Rajdeep Sharma vs State Of Himachal Pradesh
2021 Latest Caselaw 5134 HP

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

               ON THE 8TH DAY OF NOVEMBER, 2021

                              BEFORE




                                                          .

           HON'BLE MR. JUSTICE VIVEK SINGH THAKUR

        CRIMINAL MISC. PETITION (MAIN) No.385 of 2021





    Between

    RAJDEEP SHARMA,
    S/O SHRI SANSAR CHAND,





    R/O VILLAGE JAKHAR, P.O. ROHRU,
    TEHSIL ROHRU, DISTRICT SHIMLA,
    HIMACHAL PRADESGH.
                 r                                   .....PETITIONER

    (BY MR. NARESHWAR SINGH CHANDEL,

    SENIOR ADVOCATE, WITH MR. VINOD GUPTA,
    ADVOCATE)

    AND


    STATE OF HIMACHAL PRADESH                      ....RESPONDENT

    (BY MR. RAJU RAM RAHI,
    DEPUTY ADVOCATE GENERAL)




    (MR. ANUJ GUPTA, ADVOCATE,





    FOR THE COMPLAINANT)
         This petition coming on for orders this day, the Court
    passed the following:





                              ORDER

The instant application has been filed under

Section 438 of the Code of Criminal Procedure (hereinafter

referred to as Cr.P.C.), seeking anticipatory bail in case FIR

No.168 of 2020, dated 24.7.2020, registered in Police Station

CRMPM No.385/2021 ...2...

Sadar, District Shimla, Himachal Pradesh, under Section 420

and 120B of the Indian Penal Code (in short 'IPC').

2. Status Report stands filed.

.

3. Petitioner has also filed certain documents to

substantiate his prayer for enlarging him on bail.

4. I have heard learned counsel for the petitioner,

learned Deputy Advocate General and learned counsel

appearing for the complainant, and also gone through the

record placed before me.

5. As per Status Report, complainant Suresh Kumar,

had approached Police Post Lakkar Bazaar, Shimla, with a

complaint, on the basis of which FIR No.168 of 2020 has been

registered in Police Station Sadar, District Shimla, Himachal

Pradesh. In the complaint, it has been submitted that in the

year 2015, the petitioner invited applications for allotment of

residential flats in the housing project kknown as Claridge

Residency located at Bharari/Burari Road, Near Hotel

Radisson, Shimla and pursuant thereto the complainant

purchased an application form and applied for one unit 2 BHK

Flat in the said project, and that the petitioner issued

allotment letter dated 5.12.2015 for allotment of a 2 BHK Flat

on 3rd Floor in Block D, measuring 960 Sq. feet, for which the

complainant had made payment of a sum of `10,50,000/-, on

different dates and that after making the payment

complainant visited the petitioner to enquire about the

CRMPM No.385/2021 ...3...

progress made on the site, but the petitioner informed that

they are in the process of obtaining sanction for construction

from Municipal Corporation.

.

6. It is further stated in the complaint that when the

construction was not started, even after giving assurance by

the petitioner, the complainant visited the office of the

petitioner at Panchkula (Haryana), but to no avail. Thereafter,

the complainant sought information from the Municipal

Corporation about the sanction for construction, whereby the

complainant was informed that the petitioner had never

applied for any sanction.

7. The complainant has further stated that after

enquiries made by him, it came to light that the petitioner has

not obtained any sanction for construction of Block-D in the

aforesaid project which substantiated that the petitioner has

duped him of his money by giving false assurances that

construction would be started.

8. After registration of FIR, Investigating Agency has

carried investigation. It is stated in the Status Report that

after negotiations, amount of `42,00,000/- was settled for

2BHK Flat in the 3rd Floor of D-Block and agreement was

finalized and, thereafter, the complainant had paid amount of

`10,50,000/- to the petitioner, on different dates. During

investigation, it is also found that neither there was any

excavation nor any pillars for construction of Block-D and that

CRMPM No.385/2021 ...4...

with dishonest intention the petitioner sold the site of Block-D

to one Smt. Shakuntla for a consideration of `22,23,000/-.

9. It is stated in the Status Report that there are five

.

FIRs, including the present one against the petitioner,

registered in Police Station Sadar, Shimla, which are similar in

nature. It is further submitted in the Report that earlier in

point of time also as many as seven FIRs against the

petitioner were lodged at various places in Punjab, Chandigarh

and in some of those cases, he has been enlarged on bail. It

is further in the Status Report that there are more than ten

addresses of the petitioner or petitioner's company, which

have come in the knowledge of the police during investigation

of the case which creates reasonable apprehension that after

grant of bail it would be very difficult to ascertain presence of

the petitioner during trial. It is also stated in the Status Report

that at one point of time petitioner was declared proclaimed

offender in one case and in present case, despite having

received `10,50,000/-, he has not started work of construction

which establishes his dishonest intention to extort further

money from the complainants.

10. Lastly, it is submitted in the status report that

there is possibility that petitioner would flee to foreign country

and, therefore, in case of granting him bail, his passport

deserves to be taken into possession and seized as he is also

not making payment of `4-5 Crores to the victims, which has

CRMPM No.385/2021 ...5...

been awarded vide orders passed in various complaints by

Real Estate Regulatory Authority (hereinafter referred to as

'RERA'). It is also submitted that a letter has been received in

.

the office of Tehsildar Shimla, wherein it has been informed by

Tax Recovery Officer, Chandigarh, that an amount of

`2,33,46,582/- is to be recovered from petitioner-Rajdeep

Sharma and, therefore, Revenue Department has restrained

transfer and mortgage of the property of petitioner situated in

Up-Mohal Kaleston.

11. For attracting commission of offence under

Section 420 IPC, 'dishonesty' is one of the essential

ingredients. In present case petitioner is claiming his action to

be bonafide, whereas, complainants are claiming that

omission and commission on the part of the petitioner are

definitely indicating dishonesty and thus is attracting

provisions of Section 420 IPC.

12. Complainant has also approached RERA and order

has been passed by RERA in his favour.

13. It is submitted by learned counsel for the

petitioner that five FIRs registered in Police Station Sadar,

Shimla, are nothing, but the cases registered by or on behalf

of purchasers or prospective purchasers to mount pressure

upon the petitioner to submit himself to their demands which

are beyond the agreement arrived at between the parties. It

has further been submitted that most of the cases out of the

CRMPM No.385/2021 ...6...

cases, mentioned in status report, registered against the

petitioner at previous occasions, stand decided in favour of

the petitioner and only two cases are pending adjudication in

.

the Courts and these cases are the cases of similar nature

filed with intention to pressurize the petitioner. It has further

been submitted that dispute between the complainant and

petitioner is contractual dispute for which civil remedy is

appropriate remedy, but such dispute cannot be treated as an

offence committed by the petitioner under criminal law as

intention of the petitioner is clear as he has made payment of

the amount alongwith some interest to the complainants.

According to the petitioner, he has fulfilled all contractual

obligations on his part.

14. Learned counsel for the petitioner has submitted

that in case bail is granted to the petitioner, he is ready to

abide by any condition imposed by the Court and further that

in case at the time of granting bail, if passport is to be

surrendered, then it may be directed that passport shall not

be punched because according to him, after punching of

passport it will create difficulty to the petitioner in his

international movement on the basis of the said passport.

15. Petitioner was enlarged on anticipatory bail on

26.02.2021. Thereafter, he has joined investigation and it is

submitted by learned counsel for the petitioner that petitioner

has remained associated in investigation and now nothing is

CRMPM No.385/2021 ...7...

to be recovered or interrogated from the petitioner and,

therefore, his custodial interrogation is not necessary.

16. It is also submitted by the learned counsel for the

.

petitioner that petitioner never intended to cheat anybody,

including the complainants in present case, and to show his

bonafide he has returned the amount of `10,50,000/- plus

interest thereon to the complainants and further that the

delay in construction was not for dishonest intention of the

petitioner but for other codal formalities for compliance of

which the petitioner was keen but for various reasons, not

attributable to the petitioner, delay has been caused.

17. Considering entire facts and circumstances placed

before me and nature of the offence alongwith principles and

factors enumerated by the Supreme Court to be taken into

consideration at the time of consideration of adjudication of

bail application, I am of the opinion that claims and counter

claims of petitioner and the complainants are yet to be

adjudicated by the trial Court, on the basis of material to be

placed before it by the Investigating Agency and at this stage,

no fruitful purpose is going to be served by rejecting this

petition.

18. In view of above, petitioner is directed to be

enlarged on bail and interim bail granted on 26.2.2021 is

confirmed, subject to furnishing personal bond by the

petitioner in the sum of `1,00,000/- with two sureties in the

CRMPM No.385/2021 ...8...

like amount, to the satisfaction of the trial Court, within two

weeks from today, upon such further conditions as may be

deemed fit and proper by the trial Court, including the

.

conditions enumerated hereinafter, so as to ensure the

presence of petitioner/accused at the time of trial:

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required.

(ii) That the petitioner shall not directly or

indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to Court or to nay police office or tamper with the evidence. r He shall not, in any manner, try to overawe

or influence or intimidate the prosecution witnesses.

(iii) That the petitioner shall not obstruct the smooth progress of the investigation/trial.

(iv) That the petitioner shall not commit the offence similar to the offence to which he is accused or suspected.

(v) That the petitioner shall not misuse his liberty in any manner.

(vi) That the petitioner shall not jump over the bail.

(vii) That in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution.

(viii) That the petitioner shall not leave the territory of India without prior permission.

(ix) That the petitioner shall surrender his passport before the trial Court/concerned Magistrate and the trial Court is directed not

CRMPM No.385/2021 ...9...

to punch the passport, but keep it in safe custody in the manner it deems fit.

(x) That the petitioner shall inform the Police/ Court his contact number and shall keep on

.

informing about change in address and contact number, if any, in future.

19. It will be open to the prosecution to apply for

imposing and/or to the trial Court to impose any other

condition on the petitioner as deemed necessary in the facts

and circumstances of the case in the interest of justice and,

thereupon, it will also be open to the trial Court to impose any

other or further condition on the petitioner as it may deem

necessary in the interest of justice.

20. In case the petitioner violates any condition

imposed upon him, his bail shall be liable to the cancelled. In

such eventuality, prosecution may approach the competent

Court of law for cancellation of bail, in accordance with law.

21. Trial Court/Special Judge is directed to comply with

the directions issued by the High Court, vide communication

No.HHC.VIG./Misc.Insutructions/93-IV.7139, dated 18.3.2013.

22. Observations made in this petition hereinbefore,

shall not affect merits of the case in any manner and are

strictly confined for the disposal of the present bail

application.

23. Petition is disposed of in the aforesaid terms.

24. Copy dasti.

CRMPM No.385/2021 ...10...

Petitioner is permitted to produce a copy of this

judgment, downloaded from the web-page of the High Court of

Himachal Pradesh, before the authorities concerned, and the

.

said authorities shall not insist for production of a certified

copy.

                                          ( Vivek Singh Thakur )
    November 8, 2021(sd)                           Judge.




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