RAMESH KUMAR Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) Leave granted.

(2.) 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 sec. 420 of the Indian Penal Code, 1860 ("the IPC", hereafter), judicial proceedings initiated by persons, accused of cheating, to obtain orders under Sec. 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 sec. 438 of the Cr. PC. and incorporating a condition in that behalf for deposit/payment as a pre-requisite for grant of bail.

(3.) The bare facts relevant for a decision on this appeal, gathered from the impugned judgment of the Delhi High Court, are these. The appellant before us is the owner of an immovable property. With an intention to re- develop the same, he had entered into three agreements with one Ashwani Kumar ("the builder", hereafter) dated 10th and 19/12/2018 and 30/1/2019. In terms of the agreement dtd. 19/12/2018, the builder was required to construct a multi-storied building in which the appellant would have ownership rights in respect of the 3rd floor and the upper floor, apart from Rs.55,00,000.00 (Rupees fifty- five lakh) to be paid to him by the builder, whereas the builder would have rights to deal with the 1st and the 2nd floors together with other rights as described therein. In pursuance of the aforesaid agreement, the builder entered into an agreement to sell and purchase/bayana dtd. 14/12/2018 with Vinay Kumar and Sandeep Kumar ("the complainants", hereafter) in respect of the 2nd floor of the proposed building (without roof rights) but other rights as described therein for a sum of Rs.60,00,000.00 (Rupees sixty lakh). The complainants had allegedly paid to the builder Rs.11,00,000.00 (Rupees eleven lakh) [Rs.1,00,000.00 (Rupees one lakh) as token money and Rs.10,00,000.00 (Rupees ten lakh) as earnest money], at the time of execution of the agreement dtd. 14/12/2018. Thereafter, on the instructions of the builder, the complainants on different dates allegedly made payments of additional amounts to the appellant as well as the builder, in cash as well as by cheques, totaling to Rs.35,00,000.00 (Rupees thirty-five lakh).