of 2010 Page 4 Of 6 understanding between the parties. He argued that in case the agreement dated 1st April,

1994, possession letter, Will GPA, affidavit etc were executed to be acted upon, the

complainant would have filed a case of specific performance and would have asked the

accused persons to execute the sale deed. It was argued that the ownership of the entire

property and possession thereof continued to vest with the applicants/accused despite

execution of the sale documents. The property was mortgaged to the bank by the

applicant within the knowledge of complainant. Regarding execution of sale deeds in

favour of daughter and brother in law, the same stand was taken that these sale deeds

were sham sale deeds, executed for different purposes. Obtaining of loan from different

banks on the basis of so-called sham sale deeds was not denied. The sale of the

property to the latest purchasers from whom Rs.20 lac was received by virtue of an

agreement to sell, was not denied. The applicant had filed rent agreement with third

parties to show that the constructive possession was with the accused persons. The

police made inquiries from those third parties and the third parties categorically stated

that they had never been the tenants in the aforesaid property.

7. It is settled law that where a contract between the parties is entered into in writing

and documents of contract are prepared, no amount of oral evidence contrary to the

documented version is to be believed by the courts and the courts have to consider the

state of affairs as stated in the documents or as was apparent from the documents.

Looking at the multiple sale deeds executed by the accused persons in respect of the

same property again and again despite the fact that the property was lying mortgaged

with the bank so that on the basis of new fake sale deeds, the said property could be

mortgaged afresh and loan in lieu thereof be obtained (and loan was actually obtained)

and looking that the property was again sold on 25th October 2009 despite the fact that

the said property was already sold and was also lying mortgaged with the bank, I

consider that it is a case involving serious fraud and huge amount of cheating forgery,

Bail Appln. 1191 and 1196 of 2010 Page 5 Of 6 creation of false documents in order to obtain loan from the banks. I, therefore, consider

that the applications of both the accused persons deserve dismissal and are hereby

dismissed.

.

August 09, 2010                                           SHIV NARAYAN DHINGRA J.
rd




Bail Appln. 1191 and 1196 of 2010                                        Page 6 Of 6