Onkar Prasad Mishra vs State
2012 Latest Caselaw 170 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                   BAIL APPL. 1584/2010

                                 Date of Decision : 10.01.2012

ONKAR PRASAD MISHRA               ...... Petitioner
                   Through: Mr.Ravi Gupta, Sr.Adv.
                            with Ms.Sarika Singh,
                            Adv.

                               Versus

STATE                                    ......     Respondent
                              Through: Ms.Ritu Gauba, APP
                                       Mr.G.L.Rawal,   Sr.Adv.
                                       with           Mr.Vikas
                                       Manchanda, Adv. for the
                                       complainant.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI


V.K. SHALI, J.

1. This is a petition for grant of anticipatory bail filed by the

petitioner, Onkar Prasad Mishra, in respect of FIR

No.229/2007, under section 420/406/467/471/452/384/

506/34 IPC registered by P.S. Vasant Vihar, New Delhi.

2. Earlier, anticipatory bail application of the petitioner was

rejected by the learned Additional Sessions Judge on

13.09.2010, whereupon the present application was filed

in which the petitioner is enjoying the interim protection

against the arrest.

3. The allegations against the petitioner are that one

Yogender Sen Manchanda lodged a complaint stating

therein that he was in search of a property in November,

2006, when he came in contact with Ms.Roma Khanna, a

property consultant, who disclosed to him that one Onkar

Prasad Mishra, the present petitioner, is known to her. It

was revealed to the complainant that Onkar Prasad

Mishra wanted to sell his House No.198, Block No.10,

Golf Links, measuring 575 sq. yds. The petitioner is

alleged to have shown photocopies of the ownership

documents to the complainant. It was represented by

him that the property in question actually belonged to

one Smt.Raseel Kohli, who had executed a 'Will' dated

05.01.1987, in favour of the petitioner, which was got

registered by him with the Sub-Registrar on 29.09.1987.

On 01.10.1987, Smt.Raseel Kohli is also purported to

have executed a Gift Deed in his favour. The petitioner is

alleged to have applied to the L&DO on 03.06.2005 for

conversion of lease hold rights into free hold. It is stated,

in the complaint, that believing the representation of the

petitioner to be true, the complainant agreed to purchase

the said property for a total consideration of

Rs.16,50,00,000/- vide agreement to sell dated

20.11.2006 and he paid a sum of Rs.9 Lacs in cash to

Om Prakash Mishra. He also handed over to him two

cheques bearing No.108731 and 108732, dated

20.11.2006 for a sum of Rs.65 lacs and Rs.27 lacs

respectively, and thus, in all he paid a sum of Rs.92 lacs

to the petitioner. The details of the cheques were also

stated to have been entered into the agreement. It is

further stated that after making the payment on

20.11.2006, the complainant went to see the property

whereupon he learnt that the property did not belong to

the petitioner. The complainant was stopped, ostensibly

by the security guards, at the entrance. It is alleged by

him that because of this reason he was constrained to

instruct his bankers on 21.11.2006 to stop the payment

of the two cheques. It is alleged by him that the

agreement was also witnessed by one D.R.Panchal and

Roma Khanna. He approached the petitioner for refund of

the money. It is alleged, in the complaint, that instead

of returning the money, the petitioner demanded a sum

of Rs.95 lacs from the complainant. Later on, it is alleged

by the complainant that he was threatened and the

cheques issued by him were returned to him which were

actually coloured photocopies of the originals and

actually the originals were retained by the petitioner. It is

alleged by the complainant that later on a case under

section 138 of the Negotiable Instruments Act was also

filed against the complainant on the basis of the cheques

retained by the petitioner. On the basis of the aforesaid

facts, the FIR in question bearing No.229/2007 under

section 420/406/467/468/471/452/384/506/34 IPC has

been registered.

4. The learned senior counsel, Mr.Gupta, has prayed for

grant of anticipatory bail on the ground that the

petitioner is the owner of the property and that a false

and frivolous case has been registered against the

petitioner as a counter blast, to the complaint, which has

been instituted by the petitioner against the complainant

for recovery of the cheque amount. It is the case of the

petitioner that he had engaged the services of the

complainant for conversion of lease hold rights into free

hold from the office of the L&DO for which purpose, he

had agreed to pay a sum of Rs.1,01,00,000/- to the

complainant for getting the work done. Out of the

aforesaid amount, Rs.95 lacs was paid to the

complainant. It is alleged that on 14.10.2005, he paid to

the complainant a sum of Rs.65 lacs and Rs.30 lacs on

16.12.2005 by way of cash. Since the aforesaid amount

was not refunded by the complainant to the petitioner,

he (complainant) is purported to have executed cheques,

which were not honoured by the banker of the

complainant, on presentation whereupon the petitioner

filed a criminal case against the complainant. The

petitioner has also claimed himself to be the owner of the

property on the basis of the original Gift Deed, which was

allegedly handed over by him to the complainant at the

time of agreement. It is also alleged that the claim,

which has been set up by the complainant now, is totally

false. It is alleged to be actuated with a view to ensure

that the petitioner does not pursue the complaint filed by

him against the complainant under section 138 of the

Negotiable Instruments Act. It is contended by the

learned senior counsel for the petitioner that the

petitioner has already joined investigations and,

therefore, there is no reason to deny him the benefit of

anticipatory bail. The learned senior counsel has relied

upon case titled Gurbaksh Singh Sibbia Vs. State of

Punjab, (1980) 2 SCC 565 as well as the latest

judgment of Supreme Court in case titled Siddharam

Satlingappa Mhetre Vs. State of Maharashtra & Ors.,

(2011) 1 SCC 694 to contend that the benefit of

anticipatory bail should not be denied to the petitioner

until and unless arrest of the petitioner becomes absolute

necessity for the purpose of investigation. It has been

contended by him since the petitioner has joined the

investigation, therefore, the said benefit may not be

denied to him only with a view to satisfy the whims and

fancies of the complainant.

5. The learned APP as well as Mr.Rawal, learned senior

counsel for the complainant, has vehemently opposed

the application for grant of anticipatory bail on the

ground that the petitioner had not only cheated the

complainant by agreeing to sell the property in question

to him but he has also claimed himself to be the owner of

the property on the basis of the forged documents. In

order to substantiate his claim, it has been contended by

Mr.Rawal that the petitioner is claiming himself to be the

owner of the property on the basis of a General Power of

Attorney purported to have been executed by the actual

owner Smt.Raseel Kohli in the year 1988 and before the

execution of the Power of Attorney on 01.10.1987 a Gift

Deed is purported to have been executed by Smt.Raseel

Kohli in his favour. This Gift Deed is alleged to have

been registered with the office of Sub-Registrar Delhi,

where the first page of the Gift Deed in the Sub-Registrar

Office is stated to be missing. It is also stated that a

perusal of the Gift Deed shows that the petitioner has

been put into possession of the suit property while as the

petitioner at no point of time was ever in possession of

the property. It has been stated that the original Gift

Deed has not been produced before the Investigating

Officer and the petitioner is taking contradictory stand

regarding the non-production of the documents.

Sometimes the petitioner says that the original Gift Deed

has been handed over to one Mr.Sharma at Tis Hazari

Courts, while as at other time the petitioner is stating

that the same has been handed over to Anant Raj

Agency. It is contended by Mr.Rawal that Smt.Raseel

Kohli expired on 11.10.87, while as the petitioner is also

setting up documents like General Power of Attorney

dated 04.10.1987 and 30.09.1988, agreement to sell,

etc. to claim himself to be the owner of the suit property

which clearly shows that these documents are ex-facie

forged as they are purported to have been executed after

the death of the deceased. It is also contended by

Mr.Rawal that the petitioner is purported to have applied

to the L&DO on 30.06.2005 for conversion of the lease

hold rights to free hold in respect of this very property

and submitted a slip of acknowledgment, which request

was rejected on 09.12.2005 by the L&DO by observing

that the documents submitted along with the conversion

application were forged, for which a separate FIR bearing

No.56/2007 has been registered at the instance of the

L&DO. It is further contended that a report from the

CFSL dated 20.08.2010 confirms that the signatures on

the application for conversion and the affidavit filed in

the L&DO are of the accused and accordingly it is stated

since the investigations are yet to be completed in

respect of the serious allegations of cheating, forging a

document and using the forged documents as genuine,

therefore, the petitioner does not deserve to be enlarged

on bail.

6. I have carefully considered the submissions made by the

learned senior counsel for the parties as well as the

learned APP. There is no dispute about the fact that the

nature of the allegations levelled against the petitioner

are very serious in nature in as much as he is claiming

himself to be the owner of a valuable property situated in

Golf Links on the basis of the documents which are either

prima facie, forged documents or purported to have been

executed after the death of the actual owner of the

property. Not only this, the petitioner has, on the basis of

these allegedly forged documents applied to the L&DO

for conversion of the lease hold rights into free hold for

which purpose even the L&DO has got an FIR registered

for an offence of cheating and forging a document and

using the forged document as genuine. Therefore, this

clearly establishes the enormity and severity of the

allegations against the petitioner which are very serious

in nature, which require to be probed in order to reach at

the bottom of the matter. The petitioner has not been

able to produce the original gift deed on the basis of

which he is claiming ownership. He is taking different

stands in this regard at different times. There was no

occasion for the petitioner to give original gift deed to the

complainant at the time of signing the agreement to sell

as is sought to be urged. The first page of the deed is

stated to be missing from the record of the Sub-

Registrar. This clearly shows that somebody is bent

upon destroying the evidence so that the probe gets

derailed.

7. The question, which now arises for consideration is as to

whether, the petitioner deserves to be enlarged on bail in

respect of these allegations or not. Obviously, there is no

allegation that the petitioner is going to flee from the

processes of law or tamper with the evidence but at the

same time the nature of allegations which are levelled

against the petitioner are of such a nature that in my

view would require custodial interrogation because the

petitioner has not been forthcoming and cooperating with

the investigating agency by producing the original

documents with regard to his ownership purported to

have been executed by the actual owner Smt.Raseel

Kohli. He is further taking false pleas that these

documents have already been handed over to the

complainant. The property situated in Golf Links is a

valuable properly. The legal heirs of Smt.Raseel Kohli

are stated to have filed a suit against the petitioner also.

This, prima facie, shows that the petitioner needs to be

interrogated not with a bail order in his pocket.

8. I, therefore, feel that it is not a fit case where the

discretion deserves to be exercised in favour of the

petitioner notwithstanding the law laid down by the Apex

Court in case tilted Siddharam Satlingappa Mhetre's

case (supra). The Supreme Court has not laid down

that anticipatory bail should be allowed in all cases. All

that the Court has observed is that unless and until the

arrest become imperative for necessitating the fair and

impartial investigation, the personal liberty should not be

jeopardized and anticipatory bail should be granted. But

in my view in the instant case keeping in view the nature

of the allegations and the conduct of the accused,

custodial interrogation is required more so when the

investigations of the case are yet to be completed despite

the fact that FIR has been registered almost four years

back.

9. Accordingly, the application for grant of anticipatory bail

is dismissed. The interim order having passed in favour

of the petitioner stands vacated.

10. DASTI.

V.K. SHALI, J.

JANUARY 10, 2012 SS