Sukhamanpreet Bath And Another vs State Of Ut Chandigarh
2023 Latest Caselaw 11467 P&H

                                                       Neutral Citation No:=2023:PHHC:097921




                                                              2023:PHHC:097921
CRM-M-16312-2023                                                       -1-

      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                   CHANDIGARH
                             CRM-M-16312-2023 (O&M)
                              Date of decision :01.08.2023


SUKHMANPREET BATH & ANOTHER


                                                                  ... Petitioners

                                      Versus


STATE OF UT CHANDIGARH & ANOTHER
                                                                 ...Respondents


CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present:        Mr. S.K. Garg Narwana, Sr. Advocate assisted by
                Mr. Vishal Garg Narwana, Advocate,
                Mr. Rajat Sheokhand, Advocate and
                Mr. S.S. Siwach, Advocate
                for the petitioners.

                Mr. Amit Kumar Goyal, APP U.T., Chandigarh.

                Mr. S.S. Narula, Advocate
                for the complainant.
                       ****

JASJIT SINGH BEDI, J.

The prayer in the present petition under Section 438 Cr.P.C.

is for the grant of anticipatory bail to the petitioners in case FIR No.201

dated 19.06.2017 registered under Sections 420 & 120-B IPC at Police

Station South Sector 34, Chandigarh.

2. The brief facts of the case are that an agreement to sell of

House No.1142, Sector 44-B, Chandigarh was executed by Mrs. Anjuly

Chib Duggal in favour of the petitioners for an amount of Rs.2 crores on

30.01.2011. The copy of the agreement is attached as Annexure P-2 to

the petition.

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3. Meanwhile the petitioners entered into a joint venture

agreement with respondent No.2-complainant. A sum of Rs.1 crore was

paid by the complainant and it was resolved that after the sale deed was

executed, both the parties would be 50% owners each. The copy of the

joint venture agreement dated 08.05.2021 is attached as Annexure P-5 to

the petition. On the same day, an agreement to sell of 50% of the house

was executed by the petitioners in favour of the complainant on the

receipt of Rs.1 crore and the sale deed was to be executed after

reconstruction. The copy of the agreement is attached as Annexure P-4 to

the petition.

4.. Thereafter, a sale deed was executed by Mrs. Anjulu Chib

Duggal in favour of the petitioners on 27.05.2011 (Annexure P-3). The

petitioners, however had taken a loan of Rs.82 lakhs from the State Bank

of Patiala, Sector 22-B, Chandigarh by creating an equitable mortgage of

the entire property by claiming that the property was self-acquired and

no other person had any interest in the said property and nor was their

any subsisting agreement to sell of the said property. The copy of the

letter dated 29.05.2011 addressed by the petitioners to the Bank is

attached as Annexure A-4.

5. After paying some instalments, when the petitioners were

unable to repay the loan, symbolic possession was taken by the Bank on

06.01.2014.

6. Faced with the said situation, respondent No.2-complainant

filed a complaint with the IG, Chandigarh Police on 20.01.2014

(Annexure P-6) stating that the petitioners had cheated him. The said

complaint was inquired into and the DSP, EOW, U.T., Chandigarh vide

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his report dated 25.03.2014 (Annexure P-7) came to the conclusion that

no cognizable offence was made out as the matter was purely civil in

nature and the petitioners had always been and ready and willing to

execute the sale deed for 50% share of the property in favour of

respondent No.2-complainant after receiving the balance amount of

Rs.50 lakhs. The copy of the report of the DSP dated 25.03.2014 is

attached as Annexure P-7 to the petition. The SSP, Chandigarh endorsed

the report of the DSP, Chandigarh vide his report dated 11.11.2014

(Annexure P-9).

7. Thereafter, both the parties appointed an Arbitrator and a

consent award was passed on 27.03.2015 (Annexure P-10) as per which

the petitioners were to negotiate with the bank and subsequent thereto,

the entire amount of the loan was to be paid by respondent No.2-

complainant subject to a maximum limit of Rs.82 lakhs. The copy of the

award is attached as Annexure P-10 to the petition.

8. However, the State Bank of Patiala, Sec-22B, Chandigarh

auctioned the property in April/May, 2015 for an amount of

Rs.1,91,70,000/-. After clearing all the dues, the Bank gave a sum of

Rs.72 lakhs to the petitioners who retained the same.

9. Thereafter, a complaint was made to the IG, Chandigarh

Police on 18.05.2015. Subsequent thereto, the instant complaint came to

be instituted under Section 156(3) Cr.P.C. on 04.05.2017 and the JMIC,

Chandigarh directed for the registration of the FIR vide order dated

14.06.2016 (Annexure P-17). As per the allegation in the FIR, the

complainant had been cheated as the petitioners had not acted upon

either the Joint Venture Agreement or the agreement to sell, both

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executed between the petitioners on the one hand and the complainant on

the other. The respondent No.2-complainant had paid an amount of Rs.1

crores plus a further amount of Rs.50 lakhs and Rs.25 lakhs thereby

totaling Rs.1.75 crores to the petitioners. On the other hand, the

petitioners had mortgaged the entire property without disclosing it to

respondent No.2-complainant or to the Bank that the said property was a

subject matter of a joint venture agreement and an agreement to sell.

Further, the terms of the arbitration agreement had also not been

complied with. The petitioners who had taken the loan were to negotiate

with the bank regarding redemption if any and it was only then that

respondent No.2-complainant was to pay a total amount of Rs.82 lakhs to

the Bank. However, the petitioners did not approach the Bank in terms of

the arbitration award. The property was therefore auctioned and the sum

of Rs.72 lakhs received by the petitioners was retained by them without

anything being given to respondent No.2-complainant.

10. The learned Senior counsel for the petitioners contends that

the petitioners have been falsely implicated in the present case. As per

the report of the DSP, Chandigarh, the matter was purely a civil dispute

between the parties. The said report had been endorsed by the SSP,

Chandigarh. A civil suit was pending between the parties for specific

performance/recovery. It was respondent No.2-complainant who had not

adhered to the terms of the consent award by making a payment of Rs.82

lakhs to the Bank because of which the property was auctioned. The

petitioners had also spent a huge amount of money to raise some

construction, pay the loan instalments and also register the property in

their name. As the case was based on documentary evidence and the

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petitioners had joined investigation, no case for custodial interrogation

was made out and therefore, the petitioners deserved the concession of

pre-arrest bail.

11. On the other hand, the learned State counsel has filed a reply

dated 28.07.2023 by way of an affidavit of Ms. Niyati Mittal, Deputy

Superintendent of Police, Economic Offences Wing, Sector 17, U.T.,

Chandigarh. The same is taken on record. While referring to the reply, he

contends that as per investigation, the complainant had not only made a

payment Rs.1 crore but had made an additional payment of Rs.16.5 lakhs

for the purchase of stamp duty and a further amount of Rs.50 lakhs as

demanded by the petitioners from time to time. The loan had been

obtained by the petitioners from the State Bank of Patiala, Chandigarh

and while availing the loan and mortgaging the property, in the

undertaking to the Bank on 29.05.2011, it was not disclosed that the

complainant had an equal interest in the property and that there was a

subsisting agreement for sale of the same. The petitioners had not

provided any evidence that the loan procured from the Bank was in the

knowledge of the complainant. Subsequent to the possession on

06.01.2014, after the property had been sold in an auction in April/May,

2015, an amount of Rs.72 lakhs was received by the petitioners who

retained the same thereby causing wrongful loss to the complainant. The

petitioners also did not comply with the consent/compromise deed as

there was absolutely no evidence on record to suggest that they had

negotiated with the Bank in order to stop SARFAESI proceedings of the

house in question. He, thus, contends that though the petitioners had

joined investigation, they were not entitled to the concession of

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anticipatory bail as the offence of cheating of the complainant at the

instance of the petitioners of a huge amount of money was prima facie

established.

12. The learned counsel for respondent No.2-complainant while

referring to his application for vacation of the interim order of stay of

arrest dated 29.03.2023 contends that the complainant had admittedly

paid an amount of Rs.1 crore at the time of the agreement to sell/joint

venture. Rs.50 lakhs was to be paid later at the time of execution of the

sale deed after construction had been completed. However, the said

amount was paid along with a further amount of Rs.25 lakhs totaling

Rs.1,75,00,000/-. However, unknown to the complainant, the petitioners

had availed a loan of Rs.82 lakhs from the State Bank of Patiala, Sec-

22B, Chandigarh on 29.05.2011 by mortgaging the entire property

claiming to have sole interest in the same without disclosing to the Bank

that there was an agreement to sell and a joint venture agreement of the

property with the complainant. He contends that the inquiry reports had

wrongly recorded that the complainant had failed to pay an additional

amount of Rs.50 lakhs and the petitioners were ready and willing to

execute the sale deed if the said amount was paid. In fact, that the

additional amount of Rs.50 lakhs was to be paid after the construction

had been completed and the property had been sold. The inquiry reports

of the DSP and SSP were dated 25.03.2014 and 11.11.2014. As the

property had already been taken over by the Bank on 06.01.2014, when

the petitioners had made a statement to the Police that they were ready

and willing to execute a sale deed for an amount of Rs.50 lakhs that

statement was made just to protect themselves since the sale deed could

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never had been registered as the same was mortgaged and had been

attached. Be that as it may, the complainant had paid an additional

amount of Rs.75 lakhs. He also contends that so far as the arbitration

award was concerned, the complainant did not make the payment as it

was the petitioners who were to negotiate with the Bank regarding the

SARFAESI proceedings as per the terms of the award as they had

availed the loan in question. There was absolutely nothing to suggest that

the petitioners had ever approached the Bank to negotiate on the

redemption or otherwise and therefore, there was no question of the

complainant paying Rs.82 lakhs to the bank. In fact, the consent award

was passed on 27.03.2015 whereas the Bank auctioned the property

within one month on 24.04.2015. Pursuant to the auction of the property

for an amount of Rs.1,91,70,000/-, after adjusting all the dues, the Bank

had paid sum of Rs.72 lakhs to the petitioners which they had also

pocketed without giving a rupee to the complainant. Admittedly, at the

very least, the complainant had paid sum of Rs.1 crore which was half of

the sale consideration of Rs.2 crores. On the other hand, the petitioners

had only paid a sum of Rs.18 lakhs and had availed a loan of Rs.82 lakhs

by mortgaging the property. Therefore, while the complainant had not

got even one rupee pursuant to the auction or from the petitioners, the

petitioners who had spent only Rs.18 lakhs had received a sum of Rs.72

lakhs from the Bank.

Post the registration of the FIR, the petitioners had sought

the concession of anticipatory bail which had been declined by the Court

below on 03.07.2017 (Annexure P-11). They immediately approached

this Court by way of a quashing petition in which a patently false

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statement had been made that the Magistrate had not passed any order to

register an FIR and based on the said statement, an interim order of stay

of proceedings was passed in the said quashing petition. However, the

said petition had been subsequently dismissed by this Court vide a

detailed order dated 21.03.2023 (Annexure A-3). A categoric findings

had been arrived at, that the petitioners had got transferred the property

in their name but had failed to demolish and start construction. They had

obtained a loan without the consent and knowledge of the complainant.

After the said property had been sold in an auction, Rs.72 lakhs had been

wrongfully retained by the petitioners and nothing had been paid to the

complainant despite the complainant having spent Rs.1 crore at the least

and the petitioners having spent only Rs.18 lakhs. Therefore, the offence

had been prima facie established and could not be said to be only civil in

nature.

He thus contends that keeping in view the facts and

circumstances of the case, the offence was prima facie established and

since the complainant had been cheated are of a huge amount of money,

the petitioners were not entitled to the concession of pre-arrest bail.

13. I have heard the learned counsel for the parties and

examined the record

14. The Hon'ble Supreme Court in the case of Sumitha Pradeep

Vs. Arun Kumar C.K. & Anr. 2022 Live Law (SC) 870 held that merely

because custodial interrogation was not required by itself could not be a

ground to grant anticipatory bail. The first and the foremost thing the

Court hearing the anticipatory bail application is to consider is the prima

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facie case against the accused. The relevant extract of the judgment is

reproduced hereinbelow:-

"It may be true, as pointed out by learned counsel appearing for Respondent No.1, that charge-sheet has already been filed. It will be unfair to presume on our part that the Investigating Officer does not require Respondent No.1 for custodial interrogation for the purpose of further investigation.

Be that as it may, even assuming it a case where Respondent No.1 is not required for custodial interrogation, we are satisfied that the High Court ought not to have granted discretionary relief of anticipatory bail. We are dealing with a matter wherein the original complainant (appellant herein) has come before this Court praying that the anticipatory bail granted by the High Court to the accused should be cancelled. To put it in other words, the complainant says that the High Court wrongly exercised its discretion while granting anticipatory bail to the accused in a very serious crime like POCSO and, therefore, the order passed by the High Court granting anticipatory bail to the accused should be quashed and set aside. In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. The first and

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foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment. Custodial interrogation can be one of the grounds to decline custodial interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail.

15. Coming back to the instant case, the factual position is that

at the very least, the complainant had paid an amount of Rs.1 crore at the

time when an agreement to sell and a joint venture agreement was

executed between the parties. That Rs.1 crore was utilised by the

petitioners to purchase the property from the original owner. However,

neither of the agreements were given effect to inasmuch as no substantial

construction took place. On the contrary, unknown to the complainant,

the petitioners had availed a loan of Rs.82 lakhs from the State Bank of

Patiala, Sec-22, Chandigarh on 29.05.2011 by mortgaging the entire

property claiming that it was self-acquired and no other person had any

interest in the said property despite the fact that there was subsisting

agreement to sell and a joint venture agreement both dated 28.05.2011.

Thereafter, they deliberately made a false statement to the investigation

agency stating that they were ready and willing to execute the sale deed

in favour of the complainant on a further payment of Rs.50 lakhs without

disclosing that the said amount of Rs.50 lakhs was to be paid only upon

completion of construction and that the question of a sale deed being

executed did not arise as the property had been taken possession of by

the Bank on 06.01.2014. Further, even the terms of the consent award

dated 27.03.2015 were not adhered to by the petitioners. They were to

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negotiate with the Bank with respect to the SARFAESI proceedings

consequent to which the complainant was to pay a maximum amount of

Rs.82 lakhs to the Bank. However, as per investigation there is

absolutely no evidence that the petitioners ever approached the Bank for

re-negotiation of the loan. Even subsequent to the auction on 24.04.2015,

the petitioners received an amount of Rs.72 lakhs and retained the entire

amount without paying anything to the complainant. Thus, it is apparent

that while the complainant had spent an amount of Rs.1 crore at the very

least, the petitioners had spent only Rs.18 lakhs, availed a loan of Rs.82

lakhs and pursuant to the sale of the property received Rs.72 lakhs and

retained the said amount. Further, the conduct of the petitioners is also

not above board. When the petition for quashing of the FIR was filed, an

interim order was passed on the arguments raised that the Magistrate had

not ordered the registration of an FIR on a complaint under Section

156(3) Cr.P.C. though a perusal of the order of the Magistrate would

show that he had categorically directed the SHO concerned to register an

FIR. This Court while dismissing the quashing petition had also recorded

certain findings which clearly establish the prima facie culpability of the

petitioners.

16. Keeping in view the judgment in Sumitha Pradeep (supra)

and the observations made hereinabove, as the offence stands prima facie

established, the complainant appears to have suffered a huge loss and the

conduct of the petitioners is also not above board, no ground for the

grant of anticipatory bail is made out Therefore, the present petition

stands dismissed.

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17. However, it is made clear that the observations in this order

are only for the purposes of deciding this bail application and the Trial

Court is free to adjudicate upon the matter in accordance with law.

(JASJIT SINGH BEDI) JUDGE 01.08.2023 JITESH

Whether speaking/reasoned:- Yes/No

Whether reportable:- Yes/No

Neutral Citation No:=2023:PHHC:097921

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