NIKHIL JAIN vs STATE OF NCT OF DELHI

$~72
* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of Decision:02.05.2024

+ BAIL APPLN. 1391/2024
NIKHIL JAIN ….. Petitioner
Through: Mr. Mohit Chaudhary, Mr. Kunal Sachdeva, Ms. Srishti Bajpai and Ms. Vaishali Shukla, Advocates

versus

STATE OF NCT OF DELHI ….. Respondent
Through: Mr. Manoj Pant, APP for the State with Mr. Anand Prakash Upadhyay, Mr. Niraj Pandey, Advocates and with SI Sunil Kr., P.S. Prashant Vihar.
Mr. Vijay Kasana, Ms. Chetna Singh, Mr. Dalip Garg and Mr. Chirag Verma, Advocates for complainant.

CORAM:
HON’BLE MS. JUSTICE SWARANA KANTA SHARMA
JUDGMENT
SWARANA KANTA SHARMA, J. (Oral)
1. The present application under Section 438 of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) has been filed on behalf of the applicant seeking grant of anticipatory bail in case FIR No. 477/2023 dated 11.11.2023, registered at Police Station Prashant Vihar, Rohini, Delhi, for offences punishable under Sections 420/467/468/ 471/120B/34 of the Indian Penal Code, 1860 (‘IPC’).
2. The present FIR was registered on the basis of complaint lodged by Sh. Tilak Raj Jain against ten accused persons. Brief facts of the case, as per the FIR, are that the complainant was well acquainted with co-accused Sushil Singla, who was a Chartered Accountant, as well as the present applicant Nikhil Jain, who was known to the complainant for last 10 to 15 years, and further that these accused persons were also closely known to each other since long. It was alleged that somewhere in May/June, 2021, co-accused Sushil Singla had approached the complainant with a lucrative offer to buy a property bearing number 21, Block E, Prashant Vihar, Delhi, ad-measuring 120 square meter, through the present applicant Nikhil Jain. As alleged, the complainant was informed by co-accused Sushil that the present applicant was in process of getting the said property converted to freehold from DDA and after the completion of this process, the complainant can purchase the property in question. It is stated that the complainant had also been informed by co-accused Sushil that he had to receive some amount from the present applicant and if the complainant purchased the property, the amount paid by the complainant to the applicant herein would be adjusted in the amount to be recovered by Sushil from the present applicant. It is stated that the property in question had become freehold vide conveyance deed dated 27.08.2021 issued by DDA in favour of co-accused Manjeet Singh, and thereafter, the present applicant had purchased the property in his name on 14.10.2021 through a sale deed, and accused no. 3 and 4 namely Kuldeep and Saajan had stood witness to the said sale deed. Thereafter, the present applicant had sold the property in question to the complainant by way of a sale deed dated 28.10.2021 for a consideration of Rs.1,32,00,000/-, besides certain cash amount, which was also paid to the present applicant. It is stated that the compliment wanted to sell the property in question in September 2023, however, upon inquiring about the property from some property dealers, he had come to know that the conveyance deed which had been executed in favour of co-accused Manjeet Singh was a forged and fabricated document, which was not available in the records of DDA, and the complainant had been defrauded and cheated by co-accused Suhil and the present applicant Nikhil Jain, in active connivance and collusion with each other. It is also stated that accused no. 6 and 7 i.e. Vijay Kumar and Surinder Singh had stood witness to the forged and fabricated conveyance deed, also in connivance with present applicant. It is further alleged that when the complainant had confronted the accused persons, they had laughed upon him and the present applicant had informed the complainant that since he had been declared NPA by the banks and was in urgent need of money, he had hatched conspiracy with co-accused persons to cheat and defraud the complainant. The complaint had further alleged that he had also come to know from his sources that co-accused Manjeet Singh and the witnesses to the conveyance deed as well as the sale deeds were also the close associates of present accused/applicant. It is also alleged that the officials of DDA namely Dilshad Ahmed and Sachin had helped and actively participated in commission of the offence and they were also responsible for preparation of forged and fabricated conveyance deed since they were officials of DDA. It is further stated that upon inquiry, the complainant had also come to know that the property in question had neither been allotted to anybody nor had ever been auctioned to any person, and the entire chain of documents prepared by the accused persons were forged and fabricated. On these allegations, the present FIR was registered.
3. Learned counsel appearing on behalf of the present accused/applicant argues that applicant is in fact a victim himself, but in any event, without prejudice to his rights and to show complete bona fides, he is willing to deposit the payment made by complainant in Registry of this Court and to show bona fides a demand draft of Rs. 25 Lakhs is brought in Court immediately, and balance would be deposited in terms of the Court order. It is also argued that the DDA’s website was showing that property was allotted to one Devendra Kumar from whom the entire chain of documents came correctly. It is further argued by the learned counsel for the applicant that no recovery till date is made from the present applicant and/or account of Manjit where the payments of applicant have gone. Thus, it is prayed that the present applicant/accused be granted anticipatory bail.
4. Learned APP appearing on behalf of the State argues that the allegations against the present applicant/accused are serious and grave in nature. It is submitted that a previous anticipatory bail application was dismissed by this Court, and the present application is filed on the ground that the present applicant/accused is willing to deposit a certain amount with the registry of this Court, which is not maintainable, since matters of bail cannot be decided based on monetary considerations as it will amount to settling the matters of bail, which goes against the findings of the Hon’ble Supreme Court. Thus, it is prayed that the present anticipatory bail application be dismissed.
5. This Court has heard arguments addressed by learned counsel for the applicant and learned APP for the State, and has gone through the material on record.
6. This Court notes that the present anticipatory bail application is the second anticipatory bail application which has been preferred by the applicant/accused on the ground that he is willing to deposit an amount of Rs. 25 lakh. The previous anticipatory bail application was dismissed by this Court vide order dated 14.02.2024, wherein this Court had made the following observations:
“…10. For the sale of property in question, the complainant had paid amount of Rs.1,32,00,000/- to the present applicant. The sequence of events, as prime facie appearing from the contents of FIR and the gap between the sale deeds executed between co-accused Manjeet Singh and the applicant Nikhil Jain, and the sale deed executed between present applicant Nikhil Jain and the complainant is also crucial.

11. Thus, considering the fact that the applicant has yet not joined investigation and non-bailable warrants have already been issued against him, and in view of the serious allegations pertaining to cheating and forgery against the present applicant, and also the fact that investigation is at initial stage, this Court does not find it a fit case for grant of anticipatory bail to the present applicant, whose custodial interrogation may also be necessary to unearth the entire conspiracy as well as the details qua preparation of alleged forged and fabricated documents…”

7. Thus, this Court has to decide as to whether it can grant anticipatory bail to the present applicant/accused on the ground that he is willing to deposit the cheated amount in question. In this regard, this Court deems it appropriate to refer to the findings of the Hon’ble Apex Court in the case of Ramesh Kumar v. State (NCT of Delhi), (2023) 7 SCC 461 which are as follows:
“ 1. A disquieting trend emerging over the years which has gained pace in recent times necessitates this opinion. It has been found by us in multiple cases in the past several months that upon First Information Reports being lodged inter alia under section 420 of the Indian Penal Code, 1860 (“the IPC”, hereafter), judicial proceedings initiated by persons, accused of cheating, to obtain orders under Section 438 of the Code of Criminal Procedure, 1973 (“the Cr. PC”, hereafter) are unwittingly being transformed into processes for recovery of the quantum of money allegedly cheated and the courts driven to impose conditions for deposit/payment as pre-requisite for grant of pre-arrest bail. The present case is no different from the others and it is considered appropriate to remind the high courts and the sessions courts not to be unduly swayed by submissions advanced by counsel on behalf of the accused in the nature of undertakings to keep in deposit/repay any amount while seeking bail under section 438 of the Cr.P.C. and incorporating condition in that behalf for deposit/payment as a pre-requisite for grant of bail. ”

8. Thus, the Hon’ble Apex Court has observed in the said judgment that the Courts are required to remain impartial and not be swayed by submissions of the counsel for accused to deposit the alleged cheated amount as prerequisites for granting pre-arrest bail under Section 438 of the Cr.P.C. This Court thus cannot grant anticipatory bail merely on the ground that the applicant/accused is willing to deposit the cheated amount in the Court.
9. Thus, considering the overall facts and circumstances, and in view of the findings given by Hon’ble Apex Court in Ramesh Kumar v. State (NCT of Delhi) (Supra), this Court does not find it a fit case for grant of anticipatory bail to the present applicant, whose custodial interrogation may also be necessary to unearth the entire conspiracy as well as the details qua preparation of alleged forged and fabricated documents.
10. In view thereof, the present application stands dismissed.
11. Nothing expressed hereinabove shall tantamount to an expression of opinion on the merits of the case.
12. The judgment be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J
MAY 2, 2024/A

BAIL APPL. 1391/2024 Page 7 of 7