Sunil Aggarwal vs State Of Nct Of Delhi
2021 Latest Caselaw 256 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Reserved on:       12.01.2021
                                     Pronounced on:     25.01.2021

+     BAIL APPLN. 3906/2020 & CRL.M.A. 17997/2020
      SUNIL AGGARWAL                                 ..... Petitioner
                  Through             Ms.Rekha Aggarwal, Adv.

                           versus

      STATE OF NCT OF DELHI                           ..... Respondent
                    Through          Mr.Amit Chadha, APP for State.
                                     Insp.Prem Chandra Khanduri PS
                                     Crime Branch.

      CORAM:
      HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                              JUDGMENT

1. Present petition has been filed under section 439 Cr.P.C. seeking

regular bail in pursuance to FIR No.58/2020 registered at Police Station

Crime Branch for the offences punishable under sections 506/509 IPC &

section 67A of I.T. Act.

2. The case of applicant/petitioner is that he is an American Citizen and

qualified Software Engineer by profession. He has worked in some of the

world's biggest organizations on very senior positions. He has his roots in

the society and is not a prior convict. He is a law abiding citizen of the

country and is innocent.

3. Learned counsel for the petitioner submitted that the screenshot

annexed by the complainant seems to have been taken by herself, thus, are

tampered and forged with an intention to falsely implicate the

applicant/petitioner. The IO has confirmed in his status report that he has

taken a report from WhatsApp officials in which WhatsApp has only

verified that the number belongs to the applicant. The applicant has never

denied that the mobile number belongs to him. He is using this mobile

number for the last 9 years. At the same time, WhatsApp has not verified

that the alleged status was uploaded from the applicant mobile on

16.02.2020. So there is no admissible facts about the applicant posting the

alleged WhatsApp status. Moreover, the WhatsApp status remains only for

24 hours and gets deleted automatically by the WhatsApp application

thereafter.

4. Further submitted that in order to send and receive status updates, the

contacts must have on each other's phone numbers saved on the phone's

address books. However, the applicant was arrested from Dehradun on

16.09.2020 where he is residing continuously for more than one year. The

applicant is in Judicial Custody since 18.09.2020 which is more than 78

days now in JC.

5. In addition to above, it is submitted that the applicant was never

issued any notice under section 41A Cr.P.C. by the concerned authorities

and this has caused grave injustice to the applicant.

6. In the case of Arnesh Kumar vs. State of Bihar, the Hon'ble Supreme

Court held that the IO has to issue notice under section 41A before the arrest

in the cases where the punishment is less than 7 years. Not even once the

applicant has been investigated or asked to join the investigation for this

FIR/offence, thereby raising reasonable doubts on the investigation by the

investigating agency. Moreover, the case property like two mobile phones

and a laptop have already been recovered by the IO at the time of arrest at

Dehradun and has been sent to FSL, however, FSL report is awaited.

Nothing more is to be recovered from the applicant.

7. Learned APP has opposed the present petition by submitting that the

complainant is Judicial Officer in Delhi and the applicant has uploaded her

obscene photographs on whatsapp. Due to this act of the applicant, the

image of the complainant has been tarnished and she put to great trauma.

Therefore, keeping in view of the serious allegations against the petitioner,

the petition deserves to be dismissed.

8. It is alleged in the present petition that the complainant Ms.Anu

Aggarwal has gravely misused her official powers for arresting the applicant

with her influence as she at the time of filing of the complaint was the

immediate head of the Crime Branch, therefore, IO and other Crime Branch

officers have obliged her being CMM, Dwarka Courts, Delhi.

9. It is mentioned in the present petition that the applicant and his ex-

wife Meenu Aggarwal have some family dispute and the complainant

Ms.Anu Aggarwal (CMM) is the real younger sister of Meenu Aggarwal.

The applicant got married to Meenu Aggarwal in August, 1998. They went

to USA after marriage in September, 1998. Since then they were residing in

USA only till the year 2011. Two children were born out of the wedlock

and they are now aged 18 years and 15 years. However, sometime in the

year 2011, the applicant alongwith his wife Meenu Aggarwal and two

children came back to India and were residing in Mumbai. However, his

wife filed a complaint under section 498A IPC registered at Police Station

Darya Ganj being FIR No.185/2012. The applicant was acquitted by the

Trial Court in May 2019, however, the appeal for said case is pending

adjudication.

10. It is alleged that another criminal case is hoisted on the applicant to

prevent him from going to USA and perusing the litigation there for

children's custody. The applicant had been constrained to file a divorce case

in the Family Court, Tis Hazari, Delhi because of the mental and physical

cruelty committed by his wife and her family. The applicant was granted

decree of divorce on the basis of adultery allegations vide order in 2018.

11. Further alleged that the applicant was also constrained to file a

custody case in the Mumbai Family Court for the custody of his two minor

children and was granted custody vide order dated 27.05.2015. However,

his wife flouted the orders of the Mumbai Family Court and illegally took

away minor children to USA. She gave an undertaking to the Court that she

will not remove the children from the jurisdiction of the court till the case is

decided but she illegally absconded to USA along with the children in the

year 2014. Subsequently, NBW was issued against his wife Meenu

Aggarwal which is still continuing. She is a fugitive accused within India.

Even the High Court of Mumbai dismissed their application to cancel the

NBW and ordered that she should produce the children in the court

immediately.

12. Case of the petitioner is that to seek revenge from the applicant, his

ex-wife Meenu Aggarwal and the complainant in the present FIR Ms.Anu

Aggarwal, who is real younger sister of Meenu Aggarwal, hatched a

conspiracy to frame the applicant in the false FIR mentioned above. The

whole purpose of this malicious FIR is to accede to the unfair demand of the

complainant that all the cases against her sister in USA and India be

dropped/withdrawn so that the sister (ex-wife of the applicant) can travel to

India with the children whose passport cannot be renewed without the

consent of the applicant/father. Moreover, sister of the complainant has got

passport of the minor children by forging the signature of the applicant, for

which the sister of the complainant is facing criminal charges. The signature

forgery complaints against complainant's elder sister are still pending in the

American Embassy, New Delhi and with the US authorities in Washington

DC, USA.

13. It is submitted during arguments by learned counsel for the petitioner

that petitioner will not get any relief from the court below, the complainant

being a Judicial Officer. Earlier, a court had rescued to hear the bail

application of the petitioner. Accordingly, prayed to decide the present

petition.

14. It is not in dispute that this Court has power to entertain and decide

the present petition.

15. It is worth mentioning here that the photographs annexed by the

complainant are neither nude nor with sexual act, however, frame of photos

of complainant are with lingerie.

16. Vide order dated 27.11.2020 passed by this Court in Bail Appln.

No.2866/2020 granted anticipatory bail to Ajay Aggarwal who is brother of

the petitioner by observing as under:

"After sifting through the allegations and material presented before it, this court finds that the following are the most relevant for purposes of the present anticipatory bail application :

(a) On an overall perspective, it is clear that the offence alleged finds its roots in the matrimonial dispute between the complainant's sister and her ex- husband, who is the present applicant's brother. It is clearly that matrimonial dispute which gives to the allegations in the subject FIR a very shrill tone and tenor. There is stated to be an ongoing bitter custody battle between the applicant' brother and the complainant's sister in relation to their two children;

(b) It is the accepted position that the WhatsApp number and account, on and from which, the offending photographs were uploaded, belongs not to the applicant but to his brother, who (latter) is the ex- husband of the complainant's sister;

(c) In status report dated 30.09.2020 and in order dated 23.09.2020 made by the learned Sessions Court, dismissing the applicant's anticipatory bail application, it is recorded that even the cell- phones/laptop from which the offending photographs

were uploaded did not belong to the applicant, which devices have since been recovered from the applicant's brother;

          (d) It is also    not denied that at the time when the
              offending     photographs were uploaded on the
              WhatsApp      status of the applicant's brother, the

latter was in Dehradun while the applicant was in Delhi;

(e) In the FIR there is no specific or pointed allegation against the applicant except that he alongwith his brother uploaded the offending photographs on the brother's WhatsApp status, though it is not disputed that at the relevant time the applicant was in Delhi while his brother was in Dehradun;

(f) There is no contest that the applicant is a family man, permanently residing in Delhi, and there is no justifiable basis to believing that the applicant is either a flight-risk or that the applicant would impede the investigative process or subvert the course of law. In any case, the incident complained of dates back to February 2020 and the complaint, though inadvertently dated 19.01.2020 was made on 19.02.2020; and between then and now, no serious effort appears to have been made to arrest the applicant or to require his custodial interrogation;

(g) As things stand, no meaningful investigation is proceeding against the applicant; though the applicant's brother has been in judicial custody since 18.09.2020."

17. In view of the facts mentioned above and the fact that petitioner is in

Judicial Custody since 16.09.2020 and all recoveries have been made and

trial will take substantial time, however, without commenting on the merits

of the prosecution case, I am of the view that petitioner deserves bail.

18. Accordingly, he shall be released on bail forthwith on the following

conditions:

(a) The applicant shall furnish a personal bond in the sum of

Rs.1,00,000/- (Rupees One Lac Only) with one surety of the like

amount to the satisfaction of the Trial Court;

(b) The applicant shall furnish to the Investigating Officer/ S.H.O. a

cell phone number on which the applicant may be contacted at

any time and shall ensure that the number is kept active and

switched-on at all times;

(c) The applicant shall not travel out of the country without prior

permission of the trial court;

(d) The applicant shall not contact, nor visit, nor offer any

inducement, threat or promise to any of the prosecution witnesses

or other persons acquainted with the facts of case. The applicant

shall not tamper with evidence nor otherwise indulge in any act or

omission that is unlawful or that would prejudice the proceedings

in investigation or in trial.

19. In view of above directions, the petition is allowed and disposed of.

20. Pending application also stands disposed of.

21. The Judgment be uploaded on the intranet of this Court forthwith.

(SURESH KUMAR KAIT) JUDGE JANUARY 25, 2021 ab