Delhi District Court
The Present Bail Application Is Being ... vs S.P on 11 January, 2016
1
IN THE COURT OF Ms. VEENA RANI, CHIEF METROPOLITAN
MAGISTRATE, SOUTHEAST DISTRICT, SAKET COURTS, NEW
DELHI
STATE :S.P. Bajaj
FIR NO :309/2014
P. S :EOW/ Mandir Marg/GK
U/s :420/120 B IPC
11012016
Present: Ld. APP for the state.
Ld. Counsel for the applicant/accused S.P. Bajaj
1.The present bail application is being moved by the accused Sarvjeet Paul Bajaj s/o Satcharan Paul Bajaj Director, M/s Shaurya Housing Ltd. r/o S 36/20, DLFIII, Gurgaon (Haryana). The said accused was arrested on 01.12.2015.
2. The case of the prosecution is that the FIR No. (FIR No. 309 / 14 dt. 24.09.2014 u/s 420 r/w 120(B) IPC P.S. EOW was registered on the complaint of Smt. Sonal Goel wife of Sh. Vipul Goel R/o 85, Sukhdev Vihar New Delhi110025 is a bonafide citizen of Delhi. The said complaint was lodged against the following persons:
i. Shaurya housing limited at 202, elite house, 36 zamrudpur community centre, Kailash Colony Extension, New Delhi110048;
ii. Shri S.P. Bajaj (accusedapplicant herein) Director Shaurya housing Ltd;
STATE VS. S.P . Bajaj, FIR NO:309/14, PS:GK1,ND 2 iii. Smt. Radhika Bajaj, W/o Sh. S.P. Bajaj R/o E88 East of Kailash, New Delhi110065;
iv. Chief manager, Canara bank, no. 1 DDA Building ground floor, Nehru place New Delhi;
v. SHO PS Greater KailashI, New Delhi for cheating blackmailing forging of documents, threatening of dire consequences, multiple allotment of flats to individuals and banks etc. thereby, cheating public in the tune of rupees one hundred crores.
3. The complainant had alleged that the accused Sh. S.P. Bajaj along with Smt. Radhika Bajaj, came into her contact in the month of Sept. 2013 and convinced her to make investment for residential house in the housing scheme at Vrindavan, Mathura Uttar Pradesh. The complainant was introduced to the Chief Manager, Canara Bank (Br.
Nehru Place) who convinced the complainant that the Canara Bank are the bankers of M/s Shaurya Housing Ltd and that the bank had approved the said housing scheme. On the assurance of the bank and the other accused, the complainant decided to purchase a 705 sq. fit. Flat in the said housing scheme. Subsequently on 07.9.2013 Sh. S.P. Bajaj and Smt. Radhika Bajaj came to the residence of the complainant and issued her about the allotment letter through which they allotted flat no. 2B ground floor having preference location measuring super STATE VS. S.P . Bajaj, FIR NO:309/14, PS:GK1,ND 3 area of app. 750 sq. ft. in Govardhan apartment, at Vrinda Vatika in Vrindavan Distt. Mathura. Thereafter the complainant was made to the payment of Rs.26,25,000/ (Rupees Twenty Six Lacs Twenty Five Thousand Only). It was further assured that the possession of the said flat would be given in February, 2014.
4. In the month of March, 2014 the complainant visited the site at Vrindavan, Distt. Mathura Uttar Pradesh and was shocked to see that there was no construction going on, the building structure was almost nonexistent and on enquiry it was found that Sh. S.P. Bajaj has absconded from the project after cheating more than 500 people and almost every day, people/investors are returning back. On further enquiry the complainant came to know that the above flat i.e. Flat no. 2B, ground floor having preference location measuring super area of app 750 sq. ft. in Govardhan apartment, at Vrinda Vatika in Vrindavan, Distt. Mathura has already been allotted to number of other people. On her return from Vrindavan, the complainant immediately went to the office of M/s Shaurya Housing Ltd. and found that this office had been closed since December, 2013 and found number of investors shouting, screaming and complaining about cheating by the builder at Vrindavan Project. The accused persons Sh. S.P. Bajaj and Smt. Radhika Bajaj had cheated many investors by promising them flats at Vrindavan also, and the same were not built. There were number of Court Notices pasted on the office. The complainant also STATE VS. S.P . Bajaj, FIR NO:309/14, PS:GK1,ND 4 visited the residence of Sh. S.P Bajaj at E88, East of Kailash, New Delhi where the complainant learnt from the neighbours that Mrs. And Mr. Bajaj along with family had left this house as number of people who had been cheated by them were coming for the recovery of their money. The neighbours of Sh. S.P Bajaj also that there were number of Non Bailable warrants issued against them.
5. Thereafter, the complainant visited the police station Greater Kailash I, New Delhi to inquire about the where about of Mrs. And Mr. Bajaj and to lodged a complaint against them. The officials at Police Station, Greater KailashI, New Delhi informed that her complaint would not be entertained in this police station the SHO did not take any action against the accused on earlier occasions. The complainant came to know of other matters pending against the accused persons. Thereafter, complainant also visited the Chief Manager, Canara Bank at No. 1, DDA Building, Ground floor Nehru Place New Delhi to inquire about the status of M/s Shaurya housing Ltd. The complainant was shocked to know that Sh. S.P Bajaj had cheated Canara Bank to the tune of Rs.16 Crores and that the bank had black listed M/s Shaurya hosing Ltd. and that the bank had issued a notice for recovery of money. The FIR further discloses that on 03.04.2014, the accused Sh. S.P. Bajaj had called the husband of the complainant and threatened her husband.
STATE VS. S.P . Bajaj, FIR NO:309/14, PS:GK1,ND 5
6. The accused has stated in his bail application that his three projects in Vrindavan are near completion and same would be ready for possession. The photographs have also been annexed in support. It has also been stated that the accused always had bonafide intentions of completing his projects on time which were delayed due to unavoidable reasons. As per the bail application the value of the projects in the Vrindavan are much more than what the investors had actually invested in and the accused is willing to sell the project to compensate the amount of the complainants.
7. The prosecution has strongly opposed the bail on the ground that the accused may tamper with the evidence and also on the ground that the accused may flee from justice. It has been pointed out by the prosecution in the reply that some 500 hundred people have been cheated to the tune of Rs.100 Crore. The accused had been absconding from the investigation. During the course of the arguments is has also been stated that chargesheet is in the process of being filed and would be filed shortly. The factum of the Canara Bank being cheated by the accused has also been mentioned in the reply. As per the said reply, till date 46 other complainants have filed against M/s Shaurya Housing Ltd. for the Brindavan Project.
8. The Ld. Counsel for the accused has suggested that the accused would not misuse if enlarged on bail, rather the said liberty would be utilized STATE VS. S.P . Bajaj, FIR NO:309/14, PS:GK1,ND 6 to compensate the people. Much stress has been laid on the fact that the three projects at Vrindavan are near completion and the same would handed over to the allottees. In case the investor wishes to withdraw from the housing scheme, the amounts could be refunded to them. Laying stress on the liberty of the accused, the Ld. Counsel has also suggested that at this stage 'interim bail' could be granted on strict conditions in order to gauge the bona fide of the accused. The entire exercise of activesupervision of the three Vrindavan projects (nearing completion) and also the refunding (in case of withdrawal from the housing scheme) would require the physical presence of the accused.
9. I have heard both the sides. It is a well established principle of law that the following matters are to be considered in an application for grant of bail :
i. Whether there is any Prima facie case or reasonable ground to believe that the accused had committed the offence.
ii. Nature and gravity of the charge. iii. Severity of punishment in the event of conviction. iv. Possibility of the accused absconding or fleeing from justice if released on bail .
STATE VS. S.P . Bajaj, FIR NO:309/14, PS:GK1,ND 7 v. Character, behaviour, means, position and standing of the accused.
vi. Likelihood of the offence being repeated. vii. Reasonable apprehension of the witnesses being tampered with; and viii. Danger, of course, of justice being thwarted by grant of bail .
(See Prahalad Singh Bhati v. NCT, Delhi, 2004 (4) SCC 280 :
(2001 Cri LJ 1730) and Gurcharan Singh v. State (Delhi Administration) (AIR 1978 SC 179) : (1978 Cri LJ 129).
10. In the present case the allegations are under S.420 r/w S.120(B). There are no allegations of forgery as such. The accused is also facing legal action from the Canara Bank. If the necessary permission was not taken from the Vrindavan Civil / revenue Authorities the accused would face the legal consequences accordingly. As far as the other criminal cases are concerned (as strongly pointed out by the prosecution and also enumerated by the complainant in the FIR) it is needless to say that the accused shall have to face legal consequences of that too. The foremost grouse of the complainant remains that the accused S.P. Bajaj did not make him physically available to the grievance of the complainants. The allegations against the accusedapplicant are that of STATE VS. S.P . Bajaj, FIR NO:309/14, PS:GK1,ND 8 forgery etc.
11. The Hon'ble Supreme Court in the case of Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 Supreme Court Cases 40 in paras 21, 22, 23, 24, 40, 45, 46 after recording the facts and law has held as under: "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be STATE VS. S.P . Bajaj, FIR NO:309/14, PS:GK1,ND 9 quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of refusal of bail , one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
24. In the instant case, we have already noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge". The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not STATE VS. S.P . Bajaj, FIR NO:309/14, PS:GK1,ND 10 placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice".
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40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, STATE VS. S.P . Bajaj, FIR NO:309/14, PS:GK1,ND 11 to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required.
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45. In Bihar Fodder Scam (Laloo Prasad v. State of Jharkhand, (2002) 9 SCC 372) this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period of more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pretrial prisoners would not serve any purpose.
46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardise the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the chargesheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary STATE VS. S.P . Bajaj, FIR NO:309/14, PS:GK1,ND 12 for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI."
12. As far as the anticipation of the tampering of the evidence is concerned it is relevant to appreciate the observations of the Hon'ble Supreme court in the case State through C. B. I. v. Amarmani Tripathi, (2005) 32 OCT (SC) 517 : (2005 Cri LJ 4149), wherein it was held that while a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused.
13. The accusedapplicant is in jail since 01.12.2015. There are many people / investors who are waiting for their allotment/possession. Many people may also opt for the refund. All this may require physical presence of the accused. No doubt that the accused will have to face the trial for allegations of criminal offenses which would take considerable time. Though, prolonging the incarceration would appear to do justice to the society, it would also take the expectations of the investors to an equal degree of captivity. There ought to be balance between the interests & STATE VS. S.P . Bajaj, FIR NO:309/14, PS:GK1,ND 13 expectations of the society on one hand and the rights of an accusedin custody on the other. I find some rationality in the suggestions of the Ld. Counsel for the accusedapplicant that the enlargement of the accused on 'interim bail' would serve a 'larger justice' as far as the investors are concerned. The interim bail period would also grant an opportunity to the accuse to show his bona fide towards the complainants. The interim bail for three months is insisted upon. However, in order to prove 'bona fide' on part of the accused, two months are sufficient. That is to say that the accused is hereby admitted to interim bail till 11.03.2016 on furnishing of personal bond of Rs.1 Lac and two credible sureties in the like amount (Rs.1 Lac each). It is needless to say that the accused shall not tamper with the evidence; shall not unduly influence / harass the complainants; shall surrender his Passport before this court immediately & shall not leave the country with the prior permission of the court; shall not misuse the liberty in any way; and shall appear before the police and this court as and when required or directed.
14. Interim bail granted till 11.03.2016 with the conditions as afore mentioned. The contents of the present order are by no way an expression / opinion on the merits of the case. The main application of the bail is disposed of accordingly.
(VEENA RANI)
CMM/SED/Saket Courts/11012016
STATE VS. S.P
. Bajaj, FIR NO:309/14, PS:GK1,ND