C.S. Aggarwal vs State
2011 Latest Caselaw 5426 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                         WP (CRL.) 1301/2011

%                                              Reserved on: 8th November , 2011

                                               Decided on: 11th November, 2011

C.S. Aggarwal                                                 ..... Petitioner
                                 Through:   Mr. Arvind Nigam, Sr. Adv. with Ms.
                                            Ranjana Roy & Mr. Pramod Dubey,
                                            Advs.
                        versus

STATE                                                          ..... Respondent
                                 Through:   Mr. Rajesh Mahajan, ASC for the State
                                            with Insp. Nageen Kaushik, EOW/
                                            Crime.
                                            Mr. Uday Lalit and Mr. Ramesh Gupta,
                                            Sr. Advs. with Mr. Rajinder Singh,
                                            Adv. for the Complainant.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may           Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?                  Yes

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

MUKTA GUPTA, J.

1. By this petition, the Petitioner had sought immediate release of the

Petitioner and quashing of the orders dated 15th September, 2011 and 17th

September, 2011 granting/extending the police custody of the Petitioner,

appointment of new investigating officer and directions to ensure fair and

unbiased investigation.

2. Initially the matter was referred to the Hon'ble Division Bench in view

of the contention of learned counsel for the Petitioner that the Petitioner was

under illegal detention and he was entitled to a writ of habeas corpus. After

hearing learned counsel for the parties at length, the Hon'ble Division Bench

came to the conclusion that the relief sought by the Petitioner was essentially

of seeking bail and other reliefs as enumerated in the other prayers of the

amended writ petition. Therefore, by order dated 18th October, 2011, the

matter was referred back to this Court. In the present writ petition the

Petitioner confines his prayer to the grant of bail only.

3. Learned counsel for the Petitioner contends that the present FIR was

registered pursuant to the directions of learned ACMM on an application

under Section 156 (3) Cr.P.C. on a complaint of one Shri Sameer Kohli,

Director of M/s Kohli, One Housing & Development Private Limited. The

allegations relate to extending of a loan of Rs.12 crores to the Petitioner's

company by the complainant's company. According to the Petitioner, the

allegations in the FIR even if taken on the face value make out a purely civil

dispute and do not disclose commission of any criminal offence. It is for this

reason that vide order dated 6th March, 2010, the learned ACMM while

directing registration of FIR, directed the Investigating Officer not to be

influenced by the order of registration of FIR and should not proceed to arrest

the accused in haste, without being satisfied of the grounds of arrest.

According to the Petitioner, the complainant has already lodged another FIR

bearing No.264/2009 under Sections 420/406/120B at PS EOW on 23 rd

December, 2009 regarding the same dispute. The main dispute between the

parties related to a project of SEZ area in Gurgaon and the present dispute is

also a part of the said larger dispute between the parties for which the FIR has

already been registered. Learned counsel for the Petitioner further contends

that in lieu of the loan of Rs.12 crores, the petitioner had deposited the title

deed, which admittedly as per the complainant were in his possession and no

mortgage deed was created. The loan of Rs.12 crores was to be repaid till 31st

May, 2008. Besides depositing the title deed of property bearing No.F 1/7

Hauz Khas Enclave, New Delhi, the Petitioner even gave a cheque of Rs.12

crores which fact has been admitted by the complainant in the civil

proceedings between the parties and has been deliberately concealed in the

present FIR. This cheque of Rs.12 crores is still in possession of the

complainant. The bona fide of the Petitioner are further established by the

fact that the complainant gave a further loan of Rs.1.5 crores on 4th August,

2008 and as per the loan agreement, the date of repayment of additional loan

was not stated. The giving of the additional loan despite non-payment of

earlier loan without any security shows that there was some oral

understanding between the parties. The complainant knew it fully well that it

had returned back the title deed to the Petitioner, which are admittedly in the

possession of the Petitioner, however, he deliberately lodged a police

complaint regarding missing of the title deeds on 25th November, 2009 and

took out a public notice on 30th November, 2009. Despite loss of documents

reported to police station Vasant Kunj, no intimation was sent to the

Petitioner, who was the actual owner of the documents, that the documents

were lost. The return of the title deeds to the Petitioner, which have been

given by the Petitioner to the investigating agency further shows that there

was oral arrangements between the parties besides the written agreements.

4. It is further contended that the loan agreement was between the two

companies and not two individuals and thus, the Petitioner cannot be held

liable in the absence of the company being an accused. Reference is made to

Section 58 and 59 of the Transfer of Property Act, 1882 (in short 'the TP Act)

to contend that in case of mortgage by deposit of title deed, the registration of

the instrument is essential. Further no mortgage could take place even in

terms of Section 58(b), (c), (d) and (f) of the TP Act. There was no

undertaking by the Petitioner in the loan agreement that property was free

from encumbrances. The principal document on which loan of Rs.12 crores

was given to the Petitioner was the promissory note, that is, the cheque which

the complainant did not deliberately get encashed. It is not even the case of

the complainant that the Petitioner refused to sign the mortgage deed. As per

Clause 5 of the agreement, the complainant had to pay the Petitioner Rs.185

crores out of which Rs.43 crores have been received. Further the notice of

repayment of amount of Rs.12 crores was dated 23rd December, 2009 when

the other FIR was registered. Even in the notice of repayment, there is no

mention of mortgage deed and about having received a cheque of Rs.12

crores, the principal sum. The only case made out against the Petitioner is

that on a notice being issued a reply was sent that the loan agreements stand

cancelled. This allegation was not part of the FIR and has only cropped up

subsequently and on the strength of this cancellation agreement, the Petitioner

is being implicated. It is alleged that even taking the complainant's case, at

best offence under Section 421/422 IPC can be said to be made out, which are

bailable offences. Reliance is placed on B. Suresh Yadav

Vs. Sharifa Bee and Another, (2007) 13 SCC 107.

5. Learned Additional Standing Counsel on the other hand contends that

as per allegations in the FIR, offence under Section 415 IPC punishable under

Section 420 IPC is clearly made out. Prior to the Petitioner entering into the

loan agreement, the agreement to sell of the property in question that is F-1/7

Hauz Khas Enclave, New Delhi had already been entered into with Smt.

Sheila Malkani vide agreements to sell dated 17th January, 2008 and 23rd

February, 2008. Despite this, in the loan agreement dated 25 th February, 2008

it was mentioned that the property was free from encumbrances. Despite the

offence under Section 420 IPC being made out, the prosecution did not go

ahead with the arrest. However, on verification of the cancellation agreement,

which disclosed that the offence of forgery was made out, the Investigating

Officer sought approval for arrest. Clauses 3.1 and 3.2 of the loan agreement

state not only of deposit of title deeds but also of execution of a memorandum.

Clauses 2 and 4 of the memorandum clearly create a charge on the property

and it is stated that the property was free from encumbrances. Despite having

deposited the title deeds with the complainant, the Petitioner went ahead with

the sale and executed the sale deed with Smt. Sheila Malkani on 13th August,

2008. Further during investigation, the Petitioner relied upon cancellation

agreement dated 27th June, 2008 stating that the loan agreement stood

cancelled. This cancellation agreement was found to be a forged document.

Further in case the loan amount had been adjusted as far as back in June,

2008, the Petitioner would not have given a confirmation that balance of

Rs.13.5 crores was due on 1st April, 2009. Even the balance sheet of the

Petitioner's company acknowledged this outstanding due. The allegations in

the FIR and FSL report negate the contention that it is a civil transaction.

Besides the present case, the Petitioner is involved in other cases as well.

6. Learned counsel for the complainant has further stated that from the

allegations as set out, provisions of Section 420 IPC are clearly attracted.

Besides during investigation the Petitioner gave cancellation agreement to the

investigating agency that the loan agreement has been cancelled which has

been found to be forged and fabricated and thus provisions of Section 467 IPC

are clearly attracted. It is contended that the two FIRs lodged by the

complainant are totally independent and pertain to separate transactions

relating to different companies of the Petitioner. Reliance is also placed on

Mahesh Kumar Bhawsinghka v. State of Delhi, 2000 (1) ACR 48 (SC), Lalit

Kumar Bhanot v. CBI, Bail Application No.682/2011 decided by this Court on

5th July, 2011, Vijay Khanna v. State of NCT of Delhi, 2003 (2) JCC 1025,

Ajay Verma v. State, 2009 (2) JCC 876, Dr. Ketan Desai v. State, Bail

Application No.839/2010 decided by this Court on 4 th June, 2010, Basant N.

Singhvi v. State, Bail Application No.1158/2008 decided by this Court on 25 th

February, 2009, Sanjay Kant v. State, 2003 I AD (Delhi) 405, Mukesh Singh

v. State, 2003 I AD (Cr.) DHC 200 and Saood Ahmed Siddiqui v. State, 2003

II AD (Cr.) DHC 440.

7. I have heard learned counsel for the parties. Briefly the allegations as

set out in the complaint of Shri Sameer Kohli of M/s Kohli One Housing &

Development Pvt. Ltd. are that the Petitioner and his wife Kavita Agarwal on

behalf of the company M/s Rockman Breweries (TNK) Ltd. approached the

complainant and asked for a loan of Rs.12 crores for the business requirement.

In lieu of the said loan, the alleged persons also mortgaged the property

bearing No.F-1/7, Hauz Khas Enclave, New Delhi measuring 430.68 sq.yds.

A loan agreement dated 25th February, 2008 was entered into between the

parties. In August, 2008 an additional loan of Rs.1.5 crores was also given at

the request of the Petitioner. Later on it was found by the complainant that

the Petitioner in connivance with other accused persons sold the above

mortgaged property to one Sheila Malkani and had also received advance

payment of Rs.50 lac and Rs.1 crore on 17th January, 2008 and 23rd February,

2008 from her even before the signing of loan agreement with the

complainant. Pursuant to the order passed by the learned ACMM, a criminal

case vide FIR No.40/2010 under Section 406/420/120B IPC was got

registered on 10th March, 2010 at PS EOW and investigation was taken up.

During investigation, it was revealed that a loan was taken by Rockman

Breweries Tnk Ltd. and an agreement dated 25th February, 2008 was executed

between Kohli One Housing and Development Pvt. Ltd. and Rockman

Breweries Tnk Ltd. The property bearing No. F-1/7, Hauz Khas Enclave,

New Delhi was kept under charge against the loan. During investigation

replies from City Bank along with statement of account maintained by M/s

Kohli One Housing and Development Pvt. Ltd. and account maintained by

M/s Rockman Breweries TNK Ltd. were received. From the statement of

accounts it was proved that the amount in question has been credited into the

account of M/s Rockman Breweries TNK Ltd. from the account of the

complainant company M/s Kohli One Housing and Development Pvt. Ltd.

Reply from Registrar of Company regarding charge created on property No.F-

1/7, Hauz Khas Enclave, New Delhi in favour of Kohli, One Housing &

Development Pvt. Ltd. by the company M/s Rockman Breweries Ltd. has also

been received.

8. Reliance of the Complainant on Ketan Desai (supra) is wholly

misconceived. In the said case, this Court declined to grant bail to the

Petitioner therein as people were not coming forward to complain against him

because of his influence. So much so the CBI had to place on website asking

for complaint from the people with assurance to keep their identity in secrecy

and to provide adequate protection. In Lalit Bhanot (supra)the bail was

sought not on merits but on the ground that there was violation of the statutory

provision of Section 167 (2) Cr.P.C. Each case has to be decided on facts

applicable to it. In the present case besides the Petitioner having furnished a

mortgage with deposit of title deeds of the property, the Petitioner had also

given a cheque of Rs.12 crores to the complainant which it did not prefer to

encash. It is the contention of the complainant himself that the said cheque of

Rs.12 crores as security against the loan was never presented because of the

fact that the complainant was already engaged with an investment of Rs.42.50

crores with the Petitioner in SEZ projects and, therefore, it did not want to

spoil the terms with him specially when the accused kept assuring that he will

give the money back in due course and requested not to present the said

cheque. It may be noted from the averments of the complainant himself that

besides a written agreement, there were oral understandings between the

parties and despite the Petitioner not having repaid the loan in the requisite

time, the complainant continued his business transactions with the Petitioner.

Not only the complainant get encashed the cheque of Rs.12 crores with him

but he also extended a further loan of Rs.1.5 crores to the Petitioner on the 4 th

August, 2008, after the due date of repayment of loan of Rs.12 crores.

9. A perusal of Section 421 and 422 IPC shows that they are the species of

the general provision of cheating defined under Section 415 IPC. At this

stage while dealing with the bail application, it would not be appropriate for

this Court to consider the issue whether Section 420, 421 and 422 IPC are

mutually exclusive or not, except stating that as per Section 420 IPC whoever

cheats and thereby dishonestly induces the person to deliver any property to

any person is liable for being punished under the Section. Needless to state

that the Petitioner will be at liberty to raise all these pleas at the appropriate

stage.

10. Learned Additional Standing Counsel for the State has contended that

the Petitioner is involved in other offences as well. It may be noted that the

other FIR being FIR No.264/2009 under Sections 409/420/120B IPC was also

registered on the complaint of the complainant herein, wherein while the

Petitioner was granted interim protection by this Court, the investigating

officer arrested the Petitioner in the present case. Further FIR No.264/2009

relates to the larger issue between the parties relating to the SEZ area. The

third FIR registered against the Petitioner is on the complaint of one D.K.

Jain, who is the co-accused of the Petitioner in FIR No.264/2009. Further a

cross case is also registered on the complaint of the Petitioner against co-

accused D.K. Jain.

11. The investigation is complete and as per the prosecution, the charge

sheet is likely to be filed on or before 14 th November, 2011. The entire

evidence is documentary in nature. In the facts and circumstances, I deem

it fit to grant bail to the Petitioner. It is, therefore, directed that the Petitioner

be released on bail on his furnishing a personal bond in the sum of Rs. 1 lakh

with two sureties of the like amount to the satisfaction of learned Trial

Court/CMM. It is further directed that Petitioner will not leave the country

without the prior permission of learned Trial Court.

Petition is disposed of accordingly. Order dasti.

(MUKTA GUPTA) JUDGE

NOVEMBER 11, 2011 ga/VKM