Kuldeep Singh vs State
2014 Latest Caselaw 3907 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CRL. M.C. No.3387/2014
                                  Date of decision: 25th August, 2014
        KULDEEP SINGH                                    ..... Petitioner
                     Through:          Mr. K. Sunil, Advocate.
                         versus
        STATE                                         .....Respondent
                         Through:      Mr. Navin Sharma, APP for the
                                       State with SI Sanjay Kumar
                                       Singh, P.S. Burari.
                                       Mr. Sonal Sinha, Advocate for
                                       complainant.

CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH

VED PRAKASH VAISH, J. (ORAL)

1. This is a petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as „Cr.P.C.‟) seeking quashing of proceedings initiated under Section 82 of Cr.P.C.

2. In short, the facts of the case are that on 01.10.2013 complainant, Mr. Yogesh Tyagi lodged a complaint that one Mohd. Tasim who is working as Property Dealer told the complainant that the petitioner, who is owner of plot measuring 400 sq. yds. situated in Khasra No.27/19, Village Jharoda Majra, Burari, Delhi, has agreed to sell the said plot to Munavvar Hussain, S/o. Anuddin Hussain at the rate of Rs.45,500/- per sq. yd., total amounting to Rs.1,82,00,000/- and an agreement to sell dated 17.07.2012 was executed. Pursuant to the said agreement, Munavvar Hussain paid Rs.19,00,000/- (Rupees Nineteen lakhs only) as earnest money. Mr. Tasim handed over a

photocopy of the agreement and a receipt. The complainant agreed to purchase the said plot at the rate of Rs.46,500/- per sq. yd. from Munavvar Hussain. The complainant paid a sum of Rs.21,00,000/- (Rupees Twenty one lakhs only) on 25.08.2012 as earnest money to Tasim and Manavvar Hussain, which was paid to Kuldeep Singh (petitioner) on the same day in respect of the said plot. The petitioner acknowledged the receipt of the said amount on the backside of the agreement. Thereafter, two post dated cheques bearing Nos.699782 and 699783 amounting to Rs.4,00,000/- (Rupees Four lakhs only) and Rs.3,00,000/- (Rupees Three lakhs only) respectively both dated 25.09.2012 drawn on State Bank of India were issued and given to the petitioner. On 22.09.2012 a sum of Rs.15,00,000/- (Rupees Fifteen lakhs only) and on 25.09.2012 a sum of Rs.29,00,000/- (Rupees Twenty nine lakhs only) were paid to Tasim in respect of the said plot, who handed over the said amount to the petitioner and obtained receipt on the backside of copy of the agreement. The complainant has also alleged that he had also paid a sum of Rs.40,00,000/- (Rupees Forty lakhs only) to Tasim on 22.10.2012 in respect of purchase of said plot, which was to be paid to the petitioner. Mr. Tasim told him that he went to Kuldeep Singh (petitioner) and paid Rs.40,00,000/- (Rupees Forty lakhs only) to him and asked him to acknowledge the receipt of the said amount. The petitioner asked him to bring the copy of the agreement which was given by Tasim to the complainant. Thereafter, the petitioner entered into his house and after some time came out armed with revolver and refused to return the original agreement and to issue the receipt by showing pistol. The complainant has also alleged that the complainant along with his brothers Rajesh Tyagi, Ashwani

Tyagi, Mahender Tyagi along with Tasim, Munavvar and Shakeel reached the house of petitioner and after a long discussion, the petitioner told him that he would execute the Sale Deed after receiving the balance amount, after the marriage of his daughter which was scheduled for 09.12.2012. Thereafter, the complainant demanded the agreement to sell from petitioner but he refused to hand over the same. The complainant tried to contact the petitioner and was ready to pay the balance amount but neither the documents of title were executed by the petitioner nor the amount of Rs.1,31,00,000/- (Rupees One crore thirty one lakhs only) was returned.

3. On the aforesaid statement of the complainant, Yogesh Tyagi lodged the FIR No.398/2013 under Sections 406/420/506/120B/34 IPC registered at P.S. Burari on 01.10.2013.

4. During the course of investigation, the statement of Manavvar Hussain and Tasim have been recorded under Section 161 Cr.P.C. The statement of Manavvar Hussain and Tasim under Section 164 Cr.P.C. were also got recorded. It was revealed that two cheques of Rs.7,00,000/- (Rupees Seven lakhs only) which were given by the complainant to the petitioner have been deposited in the account of Sushil Chaudhary. The Investigating Officer verified the photocopy of agreement and bayana receipt from Notary Public and concerned stamp vendor regarding purchase of stamp paper and notarisation.

5. The petitioner evaded from joining the investigation and non- bailable warrants against the petitioner were issued by learned Metropolitan Magistrate, Delhi on 19.03.2014. The petitioner was absconding. Accordingly, proceedings under Section 82 of Cr.P.C.

were initiated against the petitioner vide order dated 16.07.2014 and the process under Section 82 of Cr.P.C. were executed on 22.07.2014 vide DD No.27, P.S. Burari, Delhi and the proclamation was published in the newspaper. The statement of Investigating Officer regarding process under Section 82 of Cr.P.C. was recorded and the petitioner was declared proclaimed offender by learned Metropolitan Magistrate- 03, Central, Delhi vide order dated 23.08.2014. The petitioner moved an application for anticipatory bail before learned Additional Sessions Judge, Delhi which was dismissed vide order dated 05.04.2014. The petitioner moved an application under Section 438 of Cr.P.C. seeking anticipatory bail before this Court bearing Bail Application No.849/2014, which was also dismissed vide order dated 26.05.2014.

6. Learned counsel for the petitioner submits that the petitioner has verified from the stamp vendor namely Smt. Babita and it was revealed that the stamp paper on which the agreement was executed was not sold by her. He also submits that the alleged agreement is notarised by Mr. Satish Kumar Tiwari, Advocate and on verification, Mr. Satish Kumari Tiwari stated that he had not attested the said agreement. He also submits that there is a delay in recording the FIR.

7. Learned counsel for the petitioner further submits that on 22.07.2013, the petitioner filed an application under Section 156(3) of Cr.P.C. and the said matter was delayed. The petitioner preferred W.P.(Crl.) No.72/2014 wherein this Court directed that the proceedings should be expedited.

8. Learned APP for the State has pointed out that process under Section 82 of Cr.P.C was issued by learned Metropolitan Magistrate on

16.7.2014. Even thereafter, the petitioner did not appear and the process under Section 83 of CR.P.C was issued against the petitioner and he was declared proclaimed offender on 23.8.2014.

9. At this juncture, it is relevant to reproduce the relevant provision of Section 82 Cr.P.C., which reads as under: -

"82. Proclamation for person absconding -

(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may public a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation.

(2) The proclamation shall be published as follows:-

(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

(b) it shall be affixed to some conspicuous part of the house or homestead in which such person ordinarily resides or to some conspicuous place of such town or village;

(c) a copy thereof shall be affixed to some conspicuous part of the Court-house;

(ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (I) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day.

(4) Where a proclamation published under sub- section (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.

(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under sub- section (4) as they apply to the proclamation published under sub-section (1)."

10. From a bare perusal of Section 82 of Cr.P.C., it is manifestly clear that once the proclamation is issued against a person who could not be arrested despite issuance of non-bailable warrants, he can cause appearance within thirty days from the date of publishing such proclamation and if such appearance is cause, process under Section 82 or 83 of Cr.P.C. would come to an end.

11. I have carefully considered the material on record and I find that the petitioner was fully aware of the proceedings pending before the trial Court regarding issuance of the proceedings under Section 82 of Cr.P.C. against the petitioner as he could not be arrested despite

issuance of non-bailable warrants. The petitioner moved an application for anticipatory bail before learned Additional Sessions Judge, Delhi which was dismissed vide order dated 24.03.2014. The petitioner also received a notice dated 29.03.2014 sent by the Investigating Officer but the petitioner did not join the investigation. It appears that the petitioner tried to avoid the process of the Court. The petitioner also moved an application for anticipatory bail before this Court bearing Bail Application No.849/2014, which was also dismissed vide order dated 26.05.2014.

12. Having considered the facts and circumstances of the case, there is no ground for quashing the proceedings under Section 82 of Cr.P.C. Hence, the petition deserves to be dismissed and the same is hereby dismissed.

Crl. M.A. No.11725/2014 The application is dismissed as infructuous.

(VED PRAKASH VAISH) JUDGE

AUGUST 25th, 2014 hs