CRL.M.C./4144/2015 of SATISH KUMAR AGGARWAL & ORS Vs STATE OF NCT OF DELHI & ANR

*IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on : June 13, 2016

+CRL.M.C. 4144/2015 & Crl.M.A. No.14821/2015 (Stay)SATISH KUMAR AGGARWAL & ORS

..... PetitionerThrough:Mr.Kuber Giri, Mr.S. Singh,Advocates

versus

STATE OF NCT OF DELHI & ANR

..... Respondent

Through:Mr.Rajat Katyal, Additional PublicProsecutor for the State.Mr.Vineet Malhotra, Mr.Vishal Gohri,Advocates for respondent No. 2.

CORAM:HON'BLE MR. JUSTICE P.S.TEJI

P.S.TEJI, J.

JUDGMENT

1.By this petition filed under Section 439(2) read with Section482 of Cr. P.C. the petitioners seeks cancellation of bail granted torespondent No.2 - Ms. Ashima Chopra vide order dated 13.08.2015passed by learned CMM, Saket courts, Delhi which was confirmed byorder dated 29.09.2015 passed by learned Additional Sessions Judge,Saket Courts.

2.The FIR in present case is registered for committing cheatingandforgeryforthepurposeofcheating,extortion,criminalintimidation, criminal breach of trust, fraud and criminal conspiracy isthat the complainant Mr. Rupinder Singh Bhatia alleged that healongwith his wife Mrs. Rajinder Kaur are the bonafide owners of

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flat at 3[rd]floor (with terrace rights) building No.3, Block L, LajpatNagar III, New Delhi. It is stated that they purchased this flat in June2012 and registration papers were executed by Shri Rajiv Verma andMr. Sanjay Sachdeva who were holder of GPA of accused AshimaChopra, the owner of the plot. It is further stated by the complainant inhis complaint that they were shocked to know on 24.03.2014 that apossession notice was pasted outside the building by M/s. DewanHousing Finance Corporation Limited underSection 13(4)ofSARFAESI Act taking symbolic possession of the flat/property, on theground that this land was mortgaged by the owner accused hereinAshima Chopra with Mr. Girish Chopra (her husband) as co-borrowerwith M/s. Dewan Housing Finance Corporation Limited for loan ofRs.6,34,31,460/- and Rs.2,13,73,227/- and as they have failed to repaythe said amount this property belongs to M/s. Dewan Housing FinanceCorporation Limited. It is alleged that the complainant has sufferedwrongful loss at the hands of accused persons. The complainantlodged complaint with EOW Mandir Marg Police Station and on thebasis of the complaint, present FIR was registered.

3.During investigation, it was found that three other complaintswith similar allegations leveled against Shri Rupinder Singh Bhatiawere received at EOW. All the complaints were clubbed together andwere investigated into. It was found that the accused Ashima Chopra(respondent No. 2 herein) knowingly concealed the fact of mortgageand misrepresented the purchasers that the original documents havebeen lost. In this regard, the respondent No. 2 also got registered false

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report vide No.967/2012 dated 05.06.2012 at Police Station Mehrauli,regarding loss of her original document in respect of property No.L-3/3, Lajpat Nagar, Part II, New Delhi.

4.The learned CMM observed that the accused was arrested on10.06.2015 and produced before the duty MM on 11.06.2015 whereinshe was remanded to policy custody for two days and thereafter shewas sent to judicial custody on 13.06.2015 and since then she is injudicial custody.It was also observed that the investigation in thepresent case is complete and charge sheet has also been filed, and thefact that no further police custody of Ashima Chopra is sought by theinvestigating agency, no fruitful purpose will be served by keeping theaccused behind the bars. Accordingly, the learned CMM passed anorder dated 13.08.2015 whereby the accused/respondent No. 2 wasordered to be released on bail subject to furnishing personal bond inthe sum of Rs.1 lac with surety in the like amount.

5.Aggrieved by the aforesaid order passed by the learned ChiefMetropolitan Magistrate, the petitioners preferred an application underSection 439(2) of Cr. P.C. for cancellation of the bail granted torespondent No. 2 before the Court of learned Additional SessionsJudge, Saket Courts, Delhi. The learned Additional Sessions Judgeafter hearing the arguments and going through the judgments cited onbehalf of petitioners as well as of the accused/respondent No. 2observed that the grounds taken in the application seeking cancellationof bail are based on mere whims, fancies, surmises and conjunctures

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of the applicants, as nowhere it has been stated that respondent No. 2had indulged into commission of similar kind of offences or hadattempted to either hamper the investigation or had intimated thewitnesses in this case. Mere fact that the husband of the respondentNo. 2 is absconding and had run away to Malaysia, cannot be groundfor cancellation of bail. Accordingly, finding no illegality or infirmityin the order passed by learned Chief Metropolitan Magistrate, thelearned Additional Sessions Judge dismissed the application filed bythe petitioners.

6.Aggrieved by the order passed by learned Chief MetropolitanMagistrate as well as learned Additional Sessions Judge the petitionershave preferred the present petition for seeking cancellation of bailgranted to respondent No. 2 by setting aside of the orders dated13.08.2015 and 29.09.2015.

7.Mr. Kuber Giri, learned counsel for the petitioners contendedthat respondent No. 2 is involved in more than five cases registered atPolice Station EOW, Police Station Mehrauli and in one of such FIRs,this Court has cancelled the bail granted to respondent No. 2. Againstthe cancellation of bail, the respondent No. 2 preferred SLP before theHon’ble Supreme Court, which was dismissed vide order dated14.09.2015. It is further contended on behalf of the petitioners that theaccused/respondent No. 2 has not disclosed that the property has beenmortgaged with M/s. Dewan Housing Finance Limited, rather shealongwith her husband represented that the respondent No. 2 is the

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lawful owner of the property and has full right and authority to sell theproperty in whole or in parts and the property is free from all sorts ofencumbrances such as prior sale, gift, mortgage, disputes, litigation,acquisition, attachment in the decree of any court, lien, courtinjunction, Will, Trust, exchange, lease, legal flaws, claims, prioragreement to sell, etc. However, the fact is that the respondent No. 2alongwith her husband Girish Chopra have mortgaged the propertywith M/s. Dewan Housing Finance Corporation Limited and in lieuthereof, they have taken loan of Rs.6,34,31,460/- and Rs.2,13,73,227/-and since they have failed to repay the said amount, the M/s. DewanHousing Finance Corporation Limited has taken symbolic possessionof the entire property in terms of Section 13(4) read with Rule 8(1) ofthe Securitization and Reconstruction of Financial Assets andEnforcement of Security Interest Act, 2002.8.It is also alleged that Mr. Kapil Wadhawan, who is relative ofrespondent No. 2 and her husband, alongwith other staff members ofM/s. Dewan Housing Finance Corporation Limited, in connivancewith each other have defrauded the petitioners and other purchasers byinducing them to purchase the properties and part away from theirhard earned money and duped the money totaling to more than 50crores. In support of the submissions made by the petitioners, thefollowing judgments have been relied:

i)Puran v. Rambilas and Anr., (2001) 6 SCC 338;

ii)Masroor v. State of Uttar Pradesh and Anr., (2009) 14SCC 286;

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iii)Anwari Begum v. Sher Mohamman & Anr., (2005) 7SCC 326;SCC 326;

iv)NimmagaddaPrasadv.CentralBureauofInvestigation, (2013) 7 SCC 466;Investigation, (2013) 7 SCC 466;

v)Dr. Vinod Bhandari v. State of M.P., 2015 (2) SCALE195;195;

vi)State vs. Sumeet Suri, III (2013) DLT Crl. 932;

vii)State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21;

viii)Bail Aplication No.2179/2009, titled as Mukesh Jain v.CBI, decided by Delhi High Court on 21.12.2009.CBI, decided by Delhi High Court on 21.12.2009.

9.Mr. Vineet Malhotra, learned counsel for the respondent No. 2filed reply stating therein that the petitioners have already invokedthe remedy available to them before the learned Additional SessionJudge and as such the present petition under Section 439(2) of Cr.P.C.is not maintainable and therefore the same be dismissed. It is furthercontended on behalf of respondent No. 2 that the bail once granted canbe cancelled only on the ground which has arisen after the bail wasgranted. It is generally presumed that at the time of hearing of the bailapplication, the prosecution had raised all possible grounds whichcould go against the accused in the matter of bail and therefore, oncethe bail is granted, the prosecution cannot have the bail cancelled onsome circumstances, which may have existed before the grant of bail.In support of his argument, learned counsel for the respondent No. 2relied upon the judgment in Dolat Ram vs. State of Haryana, (1995) 1SCC 349 highlighting the principle regarding cancellation of bail.

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10.It is further contended that there is nothing on record to suggestthat respondent No. 2 has even tried to interfere or attempted tointerfere with the due course of administration of justice or evasion orattempt to evade the due course of justice or abuse of the concessiongranted to respondent No. 2 in any manner. Moreover, all the groundshave already been raised before the learned Additional Session Judgewhile arguing the application for cancellation of bail and afterconsidering all the grounds, the application for cancellation of bail torespondent No. 2 was dismissed.

11.Learned counsel for the respondent No2 further urged that thepresent is primarily case of civil nature and the nature of evidence isdocumentary only and the same are already in custody of the police.More so, the charge sheet has already been filed. It is further urgedthat by present petition the petitioners seek to review the decisionalready made by learned Additional Session Judge. In support of hissubmissions, learned counsel for the respondent No. 2 relied on thefollowing judgments:

i)Dolat Ram & Ors. v. State of Haryana, (1995) 1 SCC349;349;

ii)Ashok Dhingra v. NCT of Delhi, (2000) 9 SCC 533;

iii)Sanjay Chandra v. CBI, (2012) 1 SCC 40;

iv)State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21;

v)Arulvelu & Anr. V. State, (2009) 10 SCC 206.

12.I have heard the submission made by both the sides and also

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gone through the contents of the petition as well as the reply filed onbehalf of respondent No. 2. I have also gone through the impugnedorders passed by the learned Chief Metropolitan Magistrate as well aslearned Additional Session Judge in this case.

13.Indisputably, the learned Chief Metropolitan Magistrate grantedbail by passing reasoned order on the basis of custody of the accusedsince13.06.2015,completionofinvestigationandnomorerequirement of custodial interrogation. The challenge to the order doesnot reflect any misuse of concession of grant of bail to the accused.Moreover, application for cancellation of bail already declined bylearned Additional Sessions Judge culminates into dismissal of thepresent petition for cancellation of bail.

14.After perusing the impugned orders passed by the learned ChiefMetropolitan Magistrate and the learned Additional Sessions Judge,this Court does not find any illegality or infirmity in the impugnedorders. This Court finds no reason to take different view from theorder passed by learned Additional Session Judge.

15.In view of the aforesaid discussion and the facts andcircumstances of the present case, the revision petition filed on behalfof the petitioners is dismissed and the orders dated 13.08.2015 passedby learned Chief Metropolitan Magistrate and the order dated29.09.2015 passed by the learned Additional Sessions Judge areupheld.

16.Before parting with the order, this court would like to place iton record by way of abundant caution that whatever has been statedhereinabove in this order has been so said only for the purpose ofdisposing of the prayer for cancellation of bail made by the petitioner.Nothing contained in this order shall be construed as expression of afinal opinion on any of the issues of fact or law arising for decision inthe case which shall naturally have to be done by the Trial Courtseized of the trial.

17.With aforesaid direction, the present petition as well as pendingapplication as filed by the petitioner are dismissed.

JUNE 13, 2016pkb

(P.S.TEJI)JUDGE

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