Delhi High Court
Abhishek Verma & Anr. vs State on 11 August, 2016
Author: Vipin Sanghi
Bench: Vipin Sanghi
$~28.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 11.08.2016
% BAIL APPLN. 1630/2016 & Crl. M.A. No.12415/2016
ABHISHEK VERMA & ANR ..... Petitioners
Through: Mr. R.N. Mittal, Senior Advocate
along with Mr. Arvind K Gupta,
Mr.Anshul Garg, Ms. Alpana Malik
and Mr. Abhishek Goyal, Advocates.
versus
STATE ..... Respondent
Through: Mr. Rajat Katyal, APP along with SI
Rajiv Kumar, for the State.
Mr. K.K. Aggarwal and Ms. Gayatri
Aggarwal, Advocates for the
complainant.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. This application has been preferred by the petitioners Abhishek
Verma and Manoj Verma under Section 438 Cr.P.C. to seek anticipatory
bail apprehending arrest in FIR No.185/2016 registered under Section 420/
406/ 506/ 120B IPC at Police Station Mansarovar Park. Petitioner No.1 is
the son of petitioner No.2.
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2. As per the case of the prosecution, the complainant, who is a jeweller
by profession, has complained that he met petitioner No.2 Manoj Verma at
the place of his brother-in-law (saadu) Sudhir Verma on 20.11.2015. Manoj
Verma represented to the complainant that though he had plenty of work,
but he does not have money and gold to do the business. He represented to
the complainant that if the complainant invests in the business of the
accused, then he would be able to do some work and that he would give an
equal share to the complainant. Manoj Verma asked the complainant to visit
his house. The complainant then visited the house of Manoj Verma, where
his son, wife and daughter met him. They talked about their miserable
condition and persuaded the complainant to work with Manoj Verma.
3. According to the complainant, Manoj Verma also exploited his
religious nature. He swore in the name of Gauri Shankar Mandir at Chandni
Chowk. Thus, the complainant developed blind faith in the accused and he
gave the accused his money, silver and gold. Thereafter, they became
greedy and hatched a plan to defraud the complainant. They also introduced
the complainant to their gang members, namely, Pankaj Verma and Karan
Sharma. They represented to the complainant that Pankaj Verma and Karan
Sharma would take gold, silver and money from the complainant and would
give him the accounts on monthly basis, and that the complainant would
save approximately 1-2 Lakhs on monthly basis, and his daughter would get
married in a good home. The complainant stated that he used to visit the
factory where Manoj Verma, his son Pankaj Verma and Karan Sharma used
to met him. They represented that the work is going on at a good pace.
4. The complainant states that on 20th December, when he went to the
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factory, these four persons were sitting with bullets and revolver kept on the
table. There were about 200 bullets. On the complainant's enquiry, they
stated that if he requires illegal bullets with revolver, they could provide the
same. On this, the complainant became frightened and asked the accused to
settle his account of gold, silver and money. They replied by stating "Pandit
Ji Abhi Bazar Se Hisab Nahi Aaya". They stated that they would settle the
complainant's account in 10-5 days. He states that, thereafter, he went to
the accused time and again but they did not settle his account.
5. On 08.01.2016 at about 09:00 a.m. in the morning, he went to the
factory premises where the accused Manoj Verma was sitting. The
complainant also sat there. Thereafter, Abhishek Verma, S/o Manoj Verma
came there with 7-8 persons. Pankaj Verma and Karan Sharma were along
among them. While talking to the complainant, they started fighting with
him. They caught held of the complainant. Manoj Verma held the
complainant by his hands and legs, and his son started beating him on his
head. Somehow the complainant called 100 number. The complainant's
son Kunj Krishna was also present there. Due to presence of his son, the
complainant did not say anything. His son started crying. Somehow his son
managed to escape and went to call Narender Choudhary. With Narender
Choudhary, Rahul Choudhary came. In the meantime, Pankaj Verma and
Manoj Verma called other persons. Shashi Verma came, who stated that he
is the President of Jewellers Market. S.K. Verma - who is the maternal
uncle of Manoj Verma, and is also an accountant/ CA, also came. He told
the complainant that he will settle the complainant's account and that there
was no need to go to the police. In between, the police personnel came and
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his son went out but did not inform anything to them, and they went away.
6. The FIR also alleges that the complainant was called to the factory of
Shashi Verma and S.K. Verma, CA - maternal uncle of Manoj Verma at
1/2605, Ram Nagar, behind Koora Ghar. These persons asked the
complainant to settle his account with the four accused, and not to go to the
police. Shashi Verma, in his own handwriting, wrote a settlement dated
08.01.2006. Manoj Verma, Abhishek Verma, Pankaj Verma and Karan
Sharma stated that the said money would be paid by them.
7. On 08.02.2016, the complainant went to take his money, on which the
accused gave a life threat to him and stated that the children of the
complainant would be killed. He also went to Shashi Verma, who called
Manoj Verma at his shop and enquired from him as to why the
complainant's money was not being paid. Manoj Verma told Shashi Verma
that he would pay in 10-15 days and he would also pay interest. However,
Manoj Verma, Abhishek Verma, Pankaj Verma and Karan Sharma have
befooled Shashi Verma, Ram Avtar Verma, etc.
8. The complainant further alleges that on 06th June, he went with his
sister-in-law (saali) and brother-in-law (saadu) and called up Shashi Verma,
but he did not appear and used filthy language. When they met Manoj
Verma, he started abusing the complainant and others and issued threats.
On the basis of the aforesaid complaint, the FIR in question came to be
registered against four persons Manoj Verma, Pankaj Verma, Abhishek
Verma and Karan Sharma.
9. Anticipatory bail applications moved by the petitioners before the
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learned ASJ have been dismissed on several occasions, including on
25.06.2016 and 12.07.2016. The order dated 25.06.2016 passed by the
learned ASJ shows that on that occasion, the petitioners had contended that
they were not obliged to make any payment to the complainant or return
gold or silver articles to the complainant as they had been falsely implicated
in the case. While dismissing the bail application vide order dated
25.06.2016, the learned ASJ took into account the fact that the complainant
had provided documentary proof of purchase of gold and silver articles
which were supplied to the petitioners. The said bills had been got verified
by the I.O. from the jewellery shops. Moreover, the I.O. had recorded the
statement of Shashi Verma, Pradan of the Jewellers Association and other
public witnesses, including regarding the compromise between the parties.
The complainant's case, therefore, stood corroborated.
10. On the second occasion, the application seeking anticipatory bail
preferred by the petitioners was dismissed on 12.07.2016. On this occasion,
the learned ASJ observed that the petitioners had soften their stand and now
they had accepted about receiving certain jewelleries from the complainant.
They had offered to make certain payments to the complainant. The learned
ASJ found variance in the stand taken by the petitioners/ accused. The
learned ASJ relied upon Vivek Gaur v. Naresh Kumar Karotia, 2012 (1)
JCC 450, wherein the Court had deprecated the practice of the accused filing
successive applications to seek anticipatory bail, merely because they had
not secured the relief in the earlier attempt.
11. The submission of Mr. Mittal, learned senior counsel for the petitioner
is that the present petition may be treated as one on behalf of the petitioner
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no.1 alone. He submits that a perusal of the FIR and the so-called settlement
would show that the role attributed to the petitioner no.1 is minimal. He
submits that even according to the complainant, it was petitioner no.2, the
father of petitioner no.1 who allegedly cheated the complainant. Merely
because both the petitioners are doing business together and are related as
son and father, is no reason to implicate the petitioner or deny him
anticipatory bail. He has referred to the allegations made by the
complainant in the FIR to submit that, at all places, it is the name of
petitioner no.2 Manoj Verma which is mentioned as the person who has
induced and defrauded the complainant, and not petitioner no.1 Abhishek
Verma. Even the alleged settlement, talks about payment to be made by
petitioner no.2 and even the said alleged settlement is signed by petitioner
no.2 alone and not by petitioner no.1.
12. Mr. Mittal submits that a perusal of the FIR shows that it was a case
of business investment made by the complainant, in the business of the
petitioners, and hence it involved risks. The compliant itself shows that the
investment was made by the complainant so as to earn profits. Merely
because the petitioners' business may have run into losses, and the
petitioners may have not been able to repay the invested amount and provide
a return thereon, is no reason to taint the conduct of the petitioners with
criminality.
13. Mr. Mittal has placed reliance on Siddharam Satlingappa Mhetre v.
State of Maharashtra & Ors., (2011) 1 SCC 694 in support of his
submissions. He submits that the petitioners are ready and willing to join
the investigation and cooperation in every way. He submits that the
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petitioners have deep roots in the society and there is no likelihood of them
absconding. Arrest of the petitioners, and in particular petitioner no.1,
would lead to abnormally, humiliation and disgrace. He submits that arrest
cannot be exploited as a measure of recovery from the accused.
14. On the other hand, the submission of learned APP, as well as learned
counsel for the complainant, is that the petitioners are both equally involved
in the crime. They have been both changing their stands from time to time.
Their first stand was of false implication; the second stand was that value of
the jewellery was different from what is being claimed by the complainant,
and; the third stand - now taken - is that the settlement dated 08.01.2015
had been entered into by petitioner no.2 under coercion exercised by the
jewelers association.
15. Reference is also made to the specific acts attributed to the petitioner
no.1 in the FIR. It is pointed out that though, initially, it was Manoj Veram
who induced the complainant into investing his monies, gold and silver in
the business of the petitioners, in the second meeting held at the residence of
the petitioners, inter alia, petitioner no.1 also induced the complainant to
make investment in the business of the petitioners. The FIR/ complaint also
show that the delivery of the valuables by the complainant was to both the
accused. The FIR further discloses that not only petitioner no.2, even
petitioner no.1, Pankaj Verma and Karan Sharma used to meet the
complainant at the factory of the petitioners and used to represent that the
work is going on at a good pace. On 20 th December as well, all these
persons were present when the complainant demanded return of his
jewellery and money.
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16. On 08.01.2016, the petitioner no.1 allegedly came with 7-8 persons,
including Pankaj Verma and Karan Sharma. Specific role has been
attributed to petitioner no.1 and petitioner no.2 with regard to the beating of
the complainant in the presence of his son. It is also pointed out that S.K.
Verma, C.A. - who has made a statement in favour of the complainant is, in
fact, the maternal uncle of Manoj Verma. It was in his presence that the
petitioners undertook to return the silver, gold and money to the
complainant.
17. Having heard learned counsels, perused the FIR and considered the
decision in Siddharam Satlingappa Mhetre (supra), I am of the view that
neither of the petitioners is entitled to any protection at this stage of the
investigation. Repeated applications for anticipatory bail made by the
petitioners have been dismissed by the learned ASJ. It is clear that the
petitioners are changing and shifting their stand from time to time. As held
by the Supreme Court in Siddharam Satlingappa Mhetre (supra), no
inflexible guideline and straight jacket formula can be provided for grant, or
refusal, of anticipatory bail. The grant or refusal of anticipatory bail
necessarily depends on the facts and circumstances of each case. The
judicial discretion has to be exercised by the High Court, or Court of
Sessions, wisely and carefully. Some of the factors and parameters which
would be taken into consideration while dealing with an application for
anticipatory bail have been set out in Siddharam Satlingappa Mhetre
(supra) as follows:
"112. The following factors and parameters can be taken into
consideration while dealing with the anticipatory bail:
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(i) The nature and gravity of the accusation and the exact role
of the accused must be properly comprehended before arrest is
made;
(ii) The antecedents of the applicant including the fact as to
whether the accused has previously undergone imprisonment
on conviction by a court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar
or other offences;
(v) Where the accusations have been made only with the object
of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of
large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material
against the accused very carefully. The court must also clearly
comprehend the exact role of the accused in the case. The cases
in which the accused is implicated with the help of Sections 34
and 149 of the Penal Code, 1860 the court should consider with
even greater care and caution because overimplication in the
cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory
bail, a balance has to be struck between two factors, namely, no
prejudice should be caused to the free, fair and full
investigation and there should be prevention of harassment,
humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of
tampering of the witness or apprehension of threat to the
complainant;
(x) Frivolity in prosecution should always be considered and it
is only the element of genuineness that shall have to be
considered in the matter of grant of bail and in the event of
there being some doubt as to the genuineness of the
prosecution, in the normal course of events, the accused is
entitled to an order of bail".
18. The Supreme Court clarified that the aforesaid are only some of the
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factors, and by no means they are exhaustive. They are only illustrative in
nature because it is difficult to visualize the facts and circumstances in
which a person may pray for anticipator bail. Arrest has to be last option,
and it has to be restricted to those exceptional cases where arresting an
accused is imperative in the facts and circumstances of the case.
19. In the facts of the present case, the nature and gravity of accusations
against both the accused is serious. The exact role attributed to each of the
accused/ petitioners is clearly set out in the FIR itself. The petitioners have
not yet surrendered and they have exhibited propensity to flee from justice.
Apart from claiming that the complainant had made a business investment
which has run into losses, there is nothing disclosed by the petitioners in
their bail application as to when and how they claimed that the alleged
investment made by the complainant had gone bad on account of business
losses. In fact, the stand taken by the petitioners from time to time is, firstly,
that no such investment was made; secondly, that the value of the jewellery
was lesser than what is claimed by the complainant, and; thirdly that the
settlement dated 08.01.2016 was a result of coercion exercised upon
petitioner no.2
20. The investigation is at the preliminary stage and the jewellery of the
complainant delivered to the petitioners is yet to be recovered. Thus, their
custodial interrogation, in my view, is necessary. The allegations against the
petitioners are that they have threatened the complainant with dire
consequences if he demands the jewellery and money. Thus, the possibility
of the complainant and other witnesses being threatened and the
investigation being scuttled cannot be ruled out.
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21. For all the aforesaid reasons, I find no merit in the present petition.
Dismissed.
VIPIN SANGHI, J.
AUGUST 11, 2016 B.S. Rohella/sr BAIL APPLN. 1630/2016 Page 11 of 11