Yash Kumari & Anr vs State ( Nct Of Delhi)
2016 Latest Caselaw 7541 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
                       Judgment delivered on : December 22nd, 2016
+       BAIL APPLN. 116/2015
        YASH KUMARI & ANR                                    ..... Petitioner

                            Through      Mr.Vikas Pahwa, Sr.Adv. with
                                         Mr.Neeraj Grover, Ms.Kinnori Ghosh,
                                         Mr.karan Khanuja and Mr.Zakir
                                         Hussain, Advs.

                            versus

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

                            Through      Mr.Ashish Dutta, APP with               SI
                                         Pradeep Kumar, PS Preet Vihar.

                                         Mr.Keshav Mohan and Mr.Deepak
                                         Pathak, Advs. for the complainant.

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

% P.S. TEJI, J.

1. The present application under Section 438 of Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr. P.C.), has been filed by the petitioner for seeking anticipatory bail in a case registered as FIR No.841/2014, under Sections 406/420/34 of Indian Penal Code, at Police Station Preet Vihar.

2. As per FIR, the allegations leveled are that the complainant, Sh. C.M. Sethi had made a written complaint to the police. In the

complaint, it was mentioned that the complainant is engaged in the real estate business and that sometime in the month of January, 2012, Mr. Sumit Kathuria one of the directors of M/s. Harsha Associates Pvt. Ltd., 117, Hargovind Enclave vikas Marg Ext. Delhi, 110092 approached the complainant at his residence and represented that the said company is the owner of freehold commercial plot no.B Shakti Khand-II, Indirapuram, Ghaziabad, U.P. and further stated that the said property is free from all encumbrances and of any charge. The company is legally competent to sell the said property or any part thereof. In the process, the above named Director offered an agreed to sell the entire second floor, admeasuring 20148.04 sq. feet with all roof rights to the commercial complex constructed over the said property for a total consideration amount of 1,50,00,000/-. On the strength of property related documents i.e. sale deed, letter of possession of the said property, permission of the use of the said property for commercial purposes, the accused Sumit Kathuria convinced the complainant for the proposed offer for sale of the entire second floor. It is alleged that unaware of the alleged tactical strategy and by relying upon the oral averments supporting the documents, Sale Agreement of the second floor of the said property was entered into on 31.01.2012 through the accused persons. Rs.15 lakhs cash was given at the time of signing of the agreement. On 31.02.2012, remaining sum of Rs.1.35 crores was paid by RTGS through the bank account of the complainant. It was agreed that the seller shall complete the remaining construction work at the site and in lieu of that, the seller was given Rs.15 lakhs. It was further alleged that the

accused persons failed to complete the remaining work and on the demand of the complainant, Rs.15 lakhs were remitted back to the complainant on 02.07.2012. Meanwhile, the complainant came across a public notice dated 01.08.2013 issued by U.P. Financial Corporation informing the public at large that the entire property in question is mortgaged with U.P. Financial Corporation and no sale or purchase was valid without the permission of U.P. Financial Corporation. It was also notified that the said Corporation was going to take over the possession of the said property had defaulted and not paid the loan. Upon confrontation with the accused persons, they admittedly acknowledged the suppression of material fact and execution of sale agreement in respect of the said property which was mortgaged with U.P. Financial Corporation. The accused persons refused to pay the remaining amount and also threatened the complainant.

3. The complaint made by the complainant led to the registration of the instant FIR.

4. Argument advanced by the learned Senior Counsel for the petitioners/accused persons is that the FIR is full of inconsistencies and contradictions. The complainant has tried to convert the dispute of repayment of loan as dispute regarding property and has given it a colour of criminal case, whereas the present dispute is purely civil in nature. The company of the petitioners had availed a friendly loan of Rs.1.35 crores @ 1% per month from the complainant. The complainant had taken an undated cheque of Rs.1.35 crores and signatures on some blank papers including one stamp paper as

security. Such loan was duly repaid by equal monthly installments and a payment of Rs.15 lakhs was made in July, 2012 towards partial repayment of the principal amount. In March, 2013, the petitioners had repaid a sum of Rs.1,02,08,336/- to the complainant. The petitioners approached the complainant and offered to pay back the entire loan amount, but the complainant refused to give back the blank signed papers and undated cheque. It was further argued that the complainant has falsely claimed that the possession of the property was handed over to him, whereas the fact remains that the possession of the property is with the company of the petitioners. The value of the property to be sold by the complainant for Rs.1.5 crores was much more. The company of the petitioners had already sold the roof rights above the constructed portion of the second fllor to one Ms.Aparna by a registered sale deed dated 30.04.2009 after obtaining NOC from U.P. Finance Corporation. It is further submitted that the complainant is trying to convert a civil dispute regarding payment of loan into a criminal offence of cheating.

5. In support of the above contentions, learned Senior Counsel has relied upon judgments in the case of Samrat Singh Nirula & Ors. V. State of NCT of Delhi (2015) 220 DLT 583, Arnesh Kumar v. State of Bihar and Another (2014) 8 SCC 273, Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. (2011) 1 SCC 694 and Ravindra Saxena v. State of Rajasthan (2010) 1 SCC 684.

6. On the other hand, learned APP for the State has argued that the accused persons had offered to sell second floor of the property in

question along with roof rights to the complainant for a total consideration of Rs.1.5 crores. An agreement to sell was executed between the parties. Later on, the complainant came to know that the property in question was already mortgaged to U.P. Financial Corporation against a loan of Rs.5 crores. When the complainant asked for his money, the accused persons refused to return the same. During investigation, copy of the sale agreement was provided. It was further submitted that the third floor of the property was already sold by the accused persons on 30.05.2009 and thereafter sold the second floor along with roof rights to the complainant. It was further submitted that the offence is serious in nature and if the accused persons are released on anticipatory bail, it may adversely affect the investigation of the case.

7. It is apparent from the record that the present bail application was filed on 15.01.2015. Order dated 19.01.2015 shows that the parties agreed for mediation and the matter was referred to the Delhi High Court Mediation Centre and the arrest of the petitioners/accused persons was stayed. Order dated 18.03.2015 shows that the parties had arrived at an amicable compromise and in terms of the seame, the petitioners had given a post dated cheque in the sum of Rs.1.95 crores in favour of the complainant. On 22.12.2015, two demand drafts in the sum of Rs.7,80,000/- and 1,95,000/- were handed over by the accused persons in favour of the complainant and it was undertaken that the entire amount of Rs.1.95 crores shall be paid to the complainant on or before 31.03.2016. On 02.05.2016, it was

submitted on behalf of the accused persons that in view of the depressed market conditions, they could not pay the principal amount of Rs.1.05 crores owed to the complainant. However, they agreed to pay interest @ 10% on the principal amount regularly. On 30.08.2016, on the request of the petitioners, the matter was adjourned to 08.09.2016. On 18.10.2016, an application bearing Crl.M.A. 16166/2016 was moved by the petitioners. In para 10 of the said application, it was mentioned that the petitioners were read to offer to the complainant a commercial property owned by themn in Delhi with clear title and purportedly havinga market value of over Rs.2,15,00,000/- to realize the settlement amount of Rs.1.95 crores along with interest. On 08.11.2015, the order dated 18.03.2015 was recalled while observing that it was considered just, necessary and proper to restore the the present bail application to its original positon and number since the same was not disposed of on merits.

8. It is not in dispute that an agreement to sell was entered into between the petitioners/accused persons and complainant with regard to property in question. It is also not in dispute that the complainant has paid a sum of Rs.1.5 crores to the accused persons and the said amount was received by the accused persons for selling second floor of the property in question. It is also not in dispute that a sum of Rs.15 lakhs was returned by the accused persons to the complainant. It is also not in dispute that the actual physical possession of the property in question was never handed over to the complainant by the accused persons and the same still continuing with the accused

persons. It is also not in dispute that remaining sum of Rs.1.35 crores is still not paid by the accused persons to the complainant. It is also not in dispute that a settlement was arrived at between the parties before the Delhi High Court Mediation and Conciliation Centre in which the accused persons agreed to pay Rs.1.95 crores to the complainant. It is also not in dispute that the accused persons had paid interest on the said amount to the complainant for few months and thereafter stopped making the payment of interest what to say the principal amount. It is also not in dispute that the property in question was already mortgaged to U.P. Financial Corporation by the accused persons for a sum of Rs.5 crores. It is also not in dispute that despite mortgating the property in question by the accused persons, they agreed to sell a part of the property to the complainant.

9. It is also matter of record that the charge sheet in the present case has already been filed and the petitioners can approach the trial court to seek bail under Section 437 Cr.P.C.

10. The facts and circumstances show that the case of cheating is made out against the petitioners/accused persons. The merits of the present case do not warrant concession of grant of anticipatory bail to the petitioners/accused persons.

11. However, the petitioners are at liberty to approach the trial court to seek bail under Section 437 Cr.P.C.

12. Before parting with the order, this court would like to place it on record by way of abundant caution that whatever has been stated hereinabove in this order has been so said only for the purpose of

disposing of the prayer for bail made by the petitioner. Nothing contained in this order shall be construed as expression of a final opinion on any of the issues of fact or law arising for decision in the case which shall naturally have to be done by the Trial Court seized of the trial.

13. Bail application is accordingly dismissed.

(P.S.TEJI) JUDGE DECEMBER 22, 2016 dd