Ajay Tayal vs State ( Nct Of Delhi)
2015 Latest Caselaw 8772 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                               Judgment delivered on : November 26, 2015
+     BAIL APPLN. 1739/2015
      AJAY TAYAL                                       ..... Petitioner
                     Through          Mr.Ramesh Gupta, Sr. Adv. with
                                      Mr.Bharat Sharma, Adv.

                         versus

      STATE ( NCT OF DELHI)                             ..... Respondent
                     Through          Mr.Panna Lal Sharma, APP.
                                      Mr.Ravi Bassi, Adv. for the
                                      complainant. SI Rajiv Kumar, PS
                                      North Rohini.

      CORAM:
      HON'BLE MR. JUSTICE P.S.TEJI

                                  JUDGMENT

P.S.TEJI, J.

1. Aggrieved by the order dated 12.08.2015, passed by the learned

Special Judge, NDPS/ASJ (NW), Rohini, Delhi, vide which the bail

application filed by the present petitioner has been rejected, the

petitioner has preferred the present bail application under Section 439

read with Section 482 of the Code of Criminal Procedure, 1973 for

seeking bail in a case registered under FIR No.433/2012 under

Section 420/380/34 of Indian Penal Code, Police Station North

Rohini, New Delhi.

2. The allegation levelled against the petitioner is that he, in

connivance with other co-accused persons, induced the complainant

for taking franchisee of leading international brands of

apparels/readymade garments, such as "ALLEN COOPER" "FREE

LOOK" and "LEE SOLLY" etc., by investing Rs.25,00,000/- as

refundable security and in return the complainant would be paid a

fixed amount of Rs.35,000/- every month in addition to commission

of 4% on net sale. According to the FIR, the complainant was also

fraudulently misrepresented by the present petitioner alongwith other

co-accused persons, that the accused No.1 - M/s. Ess Aay Fasions

(India) Private Limited, will provide the showrooms to their

franchisees at various places in Delhi & NCR. Due to

misrepresentation of the petitioner alongwith other co-accused the

complainant agreed to become franchisee of accused No.1 company

for its brand "FREE LOOK" for Rohini Area and Rs.25 lacs were

paid to the accused persons in the name of the company as refundable

security. The complainant has also described the date and mode of

payment of Rs.25 lacs to the accused persons. Consequently,

Franchisee Agreement was executed on 19.06.2010 duly signed by

the present petitioner on behalf of the company and the complainant

and her brother Sanjay Bindal. The said agreement was valid for three

years. According to the complainant, the showroom was opened on

19.06.2010 and up to December 2010 the readymade garments were

supplied to complainant for sale in the showroom and the complainant

regularly deposited the sale amount with accused No.1 company after

deduction of expenses for running the showroom, Rs.35,000/- per

month and 4% commission on the net sale. It is alleged that after May

2011, no fresh supply of garments was made by the present petitioner

alongwith other co-accused and when the complainant asked to refund

the deposit money of Rs.25 lacs, the petitioner in connivance with

other co-accused persons, blatantly refused to refund the said money.

It is alleged that the complainant had to incur expenses from her own

resources for paying salaries to the employees, rent to the landlord

and day to day operation of showroom. On 09.09.2011, the landlord

disconnected the electricity of the showroom and threatened the

complainant to vacate the showroom otherwise she will be

dispossessed with the help of goondas. A complaint in this regard was

also lodged by the complainant with the police. It is alleged that the

landlord had put a lock on the showroom on 13.11.2011 and told the

complainant that he had been authorised by the present petitioner

alongwith other co-accused persons to take forcible possession of the

showroom. She was also threatened by the landlord of dire

consequences, in case any complaint is lodged with the police. It is

also alleged that on 29.02.2012, the landlord in conspiracy with the

petitioner as well as other co-accused persons broke the locks of the

showroom and removed all the garments, goods and gadgets of the

complainant from the showroom. PCR was called and a complaint

with the police station North Rohini was lodged.

3. Mr. Ramesh Gupta, Senior Advocate, on instructions of the

petitioner submits that the petitioner is in judicial custody since

20.05.2015 and vide order dated 30.04.2013, the petitioner and other

co-accused were incorrectly, improperly and unjustifiably declared

proclaimed offender by the Trial Court. It is further submitted that

after the aforesaid order, the supplementary charge sheet qua the

petitioner was filed on 06.07.2015 under Section 420/380/506/34/174

of IPC against the petitioner and co-accused Satish Mittal. It is further

submitted that on 13.02.2013, the NBW were issued and according to

the petitioner, the same was not executed. Thereafter on 15.03.2013

an application for initiating proceedings under Section 82 and 83 of

Cr. P.C. against the petitioner by Sub-Inspector Satish Kumar, was

moved and the application was allowed by the Trial Court. It is

contended that the process under Section 82 & 83 of Cr. P.C. was

sought to be initiated on the address C-7/160-161, Sector 7, Rohini,

Delhi and no efforts were made to carry the said proceedings on the

two other available addresses, as mentioned in the complaint and FIR.

Ultimately, on 30.04.2013, the petitioner was declared proclaimed

offender, and it was observed that despite execution of process,

petitioner has failed to appear. It is also contended on behalf of the

petitioner that on 12.08.2015, the Session Court had directed the

Investigating Officer to report as to whether the NBW/process under

Section 82 & 83 of Cr. P.C. were executed at the two other addresses

or not, to which the Investigating Officer had made a false report that

it was done so. It is however contended that no settlement could arrive

at between the petitioner and complainant because of complainant's

non-cooperative attitude. It is further contended that the complainant

did not approach the court with clean hands and the Investigating

Officer had misled the court in the manner of issuance of non-

execution of the NBW/process under Section 82 & 83 of Cr. P.C. and

further by misleading the court got him declared as Proclaimed

Offender. It is further submitted that the Investigating Officer had

three available addresses with him but he did not make any effort to

serve the NBW/82 & 83 Cr. P.C. proceedings on the other two

addresses. It is further contended that the petitioner had no knowledge

about the filing of the complaint and registration of FIR in question

and therefore the petitioner had no occasion to appear before the

Investigating Officer for the purpose of investigation in FIR in

question or to appear before the Trial Court to attend the proceedings.

It is contended that the ingredient of Section 420 of IPC is not made

out and at best it is a case of civil nature as the subject matter is of the

franchisee agreement. It is submitted that the charge sheet /

supplementary charge sheet has already been filed and the petitioner

is no more required for the purpose of investigation. It is further

informed that the co-accused has already been granted bail in the

present case. It is further submitted that the petitioner is a sole bread

earner of his family and the family of the petitioner is being adversely

affected due to his non-presence, therefore the petitioner/applicant

ought to be granted bail in the aforesaid case.

4. The petitioner had also moved the bail application before the

learned Special Judge, NDPS/ASJ (NW), Rohini, Delhi, which was

dismissed vide order dated 12.08.2015, which is impugned in the

present petition.

5. To oppose the contentions raised by learned counsel for the

petitioner, Mr. Panna Lal Sharma, learned Additional Public

Prosecutor for the State submitted that the charge sheet in this case

has been filed and the trial is at initial stage, therefore the petitioner be

not released on bail.

6. I have heard the submissions made by learned counsel for the

petitioner and the learned Additional Public Prosecutor for the State

and also gone through the material placed on record.

7. After considering the contents of the present petition as well as

the material placed on record, this Court observes that the proceedings

under Section 82 & 83 of Cr. P.C. were initiated against the petitioner

and he was declared proclaimed offender on 30.04.2013. The

question, whether the petitioner was served with the NBW/process

under Section 82 & 83 of Cr. P.C. at all the addresses available with

the Investigating Officer or not, is the subject matter of trial and can

be proved by leading cogent evidence. However, at present the fact

remains that the present petitioner has already been arrested on

20.05.2015 and since then he is in custody. Perusal of the record also

reveals that the co-accused Satish Mittal has already been granted bail

by the Metropolitan Magistrate 03, North-West, Rohini, Delhi, on

14.07.2015, therefore, the petitioner cannot be deprived of the benefit

of parity with the co-accused in the present case. It is also revealed

that the charge sheet in the present case has already been filed and the

prosecution does not seek the custody of petitioner for any further

investigation in the present case. It is also informed that the petitioner

is a sole bread earner of his family and the family of the petitioner is

being adversely affected due to his non-presence.

8. Considering the facts and circumstances of the present case and

the material placed on record, this court is of the opinion that there

would be no impediment in releasing the petitioner - Ajay Tayal on

bail. Accordingly, the petitioner - Ajay Tayal is ordered to be

released on bail, subject to his furnishing personal bond in the sum of

Rs.50,000/- with two sureties of the like amount, to the satisfaction of

the Trial Court. The petitioner is directed not to tamper with the

evidence; not to influence the prosecution witnesses and shall not

leave the country without prior permission of the Court concerned.

9. It is made clear that any observation made in the aforesaid

order shall not affect the merits of the case.

10. With aforesaid directions, the present bail application filed by

the petitioner stands disposed of.

11. Dasti.

(P.S.TEJI) JUDGE NOVEMBER 26, 2015 pkb