Sudha Diwan & Ors. vs State
2016 Latest Caselaw 842 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                  Judgment delivered on : February 04, 2016
+     BAIL APPLN. 2601/2015
      SUDHA DIWAN & ORS.                                   ..... Petitioner
                         Through:      Mr.J.P.Sengh, Senior Advocate with
                                       Mr.Arun Sukhija, Ms.Vanessa Singh,
                                       Advocates.

                         versus

      STATE                                             ..... Respondent
                         Through:      Ms. Manjeet Arya, Additional Public
                                       Prosecutor for the State

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

                                    JUDGMENT

P.S.TEJI, J.

1. By this petition filed under Section 438 of Code of Criminal

Procedure, 1973 (hereinafter referred to as the Cr. P.C.), the

petitioners seek anticipatory bail in a case registered as FIR No.

879/2015 under Section 420/406/506/120B/34 of Indian Penal Code,

at Police Station North Rohini, Delhi.

2. Petitioners, in this case are above 80 years old and the dispute

in question relates to the transactions of money for the sale of

property. The gist of the case of is that one Mr.Raj Garg (hereinafter

referred to as the complainant) has filed a complaint case against the

petitioners herein alleging that the petitioners have induced him to

enter into an agreement to sell dated 28.03.2014 for the purpose of

causing wrongful loss to the complainant and wrongful gain to

themselves and entered into an agreement to sell on 28.03.2014 in

respect of basement, ground floor, first floor, second floor and third

floor alongwith the roof rights of third floor of property bearing No.12

and 57, Pocket C-9, Sector 7, Rohini, Delhi on a total consideration of

Rs.8 crores. The complainant paid a total sum of Rs.80 lacs by way of

different cheques and the same were duly encashed. It is alleged that

the complainant was assured by the petitioners that half of the

property under sale was free from all encumbrances, such as sale,

mortgage, gift, lien, decree, charges, surety, security etc. and the

petitioners undertook to be responsible and liable for any defect. On

demand, complainant paid another amount of Rs.1.75 crores to the

petitioners and despite the fact that petitioners had undertaken to hand

over vacant physical possession of the property under sale, they

expressed their inability to get the same vacated on or before

27.09.2014 and the time was extended for the purpose of handing

over the possession to 15.01.2015 and further sum of Rs.5 lacs was

paid by the complainant to the petitioners. Later the complainant

found that the property under sale was facing various litigations

before Delhi High Court as well as District Court, Rohini. It is further

alleged that the petitioners have executed a sale deed in respect of the

first floor of the said property in favour of Smt. Poonam Deswat for a

sum of Rs.1,50,00,000/-. As per the complainant he tried to visit the

house of the petitioners for tendering the balance sale consideration

and to execute the sale deed upon which he came to know that the

petitioners have shifted to Goa. After obtaining their Goa address, the

complainant visited them and requested them to accept the balance

sale consideration and it is only thereafter, it was disclosed that the

litigation was pending between the petitioners and tenants and they

sought further extension of time i.e., in last week of October 2014 and

as such the initial agreement was extended upto 30.04.2015. It is

further alleged that the petitioners have kept the complainant in dark

about the agreement to sell dated 10.02.2015 with one Shri Rakesh

Gupta, who was tenant in the property, in respect of basement and

ground floor of the property for a total sale consideration of Rs.3

crores. Thereafter, complainant made a complaint to Police Station

North Rohini, Delhi but no action was initiated against the petitioners

and the complainant submitted further complaint to SHO, Police

Station Rohini on 25.05.2015 but all in vain. Thereafter the

complainant approached the Court under Section 156(3) Cr.P.C. and

thereafter, FIR in question was registered.

3. On 02.12.2015, when the matter came up for hearing, both

counsel for the parties agreed to appear before the Delhi High Court

Mediation & Conciliation Centre for reaching to an amicable

settlement between the parties. Accordingly, parties were directed to

appear before Delhi High Court Mediation & Conciliation Centre on

16.12.2015 at 3.00 PM. The mediation report dated 12.01.2016 is

received, wherein it is reported that the matter was discussed at length

but despite best efforts, no settlement could be arrived at. The

mediation ended as 'not-settled.'

4. Mr. J.P. Sengh, learned Senior Advocate appearing on behalf of

the petitioners contended that the dispute between the parties is of

civil nature and no criminal offence has been made out and it was the

complainant who had defaulted in complying with the terms and

conditions of the agreement dated 28.03.2014 which was

subsequently extended, but he failed to make the payment in the

agreed time, therefore the petitioners had no option except to forfeit

the earnest money. In this regard, the petitioners have also sent legal

notice dated 05.05.2015 to the complainant to which he did not reply.

It is further contended that the present case is of civil nature and is

based on documentary evidence and there is nothing to recover from

the petitioners. Moreover, the petitioners have not received any notice

from the Investigating Officer to join the investigation. It is further

contended that as per Section 54 of the Transfer of Property Act, an

agreement to sell does not confer any right, title and interest and it is

complainant who had not complied with the provisions of Section 16

of the Specific relief Act. Lastly, it is contended that the petitioners

are more than 80 years old and are not previous convict and have

unblemished record throughout their life and they are ready to join the

investigation as and when required.

5. Ms. Manjeet Arya, Additional Public Prosecutor appears on

behalf of the State and submits that the petitioners have entered into

an agreement with the complainant which was to be performed by

30.04.2015 but the petitioners entered into another agreement to sell

in respect of ground floor and basement of the property with one Mr.

Rakesh Gupta on 10.02.2015. It is further submitted that a huge

amount of money is involved in the present case and it indicates that

there was some conspiracy between the petitioners for obtaining a

whopping amount from the complainant. The Investigating Officer

informed that the petitioners did not join investigation and are

absconding and their houses were locked. In these circumstances,

custodial interrogation of the petitioners is required for fair and

complete investigation of the case. Therefore, the bail application of

the petitioners deserves to be rejected.

6. I have heard the contentions raised by counsel for the petitioner

as well as the submissions made by learned Additional Public

Prosecutor for the State.

7. After going through the contents of the petition and the facts

and circumstances of the case, no doubt, the petitioners have entered

into an agreement to sell with another person - Mr. Rakesh Gupta,

while the earlier agreement was in existence till 30.04.2015, but

execution of agreement to sell does not confer any right or title in

favour of the purchaser. It is an admitted fact that the terms of the

initial agreement to sell entered between petitioners and the

complainant could not be performed for any reason whatsoever, and

the main grievance of the complainant is that he had invested huge

amount for purchasing the property in dispute. The complainant has

all the civil remedies for his said grievance and the same is not the

subject matter of the present bail application, therefore this is not

required to go into the merit of the case. What requires for this Court

is to see whether any custodial interrogation is required to unearth the

truth or not. This Court observes that the dispute in question relates to

agreement to sell and the payments are made through cheques which

were encashed. It is also mentioned in condition No.4 of the

agreement dated 28.03.2014 that half of the property under sale was

free from all encumbrances such as sale, mortgage, gift, lien, decree,

charge, surety, security etc. This Court also perused the clause 2 of

the agreement to sell date 28.03.2014. For better appreciation of

clause 2 of the agreement, the same is reproduced as under:-

"2. That the first party shall deliver the floor-wise possession of the above said properties at the time of payment of part consideration and the registration of Sale Deed for the respective floor in the following

manner..."

8. Perusal of the clause 2 of the agreement shows that a word

'without' has been cut. This Court also observes that clause 7 at page

3 has been inserted in handwriting and thereafter at page 4, clause 7 is

again mentioned. Whether the word 'without' in clause 2 of the

agreement was cut at the time of execution of the agreement or

thereafter, is a subject matter of trial before the appropriate forum.

9. This Court also observes that the entire prosecution story

revolves around the agreement to sell and its terms, which are already

with the Investigating Officer. It is for the Trial Court to ascertain

whether any criminal liability is made out against the petitioners or

not. As far as custodial interrogation of the petitioners, this Court is of

the opinion that all the documents are already with the Investigating

Officer. Moreover, transactions were made through cheques and the

same have been encashed and no further recovery is required to be

effected from the petitioners in the present case.

10. In view of the aforesaid discussion and considering the fact that

the petitioners are senior citizen aged about 80 and 87 years and the

fact that the conclusion of trial of this case is likely to take time, this

Court is inclined to grant anticipatory bail to the petitioners.

Accordingly, it is ordered that in the event of arrest, the petitioners -

Sudha Diwan, S.K. Diwan and Dinesh Diwan be released on bail

subject to furnishing their personal bonds in the sum of Rs.30,000/-

each with two sureties of the like amount to the satisfaction of the

Trial Court.

11. The petitioners are directed to appear before the Investigating

Officer as and when required and to cooperate in the investigation.

They are further directed not to tamper with the evidence, not to

influence the prosecution witnesses and not to leave the country

without prior permission of the Court concerned.

12. It is made clear that any observations made hereinabove, shall

not have any bearing on the merits of the case.

13. In view of the aforesaid directions, the present bail application

is disposed of.

(P.S.TEJI) JUDGE FEBRUARY 04, 2016 pkb