Narender Jain vs State Govt Of Nct Of Delhi
2017 Latest Caselaw 4354 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Judgment reserved on 18.08.2017
                                     Judgment pronounced on: 23.08.2017
+        BAIL APPLN. 1338/2017
         NARENDER JAIN                       ..... Petitioner
                      Through    Mr.N. Hariharan, Sr. Adv. with
                      Mr.Nitin Soni, Mr.Siddharth Singh Yadav,
                      Mr.Prateek Bhalla, Mr.Keinin Kunjappy,
                      Advs.

                                 versus

         STATE GOVT OF NCT OF DELHI            ..... Respondent
                      Through: Ms.Aashaa Tiwari, APP for State
                      with SI Sushil Sharma, P.S. Rajinder Nagar.

                                 Mr.K.K. Manan, Sr. Adv. with Ms.Shweta
                                 Sain, Adv. for complainant.

         CORAM:
         HON'BLE MR. JUSTICE VINOD GOEL

VINOD GOEL, J.

1. Apprehending his arrest in a case registered against him vide FIR No.0072/2017 dated 25.05.2017, PS Rajinder Nagar, Central District, Delhi under Section 420 of Indian Penal Code, 1860 (in short „IPC‟), the petitioner has approached this court for granting him anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (in short „Cr.PC‟).

2. Reply to bail application has been filed on behalf of the prosecution.

3. The complainant Sh. Gautam Khattar had lodged a written complaint against (1) Mr.Yogesh Gupta, R/o; E-1/130, Sector-16, Rohini, Delhi-110085, (2) Concerned Branch Manager, Punjab National Bank (in short „PNB‟), Connaught Place Branch, New Delhi and (3) Mr.Narinder Jain (petitioner) under Section 420/406/467/468/471/506/120B/34 of IPC. It is alleged by the complainant that he was approached by the petitioner in April, 2016. He was allured by him to purchase his property bearing No. 752, Udyog Vihar, Phase-V, Gurugram (in short "property in question"). The petitioner told the complainant that he had a dispute with one Ms.Manu Sehijpal in respect of the property in question but he was in need of money and he had applied for a loan through one Mr.Pradeep Aggarwal from PNB, which was rejected on the objection of Haryana State Industrial & Infrastructure Development Corporation (in short „HSIIDC‟). After rejection, Sh. Pradeep Aggarwal introduced the petitioner to one Mr.Yogesh Gupta, who had given him a personal loan of Rs.55,00,000/- against the original title documents of the property in question with the assurance that the documents shall be returned after the loan is repaid. The complainant further alleged that on 04.04.2016 after being allured and assured by the petitioner that the original documents shall be handed over to him on return of money, the deal to buy the property in question with the petitioner was finalized for a total sum of Rs.2,25,00,000/-. He further alleged that the petitioner then called him in his office

and there Mr.Yogesh Gupta admitted that the original chain of title documents were lying with him. At that time, Mr.Yogesh Gupta demanded Rs.1,00,00,000/- from the petitioner which includes principal amount and the interest. The complainant made complete payment of Rs.2,25,00,000/- to the petitioner by RTGS, who then paid a sum of Rs.30,00,000/- to Mr.Yogesh Gupta. Mr.Yogesh Gupta assured that he shall return the original documents by 30.06.2016. This was also assured by the petitioner. The sale deed of the property in question was executed and registered in the name of the complainant and his brother namely Mr.Gaurav Khattar on 09.06.2016 by the petitioner after meeting out the formalities of HSIIDC. Final transfer letter was also issued in favour of the complainant.

4. The complainant further alleged that he unsuccessfully approached Mr.Yogesh Gupta and the petitioner several times to provide him the original documents. On 26.02.2016, the petitioner lodged a complaint against Yogesh Gupta at PS Rajinder Nagar, New Delhi and on being called there in the Police Station, Yogesh Gupta gave an affidavit admitting that the documents are lying with him and assured that the same shall be handed over by 20.04.2017. However, Yogesh Gupta failed to hand over the documents to the complainant till date.

5. Later on the complainant came to know that Yogesh Gupta in connivance with the petitioner and the Branch Manager of PNB

procured a loan on the basis of original documents of the property in question in the name of firm M/s.Arihant Traders consisting of Yogesh Gupta and Pradeep Aggarwal. It is alleged that all these accused persons i.e. Petitioner, Yogesh Gupta and the concerned Branch Manager of PNB in connivance with each other and with malafide intention from the inception to cheat him, have caused wrongful loss to him and wrongful gain to themselves.

6. It is submitted by the learned senior counsel for the petitioner that the petitioner has not at all cheated the complainant. He stated that as per the allegations in the FIR, the complainant was aware of the fact that the original documents of the property were with Mr.Yogesh Gupta from whom the petitioner had taken a loan of Rs.55,00,000/- to perform the marriage of his daughter. He submitted that the petitioner had also executed the sale deed of the property in question on 09.06.2016 in favour of the complainant and his brother after obtaining necessary „No objection certificate‟ from HSIIDC on 13.05.2016.

7. Learned senior counsel for the petitioner further submitted that Yogesh Gupta has assured to return him the original documents of the property in question but he, in collusion with the Manager of the PNB, had obtained huge amount of loan of Rs.6,40,00,000/- in the name of the firm M/s.Arihant Traders. Learned senior counsel for the petitioner further submitted that

Yogesh Gupta had taken the petitioner to PNB, where he unknowingly signed several documents. He submitted that the petitioner had only executed the personal guarantee to secure the loan of M/s.Arihant Traders. He submitted that in order to settle the dispute with Mr.Sachit Sehijpal (Ms.Manu Sehijpal/M/s. Knowledge Call), the petitioner deposited Rs.55,00,000/- on 09.06.2016 with a Mediator Mr. Bhupender Kumar to release the payment to Mr.Sachit Sehijpal. He further submitted that the petitioner has never created or executed any mortgage in favour of PNB to secure loan advanced to M/s. Arihant Traders. He submitted that several documents were got signed from the petitioner as usual by the PNB at the time of granting loan in the name of M/s. Arihant Tranders, which was never explained to him. He further submitted that the petitioner is an innocent. He submitted that the main culprit is Yogesh Gupta who had misused the sale documents of the property in question which he handed over to him to secure a loan of Rs.55,00,000/-. He submitted that the sale documents of the property in question were handed over to the PNB by Yogesh Gupta as security on his behalf without his knowledge or consent. He further submitted that the IO has not called Yogesh Gupta even once to join the investigation. He submitted that the petitioner may be granted anticipatory bail as no case of cheating is made out against him.

8. Per contra, it is argued by the learned APP for the State as also by learned senior counsel for the complainant that the petitioner, Yogesh Gupta and the Branch Manager and other officers of PNB had in collusion with each other cheated the complainant to pay huge amount of Rs.2,25,00,000/- to the petitioner. It is submitted that the petitioner had never disclosed to the complainant that the title documents of the property in question were lying with the PNB as mortgagee or that the petitioner stood guarantor and furnished the title documents as guarantor to PNB. It is submitted that the huge amount of Rs.6,40,00,000/- was sanctioned and disbursed on 30.09.2015 to the borrower firm M/s.Arihant Traders consisting of Yogesh Gupta and Pradeep Aggarwal as its partners and the personal guarantee and security of the petitioner, whereas the deal was subsequently finalized by the petitioner with the complainant on 04.04.2016. The petitioner had also confirmed in writing on 22.12.2015 having created mortgage in favour of PNB. It is submitted that the Branch Manager of the PNB had sent a letter to HSIIDC on 17.11.2015 seeking its consent for creation of mortgage of the property in question by the petitioner to secure the loan in favour of M/s.Arihant Traders, which was declined by the HSIIDC by its letter dated 25.01.2016. It is submitted that the collusion and conspiracy involving the bank officers and the Manager of the PNB is evident from the fact that the loan was already disbursed to M/s.Arihant Traders on 30.09.2015 and thereafter they had

sought consent of HSIIDC on 17.11.2015 to get the mortgage created at the hands of the petitioner which was declined on 25.01.2016. It is submitted by the learned APP through the IO that the petitioner is denying his signatures on the documents which he had executed in favour of the PNB being the mortgagor of the property in question and surety to secure the loan amount of Rs.6,40,00,000/- advanced to M/s.Arihant Traders. She submitted that the petitioner had refused to give his specimen handwriting and signatures for the purpose of comparison. It is also submitted that as per section 311-A of Cr.PC a Magistrate is empowered to direct any person including the accused persons to give his specimen signatures or handwriting and under the provisio of section 311-A of Cr.PC, it is provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding. It is submitted that unless the petitioner is arrested, he cannot be directed to furnish his specimen handwriting and signatures.

9. Learned APP further submits that the photographs of the petitioner are affixed on the agreement of guarantee, which is duly signed by him. It is submitted that when the deal was finalized between the complainant and the petitioner on 04.04.2016, the original documents of title were already with the PNB since 30.09.2015 and it was falsely represented to the

complainant by the petitioner that the documents were with Mr.Yogesh Gupta so as to receive huge amount of Rs.2.25 crores from the complainant.

10. At the time of arguments, learned APP submits that the role of the Branch Manager/AGM Mr.Subhash Chand Jindal, Senior Manager R.K. Kataria, Mr. Varun Narula and Chief Manager Sh. Sarabjeet Singh is being examined and the IO intends to seek opinion of the senior police officers as to whether Section 13 of of Prevention of Corruption Act is to be added/invoked. It is submitted that the custodial interrogation of the petitioner is required to unearth the larger conspiracy hatched by the petitioner in collusion with Yogesh Gupta and officers of PNB. Learned APP submitted that Yogesh Gupta is on the run after the registration of the FIR. She further submitted that the petitioner has not at all cooperated during the investigation and his custodial interrogation is necessary to find out the involvement of the other officers of the bank and to recover the huge amount of Rs.2,25,00,000/- which had been taken by the petitioner from the complainant.

11. I have heard the learned senior counsel for the petitioner, learned APP for the State and learned senior counsel for the complainant.

12. Here it will not be out of place to mention the concern shown by Hon‟ble Supreme Court in its various judgments while

considering request for bail. Hon‟ble Supreme court in Parvinderjit Singh & Anr. v. State (U.T. Chandigarh) & Anr., 2008 (4) SCC 2873, held in para 17 as under:

"17. Ordinarily, arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. There may be circumstances in which the accused may provide information leading to discovery of material facts. It may be necessary to curtail his freedom in order to enable the investigation to proceed without hindrance and to protect witnesses and persons connected with the victim of the crime, to prevent his disappearance to maintain law and order in the locality. For these or other reasons, arrest may become inevitable part of the process of investigation. The legality of the proposed arrest cannot be gone into in an application under Section 438 of the Code. The role of the investigator is well- defined and the jurisdictional scope of interference by the Court in the process of investigation is limited. The Court ordinarily will not interfere with the investigation of a crime or with the arrest of accused in a cognizable offence. An interim order restraining arrest, if passed while dealing with an application under Section 438 of the Code will amount to interference in the investigation, which cannot, at any rate, be done under Section 438 of the Code. The above position was highlighted in Adri Dharan Das v. State of West Bengal (2005 (4) SCC 303).

13. On the similar points there is another judgment of the Apex Court in State Rep. by the CBI v. Anil Sharma, (1997) 7 SCC 187, on

the requirement of the accused for custodial interrogation. Para 6 of the said judgment reads as under:

"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is well ensconced with a favorable order under Section 438 of the code. In a case like this effective interrogation of suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulted by a pre-arrest bail during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible Police Officers would conduct themselves in task of disinterring offences would not conduct themselves as offenders."

14. Keeping in view the serious nature of the offence committed by the petitioner, gravity of the accusation and possibility of the petitioner to tamper with the evidence or flee from the justice and also the fact that the investigation is at its initial stages and that custodial interrogation of the petitioner is required to unearth the larger conspiracy to find out the involvement of the public servants i.e. higher officers of the PNB, and to recover the huge amount of Rs.2,25,00,000/- paid by the complainant to the petitioner and the accused Yogesh Gupta is on the run, the

petitioner has no ground with him for his entitlement for grant anticipatory bail.

15. The application is dismissed.

VINOD GOEL, J.

AUGUST 23, 2017 "shailendra"