Delhi High Court - Orders
Ms. Neha Bansal vs The State & Anr on 12 October, 2021
Author: Subramonium Prasad
Bench: Subramonium Prasad
$~54
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2507/2021
MS. NEHA BANSAL ..... Petitioner
Through Mr. Kunal Yadav, Advocate
versus
THE STATE & ANR ...... Respondents
Through Ms. Kusum Dhalla, APP for the State
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
ORDER
% 12.10.2021 HEARD THROUGH VIDEO CONFERENCING CRL.M.As. 16393-94/2021 (Exemption) Allowed, subject to all just exceptions.
CRL.M.C. 2507/20211. This petition under Section 439(2) Cr.P.C. read with Section 482 Cr.P.C is directed against the order dated 31.07.2021, passed by the learned Additional Session Judge - 05, North West District, Rohini Courts, granting anticipatory bail to respondent No.2 herein in FIR No.291/2021 dated 14.07.2021, registered at Police Station South Rohini for offences under Section 420 IPC.
2. The petitioner herein filed a complaint on 09.11.2020 alleging that respondent No.2 herein has cheated her by promising to sell her his shop bearing No.G-17, Ring Road Mall, Sector-3, for a total sale consideration of Rs.1 Crore. It is stated that the petitioner gave earnest money of Rs.10 Lakhs to respondent No.2, and a hand written sale agreement was executed on CRL.M.C. 2507/2021 Page 1 of 6 30.10.2019. It is stated that a total sum of Rs.68 Lakhs was paid by the petitioner herein to respondent No.2 between 30.10.2021 and 09.11.2019. It is stated that the balance amount of Rs.32 lakhs was to be paid at the time of registry. It is stated that the complainant took loan from HDFC Bank for arranging the balance amount. It is stated that respondent No.2 told the petitioner/complainant that the original documents of the shop were misplaced and, therefore, he would be unable to execute the sale deed. It is stated that the petitioner herein found out that the property in question had been pledged by respondent No.2 and that loan had been taken by him. It is stated that when confronted, respondent No.2 told the petitioner that he would return her money with interest @ 12%. It is stated that even after one year, respondent No.2 was unable to pay back the total amount. It is stated that out of Rs.68 Lakhs, the respondent No.2 has paid only Rs.33 Lakhs. It is stated that on 05.11.2020, when the petitioner went to meet the respondent No.2 and demanded her money, the respondent No.2 refused to repay the amount and threatened the petitioner herein by saying that he has links. On the said complaint, FIR No.291/2021 dated 14.07.2021, was registered at Police Station South Rohini for offences under Section 420 IPC.
3. Notice under Section 91 Cr.P.C followed by a notice under Section 41A Cr.P.C. was issued to respondent No.2. On receipt of the notice, respondent No.2 moved an application under Section 438 Cr.P.C seeking anticipatory bail. The learned Additional Session Judge - 05, North West District, Rohini Courts, vide order dated 31.07.2021 granted anticipatory bail to the petitioner. It is this order which is under challenge in the instant petition.
4. The learned counsel for the petitioner contends that anticipatory bail CRL.M.C. 2507/2021 Page 2 of 6 should not have been granted to respondent No.2. He states that the petitioner was lured to pay a sum of Rs.1 Crore out of which she paid Rs.68 Lakhs to the respondent No.2. He states that had the petitioner been told that the property in question had been mortgaged to a bank, she would never have entered into the transactions. He further states that respondent No.2 had the intention to cheat the petitioner right from the beginning and looking at the magnitude of the offence, anticipatory bail should not have been granted to the petitioner by the learned Additional Session Judge.
5. It is well settled that once bail is granted by a lower Court, the Appellate Court must be slow to interfere. The order of releasing an accused on bail touches upon the liberty of the individual, and therefore, ordinarily, High Courts must not interfere with the order granting bail to an accused. The order granting bail to an accused can only be interfered with, when the High Court, on perusing the material on record, is convinced that the bail has been granted to the accused without due applicability of mind or in contravention of the directions laid down by the Apex Court. The High Court has to fully convince itself regarding the nature and gravity of the offence, the likelihood of the accused obstructing the proceedings of the trial in any manner or the likelihood of the accused fleeing from justice.
6. It is well settled that the consideration that guides the power of an Appellate Court in assessing the correctness of an order granting bail stands on a different footing in considering an application for cancellation of bail. It is equally well settled that the correctness of an order granting bail is to be tested on the grounds as to whether the order granting bail is perverse, illegal or unjustified.
7. The Apex Court in State of Bihar v. Rajballav Prasad reported as CRL.M.C. 2507/2021 Page 3 of 6 (2017) 2 SCC 178, has observed as under:
"14. We may observe at the outset that we are conscious of the limitations which bind us while entertaining a plea against grant of bail by the lower court, that too, which is a superior court like High Court. It is expected that once the discretion is exercised by the High Court on relevant considerations and bail is granted, this Court would normally not interfere with such a discretion, unless it is found that the discretion itself is exercised on extraneous considerations and/or the relevant factors which need to be taken into account while exercising such a discretion are ignored or bypassed. In the judgments relied upon by the learned counsel for the respondent, which have already been noticed above, this Court mentioned the considerations which are to be kept in mind while examining as to whether order of bail granted by the court below was justified. There have to be very cogent and overwhelming circumstances that are necessary to interfere with the discretion in granting the bail. These material considerations are also spelled out in the aforesaid judgments viz. whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with the evidence. We have kept these very considerations in mind while examining the correctness of the impugned order."
8. The offence alleged against respondent No.2 is punishable under Section 420 IPC. The Trial Court has recorded the contention of the respondent No.2 wherein it is stated that respondent No.2 has repaid the whole amount to the petitioner herein. The statement of the counsel for respondent No.2 that out of the total amount of Rs.68 Lakhs, Rs.33 Lakhs were repaid by cheques and Rs.35 Lakhs were repaid by cash has been recorded. The order also records the contention of the counsel for the CRL.M.C. 2507/2021 Page 4 of 6 respondent No.2 who had attached the WhatsApp messages dated 25.02.2020 received from the husband of the petitioner herein in which the husband of the petitioner acknowledged the receipt of Rs.9 Lakhs and has further acknowledged that the balance amount as on 25.02.2020 was Rs.35 Lakhs. The learned Additional Session Judge has also recorded that the IO has also verified that on 04.03.2020 and 24.08.2020 the petitioner has received the amount of Rs.9 Lakhs and Rs.5 Lakhs respectively. It is also recorded that respondent No.2 has joined the investigation.
9. Considering the facts of the case, the gravity of the offence and the fact that the accused is not in a position of dominance/authority over the complainant and the fact that bail should not be used to recover money, this Court is of the opinion that the Trial Court has exercised its discretion in a proper manner which does not require any interference.
10. The Trial Court has granted anticipatory bail to respondent No.2 on certain conditions which read as under:
"It is accordingly directed in case of arrest of the applicant/ accused Vikas Aggarwal, he shall be released on bail on furnishing of a bail bond for a sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the I0/SHO and subject to all the conditions :
1. He shall make himself available for interrogation by a police officer as and when required.
2. He shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.
3. He shall not leave India without the previous permission of the Court.
4. Such other condition as may be imposed CRL.M.C. 2507/2021 Page 5 of 6 under sub-section (3) of Section 437, as if the bail were granted under that section."
11. It is evident that sufficient safeguards have been provided for in the order dated 31.07.2021.
12. In view of the above, this Court is not inclined to interfere with the order impugned herein. Accordingly, the petition is dismissed along with the pending application(s), if any.
SUBRAMONIUM PRASAD, J OCTOBER 12, 2021 Rahul CRL.M.C. 2507/2021 Page 6 of 6