Vinod Kumar vs State Of Nct Of Delhi
2010 Latest Caselaw 4239 Del

88.
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+    BAIL APPLN. 1547/2010
                          Date of decision: 13th September, 2010

         VINOD KUMAR                          ..... Petitioner
                             Through Mr. Shiv Kumari & Mr. H.P.
                             Sharma, Advocates.
               versus

         STATE NCT OF DELHI                 ..... Respondent
                       Through Mr. Arvind Kumar Gupta, APP for
                       the State along with SI Shodan Singh, P.S.
                       Connaught Place.
                       Mr. Abhijat, Advocate for the complainant.
         CORAM:
         HON'BLE MR. JUSTICE SANJIV KHANNA
                                  ORDER

1. This is an application for anticipatory bail. Learned counsel for the applicant submits that there is a civil dispute and has made reference to the order dated 16th June, 2010 passed by the vacation Judge granting stay. He has relied upon judgments of this Court in A.K. Arora versus State, 2006 (131) DLT 24, Monika Aggarwal versus State (NCT of Delhi), 2006 (133) DLT 206 and K. Jayram versus State, 2006 (134) DLT 390.

2. I have examined the allegations made in the FIR. As per the FIR, the complainant-Om Arora had entered into an agreement to sell with Anmol Aggarwal and J.P. Aggarwal on 2nd September, 2009 for purchase of ground floor and covered parking measuring 178.19 square meters and basement No. B-1 having covered area of 147.05 square meters in M-3, AVG Bhawan, Connaught Place, New Delhi. At the time of signing of agreement to sell, 25,00,000/- each was paid to the sellers (total 50,00,000/-) as a part payment. The seller approached the complainant to make payment of 36,50,000/- to NDMC to clear the arrears towards house tax. It is alleged that these arrears were paid on

BAIL APPLN No. 1547/2010 Page 1 31st March, 2010. It is alleged in the FIR that sale deed was executed in favour of the complainant on 13th May, 2010. At the time of the execution of the sale deed payment of 53,50,000/- was made. Thus total sale consideration of 1.40 Crore was paid by the complainant to the sellers. As per the FIR, the sellers had signed the payment receipts and gave possession letter to the complainant.

3. It is alleged that at the time of execution of the agreement to sell, the property was in occupation of M/s Karnataka Bank Limited on a monthly rent of 1,80,000/-. The said bank had suffered a decree and had been directed to vacate the premises subject matter of the agreement to sell/sale deed as well as other area, which had been taken on lease from third persons. The basement had been given on lease to one M/s GVS Fashion Private Limited. The Karnataka Bank Limited had vacated the ground floor premises in January, 2010. Other facts and manner in which the sellers had acted and role of one Promod Agarwal has been stated.

4. The applicant, Vinod Kumar, claims that he was inducted as a tenant by the sellers on 400 square feet of the area on the ground floor on 1st February, 2010 on a monthly rent of 3,000/- and on payment of security deposit of 10,000/- by the sellers.

5. It is alleged by the prosecution that this tenancy is merely a camouflage and a fraud which has been played by the sellers and the applicant. It is further alleged that the applicant and others have committed criminal offence of cheating etc. and have created false documents in form of rent receipts etc. It is submitted on behalf of the State that the alleged tenancy is a sham. It is not possible to get 4oo square feet of area on ground floor in Connaught place on monthly rent of 3000/-. This it is submitted that this per se and ex facie shows the criminal intent, fraud and conspiracy. The alleged tenancy is created after the execution of the agreement to sell with the complainant and after the

BAIL APPLN No. 1547/2010 Page 2 Karnataka Bank Limited had vacated the premises. It is stated that tenancies below 3500/- per month are protected under the rent control legislation. The sellers have received the sale consideration of 1.40 Crore but the alleged sham tenancy by false documents has resulted in cheating. Ownership without possession and with an alleged protected tenant means substantive erosion and depletion in value. As per the complainant he was promised and got vacant possession of the ground floor. He was not informed about the alleged creation of tenancy after the Karnataka Bank Limited vacated the ground floor.

5. The order dated 16th July, 2010 is an ex parte ad interim order passed without hearing the purchaser i.e. the complainant. The order reveals that only Anmol Aggarwal was present in person on the said date. The said order cannot, therefore, be termed as an order passed on merits after hearing both the parties. The said order has been duly considered by the learned District Judge. I have also examined the facts of the case and the allegations made in the FIR. The allegations made are serious and it cannot be said that the FIR does not disclose commission of a criminal offence. It is well settled that a particular act may to create civil liability and may at the same time amount to a criminal offence. The judgments cited by the petitioner are distinguishable as in the said cases on the facts alleged no criminal offence was made out. Pending civil proceeding does not bar registration of an FIR in case an act/omission amounts to commission of a criminal offence.

6. The application is accordingly dismissed.

7. Observations made in this order are for the disposal of the present application and will not be binding on the learned trial court.

SEPTEMBER 13, 2010                              SANJIV KHANNA, J.
VKR


BAIL APPLN No. 1547/2010                                               Page 3