Delhi High Court

Neeraj Sharma vs State Of Nct Delhi on 25 November, 2019

$~61
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Date of decision: 25.11.2019

+      BAIL APPLN. 2150/2018 and CRL.M.A. 41114/2019
       NEERAJ SHARMA                                   ..... Petitioner
                   Through:            Mr. Pramod Kumar Ahuja, Adv.
                          versus

       STATE OF NCT DELHI                                ..... Respondent
                     Through:          Mr. Hirein Sharma, APP for State
                                       with SI Vijay Kumar, PS - Prashant
                                       Vihar
                                       Mr.    Sanjay    Suri,     Adv.    for
                                       complainant/ R-2

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          J U D G M E N T (ORAL)

1. Vide the present petition, petitioner seeks anticipatory bail in FIR No.

36/2018 dated 14.01.2018 registered at Police Station - Prashant Vihar,

District Rohini, Delhi for the offences punishable under Section 420 read

with Section 34 IPC.

2. Case of the petitioner as averred in the present petition is that the

complainant started the work from September, 2009 and did not complete

the same within 8 months and left the construction work in between and

went to Bombay and thereafter Smt. Sneh Lata Sharma got the work

completed in 2013 after using all her sources. The time was never extended

by the Complainant with the deceased Sneh Lata Sharma after entering into

agreement. In the agreement, the petitioner's signature were obtained as one

of the witnesses and on the first and second page also, which were not

required at all. The petitioner was not the owner of the property and the

agreement was only between the deceased - Sneha Lata Sharma and

complainant - Mohan Lal Bansal and not with the petitioner. The signature

of the deceased was not obtained on the last page of the Agreement.

3. The whole construction was to be carried out by the complainant and

he was to get profit on the sale of the Floors as he was to construct four

floors with parking and lift, which he never completed & left the

construction in between i.e. in March 2010 itself.

4. The petitioner's mother (Smt. Sneh Lata) got the construction

completed through contractor after incurring huge losses in the construction

project and it took her 3 years time to get everything rectified/changed or

reconstructed because of complainant not using good material for

construction. When, in fact, the time was of the essence in the contract and

complainant was to complete the construction work within 8 months from

01.08.2009 but he left the construction within a period of 7 months and did

not turn up thereafter.

5. It is further stated in the present petition that after spending huge

expenses, the petitioner's mother sold upper ground floor to one Smt. Neetu

Rana & First Floor to her daughter namely Smt. Sonu Sethi against sale

consideration. Both the sale deeds were executed and signed by Smt. Sneh

Lata Sharma as owner and there was no role of the present petitioner or any

other family member in any manner in the execution of the Sale Deeds.

6. Mr. Ahuja, learned counsel appearing on behalf of the petitioner

submits that as on date, the second and third floor of the subject matter of

the property are lying vacant and complainant has been trying his best to

create hurdles/hindrances so that the property of Smt. Sneh Lata Sharma

(since deceased) be not sold by petitioner and has been convincing the local

property dealers/estate agents not to purchase the property because of the

dispute which has been falsely created by the complainant.

7. It is further submitted that the complainant filed the civil suit before

the District Judge, Rohini Courts for a sum of ₹1,50,00,000/- (Rupees One

Crore Fifty Lakhs) against the present petitioner, which is pending in the

Court of learned Additional District Judge, Rohini, Delhi and pending for

disposal. The petitioner has to file the written statement though he has

already moved the application under Order 7 Rule 11 of C.P.C.. The suit

which has been filed by the complainant is barred by time and that is the

reason the application has been moved by the petitioner for rejection of the

plaint.

8. It is further submitted that despite the fact that the dispute between

the petitioner and the complainant is purely of civil nature, therefore, there

was no question to lodge the FIR against the petitioner on 14.01.2018 with

the Police Station - Prashant Vihar.

9. To strengthen his arguments, learned counsel for petitioner has relied

upon the case of Ravindra Saxena vs. State of Rajasthan, (2010) 1 SCC

684, whereby the Hon'ble Supreme Court has held that the High Court

ought not to have left the matter to the Magistrate only on the ground that

the challan has now been presented. There is also no reason to deny

anticipatory bail merely because the allegation in this case pertains to

cheating or forgery of a valuable security. The merits of these issues shall

have to be assessed at the time of the trial of the accused persons and denial

of anticipatory bail only on the ground that the challan has been presented

would not satisfy the requirements of Sections 437 and 438 Cr.P.C.

10. Also relied on the case of The Commissioner of Police & Ors. vs.

Devender Anand & Ors. in Criminal Appeal No. 834/2017, whereby the

Hon'ble Supreme Court has held that criminal proceedings initiated by the

complainant is nothing but an abuse of the process of law for settling a civil

dispute. No case is made out for taking cognizance of the offence under

Section 420/34 IPC after the civil dispute to be settled by the civil case,

therefore, the Court should not reject the anticipatory bail.

11. The case of the complainant that he is a Senior Citizen and is retired

Government Officer. He was living alone as he had no son and his wife

expired in the year 2010. In the year 2009, the accused Nos. 1 to 3, namely,

Neeraj Sharma, Madhu Sharma and Monika Sharma who were living in his

adjoining flat, contacted him and talked about construction of their plot

bearing No.E-144, area measuring 80.78 sq. meters, Prashant Vihar, Delhi-

34 and the same plot was in the name of Sneh Lata Sharma, who was mother

of the accused nos. l to 3. The whole family of the accused no.l including the

sisters, wife, mother and father requested him to construct the plot from his

funds. In this regard, an agreement for construction of four floors plus car

parking over the said plot was executed between Sneh Lata Sharma (since

deceased) and complainant on 01.08.2009 with the consent of whole family

of accused nos. l to 3.

12. As per the agreement, complainant constructed four floors and car

parking and spent an amount of ₹50 Lakhs approximately. The complainant

constructed the entire building and then the complainant became partner/

shareholder in entire building to the extent of 1/2 share/profit along with

Sneh Lata. She was owner of the said plot, but when the construction was

carried out, she was joint shareholder with him, hence she had no sole right

to sell any portion of the property in question. After the completion of entire

construction work, the accused nos. l to 3 became dishonest and in order to

grab the benefit/share of the complainant, they hatched a conspiracy with

each other as well as in collusion with the accused No.4 and 5 and deceased

Sneh Lata. The accused nos. l to 3 had instigated her mother Sneh Lata with

malafide intention to transfer the upper ground floor of the building in the

name of accused no. 4 in collusion with the accused no.5, to which they

have no right to transfer the upper ground floor in favour of the accused no.4

vide Sale Deed no.4177 dated 14.06.2013, without consent and permission

of the complainant.

13. When the complainant became the shareholder of the property in

question, then the accused nos. l to 3 and their mother had no right to

mention in the said Sale Deed no.4177 that "property is free from all sorts of

encumbrances such as liens, charges, claims, liabilities, acquisitions,

injunctions or attachments from any court of law, gifts, mortgages,

demands, notices, notifications, legal disputes, differences, decree and flaws

etc, prior to sale and the vendor is fully entitled/ empowered to dispose of

the same".

14. Thus, all the accused knew that the complainant had constructed the

entire property under his supervision, arranged materials, engaged

contractors and spent a huge amount and is the partner/shareholder in the

property in question and despite knowing all facts, accused show themselves

as exclusive owners of the property in question in order to grab the share of

the complainant. The accused used the previous sale deed which was in the

name of deceased Sneh Lata as genuine and on the basis of the said sale

deed, they fraudulently further transferred the said property in question as

Sneh Lata and her family members were not full owners of the property in

question after the construction of the property by complainant as per the

agreement. Thus, the case of the complainant is that accused nos. l and 2

knowingly, deliberately and with malafide intention and by using the

fabricated documents, with an ulterior motive to sell the share of the

complainant in the name of accused no.4 in collusion with the accused no.5.

15. Learned counsel for the petitioner has pointed out that the notice

dated 07.10.2013 was issued only to the mother of the petitioner but not to

the petitioner. Since the mother of the petitioner has expired, therefore, the

petitioner has been implicated falsely in the present case after her death.

16. On the other hand, learned APP appearing on behalf of the State

submits that the custodial interrogation of the petitioner is required to find

out true nature of the cheating committed in the present case from the

documents placed on record, including the Sale Deed dated 14.06.2013. The

petitioner/ accused had signed as a witness thereon in which it is stated that

the property is free from all sorts of encumbrances. As per the agreement

dated 01.08.2009 between the mother of the petitioner and the complainant

regarding the construction of four floors in plot No. E-144, area measuring

80.78 sq. meters, Prashant Vihar, Delhi-34 and as per the terms of the said

agreement, profit was to be shared equally between the parties.

17. As submitted by the learned counsel for petitioner that an amount of

₹5 lakhs has already been paid in favour of the complainant, who spent only

an amount of ₹35 lakhs. It is not in dispute that the petitioner is on interim

protection since 09.04.2018 and has been joining investigation during

interim protection as and when called by the IO. It is also not in dispute that

the petitioner is a witness to the agreement and to each and every receipt of

payment, the petitioner's signatures are there. The MOU for construction of

the building (4 floors) was between the mother of the petitioner and

complainant, despite the complainant spent huge amount for construction of

the building and subsequently, he became the shareholder, however, without

her consent, two floors of the same have been sold in June, 2013 but no

amount is paid to the complainant.

18. It is not in dispute that if a case is of civil nature, then the other party

cannot misuse the law by lodging a criminal complaint against the opposite

party. But I am of the opinion that if an innocent person has been cheated

and caused loss with malafide intention, which is in the present case, then

there is no bar on filing civil as well as criminal case against the defaulter

(petitioner herein). In the present case, if the complainant succeeds, the

petitioner/ accused would get the imprisonment as punishment but no

amount would come in favour of the complainant. Therefore, the

complainant filed suit for recovery within limitation so that he would get the

amount. Simultaneously, since the petitioner had cheated in connivance with

his mother and other accused, therefore, to teach the lesson and send the

message to the society that such person cannot go free from the clutches of

the law.

19. In the present case, as admitted by the petitioner, the complainant has

spent ₹35 lakhs and of that ₹5 lakhs have already been paid. The said fact

has been disputed by the learned counsel for the complainant and submits

that complainant has spent ₹50 lakhs and only an amount of ₹5 lakhs has

been received.

20. On perusal of the legal notice dated 07.10.2013, it is found mentioned

in Para 5 that son of the deceased once again asked the complainant to

furnish records related to total expenditure. In Para 8, it is specifically stated

that the mother of the petitioner and the petitioner being her representative

who gave active assistance to her mother in construction of the plot, as per

the agreement, left the construction site in February, 2010 without giving

any information to the complainant. In the same Para, it is further stated that

in the beginning, both Neeraj (petitioner herein) and his father used to

quarrel at the site for attending the site. After their quarrel, they used to

leave the site in anguish, leaving the complainant alone to handle all the

work. Thus, the petitioner played an active role in getting the construction

done and thereafter, the mother of the petitioner sold the flat with consent of

the petitioner and without the knowledge and consent of the complainant.

21. Since the petitioner has been enjoying interim protection granted by

this Court pursuant to order dated 09.04.2018, therefore, the required

document has not handed over by the petitioner to IO of the case. Therefore,

I am of the considered view that in the present case, the custodial

interrogation of the petitioner is required to recover the documents and the

amount siphoned off by the petitioner by cheating the complainant.

22. In view of the above, if in such case, anticipatory bail is granted, there

will be great prejudice to the complainant and very wrong message will go

to the public at large. Therefore, I find no merit in the present case, the

application is accordingly dismissed.

23. Before parting with this petition, it is pertinent to mention here that

directions were passed by this Court in Bail Application No. 2109 titled

'Anil Kumar vs. State' to the Commissioner of Police to issue directions to

the Investigating Officers to bring updated and complete file to the Court

when summoned in a bail matter or any other matter. Accordingly, a

Circular No. 12/2019 dated 24.10.2019 was issued by the Commissioner of

Police, Delhi as under:

"In view of above, all DCPs/ Districts and Units are directed to ensure

that:-

(i) Any Police Officer, who is dealing a bail matter, any other Court matter shall bring updated and complete case files to the concerned Court along with the response, when summoned in a bail or any other matter.

(ii) The IO must be well aware of the crux of the statements recorded under Section 161 Cr.P.C. and shall be present in the Court well before time to brief the Government Counsel/PP/APP properly so that he/she could argue the matter before the Court and satisfy the conscience of the concerned Court.

(iii) The reply shall be carefully examined by the SHO or Inspector (Investigation) before counter-signing it. He shall not forward the reply in a routine and mechanical manner.