Dr. Raman Kumar Juneja vs State (Nct Of Delhi)
2010 Latest Caselaw 3778 Del

                    * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                     Date of Reserve: July 12, 2010
                                                     Date of Order: 13th August, 2010

+ Crl.M.C.No. 3022/2009 & Crl.M.A.No. 5184-5185/2010
%                                                                  13.08.2010

          Dr. Raman Kumar Juneja                            ... Petitioner
                           Through: Mr. S.S.Gandhi, Sr. Advocate with
                           Mr. Prag Chawla, Advocate

                   Versus


          State (NCT of Delhi)                       ... Respondent
                                 Through: Mr. V.K.Aggarwal, Advocate &
                                 Mr. Chand Zafar, Advocate for the Complainant


JUSTICE SHIV NARAYAN DHINGRA

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

2. To be referred to the reporter or not?                                       Yes.

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

JUDGMENT

By present petition under Section 482 Cr.P.C. the petitioner has

assailed order dated 26th August, 2009 passed by the learned Additional

Sessions Judge whereby he allowed an application of the respondent for

cancellation of bail of the petitioner and set aside the bail order dated 18th

February, 2009 passed by the learned Metropolitan Magistrate.

2. It is submitted that the cancellation of bail of an accused can be

done by a Court only if there were supervening circumstances which render grant

of bail no longer conducive to a fair trial. The law cited by the petitioner regarding

cancellation of bail was ignored by the learned Session Judge. It was not a case

where petitioner had attempted to interfere with the course of administration of

justice or had abused the concession of bail granted by the learned Metropolitan

Magistrate. There was no cogent and valid reason available for cancellation of

bail and the learned ASJ did not pass the order for just and cogent reasons.

3. Brief facts relevant for the purpose of deciding this petition are that

the petitioner claimed to be owner of property No. 20/2 Rajpur Road, Civil Lines

along with ownership rights of passage. Petitioner entered into an Agreement

dated 18th January, 2008 to sell this property for a sum of Rs.6.75 crore and

received around Rs.80 lac at the time of signing agreement; Rs.20 lac was

received in cash Rs.60 lac was received through cheque. However, a dispute

arose soon after signing of agreement between petitioner and respondent about

the extent of property sold, and the respondent stopped payment of the cheque.

Thereafter a fresh agreement was signed between the parties on 7th July, 2008.

The only difference between agreement between 18th January, 2008 and 7th July,

2008 was that while in 18th January, 2008 agreement the petitioner had given to

the respondent only easementary rights over passage from Rajpur Road to the

property and no right of ownership over the land underneath passage was given

however, in the agreement dated 7th July, 2008, it was specifically mentioned that

the respondent will have ownership rights over the passage starting from main

Rajpur Road to Kailash Building. The copies of the two agreements are on

record showing this difference. After signing of the second agreement dated 7th

July, 2008, the petitioner received a sum of Rs.1.5 crore from the complainant

and balance consideration was to be received at the time of execution of the

documents. The complainant later on found that the petitioner had

misrepresented about his title over the passage in order to induce the respondent

to part with huge amount of Rs.1.5 crore with a mala fide intention. The

contention of the complainant was that the petitioner first kept on postponing the

execution of sale deed. He did not show title documents in respect of title over

the passage from main road to Kailash Building and represented that he shall

hand over the title documents at the time of receiving balance payment and

execution of the sale deed. According to complainant, though the complainant

was ready with the balance payment, the petitioner showed inability to execute

the sale deed and to hand over the possession by due date of 18th August, 2008

and thereafter date was extended to 15th September, 2008 then to 16th October,

2008. The petitioner also failed to provide sanctioned building plan, "C" and "D"

forms, completion certificate and complete set of documents. It was alleged that

petitioner did not provide documents nor came forward to execute the sale deed

in terms of the agreement dated 7th July, 2008. It came to the knowledge of the

complainant that petitioner was not the owner of the entire property as stated in

agreement dated 7th July, 2008 and the passage was not under ownership of the

petitioner. Further, it also transpired that there was unauthorized construction

and dispute between petitioner and municipal authorities was going on and with

the result that the property was sealed. It is stated that despite petitioner not

having marketable title over the property, the petitioner induced respondent to

part with huge amount of money. However, after the petitioner failed to execute

sale deed, the complainant met Mr. Anish Gupta, property dealer along with one

Mr. Bipin Jain and requested for refund of money paid by him to petitioner. It was

assured that the money shall be got refunded from the petitioner within 15 days

but petitioner refused to return the money paid to him and told that the entire

amount of Rs.1.5 crore had been forfeited.

4. The petitioner had applied for anticipatory bail which was rejected

by the Sessions Court and also by this Court. Thereafter, the petitioner

surrendered before the Court of MM and the learned MM granted bail to the

petitioner observing that both the agreements were for the same consideration

and no extra payment was stipulated for the additional stipulation made in the

agreement dated 7th July, 2008 for selling extra common passage. No cheating

was alleged in respect of agreement dated 18th January, 2008. The accused was

not a prior convict and looking at his age the learned MM directed the accused to

be released on bail of Rs.50,000/- subject to condition that accused shall not

leave the territory of India without permission and will surrender his passport and

shall not commit a similar offence nor shall threaten or induce the witnesses.

This order of the learned MM was assailed by the respondent on the ground that

the learned MM had not taken into consideration the substantial facts while

granting bail and it was not a fit case for grant of bail. Looking into the fact that

the accused/petitioner was involved in cheating of a huge amount and had

refused to refund Rs.1.5 crore even on his failure to show title, learned Sessions

Judge came to the conclusion that prima facie it was a serious case of

deliberately inducing the complainant to part with this amount by making false

representation about ownership of the passage from main Rajpur Road to

Kailash Building. The learned ASJ observed that the petitioner had admittedly

received Rs.1.5 crore from the complainant and in case the agreement did not

materialize, the petitioner was entitled to forfeit only the earnest money of Rs.20

lac and he was required to return sum of Rs.1.30 crore, which he deliberately did

not return. So the Court of learned ASJ observed that in this case from the facts

it can be gathered that the intention of the petitioner was mala fide from the very

beginning and he had no intention to honour the agreement. The learned ASJ

also found that in this cheating the petitioner had main role. He (petitioner

herein) was the beneficiary of Rs.1.5 crore. The co-accused who was granted

bail was not the beneficiary of any amount therefore, grant of bail to co-accused

could not have been a reason to allow bail to petitioner on the ground of parity.

The Court of Sessions found that the learned MM had not considered the matter

in proper prospects, did not pay heed to the difference between the two

agreements, executed by the petitioner and inducement given, by making specific

averment of ownership over the passage and agreeing to sell the passage on

which he had no right. It further observed that a person who had duped

complainant of Rs.1.5 crore cannot be treated alike to the person who had not

received any benefit. The learned ASJ by a speaking order of 33 pages

cancelled the bail of the accused.

5. It is contended by the Counsel for the petitioner that the learned

ASJ had not taken into account the fact that cancellation of bail already granted

must be considered and dealt with on different fottings and the bail could be

cancelled only if there were supervening circumstances showing that it was not

conducive to a fair trial to allow an accused to remain on bail or the freedom

granted to the accused by way of bail was being misused. Reliance was placed

on Dolat Ram & Ors. v. State of Haryana (1995) 1 SCC 349 & Ramcharan v

State of M.P. (2004) 13 SCC 617. It was submitted that even if two views were

possible, once the bail was granted it should not be cancelled. The respondent

on the other hand relied on Dinesh M.N. (SP) v. State of Gujarat (2008) 5 SCC

66 wherein Supreme Court had observed that while cancelling the bail, the Court

can consider whether the irrelevant material was taken into consideration by the

Court granting bail. In Brij Nandan Jaiswal v. Munna @ Munna Jaiswal & Anr.

(2009) 1 SCC 678 Supreme Court observed as under:

12. It is now a settled law that the complainant can always question the order granting bail if the said order is not validly passed. It is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse. The bail order can be tested on merits also. In our opinion, therefore, the complainant could question the merits of the order granting bail. However, we find from the order that no reasons were given by the learned Judge while granting the bail and it seems to have been granted almost mechanically without considering the pros and cons of the matter. While

granting bail, particularly in serious cases like murder some reasons justifying the grant are necessary.

6. In Satish Jaggi v. State of Chhattisgarh & Ors. (2007) 11 SCC 195,

Supreme Court had observed that while granting or non-granting of bail in non-

bailable offences, the primary consideration should be nature and gravity of

offence and question of credibility and reliability of the witnesses cannot be gone

into. In Subodh Kr. Yadav v. State of Bihar & Anr. Criminal Appeal No. 1234/09

(MANU/SC/1207/2009) decided by the Apex Court on 15th July, 2009, Supreme

Court again reiterated that where a Magistrate goes wrong and grants bail and

acts in an arbitrary manner/oblique motive the Sessions Court was justified in

setting aside the bail. The Apex Court observed that the powers of the Superior

Court were not restricted in cancellation of bail in appropriate cases where the

bail has not been granted on merits.

7. I consider that in the present case, the argument of the petitioner

that the learned ASJ did not consider the law as laid down by Supreme Court

was baseless. Even on facts, I find that the petitioner‟s conduct from the very

beginning had been to swallow the money. Initially, when the dispute arose

between petitioner and respondent about extent of property, the petitioner could

have told the complainant that he was not the owner of the passage and he could

not sell the passage and respondent was free to back out from the agreement.

By that time, the respondent had paid only a small amount of Rs.20 lac cash to

the petitioner and the complainant would have decided whether to go by deal or

not. However, the petitioner fully knowing that he was not the owner of the

passage, (as is seen from the gift deed and Will; copies of which have been

placed on record by the petitioner), deliberately induced the complainant to enter

into second agreement wherein he mentioned that he would transfer the

ownership rights over the passage and after entering into this agreement the

petitioner received substantial amount of Rs.1.3 crore more from the

complainant. Since he was not owner of the passage, he could not have

transferred the passage. He had only easementary right over the passage as

was written in the first agreement dated 18th January, 2008. The sole purpose of

the petitioner making false statement in second agreement was to lure

complainant to part with Rs.1.5 crore and then show volte face. However, the

learned MM granted bail to the petitioner on the basis of first agreement between

the parties without taking into account the fact that it was the second agreement

after execution of which, the petitioner had received huge amount from the

complainant wherein a false representation that petitioner being owner of the

passage, was made. The petitioner had not shown his title 7th July, 2008 to the

complainant. Had the petitioner shown title deeds, the complainant would not

have entered into the second agreement and would not have parted with the

money. It is obvious that prima facie the intention of the petitioner was to play

fraud and to cheat the respondent of huge amount. This fact is further fortified

when petitioner refused to return the amount. The learned MM did not take these

facts into consideration while granting bail. The learned Sessions Judge was

therefore within its jurisdiction to cancel the bail as Learned MM had failed to

consider merits while passing bail order and gave casual treatment to the matter

and considered irrelevant material.

8. I consider that where a person who has admittedly received huge

amounts from the complainant on misrepresentation and who refused to return

this amount despite his misrepresentation having come to light, such a person is

not entitled for bail. His bona fides and intentions are to be doubted and the

Court must remain alive to the situation that these days „cheating‟ has become a

profession. Builders often make false promises about the land and about the

buildings and induce people to invest money in colonies, which exist only on

papers when in fact they do not have land or permission to set up colonies. This

menace of cheating is increasing day by day and Courts cannot take a casual

approach towards those, who admittedly had received huge amount but are not

prepared to refund.

I, therefore find no infirmity in the order passed by the learned ASJ

cancelling the bail of the petitioner. The petition is hereby dismissed.

August 13, 2010                             SHIV NARAYAN DHINGRA, J.
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