Jagdish Gupta vs State (Govt Of Nct Of Delhi)
2015 Latest Caselaw 7367 Del

$-2

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+       BAIL APPLN. 253/2015

                           Date of Decision : September 28th, 2015

        JAGDISH GUPTA                                  ..... Petitioner

                          Through:     Mr.Rakesh Tiku, Sr. Adv. with
                                       Mr.Vivek Ojha, Mr.Sagar
                                       Aggarwal and Mr.Sandeep
                                       Kumar, Advs.
                          versus

        STATE (GOVT OF NCT OF DELHI)                ..... Respondent

                          Through:     Ms.Manjeet Arya, APP for the
                                       State.
                                       Mr.C.S.S. Tomar, Adv. for R-2

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

P.S.TEJI, J.

1. The present application has been filed by the applicant under

Section 439 of the Code of Criminal Procedure, 1908 for the grant of

bail in FIR No.183/2010, Police Station Economic Offences Wing,

under Sections 420, 467, 468, 471, 120-B of the Indian Penal Code,

1860.

2. The allegations levelled against the applicant/accused are that

the firm of the complainant purchased a plot measuring 1600 sq.

Yards out of Khasra No.138, situated in the area of Village Siraspur,

Delhi from the applicant vide registered sale deed on 08.05.1989 for

the consideration of Rs.20,000/-. The actual physical possession of

the land was given to the complainant. When the complainant visited

the site on 24.01.2010, he found some godowns on the said plot. One

Satya Parkash grabbed the land and mutation had been done in favour

of Satya Parkash Rana, Jagdish, Rohtash and Arun. It revealed that

sale documents were executed by the applicant/accused on

22.03.2004 in favour of co-accused Rohtash. Further Satya Parkash

Rana got executed Sale Deed from Rohtash in his favour on

31.12.2008 for a sum of Rs.27,06,600/-.

3. On the basis of complaint made by the complainant, FIR of the

present case was registered. The applicant/accused was arrested on

26.08.2014 and he disclosed that he sold the land in question to the

complainant in the year 1989 and then in 2009 to Sat Parkash. After

completion of investigation, charge sheet was filed in the Court.

4. The argument advanced by the learned Senior Counsel for the

applicant is that the applicant is languishing in jail since 26.08.2014;

two co-accused have been granted anticipatory bail, while the third

co-accused has been granted regular bail by the Trial Court; all the

documents have already been seized by the police; charge sheet has

already been filed; specimen handwriting of the applicant has been

taken and sent to Forensic Science Laboratory; the trial is likely to

take time; present case is a civil dispute which has been given a

colour of criminal dispute.

5. In support of the above contentions, the applicant has relied

upon judgment of Hon'ble Apex Court in the case of Arun Bhandari

v. State of U.P. and others (Criminal Appeal No.78/2013 decided on

10.01.2013) in which it has been observed that in order to constitute

an offence of cheating, the intention to deceive should be in existence

at the time when the inducement was made. It is necessary to show

that a person had fraudulent or dishonest intention at the time of

making the promise, to say that he committed an act of cheating. A

mere failure to keep up promise subsequently cannot be presumed as

an act leading to cheating. Next judgment relied upon is in case of

Dipak Shubhashchandra Mehta v. C.B.I. & Anr. (Criminal Appeal

No.348/2012) in which it has been observed that the Court while

granting bail has to consider the nature of accusation and severity of

punishment in case of conviction and the nature of supporting

evidence; reasonable apprehension of tampering with the witness or

apprehension of threat to the complainant; prima facie satisfaction of

the Curt in support of the charge; likelihood of the accused fleeing

from justice and tampering with the prosecution witnesses.

6. The bail application has been opposed by the learned counsel

for the complainant and learned APP for the State. It has been argued

that the applicant/accused has committed cheating by forging

documents. The applicant firstly sold the land in question to the

complainant and then sold it again to co-accused persons. It is argued

that the allegations of cheating and forgery are there which are serious

in nature and the applicant does not deserve the concession of bail.

7. Learned counsel for the complainant has referred to judgment

in the case of Mukesh Jain v. CBI 2010 (1) JCC 417 in which the

bail was refused while observing that the economic offences having

deep rooted conspiracies and involving huge loss of public funds

whether of nationalized banks or of the State and its instrumentalities

need to be viewed seriously and considered as grave offences

affecting the economy of the country as a whole and thereby posing

serious threat to the financial health of our country. On similar

proposition of law, judgments in case of Sanjay Kapoor v. State 2009

(2) JCC 1071 and M.S. Saini v. State 2009 (4) JCC 2950 have been

referred.

8. The law laid down by the Hon'ble Apex Court is not in dispute.

9. The undisputed fact in the present case is that the applicant sold

the land to the complainant for a sum of Rs.20,000/- along with the

possession and the complainant was put into possession. As per the

complainant, he visited the land and found that some construction was

available and on enquiry, it revealed that subsequently the applicant

had sold the land in question to one Rohtash for a sum of

Rs.8,98,866/- and thereafter Rohtash sold the land to Satya Prakash

Rana for a sum of Rs.27,06,600/-. One Special Power of Attorney

was also executed from Rohtash in favour of Arun and they had been

raising the construction in the year 2010. The FIR was lodged in the

present case on 22.12.2010 and thereafter the investigation

commenced. The investigating agency filed the charge-sheet before

the Court of Chief Metropolitan Magistrate, but the report of the FSL

is still awaited.

10. On the other hand, the case of the applicant is that he had

already conceded to the framing of charges against him on

22.01.2015, but the case is not being proceeded with for the want of

FSL report. The other limb of argument is that the co-accused Satya

Prakash and Arun Kumar have been granted anticipatory bail,

whereas co-accused Jaipal has been granted regular bail. The

applicant is behind the bar since 26.08.2014 and he has already spent

more than one year behind the bars.

11. The gravity of the offence is definitely a vital part for

consideration of the grant of bail, but while considering the gravity of

the offence the other circumstances need not to be ignored,

particularly when the personal liberty of a person is at stake.

12. As discussed above, in the present case, the land in question

was sold to the complainant in the year 1989 and handing over of

possession is not in dispute. The complainant has not made any claim

that subsequently at any point of time the applicant happened to be in

possession of the land in question and the allegations levelled are that

subsequently, he sold the land to one Rohtash which is being denied

by the applicant that he ever executed any such sale document.

Though, the charge sheet has been filed but still the Court is unable to

consider the case for framing of charge on account of non-availability

of FSL report, though the petitioner has already conceded to the

framing of charge. The fact of grant of anticipatory bail to co-

accused Rohtash and Arun and the grant of regular bail to Jaipal is not

in dispute. So, basically the claim of the applicant seeking regular

bail is on the basis of parity as well as taking of long time by the Trial

Court and having being behind the bars for the last more than one

year.

13. Due to this undisputed position, this Court is of the considered

opinion that this is a fit case where the applicant is entitled to be

enlarged on regular bail during the pendency of the trial.

14. Consequently, it is hereby ordered that the applicant be released

on bail on furnishing the personal bond in the sum of Rs.1,00,000/-

with one surety in the like amount to the satisfaction of the Trial

Court, subject to the condition that he shall not tamper with the

evidence, not to influence the prosecution witnesses and shall not

leave the country without prior permission of the Trial Court.

15. However, it is made clear that the observations made above

shall not affect the merits of the case.

(P.S.TEJI) JUDGE SEPTEMBER 28, 2015 dd