Aakash Madaan vs State
2013 Latest Caselaw 5611 Del

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*         IN THE HIGH COURT OF DELHI AT NEW DELHI
                   DATE OF DECISION: 03rd DECEMBER, 2013

+                            BAIL APPLN. 1748/2013


          AAKASH MADAAN                              ..... Petitioner
                     Through            Mr. Sudhir Nagar, Advocate
                                        with wife of the petitioner in
                                        person.

                             versus

          STATE                                     ..... Respondent
                             Through    Mr. Amit Ahlawat, APP for the
                                        State.
                                        Mr. Baldev Raj, Advocate for
                                        the complainant.
          CORAM:
          HON'BLE MS. JUSTICE SUNITA GUPTA

                             JUDGMENT

: SUNITA GUPTA, J.

1. This is an application u/s 439 Cr.P.C moved by the petitioner

for grant of bail in case FIR No.09/12 u/s 448/380 IPC, P.S. Tilak

Nagar.

2. As per the prosecution, the complainant had advanced a sum of

Rs.10 lakhs in cash to the mother of the petitioner as loan and mother

of the petitioner had executed the receipt, mortgage deed, possession

letter, agreement to sell and purchase in favour of the complainant in

respect of a portion of her property. It has also been alleged that the

mother of the petitioner had given the possession of the property to

the complainant and complainant had placed certain articles in the

room. The petitioner had assured that he will return the money after

about 11 months and in case he fails to return the money he will get

the sale deed executed in favour of the complainant after taking a

further payment of Rs. 2 lakhs. Meanwhile, mother of the petitioner

expired. The petitioner and his mother had failed to return the amount

despite repeated demands by the complainant. The petitioner has also

refused to accept the remaining payment of Rs. 2 lakhs to execute sale

deed in favour of the complainant. The petitioner had broken the wall

which was between the property belonging to the complainant and

that of petitioner; he trespassed into the portion of the property

belonging to the complainant and also committed theft of the articles

lying in the property.

3. It is alleged in the application itself that the petitioner had

applied for grant of anticipatory bail before this Court vide Bail

Application No.1545/12 wherein interim protection was granted to

the petitioner vide order dated 19.10.2012 in view of the submission

made on behalf of the petitioner that he would make a payment of

Rs. 10 lakhs to the complainant without prejudice to his rights and

contentions. However, the petitioner could not arrange the said

amount, as such his application was dismissed and he was taken into

custody. It is submitted that the dispute is primarily civil in nature

and the complainant has falsely implicated the petitioner. As per the

FIR, the complainant had paid the money to the mother of the

petitioner and she had executed the mortgage deed in favour of the

complainant, as such complainant can avail civil remedies in case of

default in the payment of loan. Petitioner was not party to the

transaction between the complainant and his mother. The undertaking

to repay Rs. 10 lakhs was given without prejudice to his rights.

However, he could not arrange the same. Physical possession of the

property was never given to the complainant. Complainant is trying

to grab the property belonging to the petitioner. Petitioner is in

custody since last more than 8 months, as such, he be released on bail.

4. Application is opposed by learned APP for the State as well as

by learned counsel for the complainant and it was submitted that a

sum of Rs. 10 lakhs was given by the complainant on request of the

petitioner and in lieu thereof various documents, being agreement to

sell and purchase, receipt, mortgage deed etc. were executed.

Physical possession of portion of the property was also handed over

to the complainant who kept his bed, sofa and other articles in the

rooms and put his locks on his portion. When the accused failed to

return the money, he assured the complainant that he will get the sale

deed executed in his favour after taking 2 lakhs more from him. In

between, mother of the petitioner expired. On 07.01.2012, the

complainant found that the accused has illegally taken possession of

his portion of the property after breaking his locks and also stole the

goods kept inside. It was further reported that the petitioner was

absconding for a long time and proceedings u/s 82/83 Cr.P.C were

initiated against him. He moved application for grant of anticipatory

bail before this Court and on his assurance that he will pay Rs. 10

lakhs to the complainant, he was granted interim bail. However, he

failed to pay the amount, as such, the interim bail was cancelled and

he was taken into custody. It was further submitted by counsel for the

complainant that thereafter, the petitioner has been moving one

application after the other before the learned M.M and Sessions

Judge. However, he has not returned the money.

5. During the course of arguments, it was stated by the wife of the

petitioner who was present in Court, that the amount has been

returned to the complainant in cash. However, she could not produce

any receipt for payment of the amount to the complainant. It was

also submitted that the agreement was with the mother of the

petitioner who has since expired. As per the case of the petitioner

himself, he has become the owner of the property and it is he, who

has initiated civil proceedings against the complainant. That being so

he cannot take any benefit from the death of his mother. As per the

allegations made in the FIR, a portion of the property was handed

over to the complainant when Rs. 10 lakhs was paid to the petitioner

and the petitioner has committed trespass and also stolen the goods.

6. Keeping in view the entire facts and circumstances of the case,

at this stage, there is no ground for grant of bail to the petitioner.

However, keeping in view the fact that the petitioner is in custody for

the last about 8 months and charges have already been framed, it is

impressed upon the learned Metropolitan Magistrate to expedite the

trial of the case and make endeavour to dispose of the case within six

months as far as possible.

Application stands disposed of.

SUNITA GUPTA (JUDGE) DECEMBER 03, 2013 as