Baldev Raj Arora vs State Of Nct Of Delhi on 16 September, 2021

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Delhi High Court - Orders

Baldev Raj Arora vs State Of Nct Of Delhi on 16 September, 2021

1. The present bail application has been filed under Section 439 Cr.P.C. on behalf of the applicant seeking regular bail in FIR No. 28/2021 registered under Sections 420/467/468/471/419/34/120B IPC and Section 82 of the Registration Act, 1908 at Police Station Crime Branch (West District), Delhi.

2. Mr. Saket Sikri, learned counsel for the applicant, submits that the applicant is a senior citizen aged 72 years. He further submits that the applicant was arrested on 08.04.2021 and remains incarcerated till date except for a period of one week, when considering his medical condition, the applicant was released on interim bail. He submits that upon expiry of his period of release, the applicant duly surrendered before the concerned jail authorities. Learned counsel further submits that the charge sheet in the present case having been filed, the applicant is no longer required for custodial interrogation.

3. On merits, it is submitted that even as per the prosecution case, the present applicant is neither the main conspirator nor a beneficiary of the alleged cheated amount. While referring to the charge sheet, it is submitted that the prosecution has alleged three transactions with respect to the ground and first floors of the property bearing No.78, Bhera Enclave, Paschim Vihar, New Delhi-110087 (hereinafter, 'the property in question'), wherein the applicant is stated to have impersonated himself as one Ramesh Kapoor, the complainant/owner of the property in question, for execution of three different sale deeds. The applicant is also alleged to have impersonated himself as the complainant before two Banks namely, the Union Bank of India, Pitampura (erstwhile Allahabad Bank) and the Indian Overseas Bank, Daryaganj for the purpose of opening fake bank accounts so that the loans obtained in pursuance of aforesaid sale deeds could be siphoned off. He also submits with respect to the loan transaction with Allahabad Bank (now Union Bank of India) that the entire loan amount has already been repaid through Pawan Bindal, Ram Kishan Bindal and Praveen Bindal (hereinafter, collectively referred to as the Bindals). In connection with the second transaction stated to have taken place with the Punjab and Maharashtra Cooperative Bank (hereinafter, 'the PMC Bank'), learned counsel for the applicant submits that it is co-accused Raj Kumar Soneja, who is alleged to have impersonated himself as the complainant and caused disbursal of the loan amount from Canara Bank into an account in the PMC Bank. In regard of the third loan transaction with the Indian Overseas Bank, Ansari Road, Daryaganj, it has been submitted that the total loan amount disbursed was Rs.2,16,75,000/- and no portion out of the said amount has come to the share of the applicant.

4. In support of his submissions, learned counsel for the applicant has placed reliance on the following decisions to urge that the charge sheet having been filed, the applicant is not going to flee from justice and as per parameters of bail laid down by the Supreme Court, the gravity of the offence alone cannot be the only guiding factor:-

(i) Shri Gurbaksh Singh Sibbia and Others v. State of Punjab reported as (1980) 2 SCC 565;

(ii) Dataram Singh v. State of Uttar Pradesh and Another reported as (2018) 3 SCC 22;

(iii) P. Chidambaram v. Directorate of Enforcement, reported as (2019) 9 SCC 66;

(iv) Runu Ghosh v. State (CBI) reported as 1996 SCC OnLine Del 620;

(v) Sanjay Chandra v. Central Bureau of Investigation reported as (2012) 1 SCC 40

5. Mr. Hirein Sharma, learned APP for the State, duly assisted by Mr. Sunil Dixit, learned counsel for the complainant, has vehemently opposed the bail application. It is submitted that the present case involves a well- planned conspiracy, wherein the accused persons defrauded not only the complainant but also certain Banks and LIC Housing Finance Ltd. It is further submitted that as part of the aforesaid conspiracy, two fake accounts were opened in different Banks in the name of the complainant for the purpose of availing loans. For the said purpose, the accused persons along with the present applicant also forged identity documents of the complainant, i.e., Aadhar card, PAN card and voter ID-card. It is submitted that though the aforesaid identity documents were in the name of the complainant, the same contained the photograph of the present applicant. It is next submitted that at the same time the lease deed of the DDA with respect to the property in question was also forged. It is further submitted that insofar as the first transaction is concerned, the amount of Rs.2.35 crores has not been repaid by the accused persons, but by the Bindals, in whose favour the applicant had executed a forged sale deed of the ground floor of the property in question. It is submitted that the Bindals had entered into the agreement without being aware of the conspiracy and to show their bona fides, repaid the entire loan amount to the Allahabad Bank out of their own funds. The Bindals are rather themselves a victim of the fraud committed by the accused persons. It is further submitted that the Canara Bank had initiated proceedings before the DRT under the provisions of SARFAESI Act, 2002, in which the complainant, who is a senior citizen aged 75 years, had to deposit Rs.25 lacs to avoid attachment of the property in question. It is also submitted that the applicant had withdrawn Rs.5 lacs cash from the fake bank account and as per the disclosure statement, he was beneficiary of Rs.7 lacs. It is submitted that in the entire investigation not a single rupee could be recovered from the accused persons including about 3 crores of the money belonging to PSUs and further investigation in this case is pending. It is also averred that Section 467 IPC entails punishment for life.

6. Lastly, it is submitted that on an earlier occasion, this Court, considering the Medical Status Report dated 26.05.2021 filed by the Medical Officer In-charge, Central Jail & Dispensary, Central Jail No. 03, Tihar, New Delhi, permitted the applicant to be treated at MGS Super Speciality Hospital, Rohtak Road, West Punjabi Bagh, New Delhi. However, later, on his condition stabilising, the applicant surrendered. It is urged that while the applicant is stated to be of 72 years of age, the complainant is aged 75 years and is having to run from one forum to another in order to save his property, which he had saved for his old age.

7. In rebuttal, Mr. Sikri, learned counsel for the applicant, on instructions, submitted that without prejudice to his rights and contentions, the applicant is ready and willing to deposit a sum of Rs.7 lacs with the Court.

8. I have heard the learned counsels for the parties and gone through the materials placed on record.

9. It has come in the investigation that the property in question consisting of basement, ground and first floor is owned by the complainant. As per the charge sheet, the accused persons entered into a conspiracy to defraud the complainant of his property. For the said purpose, while opening two fake beneficiary accounts in the name of the complainant with two different Banks, the applicant impersonated himself as him. As part of the conspiracy, three different sale transactions were also entered, one for the first floor and two for the ground floor of the property in question.

10. The first transaction relates to the ground floor of the property in question for which the applicant got executed a forged sale deed dated 16.07.2018 in the name of the Bindals, impersonating himself as the complainant. A beneficiary account was further opened by the present applicant with the Allahabad Bank (now Union Bank of India), again impersonating himself as the complainant, and a loan amount of Rs.2.35 crores was availed from LIC Housing Finance Ltd., which was credited in the aforesaid beneficiary account. From the aforesaid beneficiary account, the applicant withdrew a cash amount of Rs.5 lacs and transferred the remaining amount to various dummy firms. Notably, a photograph of the present applicant was appended to the aforementioned forged sale deed as well as the account opening form. It is for this transaction that the Bindals, on coming to know of the fraud committed with the Bank and in order to show their bona fides, repaid the entire loan amount of Rs.2.35 crores. Thus, the contention raised earlier by Mr. Sikri, learned counsel for the applicant, is falsified as it was not the accused persons but the unsuspecting Bindals who repaid the loan amount.

11. The second transaction relates to first floor of the property in question for which a forged sale deed dated 08.08.2018 was executed by the present applicant, impersonating himself as the complainant, in favour of one Sanjeev Anand. In furtherance of the conspiracy, a beneficiary account was opened by co-accused Raj Kumar Soneja, impersonating himself as the complainant, with the PMC Bank and a loan amount of Rs.95.8 lacs was disbursed by the Canara Bank in connection therewith. It is worthwhile to note that a photograph of the applicant was appended to the aforesaid forged sale deed.

12. The third transaction again relates to the ground floor of the property in question for which the present applicant executed a forged sale deed dated 10.08.2018 in the name of one Sanjay Kumar, while impersonating himself as the complainant. A beneficiary account was also opened by the present applicant with the Indian Overseas Bank, while impersonating as the complainant and a loan of Rs.2,16,75,000/- was availed from the Punjab National Bank. The same was credited in the aforesaid beneficiary account. In furtherance of the conspiracy, the amount was later transferred in the accounts of different dummy firms. Again, it is noted that a photograph of the present applicant was appended to the aforementioned forged sale deed as well as the account opening form.

13. The Supreme Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another reported as (2010) 14 SCC 496, has outlined the following parameters that are to be kept in mind at the time of consideration of a bail application:-

"9. ...It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail."

14. The aforesaid view has been reiterated in subsequent decisions of various Courts, some of which are also cited by learned counsel for the applicant. These include Mahipal v. Rajesh Kumar alias Polia and Another reported as (2020) 2 SCC 118, Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana (Koli) and Another reported as (2021) 6 SCC 230 and Harjit Singh v. Inderpreet Singh alias Inder and Another reported as 2021 SCC OnLine SC 633, where the aforementioned parameters have been approved and cited with authority.

15. In the case of P. Chidambaram v. Directorate of Enforcement reported as (2020) 13 SCC 791, the Supreme Court has enunciated the importance of perusing facts and circumstances of the case at hand while deciding an application for bail. Accordingly, the following observations therefrom bear mention:-

"23. ...considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. ... ... But ultimately the consideration will have to be on case- to-case basis on the facts involved therein and securing the presence of the accused to stand trial."

(emphasis added)

16. In view of the settled legal position, as outlined hereinabove, there is no gainsaying the fact that at the time of consideration of a bail application, the individual facts of the particular case have to be considered on their own merit while keeping in mind the aforesaid guiding factors.

17. From the facts narrated in the preceding paragraphs, it is apparent that the applicant was instrumental in opening two of the aforesaid fake beneficiary accounts with different Banks while impersonating himself as the complainant. He also executed three forged sale deeds in the names of different persons while impersonating as the complainant. He further withdrew a cash amount of Rs.5 lacs through self-cheque from the aforesaid beneficiary account in the Allahabad Bank and transferred the remaining amount in the aforementioned two accounts to the accounts of dummy firms from where every penny was siphoned off. The accused persons not only forged a lease deed executed by DDA, but also forged various identity documents in the name of the complainant and some of these documents bear the photograph of the present applicant. The total cheated amount involved in the present case is about Rs. 5.48 crores, which includes the sum of Rs.2.35 crores repaid by the Bindals. Additionally, the complainant had to deposit a sum of Rs.25 lacs with the DRT under SARFAESI proceedings in order to save the property in question. In the present case, the accused persons have thus entered into a criminal conspiracy to commit systematic fraud by committing various acts of cheating and forgery resulting in not only defrauding the complainant but also the Banks, the LIC Housing Finance Ltd and the Bindals. The further investigation of the offence is stated to be pending.

18. The applicant has played a major role in the entire fraud. His footprints are there in almost every step from opening of fake bank accounts to execution of sale deeds and transfer of loan amounts credited in said fake accounts to the fake dummy firms. I find considerable force in the submissions of learned APP for the State that the applicant's intention and knowledge of the entire conspiracy, is discernible from his acts. The allegations are serious in nature.

19. Keeping in view the modus operandi adopted by the accused persons, the role of the applicant in the same, and the nature and gravity of the offence, this Court does not find any ground to admit the present applicant on regular bail. The bail application being devoid of any merits is accordingly dismissed along with the pending application(s).

MANOJ KUMAR OHRI, J SEPTEMBER 16, 2021 'dc' Click here to check corrigendum, if any

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Delhi High Court - Orders