Punjab-Haryana High Court
Sawinder Singh vs State Of Punjab on 21 March, 2024
Author: Jasjit Singh Bedi
Bench: Jasjit Singh Bedi
Neutral Citation No:=2024:PHHC:041087
2024:PHHC:041087
CRM-M-2412-2024 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-2412-2024
Date of decision :21.03.2024
SAWINDER SINGH
... Petitioner
Versus
STATE OF PUNJAB
...Respondent
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. G.S. Dhindsa, Advocate
for the petitioner.
Mr. Harkanwar Jeet Singh, Asstt. A.G., Punjab.
Mr. Viraj Gandhi, Advocate and
Mr. Adarsh Dubey, Advocate
for the complainant.
****
JASJIT SINGH BEDI, J.
The prayer in the present petition under Section 438 of
Cr.P.C. is for the grant of anticipatory bail to the petitioner in case FIR
No.0098 dated 23.12.2023 registered under Sections 406, 420 IPC, 1860
at Police Station Dhakoli, Tehsil Dera Bassi, District SAS Nagar,
Mohali.
2. The present FIR came to be registered at the instance of Dr.
Gyaneshwari Longjam wife of Mr. B Umakanta Sharma and the same
reads as under:-
"To, The Senior Superintendent of Police. District
Administrative Complex, Sec-76 SAS Nagar Mohali-
160071, Punjab Subject: - To lodge FIR against the
past and present directors of Sky infrastructure Pvt
Ltd., (Builder) for fraudulently selling the Flat which
has already sold to other party. Madam/Sir, I Dr.
Gyaneshwari Longjam wife of Mr. B Umakanta
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Sharma, resident of 262-K, 6th floor, Spangle Condos,
Gazipur, Zirakpur, 160104, Punjab had purchased Flat
No 8, 2nd floor, Highway Homes, Old Gazipur Road,
Dhakoli from M/s Sky Infrastructure Pvt Ltd, (Builder)
through its Director Mr. Shri Sanjeev Kumar Bindal S/o
Shri Gayan Chand, R/o. House No. 155, Sector 21,
Panchkula. Haryana (DIN: 00592933 Pan:
AGRPK8755H, Aadhar 713395330080, Passport
Number 0000M1174528) and paid a consideration of
Rs. 10,50,000 by cheque and 13,50,000 by cash.
Thereafter the builder handed over the possession of
the flat on 25th October 2017 and the builder himself
incurred all the expenditure to register this said flat in
my name in the Sub- Registrar's Office, Zirakpur on
26th October, 2017. Thereafter, I also enrolled myself
as member of RWA Society and have been paying
maintenance charges regularly (copy enclosed-1). In
addition, the electricity connection was also issued in
my name by electricity department, Zirakpur (copy
enclosed-2). I have paid property tax of my flat (copy
enclosed-3). Recently, I also obtained a copy of Fard
from the concerned Patwari (Copy enclosed -6). Since
October 2017, I have enjoyed occupation of this flat
without any intervention. Currently, this Property has
been let out by me and I have also been receiving rent
for this flat in my bank account since June, 2018. In
addition, I have renovated the flat by spending more
than 2 lacs. On 26th June, 2021, I found a Demand
Notice (copy enclosed-4) from PNB Housing Finance
Ltd (PNB) addressed to Rajat Behai and Rajesh Behai
being addressed to my Flat No 8, 2nd floor, Highway
Homes, Old Gazipur Road, Dhakoli. The Notice did not
bear my name, instead it mentioned that so called
persons namely Rajat Behai and Rajesh Behai had
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taken loan from PNB against hypothecation of my flat.
Further, the Notice stated that Rajat Behal and Rajesh
Behal have defaulted on this loan and a demand of Rs.
27,63,970.25/- is outstanding against them. On the
above submission, I have been frauded by the builder
and their Directors (past and present) (copy enclosed-
5). I have also filed a complaint online on 20th
September, 2021 vide CRN: 1409/2021 In addition, I
have also initiated Civil Suit No 549/2021 (dated 27th
July 2021) against the Builder, Rajat Behai, Rajesh
Behai and PNB. However, in this said civil matter,
Builder, Rajat Behai and Rajesh Behai have not filed
any reply against the matter in the Hon'ble Court till
date except Bank. Therefore, I request your good office
to initiate criminal investigation against all the past
and present directors of Sky Builders to determine why
this said flat has been sold twice by the builder. In
addition, Rajat Behai, Rajesh Behai and PNB Housing
Finance Limited may be investigated that on what basis
the flat has been bought by Rajat Behai and Rajesh
Behai from the builder. In regard to bank, on what basis
the loan amount has been sanctioned. FIR should be
lodge accordingly, to all the past and present directors
of the Company (builder) for committing fraud to the
innocent buyer (me). Your sincerel SD/-Dr. Mrs.
Gyaneshwari Longjam W/o B Umakanta Sharma
Spangle Condos Flat No. 262-K, Top Floor, Gazipur
Zirakpur. Punjab. Phone Number:-9814106803
(9779333007)."
3. The learned counsel for the petitioner contends that he has
been falsely implicated in the present case. No specific role had been
attributed to him in the FIR. The petitioner was merely a Supervisor
between the years 2013-2018 and during that period, the Directors of the
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Company would send their employees to encash the cheques issued by
the complainant and others. In this context, some cheques had been
handed over to the petitioner to deposit into the accounts of the
company. However, the petitioner had never met the complainant. Even
otherwise, the entire transaction between the complainant and the
company took place in the year 2017 and the petitioner only remained a
Director between April 2018 till 2019. The complainant had instituted a
civil suit against all the accused persons including Rajat Behal and
Rajesh Behal but the petitioner had not been made a party to the said
suit. The Investigating Agency had gone to the extent of involving those
directors who had left the company in the year 2013. As the petitioner
was ready and willing to join investigation, he was entitled to the
concession of bail.
4. On the other hand, the learned State counsel submits that
the petitioner and his co-accused had cheated the complainant of a huge
amount of money in the name of selling a flat to her which had been
sold by them to some other persons earlier. The complainant had in fact
handed over the money to the petitioner who was initially an employee
of the Company and later on assumed the role of a Director which would
clearly show the active connivance of the petitioner in the commission
of the offence. If the case of the petitioner that he was acting on behalf
of the company was taken to be correct, then the cheques ought to have
been deposited directly in the account of the Company and would not
have been handed over to the petitioner as self-cheques. He, therefore
contends that the custodial interrogation of the petitioner was certainly
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required to unearth the manner in which the offence was committed by
him in connivance with the other officers and Directors of the Company
who are absconding.
5. A reply dated 12.03.2024 has been filed on behalf of the
complainant by the learned counsel for the complainant. The same is
taken on record. While referring to the reply, he contends that it was the
petitioner also who had been dealing with the complainant throughout
the time he (the complainant) was in the process of buying the flat. The
petitioner was earlier employed as a Supervisor and thereafter had been
promoted to the post of a Director. The petitioner had categorically
admitted that he had received money from the complainant in the
capacity of an employee of the accused/company. In fact, the petitioner
had withdrawn money on self-cheques that were handed over to him by
the complainant as was evident from the bank statement (Annexure R/2-
2). Therefore, the petitioner had directly received pecuniary benefit from
the complainant who had clearly been cheated as the flat in question had
earlier been sold to others who had availed a loan on the same. As the
offence was prima facie established against the petitioner and his co-
accused all of whom were absconding, he was not entitled to the
concession of anticipatory bail.
6. I have heard the learned counsel for the parties.
7. 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
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foremost thing the Court hearing the anticipatory bail application is to
consider is the prima 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
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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 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.
8. In the instant case, the petitioner was initially a Supervisor
and subsequently was promoted as a Director. He has categorically
admitted that he had received money from the complainant in the
capacity of being an employee. In fact, the petitioner had drawn money
on self-cheques that were handed over to him by the complainant as is
evident from the bank statement (Annexure R/2-2). If the defence of the
petitioner that he had received money only in the capacity of being an
employee of the company was taken to be correct, then there was no
question of him accepting self-cheques to be used to withdraw cash. He
would have simply received cheques in the name of the company which
he would have gone on to deposit in the accounts of the company.
Therefore, prima facie, it cannot be said that the petitioner is not
involved in the cheating of the complainant along with the other
Directors and officers of the accused company. In fact, the designation
of the petitioner as a Supervisor prior to the year 2018 is nothing but a
ruse to hoodwink customers including the complainant. It appears that
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the petitioner was one of the persons actively involved in the running of
the company. His custodial interrogation is certainly required to unearth
the entire conspiracy and to obtain information as to the whereabouts of
45the other accused. Therefore, not only is the offence prima facie
established but the investigation in the present case is to be taken to its
logical conclusion because of which the custodial interrogation of the
petitioner is certainly necessary.
9. In view of the aforementioned discussion, I find no merit in
the present petition. Therefore, the same stands dismissed.
10. However, the observations made hereinabove are only for
the purposes of deciding this bail petition and the Trial Court is free to
adjudicate upon the matter on the basis of the evidence led before it
uninfluenced by any such observations made herein.
(JASJIT SINGH BEDI)
JUDGE
21.03.2024
JITESH
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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