High Court of Delhi was dealing with the petition filed under Section 438 of the Cr.P.C. on behalf of the applicants praying for anticipatory bail in FIR registered for Economic Offences Wing, for offences punishable under Sections 406/420/34 of IPC.
Brief Facts:
Pawan Bhatia had approached M/s. Splendor Landbase Limited in December 2012 and represented that he along with his wife, and his son were the lawful owners of a land measuring 13.61 acres in the revenue estate which was free from all encumbrances. Pawan Bhatia and other accused offered the Complainant Company to sell and transfer the Floor Space Index (“FSI”) of 5 Lakhs Square Feet out of the total FSI of 11 Lakhs Square Feet for a total of Rs. 200 crores with exclusive rights to undertake the development and construction of the Group Housing Colony. The complainant company had entered into an MOU dated 27th February 2013 with the accused persons. Pawan Bhatia signed the MOU for himself and on behalf of the other accused. The complainant company prior to the execution of the MOU paid an amount of Rs. 2.50 crores and the balance amount of Rs. 2.50 crores were subsequently paid as per Clause 2 of the MOU. The Complainant Company enquired from the accused persons about the status of LOI, the accused persons started dilly dallying and never responded to the queries of the complainant company. It came to the knowledge of the complainant that no LOI had been granted to the accused persons. The Complainant Company made further enquiry about the said land, and it was revealed that many litigations were pending qua the said land. The accused had misappropriated the monies of the Complainant Company and caused wrongful loss to the Complainant Company.
Petitioner’s Contention:
Learned counsel for the petitioner submitted that the applicants have falsely and frivolously been implicated in the present case. It was submitted that the applicants are the owner of the land in their individual capacity, and it has nowhere been alleged that accused are the co-owners of the land for which the alleged agreement has been entered into between the parties. It was submitted that neither Sangeeta Bhatia was a signatory to the Agreement between the complainant and Pawan Bhatia, nor any covenant was imposed upon her which she had failed to fulfil.
Further it was submitted that even the prosecution has not sought or collected any receipt from the Complainant to prove the factum of having paid the amount as alleged in the Complaint. It was submitted that even the balance sheet of the complainant company for the said period does not show any amount being paid to the applicants except the amount which has been returned by the applicants.
Respondent’s Contention:
Learned Counsel for the respondent submitted that the applicants hatched criminal conspiracy to cheat the complainant and had knowingly conceded from the complainant the fact about their ongoing dispute with M/s CHD Elite Realtech Pvt. Ltd with a mala fide intent; that till date, no license has been granted to the accused on the land in question and the amount paid by the complainant is yet to be recovered. It was submitted that the applicants have held facts and have failed to cooperate during the investigation and hence, custodial interrogation of the accused is required.
HC’s Observations:
After hearing both the sides Court stated that
HC relied upon the case of Gurubaksh Singh Sibbia v. State of Punjab where it was observed that “Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned.”
HC relied upon the case of Siddharam Satlingappa Mhetre v. State of Maharashtra where the SC concerning grant of anticipatory bail after exhaustively analysing the rights under Article 21 held that “A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.
HC observed that since the genesis of the statutory right to anticipatory bail is traced under Article 21 of the Constitution, it is essential to understand the true import of the same. Court stated that the Supreme Court has held that such right to life does not merely mean animal-like existence but includes wider connotations to make the life meaningful. Anticipatory bail has been enshrined as a statutory right as well under Section 438 of the Code. Thus, there is no doubt that the provision merits being invoked in appropriate cases, more so, in light of the general bail jurisprudence wherein – bail is a matter of right and bail, not jail is the normal rule.
HC Held:
After evaluating submissions made by both the parties the Court held that “since forgery has been alleged, the nature of evidence is substantially documentary in nature and is already in the custody of the investigative agency. Secondly, despite five years having been passed since the date of the FIR, no chargesheet has been filed till date. Thirdly, as per the Order dated 21st December 2018, one of the applicants, Sangeeta Bhatia had been granted interim protection and there is no allegation that the applicant has misused the interim protection granted. Fourthly, the applicants are ready and willing to offer a security by depositing the title deeds of the said land in lieu of the cash deposit of Rs.2.50 crores. Lastly, the State has not denied the factum that the Applicants have clean antecedents.”
HC allowed instant anticipatory bail application.
Bench: Hon’ble Mr. Justice Chandra Dhari Singh
Case Title: Sangeeta Bhatia v. State of NCT of Delhi
Case Details: BAIL APPN. NO. 3067/2018
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