Punjab-Haryana High Court
Vikas Alias Vikas Kumar vs State Of Punjab on 4 September, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:115530
CRM-M-42387-2024 -1-
224
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-42387-2024
DECIDED ON: 04.09.2024
VIKAS ALIAS VIKAS KUMAR
.....PETITIONER
VERSUS
STATE OF PUNJAB
.....RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Anmol Rattan Sidhu, Sr. Advocate with
Mr. Raghav Gulati, Mr. Kamal Gupta, Advocates,
Mr. Gurpreet Singh and Mr. Varun Sharma, Advocates
for the petitioner.
Mr. Jasjit Singh Rattu, DAG, Punjab.
SANDEEP MOUDGIL, J (ORAL)
1. Relief sought
The jurisdiction of this Court has been invoked for the third
time under Section 483 BNSS for grant of regular bail to the petitioner in
FIR No.0061, dated 15.03.2024, under Sections 420, 406, 467, 468, 471,
506 and 120-B IPC (offence under Section 201 IPC added later on),
registered at Police Station Sadar Kharar, District SAS Nagar, Mohali,
Punjab.
2. Prosecution story setup in the present case as per the version in
the FIR as under:-
"Copy of complaint. "To, S.H.O. Sahib, IS Sadar Kharar,
District S.A.S. Nagar (Mohali) • Subject: - Complaint
against 1) Neha Sharma @ Neha Kaur (M.D.) Hawk
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Real Estate (Mob. No. 70871-11353, 98720-01924), 2).
Vikas, residents of Sunny Enclave, Sector-123, Kharar,
District S.A.S. Nagar (Mohali), 3) Tejinder Singh son of
Onkar Singh resident of Village Mullanpur Garibdass,
District Mohali for committing fraud with complainant
by preparing forged and fabricated documents and giving
threats to kill. Sir, Requested that I, Ajay Kumari wife of
Sher Singh am resident of House No. 117, Ward No. 3,
Block-8, Gobind Nagar, Una, Himachal Pradesh. That
the above mentioned accused gives advertisements for
sale-purchase of houses by making page on the name of
Hawk Real Estate at social media and on seeing their
advertisements we had sent message to them. Thereafter,
Vikas and Tejinder Singh had contacted me and had
given assurance to us that they shall facilitate sale of
good house at reasonable price to us. They sent photos of
houses on our mobile phone and then they called us at
their office Hawk Real Estate, Sunny Enclave, Sector-
123, Kharar for showing houses to us. I and my son Atul
Rana had visited their office on dt. 23.12.2023, where,
they introduced us with Neha Sharma @ Neha Kaur who
had introduced herself as M.D. of company. Above
mentioned accused Vikas, Tejinder Singh and Neha
Sharma @ Neha Kaur took us alongwith them and
showed us two-three houses including one House No. 26,
2 BHK, Area 125 Square Yrd, Sector-123, Sunny Enclave,
Kharar and Neha Sharma showed us one agreement of
full and final payment of her name and said that I have
paid total sale consideration amount of this house to the
owner of this house and she said that I shall give its copy
to you at the time of executing agreement and she assured
us that she is owner of above mentioned house and this
house is fully furnished and is on sale with furniture,
fridge, A.C. etc. We saw that house from inside and
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outside and we liked NER DENT LA, the house and Neha
Sharma @ Neha Kaur said to us that the price of this
house alongwith said household goods/appliances is Rs.
80 Lac. Deal was fixed between us and we asked Neha
Sharma to execute agreement of above mentioned house
and Neha Sharma asked us to pay firstly Rs. 20,00,000/-
as token money. We demanded few days' time to pay this
amount and then Neha Sharma asked us to pay Rs.
21,000/- as token money. Whereupon, at the instance of
Neha Sharma and other accused I transferred Rs.
21,000/- in Neha Sharma's account through GooglePay
from my son. Atul Rana's account vide UPI ID
372396293284. Afterwards, at the instance of Neha
Sharma and other accused I transferred balance amount
Rs. 19,79,000/- in Neha Sharma's account through bank
transfer as under, Rs. 16,00,047/- vide RIGS on dt.
27.12.2023, Rs. 79,000/- with UPI ID 336588379551 on
dt. 31.12.2023, Rs. 50,000/- on dt. 31.12.202.3, Rs.
2,50,000/- from my and my son Atul Rana's acccunt on
dt. 01. 01.2024, accordingly transferred total Rs. 20,00,
000/- in Account No. 2302252250715294 of Neha
Sharma's firm Hawk Real Estate at AU Small Finance
Bank. That after paying this amount we asked Neha
Sharma to execute sale agreement of house with us.
Initially she gave us excuses but on our repeated
insistence she called us at her office on dt. 02.01.2024 for
executing sale agreement and from there above
mentioned accused took us to Tehsil Complex Kharar and
there they got scribed sale agreement and Neha Sharma
gave signatures on sale agreement as owner in presence
of witnesses and dt. 01.07.2024 was fixed for registration
of sale deed. Copy of sale agreement is attached
herewith. After few days we demanded documents from
Neha Sharma pertaining to her ownership of said house
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for taking loan but she started making excuses and after
few days she stopped answering our phone calls. Due to
her acts we became suspicious when we visited her office
to talk to her then we could not find her there. Then we
visited the said house and inquired from neighbors and
we came to know that Neha Sharma is not even the owner
of this house nor she had any attorney etc. to execute sale
agreement of said house. Thereafter, when we visited the
office of the accused again and again and spoke with
them then Neha Sharma gave us four cheques i.e. Cheque
No. 022765 Rs. 5 Lac, 022766 Rs. 5 Lac, 022767 Rs. 5
Lac, 022768 Rs. 5 Lac IndusInd Bank, Branch Sector-70,
Mohali and assured us that these cheques shall be
cleared upon presenting in the bank and we shall get
back our amount, but when we presented these cheques
in bank then all these cheques got bounced on dt.
30.01.2024. When we contacted the accused then they
gave threats to us that if we demand money from them
again or visit their office then they shall kill us. Above
mentioned Neha Sharma @ Neha Kaur in connivance
with co-accused Tejinder Singh and vikas by preparing
and executing forged and fabricated sale agreement with
us and by impersonating as owner of house has
committed fraud of Rs. 20,00, 000/- Lac with us and has
deceived us and has given threats to kill us. We have
doubt that owner of above mentioned house has also
connived with them in this conspiracy. Requested that
strict action be taken against above mentioned accused
and justice be given to us. Yours sincerely, Sd/- Ajay
Kumari wife of Sher Singh resident of House No. 117,
Ward No. 3, Block-8, Gobind Nagar, Una, Himachal
Pradesh, Mob. No. 98162-48609." Police Proceedings:-
Today I, ASI was present at police station and MHC
produced one Complaint No. 628/5D/PS Sadar Kharar
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Dt. 15. 03.2024 given by Ajay Kumari wife of Sher Singh
resident of House No. 117, Ward No. 3, Block-8, Gobind
Nagar, Una, Himachal Pradesh, which was marked by
SHo for proceedings, alongwith complainant before me.
Enquiry was conducted to verify the facts of the
complaint. After enquiry, facts of the complaint were
found to be genuine. Erom contents of complaint, prima-
facie offence punishable under sections 420, 406, 467,
468, 471, 506,120-B IPC is made out. Therefore,
complaint is being handed over to MHC for registration
of FIR against Neha Sharma @ Neha Kaur M.D. Hawk
Real Estate and Vikas residents of Sunny Enclave, Sector-
123, Kharar and Tejinder Singh son of Onkar Singh
resident of Village Mullanpur Garibdass, Mohali under
above mentioned sections. Number be intimated after
registration of FIR. Intimation be given to Incharge
Control Room. I, ASI alongwith ct. Gurpreet Singh
2123/SASN and L/Ct. Mandeep Kaur 1810/SASN and
complainant am departing for the place of occurrence.
Now present at PS Sadar Kharar at 11:10 AM. Sd/- ASI
Kulwinder Singh PS Sadar Kharar Date 15.03.2024."
3. Contentions
On behalf of the petitioner
Learned Senior counsel for the petitioner contends that the
petitioner was neither the signatory to any agreement to sell nor he was the
beneficiary of the amount paid by the complainant. He further contends that
the petitioner was an employee of the main accused Neha Sharma, who is
the owner of the firm namely Hawk Real Estate. He has relied upon a bank
entry dated 06.09.2023 (Annexure P-8) and submits that the petitioner was
drawing salary from the said company. It has been asserted on behalf of the
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petitioner that he is ready and willing to join the investigation and cooperate
with the investigating agency.
On behalf of the State
On the other hand, learned State counsel has produced the
custody certificate of the petitioner today in Court, which is taken on record.
He submits that as per the FIR, the petitioner was working on commission
basis as well apart from drawing the salary but on a specific query put by
this Court, he could not put forth any incriminating material to support the
assertions that the petitioner was beneficiary in any manner directly or
indirectly except being an employee of Neha Sharma, the main accused who
was receiving salary in bank account alone, as has been argued by Mr.
Sidhu, learned Senior counsel for the petitioner.
4. Analysis
Be that as it may, considering the submissions made
hereinabove and the facts that the petitioner has suffered incarceration for a
period of 05 months and 10 days; the petitioner is not a habitual offender as
he is not involved in any other case, as is evident from custody certificate
added with the facts that investigation is complete, challan stands presented
to Court on 12.06.2024, charges are yet to be framed and total 16
prosecution witnesses are yet to be examined, which is suffice for this Court
to infer that the conclusion of trial will take a long time for which the
petitioner cannot be detained behind the bars for an indefinite period.
Reliance can be placed upon the judgment of the Apex Court
rendered in "Dataram versus State of Uttar Pradesh and another", 2018(2)
R.C.R. (Criminal) 131, wherein it has been held that the grant of bail is a
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general rule and putting persons in jail or in prison or in correction home is
an exception. Relevant paras of the said judgment is reproduced as under:-
"2. A fundamental postulate of criminal jurisprudence is
the presumption of innocence, meaning thereby that a
person is believed to be innocent until found guilty.
However, there are instances in our criminal law where a
reverse onus has been placed on an accused with regard
to some specific offences but that is another matter and
does not detract from the fundamental postulate in
respect of other offences. Yet another important facet of
our criminal jurisprudence is that the grant of bail is the
general rule and putting a person in jail or in a prison or
in a correction home (whichever expression one may
wish to use) is an exception. Unfortunately, some of these
basic principles appear to have been lost sight of with the
result that more and more persons are being incarcerated
and for longer periods. This does not do any good to our
criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is
entirely the discretion of the judge considering a case but
even so, the exercise of judicial discretion has been
circumscribed by a large number of decisions rendered
by this Court and by every High Court in the country. Yet,
occasionally there is a necessity to introspect whether
denying bail to an accused person is the right thing to do
on the facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to
be considered is whether the accused was arrested during
investigations when that person perhaps has the best
opportunity to tamper with the evidence or influence
witnesses. If the investigating officer does not find it
necessary to arrest an accused person during
investigations, a strong case should be made out for
placing that person in judicial custody after a charge
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sheet is filed. Similarly, it is important to ascertain
whether the accused was participating in the
investigations to the satisfaction of the investigating
officer and was not absconding or not appearing when
required by the investigating officer. Surely, if an accused
is not hiding from the investigating officer or is hiding
due to some genuine and expressed fear of being
victimised, it would be a factor that a judge would need
to consider in an appropriate case. It is also necessary
for the judge to consider whether the accused is a first-
time offender or has been accused of other offences and if
so, the nature of such offences and his or her general
conduct. The poverty or the deemed indigent status of an
accused is also an extremely important factor and even
Parliament has taken notice of it by incorporating an
Explanation to section 436 of the Code of Criminal
Procedure, 1973. An equally soft approach to
incarceration has been taken by Parliament by inserting
section 436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be
adopted by a judge, while dealing with an application for
remanding a suspect or an accused person to police
custody or judicial custody. There are several reasons for
this including maintaining the dignity of an accused
person, howsoever poor that person might be, the
requirements of Article 21 of the Constitution and the fact
that there is enormous overcrowding in prisons, leading
to social and other problems as noticed by this Court in
In Re-Inhuman Conditions in 1382 Prisons, 2017(4) RCR
(Criminal) 416: 2017(5) Recent Apex Judgments (R.A.J.)
408 : (2017) 10 SCC 658
6. The historical background of the provision for bail has
been elaborately and lucidly explained in a recent
decision delivered in Nikesh Tara chand Shah v. Union of
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India, 2017 (13) SCALE 609 going back to the days of
the Magna Carta. In that decision, reference was made to
Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC
565 in which it is observed that it was held way back in
Nagendra v. King-Emperor, AIR 1924 Calcutta 476 that
bail is not to be withheld as a punishment. Reference was
also made to Emperor v. Hutchinson, AIR 1931
Allahabad 356 wherein it was observed that grant of bail
is the rule and refusal is the exception. The provision for
bail is therefore age-old and the liberal interpretation to
the provision for bail is almost a century old, going back
to colonial days.
7. However, we should not be understood to mean that
bail should be granted in every case. The grant or refusal
of bail is entirely within the discretion of the judge
hearing the matter and though that discretion is
unfettered, it must be exercised judiciously and in a
humane manner and compassionately. Also, conditions
for the grant of bail ought not to be so strict as to be
incapable of compliance, thereby making the grant of
bail illusory."
Therefore, to elucidate further, this Court is conscious of the
basic and fundamental principle of law that right to speedy trial is a part of
reasonable, fair and just procedure enshrined under Article 21 of the
Constitution of India. This constitutional right cannot be denied to the
accused as is the mandate of the Apex court in "Hussainara Khatoon and
ors (IV) v. Home Secretary, State of Bihar, Patna", (1980) 1 SCC 98.
Besides this, reference can be drawn upon that pre-conviction period of the
under-trials should be as short as possible keeping in view the nature of
accusation and the severity of punishment in case of conviction and the
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nature of supporting evidence, reasonable apprehension of tampering with
the witness or apprehension of threat to the complainant.
5. DECISION:
In view of the discussions made hereinabove, the petitioner is
hereby directed to be released on regular bail on his furnishing bail and
surety bonds to the satisfaction of the trial Court/Duty Magistrate,
concerned.
In the afore-said terms, the present petition is hereby allowed.
However, it is made clear that anything stated hereinabove shall
not be construed as an expression of opinion on the merits of the case.
(SANDEEP MOUDGIL)
04.09.2024 JUDGE
Poonam Negi
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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