Delhi High Court
Amit Sarup vs State on 4 March, 2020
$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 04.03.2020
+ BAIL APPLN. 61/2020
AMIT SARUP ..... Petitioner
Through Mr. Ravinder Tyagi & Mr.Yatender
Bhardwaj , Advs.
versus
STATE ..... Respondent
Through Mr.Amit Chadha, APP for State with
SI Rahul Kumar, PS Laxmi Nagar,
Delhi with complainant Rajender
Kukreja in person
CORAM:
HON'BLE MR. JUSTICE SURESH KUMAR KAIT
J U D G M E N T (ORAL)
1. Present petition is filed under Section 439 Cr.P.C. for grant of bail in
case FIR No.272/2018 for offences punishable under Sections 420/406/120-
B/34/174-A IPC registered at Police Station Shakarpur, Delhi.
2. Case of prosecution is that on 08.06.2017, 12 complainants had
jointly sent their complaints to the Officer Incharge/D.C.P. Economic
Offence Wing, Mandir Marg, New Delhi, against M/s Pritika Fashions
Partnership Firm and M/s Pritika Fashion Private Limited, M/s Expression
Fashion Inc, M/s Expression Fashion, a Partnership Firm, Mr. Amit Sarup
(petitioner herein) and Mr. Pradeep Sachdeva.
3. It is alleged in the complaint that petitioner alongwith Mr. Pradeep
Sachdeva was partner of M/S Pritika Fashion, firm having their Office at
81, 2nd Floor, Vijay Chowk, Vikas Marg, Laxmi Nagar, Delhi-110092 and
that it is a Company incorporated under the Companies Act . They had taken
showrooms on rent / lease for the purpose of selling readymade garments,
accessories, etc. and both accused approached all complainants and had
entered into an Agreement / Memorandum of Understanding. They had
taken security from the complainants, assuring them that they would
certainly earn Rs.50,000/- or more per month. After investigation by the
Economic Offence Wing, the Incharge of said Wing sent the complaint for
registration of FIR and in pursuance to that aforesaid FIR was registered at
Police Station Shakarpur, Delhi. Later on, the said case was transferred to
Police Station Laxmi Nagar, Delhi.
4. The first complainant, namely Ratan Lal Balani, made complaint
dated 8.6.2017 alongwith complainant No. 2, namely Nita Kukreja, who
had entered into a Memorandum of Understanding with M/s Pritika Fashion
Private Limited on 23.01.2012 and a showroom bearing No. G-40, Shaheen
Bagh, Kalindi Runj, New Delhi, was handed over to them and they worked
there till 2014. Both of them had received Rs.3,34,290/- and thereafter,
accused persons had issued cheque of security amount which has been
deposited by the aforesaid persons alongwith three cheques of Rs.50,000/-
and all the cheques have been dishonoured. Accordingly, both complainants
named above have filed cases under Section 138 of Negotiable Instruments
Act (NI Act) which are pending disposal.
5. Learned counsel appearing on behalf of the petitioner submits that
Ratan Lal Balani and Nita Kukreja have also filed a Civil Suit bearing C.S.
No.2284/2016 against M/s Pritika Fashion Pvt. Ltd. and petitioner which
was decided by Learned Additional District Judge vide judgment dated
20.1.2017 and in said case, the Court was pleased to frame the issue i.e.
whether the present suit is bad for mis-joinder of parties as alleged by the
defendant. Said issue was decided in favour of plaintiff by holding that the
Directors of the Company i.e. petitioner herein, are not liable to pay any
amount and the Court was pleased to issue decree against Company i.e. M/s
Pritika Fashion Pvt. Ltd.
6. It is further submitted that Complainant No. 3/Bhawna Balani had
entered into an Memorandum of Understanding/Agreement with accused
persons on 10.1.2012 and showroom bearing no. 204-205, 2nd Floor, City
Centre Mall, Rohini, Delhi, was handed over to her and she received
Rs.5,93,640/- as profit for running said showroom. Cheque of security
amount which was issued by accused was received dishonoured and
complainant filed a complaint case under Section 138 NI Act which is
pending adjudication.
7. Moreover, Bhawna Balani has also filed a Civil Suit bearing C.S.
No.2289/2016 which was decided by learned Additional District Judge vide
judgment dated 20.1.2017 and suit was decreed against Company i.e. M/s
Pritika Fashion Pvt. Ltd., and dismissed qua defendant Nos. 2 and 3 i.e.
Amit Sarup(petitioner herein) and Pradeep Sachdeva, both are Directors of
said Company.
8. It is also submitted fact that complainant No. 4, Santosh Singla and
Lovnish Singhal have alleged in complaint dated 8.6.2017 that they have
entered into an Agreement to Sell/Memorandum of Understanding dated
1.6.2011 with accused persons. The cheque of security amount was received
by firm M/s Pritika Fashion Private Limited but alleged
Agreement/Memorandum of Understanding dated 1.6.2018 was not signed
by accused persons and complainants themselves have forged their
signatures and as such there is no agreement.
9. Further, case of petitioner is that petitioner has already returned
cheque of security amount to them and complainants have filed case under
Section 138 NI Act in Court at Jind, Haryana, where petitioner has been
convicted.
10. It is further submitted that complainant No. 6, namely Hemant
Khurana, also entered into an Agreement/Memorandum of Understanding
with M/s Pritika Fashion Private Limited in August, 2011 and Shop No.
104, First Floor, Sahara Mall, Gurgaon was handed over to him where he
worked and in the year 2014, cheque of security amount was returned to
him. Thereafter, he filed a case under Section 138 of NI Act which is
pending disposal.
11. Learned counsel for petitioner submits that Hemant Khurana has
furnished statement of account of his firm to the IO of the case and
according to said statement, he has shown that he has to recover balance
amount from Company.
12. It is further submitted that complainant No. 7, namely Amisha Gupta,
complainant No. 8, namely Sakriti Mittal, alongwith Rajinder Mittal have
entered into an Agreement / Memorandum of Understanding and a
showroom bearing No. G GA Plot, Sector-5, Dwarka, New Delhi, was
handed over to them and they received Rs.81,000/- towards profit as per
their statement.
13. In addition, complainant No. 9, namely Ms. Rajni Anand, and
complainant No. 10, namely Ms. Kanika Sikka, have also entered into an
agreement with M/s Pritika Fashion Private Limited but already FIR
No. 328/2015 has already been registered on their complaint in Police
Station-Hazarat Nizamuddin and the charge-sheet in FIR No. 328/15 has
been filed before learned Metropolitan Magistrate, Saket Courts, New Delhi,
without arresting petitioner herein.
14. Learned counsel for petitioner further submits that complainant
Mr. Anshuman Sharma had also entered into an Agreement/Memorandum
of Understanding with M/s Pritika Fashion Private Limited and a showroom
in Gurgaon was handed over to him and thereafter, his franchisee was
terminated and on his complaint, FIR No. 2758/15 has been registered at
Police Station-Shakar Pur which is pending disposal.
15. It is further submitted, petitioner has never been called to join
investigation in aforesaid FIR No.2758/15 as petitioner has entered into
compromise with Anshuman Sharma and has already given copy of
compromise agreement to IO and that is why, petitioner was never called to
join investigation nor any charge-sheet has been filed in said case.
16. Learned counsel for petitioner further submits that complainant
No. 12, namely Sonu, has also entered into an Agreement/Memorandum of
Understanding with accused and he has received Rs. 4, 67,000/- towards
profit and for cheque of security, he has also filed a case under Section 138
of NI Act which is pending disposal.
17. Further, complainant No. 12 has also filed a Civil Suit under Order
XXXVII of C.P.C. against M/s Pritika Fashion Private Limited and said suit
was decreed against Company as well as against Directors i.e. petitioner
herein and Pradeep Sachdeva.
18. It is further submitted that petitioner has filed a R.F.A. (OS)
No.32/2015 before this Court and vide order dated 7.7.2015, Division Bench
set aside decree dated 18.12.2014 against petitioner herein because only
petitioner has preferred appeal against judgment and decree dated
18.12.2014.
19. The complainant No. 4, namely Smt. Santosh Singla, filed a case
under Section 138 of NI Act against accused persons and in said case,
accused has been convicted by Court at Jind, Haryana and as such, petitioner
cannot be tried twice for same transaction.
20. So far as offence of cheating is concerned, petitioner was having no
dishonest intention at the inception of Agreement/Memorandum of
Understanding entered into with all complainants as is pre-condition of
Section 415 IPC. All the complainants have entered into
Agreement/Memorandum of Understanding with petitioner in the year 2011
and their franchisee was terminated in the year 2014, after about three years
and showrooms were also handed over to all complainants and all
complainants have received certain amount during said period. However,
when Company of the petitioner suffered losses then franchisee of all
complainants were terminated and cheques of security amount were returned
and for that all complainants have already filed cases under Section 138 of
NI Act which are pending disposal before different Courts.
21. As argued by learned counsel for petitioner that when the Civil Suit
filed by complainant Nos. 1, 2, 3 and 12 was dismissed against petitioner
then they all filed present complaint dated 08.06.2017 in the Office of
D.C.P., Economic Offence Wing, and on the said complaint, FIR in question
was registered on 25.6.2018.
22. Complainant No. 3, namely Ms. Bhawna Balani daughter of
complainant No.1, namely Mr. Ratan Lal Balani, served a notice dated
6.12.2012 through her counsel Mr. Mahesh Singh, Advocate and in said
notice, it is nowhere mentioned that any cheating had been committed by
petitioner. The dispute between complainant and petitioner is of a civil
nature due to the fact that since inception of memorandum of understanding
entered into between complainant and petitioner, intention of petitioner was
not malafide/dishonest.
23. In addition to above, petitioner has already been convicted under
Section 138 NI Act and petitioner had preferred Criminal Revision Petition
No. 629/2014 and in the said revision petition, petitioner has filed a
Criminal Misc. Bail No. 163/2019 and petitioner was granted bail vide
Order dated 25.1.2019 passed by this Court.
24. On the other hand, learned APP has strongly opposed the present
petition and submitted that petitioner has misappropriated an amount of ₹1.5
crores, therefore, the complaint received by Economic Offence Wing was
transferred to Police Station Shakarpur and presently, case comes under the
jurisdiction of Police Station Laxmi Nagar. Petitioner had bad intention from
the very inception of the different memorandum of understanding, therefore,
he could not pay commission as agreed by him to the complainants.
Moreover, petitioner has never joined investigation after registration of the
FIR.
25. In addition to the fact noted above, on behalf of the petitioner, it is not
in dispute that complaint was initially received on 8.6.2018 and FIR in
question was registered on 25.6.2018 at Police Station Shakarpur.
26. It is also not in dispute that petitioner appeared before IO at Police
Station Shakarpur on 17.10.2018 and he also appeared twice before
Economic Offence Wing during inquiry.
27. Charge-sheet has already been filed. Therefore, judicial interrogation
of petitioner is no more required. Moreover, he is in judicial custody since
29.7.2019.
28. Keeping in view aforesaid facts, I am of the view that present case is
fit for bail.
29. Accordingly, petitioner shall be released on bail on his furnishing a
personal bond in the sum of ₹50,000/- with two sureties of the like amount
to satisfaction of Trial Court.
30. The present petition is allowed and disposed of.
31. Copy of this order be transmitted to the Jail Superintendent and the
Trial Court concerned for compliance.
32. Order dasti under the signatures of Court Master.
(SURESH KUMAR KAIT)
JUDGE
MARCH 04, 2020
rk
