Full Judgment Text
88.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 1547/2010
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Date of decision: 13 September, 2010
VINOD KUMAR ..... Petitioner
Through Mr. Shiv Kumari & Mr. H.P.
Sharma, Advocates.
versus
STATE NCT OF DELHI ..... Respondent
Through Mr. Arvind Kumar Gupta, APP for
the State along with SI Shodan Singh, P.S.
Connaught Place.
Mr. Abhijat, Advocate for the complainant.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
O R D E R
1. This is an application for anticipatory bail. Learned counsel for the
applicant submits that there is a civil dispute and has made reference to
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the order dated 16 June, 2010 passed by the vacation Judge granting
stay. He has relied upon judgments of this Court in A.K. Arora versus
State , 2006 (131) DLT 24, Monika Aggarwal versus State (NCT of
Delhi) , 2006 (133) DLT 206 and K. Jayram versus State , 2006 (134)
DLT 390.
2. I have examined the allegations made in the FIR. As per the FIR,
the complainant-Om Arora had entered into an agreement to sell with
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Anmol Aggarwal and J.P. Aggarwal on 2 September, 2009 for
purchase of ground floor and covered parking measuring 178.19 square
meters and basement No. B-1 having covered area of 147.05 square
meters in M-3, AVG Bhawan, Connaught Place, New Delhi. At the time
of signing of agreement to sell, 25,00,000/- each was paid to the sellers
(total 50,00,000/-) as a part payment. The seller approached the
complainant to make payment of 36,50,000/- to NDMC to clear the
arrears towards house tax. It is alleged that these arrears were paid on
BAIL APPLN No. 1547/2010 Page 1
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31 March, 2010. It is alleged in the FIR that sale deed was executed in
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favour of the complainant on 13 May, 2010. At the time of the
execution of the sale deed payment of 53,50,000/- was made. Thus
total sale consideration of 1.40 Crore was paid by the complainant to
the sellers. As per the FIR, the sellers had signed the payment receipts
and gave possession letter to the complainant.
3. It is alleged that at the time of execution of the agreement to sell,
the property was in occupation of M/s Karnataka Bank Limited on a
monthly rent of 1,80,000/-. The said bank had suffered a decree and
had been directed to vacate the premises subject matter of the agreement
to sell/sale deed as well as other area, which had been taken on lease
from third persons. The basement had been given on lease to one M/s
GVS Fashion Private Limited. The Karnataka Bank Limited had vacated
the ground floor premises in January, 2010. Other facts and manner in
which the sellers had acted and role of one Promod Agarwal has been
stated.
4. The applicant, Vinod Kumar, claims that he was inducted as a
tenant by the sellers on 400 square feet of the area on the ground floor on
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1 February, 2010 on a monthly rent of 3,000/- and on payment of
security deposit of 10,000/- by the sellers.
5. It is alleged by the prosecution that this tenancy is merely a
camouflage and a fraud which has been played by the sellers and the
applicant. It is further alleged that the applicant and others have
committed criminal offence of cheating etc. and have created false
documents in form of rent receipts etc. It is submitted on behalf of the
State that the alleged tenancy is a sham. It is not possible to get 4oo
square feet of area on ground floor in Connaught place on monthly rent
of 3000/-. This it is submitted that this per se and ex facie shows the
criminal intent, fraud and conspiracy. The alleged tenancy is created after
the execution of the agreement to sell with the complainant and after the
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Karnataka Bank Limited had vacated the premises. It is stated that
tenancies below 3500/- per month are protected under the rent control
legislation. The sellers have received the sale consideration of 1.40
Crore but the alleged sham tenancy by false documents has resulted in
cheating. Ownership without possession and with an alleged protected
tenant means substantive erosion and depletion in value. As per the
complainant he was promised and got vacant possession of the ground
floor. He was not informed about the alleged creation of tenancy after the
Karnataka Bank Limited vacated the ground floor.
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5. The order dated 16 July, 2010 is an ex parte ad interim order
passed without hearing the purchaser i.e. the complainant. The order
reveals that only Anmol Aggarwal was present in person on the said
date. The said order cannot, therefore, be termed as an order passed on
merits after hearing both the parties. The said order has been duly
considered by the learned District Judge. I have also examined the facts
of the case and the allegations made in the FIR. The allegations made are
serious and it cannot be said that the FIR does not disclose commission
of a criminal offence. It is well settled that a particular act may to create
civil liability and may at the same time amount to a criminal offence.
The judgments cited by the petitioner are distinguishable as in the said
cases on the facts alleged no criminal offence was made out. Pending
civil proceeding does not bar registration of an FIR in case an
act/omission amounts to commission of a criminal offence.
6. The application is accordingly dismissed.
7. Observations made in this order are for the disposal of the present
application and will not be binding on the learned trial court.
SEPTEMBER 13, 2010 SANJIV KHANNA, J.
VKR
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