Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Reserve: July 12, 2010
th
Date of Order: 13 August, 2010
+ Crl.M.C.No. 3022/2009 & Crl.M.A.No. 5184-5185/2010
% 13.08.2010
Dr. Raman Kumar Juneja ... Petitioner
Through: Mr. S.S.Gandhi, Sr. Advocate with
Mr. Prag Chawla, Advocate
Versus
State (NCT of Delhi) ... Respondent
Through: Mr. V.K.Aggarwal, Advocate &
Mr. Chand Zafar, Advocate for the Complainant
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
By present petition under Section 482 Cr.P.C. the petitioner has
th
assailed order dated 26 August, 2009 passed by the learned Additional
Sessions Judge whereby he allowed an application of the respondent for
th
cancellation of bail of the petitioner and set aside the bail order dated 18
February, 2009 passed by the learned Metropolitan Magistrate.
2. It is submitted that the cancellation of bail of an accused can be
done by a Court only if there were supervening circumstances which render grant
of bail no longer conducive to a fair trial. The law cited by the petitioner regarding
cancellation of bail was ignored by the learned Session Judge. It was not a case
where petitioner had attempted to interfere with the course of administration of
justice or had abused the concession of bail granted by the learned Metropolitan
Crl.M.C.No. 3022/2009 Page 1 of 8
Magistrate. There was no cogent and valid reason available for cancellation of
bail and the learned ASJ did not pass the order for just and cogent reasons.
3. Brief facts relevant for the purpose of deciding this petition are that
the petitioner claimed to be owner of property No. 20/2 Rajpur Road, Civil Lines
along with ownership rights of passage. Petitioner entered into an Agreement
th
dated 18 January, 2008 to sell this property for a sum of Rs.6.75 crore and
received around Rs.80 lac at the time of signing agreement; Rs.20 lac was
received in cash Rs.60 lac was received through cheque. However, a dispute
arose soon after signing of agreement between petitioner and respondent about
the extent of property sold, and the respondent stopped payment of the cheque.
th
Thereafter a fresh agreement was signed between the parties on 7 July, 2008.
th th
The only difference between agreement between 18 January, 2008 and 7 July,
th
2008 was that while in 18 January, 2008 agreement the petitioner had given to
the respondent only easementary rights over passage from Rajpur Road to the
property and no right of ownership over the land underneath passage was given
th
however, in the agreement dated 7 July, 2008, it was specifically mentioned that
the respondent will have ownership rights over the passage starting from main
Rajpur Road to Kailash Building. The copies of the two agreements are on
th
record showing this difference. After signing of the second agreement dated 7
July, 2008, the petitioner received a sum of Rs.1.5 crore from the complainant
and balance consideration was to be received at the time of execution of the
documents. The complainant later on found that the petitioner had
misrepresented about his title over the passage in order to induce the respondent
to part with huge amount of Rs.1.5 crore with a mala fide intention. The
contention of the complainant was that the petitioner first kept on postponing the
execution of sale deed. He did not show title documents in respect of title over
Crl.M.C.No. 3022/2009 Page 2 of 8
the passage from main road to Kailash Building and represented that he shall
hand over the title documents at the time of receiving balance payment and
execution of the sale deed. According to complainant, though the complainant
was ready with the balance payment, the petitioner showed inability to execute
th
the sale deed and to hand over the possession by due date of 18 August, 2008
th th
and thereafter date was extended to 15 September, 2008 then to 16 October,
2008. The petitioner also failed to provide sanctioned building plan, “C” and “D”
forms, completion certificate and complete set of documents. It was alleged that
petitioner did not provide documents nor came forward to execute the sale deed
th
in terms of the agreement dated 7 July, 2008. It came to the knowledge of the
complainant that petitioner was not the owner of the entire property as stated in
th
agreement dated 7 July, 2008 and the passage was not under ownership of the
petitioner. Further, it also transpired that there was unauthorized construction
and dispute between petitioner and municipal authorities was going on and with
the result that the property was sealed. It is stated that despite petitioner not
having marketable title over the property, the petitioner induced respondent to
part with huge amount of money. However, after the petitioner failed to execute
sale deed, the complainant met Mr. Anish Gupta, property dealer along with one
Mr. Bipin Jain and requested for refund of money paid by him to petitioner. It was
assured that the money shall be got refunded from the petitioner within 15 days
but petitioner refused to return the money paid to him and told that the entire
amount of Rs.1.5 crore had been forfeited.
4. The petitioner had applied for anticipatory bail which was rejected
by the Sessions Court and also by this Court. Thereafter, the petitioner
surrendered before the Court of MM and the learned MM granted bail to the
petitioner observing that both the agreements were for the same consideration
Crl.M.C.No. 3022/2009 Page 3 of 8
and no extra payment was stipulated for the additional stipulation made in the
th
agreement dated 7 July, 2008 for selling extra common passage. No cheating
th
was alleged in respect of agreement dated 18 January, 2008. The accused was
not a prior convict and looking at his age the learned MM directed the accused to
be released on bail of Rs.50,000/- subject to condition that accused shall not
leave the territory of India without permission and will surrender his passport and
shall not commit a similar offence nor shall threaten or induce the witnesses.
This order of the learned MM was assailed by the respondent on the ground that
the learned MM had not taken into consideration the substantial facts while
granting bail and it was not a fit case for grant of bail. Looking into the fact that
the accused/petitioner was involved in cheating of a huge amount and had
refused to refund Rs.1.5 crore even on his failure to show title, learned Sessions
Judge came to the conclusion that prima facie it was a serious case of
deliberately inducing the complainant to part with this amount by making false
representation about ownership of the passage from main Rajpur Road to
Kailash Building. The learned ASJ observed that the petitioner had admittedly
received Rs.1.5 crore from the complainant and in case the agreement did not
materialize, the petitioner was entitled to forfeit only the earnest money of Rs.20
lac and he was required to return sum of Rs.1.30 crore, which he deliberately did
not return. So the Court of learned ASJ observed that in this case from the facts
it can be gathered that the intention of the petitioner was mala fide from the very
beginning and he had no intention to honour the agreement. The learned ASJ
also found that in this cheating the petitioner had main role. He (petitioner
herein) was the beneficiary of Rs.1.5 crore. The co-accused who was granted
bail was not the beneficiary of any amount therefore, grant of bail to co-accused
could not have been a reason to allow bail to petitioner on the ground of parity.
The Court of Sessions found that the learned MM had not considered the matter
Crl.M.C.No. 3022/2009 Page 4 of 8
in proper prospects, did not pay heed to the difference between the two
agreements, executed by the petitioner and inducement given, by making specific
averment of ownership over the passage and agreeing to sell the passage on
which he had no right. It further observed that a person who had duped
complainant of Rs.1.5 crore cannot be treated alike to the person who had not
received any benefit. The learned ASJ by a speaking order of 33 pages
cancelled the bail of the accused.
5. It is contended by the Counsel for the petitioner that the learned
ASJ had not taken into account the fact that cancellation of bail already granted
must be considered and dealt with on different fottings and the bail could be
cancelled only if there were supervening circumstances showing that it was not
conducive to a fair trial to allow an accused to remain on bail or the freedom
granted to the accused by way of bail was being misused. Reliance was placed
on Dolat Ram & Ors. v. State of Haryana (1995) 1 SCC 349 & Ramcharan v
State of M.P. (2004) 13 SCC 617. It was submitted that even if two views were
possible, once the bail was granted it should not be cancelled. The respondent
on the other hand relied on Dinesh M.N. (SP) v. State of Gujarat (2008) 5 SCC
66 wherein Supreme Court had observed that while cancelling the bail, the Court
can consider whether the irrelevant material was taken into consideration by the
Court granting bail. In Brij Nandan Jaiswal v. Munna @ Munna Jaiswal & Anr.
(2009) 1 SCC 678 Supreme Court observed as under:
12. It is now a settled law that the complainant can always
question the order granting bail if the said order is not validly
passed. It is not as if once a bail is granted by any court, the
only way is to get it cancelled on account of its misuse. The
bail order can be tested on merits also. In our opinion,
therefore, the complainant could question the merits of the
order granting bail. However, we find from the order that no
reasons were given by the learned Judge while granting the
bail and it seems to have been granted almost mechanically
without considering the pros and cons of the matter. While
Crl.M.C.No. 3022/2009 Page 5 of 8
granting bail, particularly in serious cases like murder some
reasons justifying the grant are necessary.
6. In Satish Jaggi v. State of Chhattisgarh & Ors. (2007) 11 SCC 195,
Supreme Court had observed that while granting or non-granting of bail in non-
bailable offences, the primary consideration should be nature and gravity of
offence and question of credibility and reliability of the witnesses cannot be gone
into. In Subodh Kr. Yadav v. State of Bihar & Anr. Criminal Appeal No. 1234/09
th
(MANU/SC/1207/2009) decided by the Apex Court on 15 July, 2009, Supreme
Court again reiterated that where a Magistrate goes wrong and grants bail and
acts in an arbitrary manner/oblique motive the Sessions Court was justified in
setting aside the bail. The Apex Court observed that the powers of the Superior
Court were not restricted in cancellation of bail in appropriate cases where the
bail has not been granted on merits.
7. I consider that in the present case, the argument of the petitioner
that the learned ASJ did not consider the law as laid down by Supreme Court
was baseless. Even on facts, I find that the petitioner‟s conduct from the very
beginning had been to swallow the money. Initially, when the dispute arose
between petitioner and respondent about extent of property, the petitioner could
have told the complainant that he was not the owner of the passage and he could
not sell the passage and respondent was free to back out from the agreement.
By that time, the respondent had paid only a small amount of Rs.20 lac cash to
the petitioner and the complainant would have decided whether to go by deal or
not. However, the petitioner fully knowing that he was not the owner of the
passage, (as is seen from the gift deed and Will; copies of which have been
placed on record by the petitioner), deliberately induced the complainant to enter
into second agreement wherein he mentioned that he would transfer the
Crl.M.C.No. 3022/2009 Page 6 of 8
ownership rights over the passage and after entering into this agreement the
petitioner received substantial amount of Rs.1.3 crore more from the
complainant. Since he was not owner of the passage, he could not have
transferred the passage. He had only easementary right over the passage as
th
was written in the first agreement dated 18 January, 2008. The sole purpose of
the petitioner making false statement in second agreement was to lure
complainant to part with Rs.1.5 crore and then show volte face. However, the
learned MM granted bail to the petitioner on the basis of first agreement between
the parties without taking into account the fact that it was the second agreement
after execution of which, the petitioner had received huge amount from the
complainant wherein a false representation that petitioner being owner of the
th
passage, was made. The petitioner had not shown his title 7 July, 2008 to the
complainant. Had the petitioner shown title deeds, the complainant would not
have entered into the second agreement and would not have parted with the
money. It is obvious that prima facie the intention of the petitioner was to play
fraud and to cheat the respondent of huge amount. This fact is further fortified
when petitioner refused to return the amount. The learned MM did not take these
facts into consideration while granting bail. The learned Sessions Judge was
therefore within its jurisdiction to cancel the bail as Learned MM had failed to
consider merits while passing bail order and gave casual treatment to the matter
and considered irrelevant material.
8. I consider that where a person who has admittedly received huge
amounts from the complainant on misrepresentation and who refused to return
this amount despite his misrepresentation having come to light, such a person is
not entitled for bail. His bona fides and intentions are to be doubted and the
Court must remain alive to the situation that these days „cheating‟ has become a
Crl.M.C.No. 3022/2009 Page 7 of 8
profession. Builders often make false promises about the land and about the
buildings and induce people to invest money in colonies, which exist only on
papers when in fact they do not have land or permission to set up colonies. This
menace of cheating is increasing day by day and Courts cannot take a casual
approach towards those, who admittedly had received huge amount but are not
prepared to refund.
I, therefore find no infirmity in the order passed by the learned ASJ
cancelling the bail of the petitioner. The petition is hereby dismissed.
August 13, 2010 SHIV NARAYAN DHINGRA, J.
vn
Crl.M.C.No. 3022/2009 Page 8 of 8
Date of Reserve: July 12, 2010
th
Date of Order: 13 August, 2010
+ Crl.M.C.No. 3022/2009 & Crl.M.A.No. 5184-5185/2010
% 13.08.2010
Dr. Raman Kumar Juneja ... Petitioner
Through: Mr. S.S.Gandhi, Sr. Advocate with
Mr. Prag Chawla, Advocate
Versus
State (NCT of Delhi) ... Respondent
Through: Mr. V.K.Aggarwal, Advocate &
Mr. Chand Zafar, Advocate for the Complainant
JUSTICE SHIV NARAYAN DHINGRA
1. Whether reporters of local papers may be allowed to see the judgment? Yes.
2. To be referred to the reporter or not? Yes.
3. Whether judgment should be reported in Digest? Yes.
JUDGMENT
By present petition under Section 482 Cr.P.C. the petitioner has
th
assailed order dated 26 August, 2009 passed by the learned Additional
Sessions Judge whereby he allowed an application of the respondent for
th
cancellation of bail of the petitioner and set aside the bail order dated 18
February, 2009 passed by the learned Metropolitan Magistrate.
2. It is submitted that the cancellation of bail of an accused can be
done by a Court only if there were supervening circumstances which render grant
of bail no longer conducive to a fair trial. The law cited by the petitioner regarding
cancellation of bail was ignored by the learned Session Judge. It was not a case
where petitioner had attempted to interfere with the course of administration of
justice or had abused the concession of bail granted by the learned Metropolitan
Crl.M.C.No. 3022/2009 Page 1 of 8
Magistrate. There was no cogent and valid reason available for cancellation of
bail and the learned ASJ did not pass the order for just and cogent reasons.
3. Brief facts relevant for the purpose of deciding this petition are that
the petitioner claimed to be owner of property No. 20/2 Rajpur Road, Civil Lines
along with ownership rights of passage. Petitioner entered into an Agreement
th
dated 18 January, 2008 to sell this property for a sum of Rs.6.75 crore and
received around Rs.80 lac at the time of signing agreement; Rs.20 lac was
received in cash Rs.60 lac was received through cheque. However, a dispute
arose soon after signing of agreement between petitioner and respondent about
the extent of property sold, and the respondent stopped payment of the cheque.
th
Thereafter a fresh agreement was signed between the parties on 7 July, 2008.
th th
The only difference between agreement between 18 January, 2008 and 7 July,
th
2008 was that while in 18 January, 2008 agreement the petitioner had given to
the respondent only easementary rights over passage from Rajpur Road to the
property and no right of ownership over the land underneath passage was given
th
however, in the agreement dated 7 July, 2008, it was specifically mentioned that
the respondent will have ownership rights over the passage starting from main
Rajpur Road to Kailash Building. The copies of the two agreements are on
th
record showing this difference. After signing of the second agreement dated 7
July, 2008, the petitioner received a sum of Rs.1.5 crore from the complainant
and balance consideration was to be received at the time of execution of the
documents. The complainant later on found that the petitioner had
misrepresented about his title over the passage in order to induce the respondent
to part with huge amount of Rs.1.5 crore with a mala fide intention. The
contention of the complainant was that the petitioner first kept on postponing the
execution of sale deed. He did not show title documents in respect of title over
Crl.M.C.No. 3022/2009 Page 2 of 8
the passage from main road to Kailash Building and represented that he shall
hand over the title documents at the time of receiving balance payment and
execution of the sale deed. According to complainant, though the complainant
was ready with the balance payment, the petitioner showed inability to execute
th
the sale deed and to hand over the possession by due date of 18 August, 2008
th th
and thereafter date was extended to 15 September, 2008 then to 16 October,
2008. The petitioner also failed to provide sanctioned building plan, “C” and “D”
forms, completion certificate and complete set of documents. It was alleged that
petitioner did not provide documents nor came forward to execute the sale deed
th
in terms of the agreement dated 7 July, 2008. It came to the knowledge of the
complainant that petitioner was not the owner of the entire property as stated in
th
agreement dated 7 July, 2008 and the passage was not under ownership of the
petitioner. Further, it also transpired that there was unauthorized construction
and dispute between petitioner and municipal authorities was going on and with
the result that the property was sealed. It is stated that despite petitioner not
having marketable title over the property, the petitioner induced respondent to
part with huge amount of money. However, after the petitioner failed to execute
sale deed, the complainant met Mr. Anish Gupta, property dealer along with one
Mr. Bipin Jain and requested for refund of money paid by him to petitioner. It was
assured that the money shall be got refunded from the petitioner within 15 days
but petitioner refused to return the money paid to him and told that the entire
amount of Rs.1.5 crore had been forfeited.
4. The petitioner had applied for anticipatory bail which was rejected
by the Sessions Court and also by this Court. Thereafter, the petitioner
surrendered before the Court of MM and the learned MM granted bail to the
petitioner observing that both the agreements were for the same consideration
Crl.M.C.No. 3022/2009 Page 3 of 8
and no extra payment was stipulated for the additional stipulation made in the
th
agreement dated 7 July, 2008 for selling extra common passage. No cheating
th
was alleged in respect of agreement dated 18 January, 2008. The accused was
not a prior convict and looking at his age the learned MM directed the accused to
be released on bail of Rs.50,000/- subject to condition that accused shall not
leave the territory of India without permission and will surrender his passport and
shall not commit a similar offence nor shall threaten or induce the witnesses.
This order of the learned MM was assailed by the respondent on the ground that
the learned MM had not taken into consideration the substantial facts while
granting bail and it was not a fit case for grant of bail. Looking into the fact that
the accused/petitioner was involved in cheating of a huge amount and had
refused to refund Rs.1.5 crore even on his failure to show title, learned Sessions
Judge came to the conclusion that prima facie it was a serious case of
deliberately inducing the complainant to part with this amount by making false
representation about ownership of the passage from main Rajpur Road to
Kailash Building. The learned ASJ observed that the petitioner had admittedly
received Rs.1.5 crore from the complainant and in case the agreement did not
materialize, the petitioner was entitled to forfeit only the earnest money of Rs.20
lac and he was required to return sum of Rs.1.30 crore, which he deliberately did
not return. So the Court of learned ASJ observed that in this case from the facts
it can be gathered that the intention of the petitioner was mala fide from the very
beginning and he had no intention to honour the agreement. The learned ASJ
also found that in this cheating the petitioner had main role. He (petitioner
herein) was the beneficiary of Rs.1.5 crore. The co-accused who was granted
bail was not the beneficiary of any amount therefore, grant of bail to co-accused
could not have been a reason to allow bail to petitioner on the ground of parity.
The Court of Sessions found that the learned MM had not considered the matter
Crl.M.C.No. 3022/2009 Page 4 of 8
in proper prospects, did not pay heed to the difference between the two
agreements, executed by the petitioner and inducement given, by making specific
averment of ownership over the passage and agreeing to sell the passage on
which he had no right. It further observed that a person who had duped
complainant of Rs.1.5 crore cannot be treated alike to the person who had not
received any benefit. The learned ASJ by a speaking order of 33 pages
cancelled the bail of the accused.
5. It is contended by the Counsel for the petitioner that the learned
ASJ had not taken into account the fact that cancellation of bail already granted
must be considered and dealt with on different fottings and the bail could be
cancelled only if there were supervening circumstances showing that it was not
conducive to a fair trial to allow an accused to remain on bail or the freedom
granted to the accused by way of bail was being misused. Reliance was placed
on Dolat Ram & Ors. v. State of Haryana (1995) 1 SCC 349 & Ramcharan v
State of M.P. (2004) 13 SCC 617. It was submitted that even if two views were
possible, once the bail was granted it should not be cancelled. The respondent
on the other hand relied on Dinesh M.N. (SP) v. State of Gujarat (2008) 5 SCC
66 wherein Supreme Court had observed that while cancelling the bail, the Court
can consider whether the irrelevant material was taken into consideration by the
Court granting bail. In Brij Nandan Jaiswal v. Munna @ Munna Jaiswal & Anr.
(2009) 1 SCC 678 Supreme Court observed as under:
12. It is now a settled law that the complainant can always
question the order granting bail if the said order is not validly
passed. It is not as if once a bail is granted by any court, the
only way is to get it cancelled on account of its misuse. The
bail order can be tested on merits also. In our opinion,
therefore, the complainant could question the merits of the
order granting bail. However, we find from the order that no
reasons were given by the learned Judge while granting the
bail and it seems to have been granted almost mechanically
without considering the pros and cons of the matter. While
Crl.M.C.No. 3022/2009 Page 5 of 8
granting bail, particularly in serious cases like murder some
reasons justifying the grant are necessary.
6. In Satish Jaggi v. State of Chhattisgarh & Ors. (2007) 11 SCC 195,
Supreme Court had observed that while granting or non-granting of bail in non-
bailable offences, the primary consideration should be nature and gravity of
offence and question of credibility and reliability of the witnesses cannot be gone
into. In Subodh Kr. Yadav v. State of Bihar & Anr. Criminal Appeal No. 1234/09
th
(MANU/SC/1207/2009) decided by the Apex Court on 15 July, 2009, Supreme
Court again reiterated that where a Magistrate goes wrong and grants bail and
acts in an arbitrary manner/oblique motive the Sessions Court was justified in
setting aside the bail. The Apex Court observed that the powers of the Superior
Court were not restricted in cancellation of bail in appropriate cases where the
bail has not been granted on merits.
7. I consider that in the present case, the argument of the petitioner
that the learned ASJ did not consider the law as laid down by Supreme Court
was baseless. Even on facts, I find that the petitioner‟s conduct from the very
beginning had been to swallow the money. Initially, when the dispute arose
between petitioner and respondent about extent of property, the petitioner could
have told the complainant that he was not the owner of the passage and he could
not sell the passage and respondent was free to back out from the agreement.
By that time, the respondent had paid only a small amount of Rs.20 lac cash to
the petitioner and the complainant would have decided whether to go by deal or
not. However, the petitioner fully knowing that he was not the owner of the
passage, (as is seen from the gift deed and Will; copies of which have been
placed on record by the petitioner), deliberately induced the complainant to enter
into second agreement wherein he mentioned that he would transfer the
Crl.M.C.No. 3022/2009 Page 6 of 8
ownership rights over the passage and after entering into this agreement the
petitioner received substantial amount of Rs.1.3 crore more from the
complainant. Since he was not owner of the passage, he could not have
transferred the passage. He had only easementary right over the passage as
th
was written in the first agreement dated 18 January, 2008. The sole purpose of
the petitioner making false statement in second agreement was to lure
complainant to part with Rs.1.5 crore and then show volte face. However, the
learned MM granted bail to the petitioner on the basis of first agreement between
the parties without taking into account the fact that it was the second agreement
after execution of which, the petitioner had received huge amount from the
complainant wherein a false representation that petitioner being owner of the
th
passage, was made. The petitioner had not shown his title 7 July, 2008 to the
complainant. Had the petitioner shown title deeds, the complainant would not
have entered into the second agreement and would not have parted with the
money. It is obvious that prima facie the intention of the petitioner was to play
fraud and to cheat the respondent of huge amount. This fact is further fortified
when petitioner refused to return the amount. The learned MM did not take these
facts into consideration while granting bail. The learned Sessions Judge was
therefore within its jurisdiction to cancel the bail as Learned MM had failed to
consider merits while passing bail order and gave casual treatment to the matter
and considered irrelevant material.
8. I consider that where a person who has admittedly received huge
amounts from the complainant on misrepresentation and who refused to return
this amount despite his misrepresentation having come to light, such a person is
not entitled for bail. His bona fides and intentions are to be doubted and the
Court must remain alive to the situation that these days „cheating‟ has become a
Crl.M.C.No. 3022/2009 Page 7 of 8
profession. Builders often make false promises about the land and about the
buildings and induce people to invest money in colonies, which exist only on
papers when in fact they do not have land or permission to set up colonies. This
menace of cheating is increasing day by day and Courts cannot take a casual
approach towards those, who admittedly had received huge amount but are not
prepared to refund.
I, therefore find no infirmity in the order passed by the learned ASJ
cancelling the bail of the petitioner. The petition is hereby dismissed.
August 13, 2010 SHIV NARAYAN DHINGRA, J.
vn
Crl.M.C.No. 3022/2009 Page 8 of 8