Delhi High Court
Onkar Prasad Mishra vs State on 10 January, 2012
Author: V.K. Shali
Bench: V.K. Shali
* HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPL. 1584/2010
Date of Decision : 10.01.2012
ONKAR PRASAD MISHRA ...... Petitioner
Through: Mr.Ravi Gupta, Sr.Adv.
with Ms.Sarika Singh,
Adv.
Versus
STATE ...... Respondent
Through: Ms.Ritu Gauba, APP
Mr.G.L.Rawal, Sr.Adv.
with Mr.Vikas
Manchanda, Adv. for the
complainant.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. This is a petition for grant of anticipatory bail filed by the petitioner, Onkar Prasad Mishra, in respect of FIR No.229/2007, under section 420/406/467/471/452/384/ 506/34 IPC registered by P.S. Vasant Vihar, New Delhi.
2. Earlier, anticipatory bail application of the petitioner was rejected by the learned Additional Sessions Judge on Bail Appl. No.1584/2010 Page 1 of 13 13.09.2010, whereupon the present application was filed in which the petitioner is enjoying the interim protection against the arrest.
3. The allegations against the petitioner are that one Yogender Sen Manchanda lodged a complaint stating therein that he was in search of a property in November, 2006, when he came in contact with Ms.Roma Khanna, a property consultant, who disclosed to him that one Onkar Prasad Mishra, the present petitioner, is known to her. It was revealed to the complainant that Onkar Prasad Mishra wanted to sell his House No.198, Block No.10, Golf Links, measuring 575 sq. yds. The petitioner is alleged to have shown photocopies of the ownership documents to the complainant. It was represented by him that the property in question actually belonged to one Smt.Raseel Kohli, who had executed a 'Will' dated 05.01.1987, in favour of the petitioner, which was got registered by him with the Sub-Registrar on 29.09.1987. On 01.10.1987, Smt.Raseel Kohli is also purported to Bail Appl. No.1584/2010 Page 2 of 13 have executed a Gift Deed in his favour. The petitioner is alleged to have applied to the L&DO on 03.06.2005 for conversion of lease hold rights into free hold. It is stated, in the complaint, that believing the representation of the petitioner to be true, the complainant agreed to purchase the said property for a total consideration of Rs.16,50,00,000/- vide agreement to sell dated 20.11.2006 and he paid a sum of Rs.9 Lacs in cash to Om Prakash Mishra. He also handed over to him two cheques bearing No.108731 and 108732, dated 20.11.2006 for a sum of Rs.65 lacs and Rs.27 lacs respectively, and thus, in all he paid a sum of Rs.92 lacs to the petitioner. The details of the cheques were also stated to have been entered into the agreement. It is further stated that after making the payment on 20.11.2006, the complainant went to see the property whereupon he learnt that the property did not belong to the petitioner. The complainant was stopped, ostensibly by the security guards, at the entrance. It is alleged by Bail Appl. No.1584/2010 Page 3 of 13 him that because of this reason he was constrained to instruct his bankers on 21.11.2006 to stop the payment of the two cheques. It is alleged by him that the agreement was also witnessed by one D.R.Panchal and Roma Khanna. He approached the petitioner for refund of the money. It is alleged, in the complaint, that instead of returning the money, the petitioner demanded a sum of Rs.95 lacs from the complainant. Later on, it is alleged by the complainant that he was threatened and the cheques issued by him were returned to him which were actually coloured photocopies of the originals and actually the originals were retained by the petitioner. It is alleged by the complainant that later on a case under section 138 of the Negotiable Instruments Act was also filed against the complainant on the basis of the cheques retained by the petitioner. On the basis of the aforesaid facts, the FIR in question bearing No.229/2007 under section 420/406/467/468/471/452/384/506/34 IPC has been registered.
Bail Appl. No.1584/2010 Page 4 of 13
4. The learned senior counsel, Mr.Gupta, has prayed for grant of anticipatory bail on the ground that the petitioner is the owner of the property and that a false and frivolous case has been registered against the petitioner as a counter blast, to the complaint, which has been instituted by the petitioner against the complainant for recovery of the cheque amount. It is the case of the petitioner that he had engaged the services of the complainant for conversion of lease hold rights into free hold from the office of the L&DO for which purpose, he had agreed to pay a sum of Rs.1,01,00,000/- to the complainant for getting the work done. Out of the aforesaid amount, Rs.95 lacs was paid to the complainant. It is alleged that on 14.10.2005, he paid to the complainant a sum of Rs.65 lacs and Rs.30 lacs on 16.12.2005 by way of cash. Since the aforesaid amount was not refunded by the complainant to the petitioner, he (complainant) is purported to have executed cheques, which were not honoured by the banker of the Bail Appl. No.1584/2010 Page 5 of 13 complainant, on presentation whereupon the petitioner filed a criminal case against the complainant. The petitioner has also claimed himself to be the owner of the property on the basis of the original Gift Deed, which was allegedly handed over by him to the complainant at the time of agreement. It is also alleged that the claim, which has been set up by the complainant now, is totally false. It is alleged to be actuated with a view to ensure that the petitioner does not pursue the complaint filed by him against the complainant under section 138 of the Negotiable Instruments Act. It is contended by the learned senior counsel for the petitioner that the petitioner has already joined investigations and, therefore, there is no reason to deny him the benefit of anticipatory bail. The learned senior counsel has relied upon case titled Gurbaksh Singh Sibbia Vs. State of Punjab, (1980) 2 SCC 565 as well as the latest judgment of Supreme Court in case titled Siddharam Satlingappa Mhetre Vs. State of Maharashtra & Ors., Bail Appl. No.1584/2010 Page 6 of 13 (2011) 1 SCC 694 to contend that the benefit of anticipatory bail should not be denied to the petitioner until and unless arrest of the petitioner becomes absolute necessity for the purpose of investigation. It has been contended by him since the petitioner has joined the investigation, therefore, the said benefit may not be denied to him only with a view to satisfy the whims and fancies of the complainant.
5. The learned APP as well as Mr.Rawal, learned senior counsel for the complainant, has vehemently opposed the application for grant of anticipatory bail on the ground that the petitioner had not only cheated the complainant by agreeing to sell the property in question to him but he has also claimed himself to be the owner of the property on the basis of the forged documents. In order to substantiate his claim, it has been contended by Mr.Rawal that the petitioner is claiming himself to be the owner of the property on the basis of a General Power of Attorney purported to have been executed by the actual Bail Appl. No.1584/2010 Page 7 of 13 owner Smt.Raseel Kohli in the year 1988 and before the execution of the Power of Attorney on 01.10.1987 a Gift Deed is purported to have been executed by Smt.Raseel Kohli in his favour. This Gift Deed is alleged to have been registered with the office of Sub-Registrar Delhi, where the first page of the Gift Deed in the Sub-Registrar Office is stated to be missing. It is also stated that a perusal of the Gift Deed shows that the petitioner has been put into possession of the suit property while as the petitioner at no point of time was ever in possession of the property. It has been stated that the original Gift Deed has not been produced before the Investigating Officer and the petitioner is taking contradictory stand regarding the non-production of the documents. Sometimes the petitioner says that the original Gift Deed has been handed over to one Mr.Sharma at Tis Hazari Courts, while as at other time the petitioner is stating that the same has been handed over to Anant Raj Agency. It is contended by Mr.Rawal that Smt.Raseel Bail Appl. No.1584/2010 Page 8 of 13 Kohli expired on 11.10.87, while as the petitioner is also setting up documents like General Power of Attorney dated 04.10.1987 and 30.09.1988, agreement to sell, etc. to claim himself to be the owner of the suit property which clearly shows that these documents are ex-facie forged as they are purported to have been executed after the death of the deceased. It is also contended by Mr.Rawal that the petitioner is purported to have applied to the L&DO on 30.06.2005 for conversion of the lease hold rights to free hold in respect of this very property and submitted a slip of acknowledgment, which request was rejected on 09.12.2005 by the L&DO by observing that the documents submitted along with the conversion application were forged, for which a separate FIR bearing No.56/2007 has been registered at the instance of the L&DO. It is further contended that a report from the CFSL dated 20.08.2010 confirms that the signatures on the application for conversion and the affidavit filed in the L&DO are of the accused and accordingly it is stated Bail Appl. No.1584/2010 Page 9 of 13 since the investigations are yet to be completed in respect of the serious allegations of cheating, forging a document and using the forged documents as genuine, therefore, the petitioner does not deserve to be enlarged on bail.
6. I have carefully considered the submissions made by the learned senior counsel for the parties as well as the learned APP. There is no dispute about the fact that the nature of the allegations levelled against the petitioner are very serious in nature in as much as he is claiming himself to be the owner of a valuable property situated in Golf Links on the basis of the documents which are either prima facie, forged documents or purported to have been executed after the death of the actual owner of the property. Not only this, the petitioner has, on the basis of these allegedly forged documents applied to the L&DO for conversion of the lease hold rights into free hold for which purpose even the L&DO has got an FIR registered for an offence of cheating and forging a document and Bail Appl. No.1584/2010 Page 10 of 13 using the forged document as genuine. Therefore, this clearly establishes the enormity and severity of the allegations against the petitioner which are very serious in nature, which require to be probed in order to reach at the bottom of the matter. The petitioner has not been able to produce the original gift deed on the basis of which he is claiming ownership. He is taking different stands in this regard at different times. There was no occasion for the petitioner to give original gift deed to the complainant at the time of signing the agreement to sell as is sought to be urged. The first page of the deed is stated to be missing from the record of the Sub- Registrar. This clearly shows that somebody is bent upon destroying the evidence so that the probe gets derailed.
7. The question, which now arises for consideration is as to whether, the petitioner deserves to be enlarged on bail in respect of these allegations or not. Obviously, there is no allegation that the petitioner is going to flee from the Bail Appl. No.1584/2010 Page 11 of 13 processes of law or tamper with the evidence but at the same time the nature of allegations which are levelled against the petitioner are of such a nature that in my view would require custodial interrogation because the petitioner has not been forthcoming and cooperating with the investigating agency by producing the original documents with regard to his ownership purported to have been executed by the actual owner Smt.Raseel Kohli. He is further taking false pleas that these documents have already been handed over to the complainant. The property situated in Golf Links is a valuable properly. The legal heirs of Smt.Raseel Kohli are stated to have filed a suit against the petitioner also. This, prima facie, shows that the petitioner needs to be interrogated not with a bail order in his pocket.
8. I, therefore, feel that it is not a fit case where the discretion deserves to be exercised in favour of the petitioner notwithstanding the law laid down by the Apex Court in case tilted Siddharam Satlingappa Mhetre's Bail Appl. No.1584/2010 Page 12 of 13 case (supra). The Supreme Court has not laid down that anticipatory bail should be allowed in all cases. All that the Court has observed is that unless and until the arrest become imperative for necessitating the fair and impartial investigation, the personal liberty should not be jeopardized and anticipatory bail should be granted. But in my view in the instant case keeping in view the nature of the allegations and the conduct of the accused, custodial interrogation is required more so when the investigations of the case are yet to be completed despite the fact that FIR has been registered almost four years back.
9. Accordingly, the application for grant of anticipatory bail is dismissed. The interim order having passed in favour of the petitioner stands vacated.
10. DASTI.
V.K. SHALI, J.
JANUARY 10, 2012 SS Bail Appl. No.1584/2010 Page 13 of 13