Delhi High Court
Harish Kumar vs The State Of Nct Of Delhi Through Sho Ps ... on 26 July, 2024
Author: Subramonium Prasad
Bench: Subramonium Prasad
$~66
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 26th JULY, 2024
IN THE MATTER OF:
+ BAIL APPLN. 2577/2024
HARISH KUMAR .....Petitioner
Through: Mr. Sanjeev Kr. Baliyan, Mr.
Kuldeep Singh, Ms. Archana
Chaudhary and Mr. Aashish
Gumbher, Advocates.
versus
THE STATE OF NCT OF DELHI THROUGH SHO PS MALVIYA
NAGAR .....Respondent
Through: Mr. Tarang Srivastava, APP for the
State.
SI Arun Kumar, DIU/SD
Mr. Keshav Sehgal, Mr. Shivam
Gaur, Mr. Kshitij Joshi, Mr. Aryan
Kumar, Advocates for landowners.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT (ORAL)
1. Petitioner has approached this Court seeking bail in the event of arrest
in FIR No.142/2024, dated 31.01.2024, registered at Police Station Malviya
Nagar for offences under Sections 420/406 IPC.
2. The facts of the case reveal that the present FIR was registered on the
complaint of one Jagdish Pabreja, wherein, he has alleged that the Petitioner
herein is the proprietor of M/s Harish Estate, having its registered office at
M-67 A, Malviya Nagar, Delhi. It is stated in the Complaint that the
Petitioner herein executed an agreement to sell in favour of the Complainant
in December, 2021 for selling a flat situated at third floor B1/48, Malviya
Nagar, Delhi, admeasuring 223 sq. yds. for the total sale consideration of
Rs.1,50,00,000/-. It is stated that the Complainant has paid Rs.7,00,000/- as
advance payment to the Petitioner but the Petitioner has yet not completed
the construction. It is stated that the Complainant approached the Petitioner
several times to get the possession of the flat but the Petitioner avoided grant
of possession to the Petitioner for the reason that the construction of the flat
was not complete. On the complaint of the Complainant, the present FIR
was registered.
3. Material on record discloses that the Petitioner herein filed an
application for grant of bail in the event of arrest before the learned
Additional Sessions Judge and the same was dismissed vide Order dated
03.05.2024. Material on record also discloses that the Petitioner was served
notice under Section 41A Cr.P.C but instead of joining investigation, the
Petitioner once again filed another application for grant of bail in the event
of arrest and the said application was also dismissed, vide Order dated
19.06.2024.
4. Material on record indicates that the Petitioner is not joining
investigation. Petitioner has now approached this Court by filing the present
Petition for grant of bail in the event of arrest.
5. The present Petition came up for hearing on 24.07.2024 and a Status
Report was called for. Status Report has been filed. The Status Report
indicates that the Petitioner has not joined investigation. It is further stated in
the Status Report that the Complainant has joined investigation and he has
told the Police that the Petitioner has taken Rs.70,00,000/- from the
Complainant on the pretext of giving possession of the flat but Petitioner has
yet not finished the construction of the said flat. The Status Report further
indicates that the land-owners were also called for investigation and a copy
of the Collaboration Agreement dated 25.07.2020, which was produced by
the Petitioner, was shown to them and they denied to have executed the said
Collaboration Agreement with the Petitioner. It is stated that one of the land-
owners produced a copy of the true collaboration agreement executed on
16.08.2021 between the Petitioner and one Arun Vohra, the land-owner. In
the said Collaboration Agreement, it is stated that the Petitioner had
collaboration rights of only third floor of the property, while the Petitioner
has also entered into agreement to sell the second floor of the property as
well and has also executed GPA in favour of one Sachin Kaushik on the
pretext of Collaboration Agreement dated 25.07.2020. The Status Report
also reveals that the land-owners have also filed a complaint against the
Petitioner at Police Station Malviya Nagar and they have also filed a suit,
being OMP(I)(COMM) 204/2024, against the Petitioner herein. Copies of
various Agreements to Sell have also been produced by the learned APP for
the State.
6. Learned Counsel for the Petitioner states that the Petitioner entered
into a Collaboration Agreement with the erstwhile owners and there is a
dispute between the owners of the property in question. He states that only
because of the dispute between the owners of the property in question and
because of the default on the part of the owners of the land, the property
could not be constructed. He states that the Petitioner has already joined the
investigation on 03.04.2023. He further states that the evidence against the
Petitioner is primarily documentary in nature and Petitioner's custody is not
required.
7. Per contra, learned APP for the State and the learned Counsel for the
land-owners vehemently oppose the present Petition. They state that the
Petitioner has entered into Agreements to Sell with various buyers for
several parts of the property on which the Petitioner had no right at all.
8. Heard the Counsels and perused the material on record.
9. The factors and parameters for grant of anticipatory bail have been
laid down by the Apex Court in various judgments. The Apex Court in
Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694
has laid down the following parameters:
"112. The following factors and parameters can be
taken into consideration while dealing with the
anticipatory bail:
(i) The nature and gravity of the accusation
and the exact role of the accused must be properly
comprehended before arrest is made;
(ii) The antecedents of the applicant including
the fact as to whether the accused has previously
undergone imprisonment on conviction by a court
in respect of any cognizable offence;
(iii) The possibility of the applicant to flee
from justice;
(iv) The possibility of the accused's likelihood
to repeat similar or other offences;
(v) Where the accusations have been made
only with the object of injuring or humiliating the
applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail
particularly in cases of large magnitude affecting
a very large number of people;
(vii) The courts must evaluate the entire
available material against the accused very
carefully. The court must also clearly comprehend
the exact role of the accused in the case. The
cases in which the accused is implicated with the
help of Sections 34 and 149 of the Penal Code,
1860 the court should consider with even greater
care and caution because overimplication in the
cases is a matter of common knowledge and
concern;
(viii) While considering the prayer for grant of
anticipatory bail, a balance has to be struck
between two factors, namely, no prejudice should
be caused to the free, fair and full investigation
and there should be prevention of harassment,
humiliation and unjustified detention of the
accused;
(ix) The court to consider reasonable
apprehension of tampering of the witness or
apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in
the matter of grant of bail and in the event of
there being some doubt as to the genuineness of
the prosecution, in the normal course of events,
the accused is entitled to an order of bail."
10. Applying the said parameters to the facts of the present case, this
Court is of the opinion that the Petitioner is not entitled to bail in the event
of arrest as the Petitioner seems to have entered into various agreements
with persons for the portions of the property in question over which the
Petitioner has no right. The Petitioner has taken Rs.70,00,000/- from the
Complainant in the present FIR knowing fully well that the construction of
the property in question has yet not completed. At this juncture, it is
pertinent to reproduce the portions of the agreements to sell entered into by
the Petitioner with the Complainant herein one Surendra Nath Srivastava
and the same read as under:
"ADVANCE AGREEMENT TO SELL AND PURCHASE
THIS ADVANCE AGREEMENT TO SELL IS MADE AT
NEW DELHI ON THIS 4th DEC ,2021, Between M/S
Harish Estate having its office at M-67 A, Malviya Nagar,
New Delhi-110017, through its Proprietor Sh. Harish
Kumar S/0 Sh. Amir Lal, henreinafter called the First Party
Seller:
AND
Mr. Jagdish Pabreja S/0 Sh. Hari Chand Pabreja R/0 JE-7,
Gupta Colony, Kharkiv Extension, Malviya Nagar, New
Delhi-I I 0017, hereinafter called the Second
party/Purchaser:-
{The expression of the terms First Party and the Second
Party shall mean and include themselves; their legal heirs,
successors, legal representatives, administrators,
executors, nominees and assignees).
Whereas the First Party is the owner and in possession of
Entire Third Floor With Terrace Right Upto Sky Limit,
consisting of Four Bedrooms, One Drawing-cum-Dining
Room, Four Toilet-cum-Bathroom; &One Kitchen, with two
reserved car parking in stilt area, in/of property Bearing No.
B- 1/48, measuring 223 sq.yds., situated at Malviya Nagar,
New Delhi 110017, alongwith fittings, fixtures, separate
electricity and water connection, separate overhead water
tank etc., and proportionate, undivided, indivisible and
impartible freehold ownership rights in the land
underneath with rights, titles and interests, easements,
privileges and appurtenances thereto, connections,
structure standing there on with rights in common
entrances, passage, lift, staircase and other common
facilities and amenities provided therein (hereinafter
referred to as "the SAID PORTION" of the said property).
Whereas due to legal needs and requirements the First Party
has agreed to sell the above said Entire Third Floor With
Terrace Right Upto Sky Limit, consisting of Four
Bedrooms, One Drawing-cum-Dining Room, Four Toilet-
cumBathroom & One-Kitchen, with two reserved car
parking in stilt area, in/of Property Bearing No. B-1/48,
measuring 223 sq.yds., situated at Malviya Nagar, New
Delhi 110017, along with fittings, fixtures, separate
electricity and water connection, separate overhead water
tank etc.. and proportionate, undivided, indivisible and
impartible freehold ownership rights in the land underneath
with rights, titles and interests, easements, privileges and
appurtenances there to, connections, structure standing there
on with rights in common entrances, passage, lift, staircase
and other common facilities and amenities provided therein
(hereinafter referred to as "the SAID PORTION" of the said
property), unto the Second Party for a sum of Rs.
1,50,00,000/- (Rupees One Crore Fifth Lacs Only) and the
Second Party has agreed to purchase the same under the
following terms and conditions: -
NOW THIS ADVANCE AGREEMENT TO SELL IS
WITNESSTH AS UNDER:
1. That in pursuance of this Advance Agreement to Sell and in
consideration of a total sum of Rs. 1,50,00,000/-(Rupees One
Crore Fifty Lacs Only), out of which the First Party has
received Rs. 50,00,000/-(Rupees Fifty Lacs Only) in the
following manner: from the Second Party at the time of
signing this Agreement.
2. That the Second Party shall pay the part balance amount of
Rs. l,00,00,000/- (Rupees One Crore Only) to the first party in
the Following Manner: -
The full and final payment shall pay by the second party to
the first party on or before 31.01.2023, and after receiving
full and final payment the first party execute all the
relevant documents i.e. Sale Deed and all other relevant
documents in favour of the second party or its nominees in
respect of the above mentioned property in the concerned
office.
3. That the First Party shall pay all unpaid Building
Charges or any other dues and demands of Municipal
Corporation of Delhi any other Concerned authorities, in
respect of the said Property under sale, up to date of this
agreement, and thereafter the same shall be paid by Second
Party.
4. That the First Party has assured the Second Party that
the Aforesaid property is free from all kinds of
Encumbrances, such as prior sale, Mortgage, Gift, Will,
Lease, Loan, Surety, Security, Injunction, Litigations,
Disputes, Family. Disputes, stay order, Notification and
Acquisition, Charges and lines etc, And the First Party is
fully competent and has all rights to sell the said property
to the Second Party and if it is proved otherwise, then the
first party shall be liable and responsible to indemnify all
the losses/damages, thus suffered by the Second Party, And
the First has shown the original documents to the Second
party and the Second party has satisfied with the same.
5. That the Second party shall pay the stamp duty,
corporation tax, registration fee etc., in respect of the Sale
Deed.
6. That the cost of the property agreed upon is final and the
first party of Second party will not increase or decrease
this amount under any circumstances.
7. That the First Party shall hand over all the photocopies
of original documents and original title deed pertaining to
the above said Property to the Second party at the time of
execution of sale Deed.
WITNESSES WHEREOF, the parties have signed this
Advance Agreement to Sell in the presence of the following
witnesses.
*****
ADVANCE AGREEMENT TO SELL
This Agreement is made here at New Delhi on this 08th
day of February, 2022 BBETWEEN Mr. Harish
Estate, Proprietor Harish Kumar S/o Sh. Ami Lal,
Office at M-67A, Malviya Nagar, New Delhi-110017,
hereinafter called the First Party of the One Part.
AND
Mr. Surendra Nath Srivastava, S/o Sh. Sachchida
Nand Srivastava, And Mrs. Rita Srivastava wife of
Surendra Nath Srivastava Resident of B-1/49, Third
Floor, Malviya Nagar, New Delhi-110017, hereinafter
called the Second Party of the Second Part.
The expression of the terms First Party and Second
Party wherever they occur in the body of this
agreement shall mean and include their respective
heirs, executors, administrators and assignees unless
and until it is repugnant to the context or meaning
thereof.
WHEREAS the First Party is the owner of Property
bearing No.B-1/48, Third Floor, Malviya Nagar, New
Delhi-110017 area measuring 223 Sq. Yds. (Approx..)
4BHK, 4. toilet, 1 Kitchen, with Terrace Rights, Lift
and Two Common Car Parking in Stilt Parking area,
along with all fittings, fixtures, connections, separate
electricity meter and water meter connection and
proportionate undivided, indivisible rights in the land
underneath the said property, together with the rights
to use/avail common entrance, staircases, passages,
services and other common facilities provided in the
building and easements attached thereto (hereinafter
called the "SAID PROPERTY")
AND WHEREAS the First Party has agreed to sell,
transfer and convey his rights, interests, liens and titles
in the said property unto the Second Party for a total
consideration of Rs.2,75,00,000/- (Rupees Two Crore
Seventy Lakh Only)......"
(emphasis supplied)
11. In the abovementioned Agreement to Sell the Petitioner has shown
himself as the owner of the property which was yet to be constructed. There
is nothing in the agreement to show that the said property has been
constructed.
12. This Court has also gone through the General Power of Attorney
executed by the Petitioner herein in favour of one Sachin Kaushik. Relevant
portion of the said GPA reads as under:
" GENERAL POWER OF ATTORNEY PERSON OF
MY TRUST
KNOW ALL MEN BY THESE PRESENTS THAT I,
HARISH KUMAR son of SHRI AMI LAL resident of
JD-17/10, SECOND FLOOR, KHIRKI EXTENSION,
MALVIYA NAGAR, NEW DELHI-110017, do hereby
appoint, nominate, constitute and authorize person of
my trust MR. SACHIN KAUSHIK son of SHRI P.C.
SHARMA resident of C-75, FIRST FLOOR,
PANCHSHEEL VIHAR, MALVIYA NAGAR, NEW
DELHI-110017, as my true legal and lawful General
Attorney in respect of ENTIRE SECOND FLOOR,
in/of Entire Freehold Property bearing No.B-1/48,
area measuring 223 Sq. Yds., situated at MALVIYA
NAGAR, NEW DELHI-110017, consisting of Four
Bedrooms, Drawing-cum-Dining Room, Kitchen, Three
Toilet- cum-bath & Mandir Room, with two reserve car
parking in stilt parking area, with all rights,
easements, privileges, appurtenances whatsoever
belonging to or enjoyed therewith or appurtenant
thereof, and/with super structure, fixtures, fittings,
electrical & sanitary fittings and necessary amenities,
with access rights for installation of T.V./Dish
Antennas and clean/change Overhead Water Storage
Tank on the terrace of the said building, along with
proportionate undivided, indivisible and impartible
freehold ownership rights/share in the land underneath
the Said Property together with the right to use/avail
common entrance, passages, staircase, lift, common
services and easements attached thereto, (hereinafter
called. said portion of the said Property) and I do
hereby empower the said attorney to do the following
acts, does and things in respect of the said property
only. " (emphasis supplied)
13. A perusal of the abovementioned GPA and the Agreement to sell
shows that the Petitioner has entered into Agreement to Sell for the same
property with two different persons.
14. In the facts of the present case, this Court if of the opinion that the
Petitioner's conduct does not justify grant of bail in the event of arrest as it
will have an effect of impeding the investigation.
15. Accordingly, the Petition is dismissed, along with the pending
applications, if any.
SUBRAMONIUM PRASAD, J
JULY 26, 2024
Rahul
