Delhi High Court
Rahul Gaur vs State on 14 December, 2022
NEUTRAL CITATION NUMBER 2022/DHC/005544
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 13.12.2022
Pronounced on: 14.12.2022
+ BAIL APPLN. 2418/2022
RAHUL GAUR .... Petitioner
Through: Mr. Sidharth Joshi, Ms.
Ambareen, Mr. Prakash Singh
Negi and Mr. Anmol,
Advocates
versus
STATE .... Respondent
Through: Mr. Naresh Kumar Chahar,
APP for the State with SI
Deep Sharma, D.I.U./New
Delhi
CORAM:
HON'BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANTA SHARMA, J.
1. By way of instant petition under Section 439 of Code of
Criminal Procedure, 1973, the petitioner seeks regular bail in FIR
bearing no. 151/2018 registered at Police Station Barakhamba Road,
New Delhi under Sections 420/406/120B of Indian Penal Code, 1860
("IPC").
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:15.12.2022
18:22:30
NEUTRAL CITATION NUMBER 2022/DHC/005544
2. Briefly stated, the case of prosecution is that one Sh. Harender
Khokhar, Director of M/s Avenue Homes Pvt. Ltd, had alleged that the
accused persons had approached him and offered to sell their shares of
M/s. Brys Hotel Pvt. Ltd. and shares to the extent of 60% were
purchased by the complainant for the sale consideration of Rs. 5.98
Crores approx. which was paid to the accused persons through cheque.
Though the accused persons handed over the original share certificates
to the complainant, neither the name of complainant's company as
share holder of M/s. Brys Hotels Pvt. Ltd. Was reflected on the website
of Registrar of Companies nor were the representatives of complainant
company inducted in the board of the company. Later on, the
complainant came to know that the shares in question were already
pledged as security with the Bank of Baroda against the loan account of
M/s Brys Hotel Pvt. Ltd., and the said account had been classified as
Non-Performing Asset. It is further the case of prosecution that the
accused persons requested the complainant to buy back the
shareholding of the complainant's company M/s Avenue Homes for a
sum of Rs. 18.5 Crores and offered to sell their Hotel Brys Fort,
Jaisalmer for a total sum of Rs. 39 Crores to the complainant's another
company namely M/s Damont Developers Pvt. Ltd. An agreement to
sell dated 14.09.2016 was executed in respect of Hotel Brys Fort,
Jaisalmer. Accused company acknowledged the receipt of Rs. 7 Crores
and remaining amount of Rs. 32 Crores were to be paid directly to
Bank of Baroda by the complainant company for clearing the NPA
account liabilities of M/s Brys Hotel Pvt. Ltd. In this regard, a loan of
Rs. 20 Crores was to be sanctioned by Bank of Baroda to complainant
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:15.12.2022
18:22:30
NEUTRAL CITATION NUMBER 2022/DHC/005544
company and then a balance of Rs. 12 Crores was to be paid by the
complainant company to the bank. Subsequently, an MOU dated
17.09.2016 was also executed between M/s Brys Hotel Pvt. Ltd. and
M/s Damont Developers Pvt. Ltd. and a letter was sent to DM
Jaisalmer for change in lease in the name of M/s Damont Developers
Pvt. Ltd. A loan of Rs. 20 Crores was sanctioned on 31.03.2017 by
Bank of Baroda to M/s Demont Developers Pvt. Ltd. Further as per the
terms of MOU, a sum of Rs. 9.45 Crores was deposited by the
complainant company with Bank of Baroda from September 2016 to
January 2018. It is however alleged that on 17.07.2018, the
complainant came to know from Bank of Baroda that someone else is
also trying to buy Hotel Brys Fort, Jaisalmer. The accused persons, on
19.07.2018, cancelled the agreement and MOU signed with M/s
Demont Developers Pvt. Ltd. and also sent letters to DM Jaisalmer
requesting to not transfer the lease in favour of M/s Damont
Developers Pvt. Ltd. Thereafter, the present FIR was registered on
28.12.2018.
3. Learned counsel for applicant/accused submits that the applicant
has been in judicial custody since 09.02.2019, whereas co-accused
Navneet Gaur has already been granted regular bail by this Court vide
order dated 16.08.2021. It is stated that applicant has been falsely
implicated in the present case, and the present FIR is a counter-blast to
the FIR lodged by the applicant in Jaisalmer against the complainant
one day prior to the lodging of instant FIR.
4. It is argued by the learned counsel for applicant/accused that
accused persons had taken a friendly loan of around Rs. 6 Crores from
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:15.12.2022
18:22:30
NEUTRAL CITATION NUMBER 2022/DHC/005544
the complainant and signatures of the applicant were obtained on some
blank papers as security, which the complainant has later on misused
for transfer of shares. It is stated that the present case is purely a civil
dispute, as also admitted by the complainant in proceedings before
NCLT. It is submitted that there are 18 witnesses to be examined in this
case and it will take much time for the trial to conclude, in view of
which, the applicant may be released on bail.
5. On the other hand, learned APP for the State, duly assisted by
learned counsel for complainant, argues that the allegations against the
applicant are serious in nature. It is stated that the applicant was not
authorised to sell the shares of the accused company M/s Brys Hotel
Pvt. Ltd. as per the terms and conditions of the loan sanctioned by
Bank of Baroda to it, but the same was done dishonestly with an
intention to defraud the complainant. It is stated that documents
relating to the bank accounts reveal that applicant had received
Rs.1,08,67,500/- in his account as consideration towards the sale of his
shares in the accused company. It is also stated that the FSL report
confirms the signatures of the applicant and other accused persons on
the documents involved in present case. It is also informed that a
Closure report has been filed by the Investigating Officer in the FIR
that was lodged by the applicant against the complainant in Jaisalmer,
Rajasthan. Learned APP further opposes the present application on
ground that applicant is involved in many such cases of similar nature
and had earlier been declared as a proclaimed offender.
6. The arguments advanced by both the sides have been heard and
material on record has been perused.
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:15.12.2022
18:22:30
NEUTRAL CITATION NUMBER 2022/DHC/005544
7. Before evaluating the facts of the present case, a quick reference
can be made to the decision of Hon'ble Apex Court in Ramesh Bhavan
Rathod v. Vishanbhai Hirabhai Makwana (Koli) &Anr. (2021) 6 SCC
230, wherein the Court had observed as under with respect to grant of
bail to an accused:
"24. The principles governing the grant of bail were reiterated
by a two judge Bench in Prasanta Kumar Sarkar v. Ashis
Chatterjee, (2010) 14 SCC 496:
"9. ... It is trite that this Court does not, normally, interfere
with an order passed by the High Court granting or
rejecting bail to the accused. However, it is equally
incumbent upon the High Court to exercise its discretion
judiciously, cautiously and strictly in compliance with the
basic principles laid down in a plethora of decisions of this
Court on the point. It is well settled that, among other
circumstances, the factors to be borne in mind while
considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to
believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released
on bail;
(v) character, behaviour, means, position and standing of
the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by grant
of bail.
Explicating the power of this Court to set aside an order
granting bail, this Court held:
10. It is manifest that if the High Court does not advert to
these relevant considerations and mechanically grants bail,
the said order would suffer from the vice of non-application
of mind, rendering it to be illegal...
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:15.12.2022
18:22:30
NEUTRAL CITATION NUMBER 2022/DHC/005544
****
40. The considerations which must weigh with the Court in
granting bail have been formulated in the decisions of this Court
in Ram Govind Upadhyay v. Sudarshan Singh, and Prasanta
Kumar Sarkar v. Ashis Chatterjee(noted earlier). These
decisions as well as the decision in Sanjay Chandra (supra) were
adverted to in a recent decision of a two judge Bench of this
Court dated 19 March 2021 in The State of Kerala v. Mahesh
where the Court observed:
"22...All the relevant factors have to be weighed by the
Court considering an application for bail, including the
gravity of the offence, the evidence and material which
prima facie show the involvement of applicant for bail in
the offence alleged, the extent of involvement of the
applicant for bail, in the offence alleged, possibility of the
applicant accused absconding or otherwise defeating or
delaying the course ofjustice, reasonable apprehension of
witnesses being threatened or influenced or of evidence
being tempered with, and danger to the safety of the victim
(if alive), the complainant, their relatives, friends or other
witnesses...."
8. As evident from the material on record, the allegations against
the applicant are serious in nature as the transactions in dispute involve
crores of rupees, and the present applicant is alleged to be the main
conspirator as well as the main beneficiary of amount in dispute which
was obtained after selling the share certificates of their company which
they were not authorized to sell as the same had already been pledged
with the bank against the loan account of company. The FSL report
also confirms the signatures of the applicant on the documents in
question.
9. As per the record, 10 criminal cases of similar nature are pending
against the applicant including cases registered in other states as well
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:15.12.2022
18:22:30
NEUTRAL CITATION NUMBER 2022/DHC/005544
with the CBI, Delhi. The applicant also has a previous history of being
declared as a proclaimed offender in a case relating to FIR
No.1139/2015 under Sections 406/420 IPC. Two of the pending FIRs
against the applicant are under Section 174A IPC i.e., Non-appearance
in response to a proclamation under Section 82. Other than the
aforesaid FIRs, the applicant and the accused company are involved in
more than 30 cases under Section 138 of Negotiable Instruments Act,
1881, as accused. Thus, considering the seriousness of the allegations
and the past conduct of the applicant, this Court is not inclined to grant
bail to the applicant.
10. However, considering the fact that applicant has been in judicial
custody for more than three years, learned Trial Court is directed to
expedite the trial.
11. Accordingly, the present petition stands disposed of in above
terms. However, nothing stated hereinabove shall tantamount to any
expression of opinion on merits of the case.
12. A copy of this order be forwarded to the learned Trial Court for
information and compliance.
SWARANA KANTA SHARMA, J
DECEMBER 14, 2022/
Digitally Signed
By:ZEENAT PRAVEEN
Signing Date:15.12.2022
18:22:30
