Sunil Grover vs State
2012 Latest Caselaw 4029 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       BAIL APPN. No.104/2012

                                          Date of Decision : 10th July, 2012

SUNIL GROVER                                             ...... Petitioner
                                      Through:   Mr. Amit Mahajan, Adv. along
                                                 with the petitioner in person
                             Versus

STATE                                                 ...... Respondent
                                      Through:   Mr. Sunil Sharma, APP
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is a petition filed by the petitioner under Section 439 of

Cr.P.C. for grant of bail.

2. The facts of the case are that one Salim Khan, who was one of

the investors, was duped by the accused persons on seeing an

advertisement published by RKG Trade for Profit in The Economic

Times of April, 2009. On seeing the said advertisement, he went

to the office of the accused persons, where he met both the

accused and his father. They told him that their company, RKG

Trade for Profit was a member of Multi Commodity Exchange of

India Ltd. Both asked Salim Khan to deposit a sum of

Rs.50,000/- which would fetch an interest @ 7% per month. An

agreement to that effect was entered into between the parties.

Salim Khan deposited a sum of Rs.1,00,000/- through cheque in

May, 2009 in the office of the accused persons. The accused

persons managed the portfolio of Salim Khan. Whenever he met

the accused persons, he was given assurances and was

persuaded to deposit further amounts of money. He was swayed

by these assurances and his father also deposited a sum of Rs.

5,30,000/- with the office of the accused. Till December 2009,

the complainant received the payments through cheques.

However, the cheque for the month of January, 2010 had

bounced and thereafter the money was not paid. The accused

persons had allegedly closed their office and ran away.

3. On the basis of this statement of the complainant, an FIR was

registered for cheating and various other offences. During the

course of interrogation of the accused, computers and other

material of the accused persons were seized. The investigation of

this case was transferred to EOW Cell (Crime Branch) on

8.5.2010 and thereafter, a number of persons came forward and

made allegations against the accused. About 188 complaints had

been made by the investors who had purportedly been duped by

the accused persons for more than Rs.1,00,00,000/-. The Report

under Section 173 Cr.P.C. shows that more than 1500 investors

had invested approximately Rs.30,00,00,000/- in the concern of

the accused persons.

4. The petitioner had filed repeated bail applications before the

Court below which did not yield any result, after which the

petitioner‟s bail application was rejected by Mr. H.S. Sharma, the

learned ASJ on 17.1.2012, whereupon the present bail

application has been filed.

5. The present bail application was listed before the High Court on

24.1.2012 and vide order dated 27.1.2012, this Court had

granted interim bail to the petitioner, in the interest of investors,

on his furnishing a Personal Bond in the sum of Rs.1,00,000/-

with two sureties for the like amount to the satisfaction of the

learned Trial Court, subject to the condition that he shall dispose

of his property i.e. space in a Mall at Gurgaon (Haryana) owned

by him, by way of a public auction and deposit the transaction

amount by a demand draft and not by cash. The said order reads

as under:-

"Crl.M.A. No. 959/2012 (Exemption) Exemption allowed, subject to all just exceptions.

The application is disposed of.

BAIL APPLN. 104/2012 Consequent to order dated 24th January, 2012, the father of the petitioner is

present in the Court. Learned counsel for the petitioner, on instructions from the father of the petitioner, submits that he shall execute all the documents which are required for disposal of the property, to the petitioner, thereafter, he would dispose of the property i.e., the Mall at Gurgaon (Haryana) and deposit the entire amount in the form of FDR.

2. Learned APP on the other hand submits that the claimants are 822 and the total claim is more than Rs.22 Crore. Therefore, until and unless the petitioner gives an advertisement in a paper to sell the aforesaid property by way of demand draft (no cash transaction).

3. Keeping the welfare of the investors into view and in the interest of justice, the petitioner shall be released on bail on furnishing personal bond in the sum of Rs.1 lac with two sureties of the like amount to the satisfaction of the trial court with the following conditions:

1. As stated by the father of the petitioner, who has been produced by the Jail Authorities in pursuance to order dated 24th January, 2012, he shall give all rights to the petitioner so that he may dispose of the property.

2. The petitioner shall give an advertisement in the leading newspaper including at least one local newspaper in English and Hindi, of Gurgaon, regarding the sale of the property within a fortnight mentioning that the transaction shall be done by way of demand draft and no cash will be accepted.

4. The IO of the case is directed to supply the photocopy of the documents, if required by the petitioner.

5. The IO is further directed to release

the original documents of the property mentioned above at the time of transfer or at the time of total transaction amount being received.

6. List the matter on 12th March, 2012.

7. Order dasti.

Sd-/

Suresh Kait, J January 27, 2012"

6. On 12.3.2012, this Court observed that the bonafides of the

petitioner were suspicious as the advertisement which was given

by him was in „Business Standard‟ (Hindi and English Edition),

which hardly has any circulation and accordingly he was directed

to procure a firm offer for purchase of property in question and

the matter was listed on 16.4.2012. From 12.3.2012, nearly 4

months have gone by, but the petitioner has not shown any

inclination or seriousness in disposing of his property. He has

neither advertised for the sale of the property owned by him in a

Mall in Gurgaon nor has he taken any positive step in this

direction by advertising afresh in some National Daily which has

a wide circulation, like The Hindustan Times or The Times of

India, in English or Hindi. He has also not got any firm offer

from any bidder who would be purchasing his property, so as to

deposit the sale consideration with the Registrar-General of this

Court, in order to repay the money taken from the investors or

to show his bonafides.

7. Two facts are important here:- First, that the petitioner has

cheated nearly 1500 investors of their hard-earned money by

promising them a lucrative return and all this amount has been

invested by the petitioner in the purchase of a Mall or a space in

a Mall in Gurgaon. It may also be pertinent to mention here that

the complaints/claims, which had been lodged by different

investors with the local police, shows that the monies, of which

these investors have cumulatively been cheated, is to the tune

of Rs.30 crores, approximately. This mentality on the part of the

petitioner and his father has been actuated essentially with the

intention of earning a fast buck, as was observed by the learned

Sessions Judge.

8. I have heard the learned counsel for the petitioner as well as the

learned APP.

9. The learned counsel for the petitioner has vehemently contended

that the accused has been in custody for more than 20 months

and therefore, he must be permitted to retain the benefit of his

interim bail, as his continued incarceration is not likely to serve

any purpose. He has also relied upon judgments of Sanjay

Chandra -vs- CBI, 2011(13) SCALE 107 and Suresh Kalmadi -

vs- CBI, 2012(1) JCC 734 to contend that in both these cases,

the financial implication of the amount of which the allegations of

cheating were made, were much higher and therefore, in case

they could be released on bail, the petitioner certainly deserves

to be enlarged on bail. The learned counsel for the petitioner has

also relied upon an order passed by the Division Bench in WP(C)

3892/2011, wherein the Division Bench, headed by Hon‟ble

Mr.Justice A.K. Sikri, the Acting Chief Justice, while placing

reliance on the judgment of the Apex Court in R.D. Upadhyay -

vs- State of A.P. & Ors., 1996(3) SCC 422, had ensured that

the persons who are accused of various offences of attempt to

murder, kidnapping, theft, cheating, extortion, grievous hurt,

criminal breach of trust, molestation, counterfeiting and Arms

Act and who had undergone substantial incarceration for a

considerable period of time as specified in the said order and

who are awaiting the conclusion of the trial and further on

account of their indigence, are not able to engage counsel, a

general order of bail was passed, giving therein the guidelines.

On the strength of these judgments, the learned counsel has

contended that the petitioner having remained in jail deserves to

be given the said benefit permanently.

10. The learned APP has vehemently opposed the grant of bail to the

petitioner or the confirmation of interim bail to the petitioner on

the ground that the petitioner along with his co-accused father in

a calculated, pre-determined and a very sophisticated manner

carried out an operation of gaining the trust of the members of

the general public and invited them to invest in their company

by promising them lucrative returns which have not been

adhered to and all these investors, who are 1500 or so in

number, having invested their hard earned money which is to

the staggering amount of Rs.20 to 30 crores, cannot be taken

lightly, as such persons show the repeated propensity to commit

such offences again and have scant respect for law. The learned

APP has also contended that the petitioner was released on

interim bail on the ground that he would dispose of his property

situated in a Mall in Gurgaon, as suggested by him. He was

extended the benefit of interim bail, subject to the condition that

he complies with certain conditions imposed by the Court which

have also not been complied with, inasmuch as neither the

advertisement has been given in some respectable paper which

has a wide circulation, which would have been helpful in

identifying the prospective purchaser of the property owned by

them nor have they been able to identify and got a firm offer

from any person in this regard of their own which clearly shows

that the very suggestion given by the petitioner to the Court that

he would dispose of the property and further that his father had

also authorized him to do so has misled the Court and taken it

for a ride by their sweet talks. It has accordingly been suggested

that the gravity of the offence is so serious that it does not

deserve to be a case where the benefit of bail should be granted.

11. I have considered the respective contentions carefully and have

also gone through the judgments cited by the learned counsel

for the petitioner.

12. So far as the judgments of the Apex Court in Sanjay Chandra's

case and Suresh Kalmadi's case (supra) are concerned, no

doubt, these reinforce and revisit the basic principles of law with

regard to the grant of bail. The „bail is the rule‟ and the „jail is an

exception‟ and further that while granting the bail to the accused

person, not only the gravity of the offences is to be seen, but

also the fact as to whether accused would be available to face

the trial or flee away from the processes of law. He should not

have propensity to win over the witnesses or tamper with the

evidence. I am also cognizant of the fact that in both these cases

cited by the learned counsel for the petitioner, the quantum of

money allegedly involved was much higher than the amount of

money involved in the instant case, but there is a fundamental

difference between these two sets of cases which have been

cited by the learned counsel for the petitioner and the present

case. In the cases, which have been cited by the learned counsel

for the petitioner, no member of the general public was affected

directly, rather it was the public ex-chequer which was put to

loss by not holding auction of government resources or by over

invoicing lenders. This is totally different from the facts of the

present case where the petitioner floats advertisements and

invites the offers from the members of the public to invest

money in their schemes by promising them lucrative returns at

regular intervals. He is able to gain their confidence and cheat

them of their hard-earned money which ranges from

Rs.1,00,000/- to Rs.10,00,000/-. This kind of activity ultimately

shows a great deal of deliberation, preparation and operation

which can be done only by an intelligent person and this whole

exercise has been rightly observed by the learned Sessions

Judge to be actuated by a mentality "to get richer overnight" at

the instance of the general public or investors. I would say that

this is a mentality of a class of persons who have the capacity

and the temerity to lead a lavish life and create assets at the

miseries of the general public by making them invest their hard

earned money with them. It will send a wrong signal in case the

bail is granted to such persons. This tendency is to be curbed by

denying the benefit of bail to such persons. In addition to this, in

the instant case, the repeated attempts on the part of the

petitioner to get himself bailed out had not yielded any result, as

a consequence of which the petitioner has filed the present bail

application in the High Court. The petitioner has even gone to

the extent of misleading the Court by showing that he has all the

intentions of selling his property erected from this ill-gotten

money, so collected, and that he would deposit the sale

proceeds received through demand draft, with the Registrar-

General of this Court . It was required that he would get an

advertisement published in the newspaper and take appropriate

steps in this direction. Therefore, the Court had shown the

indulgence by granting him interim bail only for the purpose of

showing his bonafides in repaying the amount to the investors,

as, all along, his claim was that it was not his intention to cheat

such a large number of people and that it was a civil transaction.

But, unfortunately, despite expiry of a considerable time, the

petitioner does not seem to have shown any willingness to do so.

His actions have not been matching with the submissions which

have been made in Court. Therefore, this was only a ploy to

come out on bail. I feel that merely because he has been in

custody for 20 months or merely because the bail was granted in

Sanjay Chandra (supra) and Suresh Kalmadi's case (supra), it

does not ipso facto result in the grant of a bail to a person who is

also facing the allegations of cheating. The grant of bail in a non-

bailable offence remains essentially a matter of discretion which

is to be exercised by the Court, keeping the judicial principles in

mind, namely, gravity of the offence and the implications

thereof.

13. In my view, the gravity and the implication of the offence, in the

instant case, has a far-reaching effect on a definite number of

members of the public, who are around 1500 in number, as on

date and more are adding by the day.

14. So far as the judgment of the Division Bench of this Court in the

writ petition is concerned, that was an order passed in a general

manner on a writ petition and not a specific bail order for the

purpose of decongesting the jails where the persons who, on

account of lack of proper legal advice or on account of indigence,

were not able to furnish the securities, that a general order of

bail was passed. Those guidelines do not apply to the present

petition. Therefore, the very first parameter, that is the gravity

of the offence and the implications thereof, dissuades this Court

from extending the grant of bail to the petitioner by way of an

interim measure on 27.1.2012. So far as the other two aspects

of the matter, i.e., tampering with the evidence as well as

fleeing away from the processes of law are concerned, I am not

going into the same as the very first parameter is not satisfied.

15. Having regard to the totality of the circumstances, I do not feel

that this is a fit case where the petitioner deserves to be

enlarged on bail. Accordingly, interim bail dated 27.1.2012 is not

extended. The petitioner is directed to surrender before the

learned ACMM, New Delhi today itself, who shall act in

accordance with law. A copy of the order is given to the

petitioner free of cost. However, expression of any opinion

hereinabove shall not be treated as an expression on the merits

of the case. The petitioner is given liberty to move an application

for the grant of bail after the examination of material witnesses

as the charge sheet has been filed.

                                                     V.K. SHALI, J

JULY      10, 2012
tp