AKHIL AGGARWAL Vs. STATE NCT OF DELHI

JUDGEMENT

(1.) VIDE this common order, I shall dispose of two bail applications bearing No. 656/2013 and 657/2013 moved by Sh. Akhil Aggaral and Mr. Sachin Tandon as both the applicants are arrayed as accused in case FIR No. 74/2013 u/s. 420/109/467/120B/468/406/471 PS EOW. The prosecution case in brief is that a complaint was filed by M/s. Habitat Towers Private Limited against Mr. Abhay Aggarwal, Akhil Aggarwal, Amrit Malhotra, Sachin Tandon, Arun Pillani and Balraj, inter alia, on the allegation that in or around April, 2011, accused No. 2 and 4, i.e., Mr. Akhil Aggarwal and Mr. Sachin Tandon approached Mr. Harvinder Singh for and on behalf of the complainant company, M/s. Habitat Towers Pvt. Ltd. and while introducing themselves to be the brother and attorney of accused No. 1 floated a proposal for sale of property described as property bearing No. 142, Vista Vilas Complex, Greenwoods City, Gurgaon, Haryana measuring 951.10 sq.mtrs. Since the company was not having any immediate plan to invest in Gurgaon, Mr. Harvinder Singh expressed his reluctance. However, in order to make proposal lucrative, Accused Nos. 2 & 4 proposed him that they were offering a clean project for sale and since it was direct sale offered by the owner, without any intermediary in between, the company could save substantially by avoiding brokerage for the deal. Lured with the proposal, Mr. Harvinder Singh expressed his willingness, subject to the condition of the sale price being reasonable. After initial deliberations and verification of the title documents, the sale consideration was negotiated and the company agreed to purchase the property for a total sale consideration of Rs. 8,25,00,000/ -. After formally consenting for the deal, on 6th May, 2011, accused No. 1 requested Mr. Harvinder Singh to liquidate a sum of Rs. 1,00,00,000/ - as an earnest money and in consonance with the aforesaid request, complainant company got prepared a demand draft of Rs. 1,00,00,000/ - drawn on Citi Bank favouring Accused No. 1. However, since Accused No. 1, i.e., Abhay Aggarwal was not in India, Mr. Harvinder Singh requested Accused No. 1 to send an authorization in favour of anybody, who was to execute requisite documents on his behalf. On 9th May, 2011, Accused No. 1 sent an authority letter authorising Accused No. 2 to collect the demand draft on his behalf towards earnest money out of the total agreed sale consideration of the said property. Pursuant thereto, Mr. Harvinder Singh handed over demand draft of Rs. 1,00,00,000/ - to Accused No. 2 Akhil Aggarwal. On 12th May, 2011, accused No. 1 requested Mr. Harvinder Singh that since he was abroad and had to make some urgent payment in India, as such, the demand draft of Rs. 1,00,00,000/ - be substituted with cash and that since he was receiving this amount in cash, it should not be reflected in the "Agreement to Sell" and, accordingly, the total sale consideration may be reduced to Rs. 7,25,00,000/ - only which would automatically acknowledge the receipt of Rs. 1,00,00,000/ - paid to Mr. Abhay Aggarwal. Initially Mr. Harvinder Singh was reluctant to accede to the request. However, on persistent request of Accused No. 1 Harvinder Singh substituted the demand draft of Rs. 1,00,00,000/ - with cash payment of Rs. 1,00,00,000/ - to Accused No. 1 through Accused No. 2 in the presence of Sanjeev Tandon and Ashu Jhingan. On 13th May, 2011, additional payment of Rs. 20,00,000/ - by demand draft was received by Accused No. 2 against receipt. On 14th May, 2011, Mr. Harvinder Singh received an e mail from Accused No. 1 with two attachments. One attachment was a scanned copy of GPA dated 16th June, 2010 executed by Accused No. 1 in favour of Accused No. 3, Mr. Amrit Malhotra concerning the said property whereas the second attachment was letter of "Offer to Sell cum Authority Letter". Although subject of "Offer to Sell cum Authority Letter" was reflecting accused No. 2 as an authorized person but in the body of the letter, Accused No. 3 was shown to have been authorized to do the needful for the sale of the said property against total sale consideration of Rs. 7,25,00,000/ - and further to receive the sale proceeds by way of demand draft/pay order etc. On clarification from Accused No. 1, Mr. Harvinder Singh was shocked when the accused No. 1 told him that Accused No. 2 is not his real brother and he could not believe him beyond this. Accused No. 1 trusted Accused No. 2 for receipt of cash to the tune of Rs. 1,00,00,000/ - but for rest of the transaction he was not trusting him, however, since substantial payment was already made by the complainant company without any receipt, Mr. Harvinder Singh consented for the same without raising an issue out of it. Accordingly on 16th May, 2011, an "Agreement to Sell" was executed between Accused No. 1 through his attorney Mr. Amrit Malhotra, Accused No. 3 and the complainant Company through its Director Mr. Harvinder Singh. The consideration price of the suit property was shown as Rs. 7,25,00,000/ - whereas earnest money was shown as Rs. 20,00,000/ - only. While acknowledging the said transaction, accused No. 1 sent an e mail to the complainant and enquired about the mode of balance sale consideration. Since it was agreed that the payment would be made within 60 days from the date of registration of Agreement to Sell, as such, the Accused No. 1 was asked to get the Agreement to Sell registered so that sale proceedings could be expeditiously concluded. Despite repeated requests to Accused Nos. 1 to 3, Agreement to Sell could not be registered. Harvinder Singh also came to know that GPA dated 16th June, 2010 was false as the notarization was shown to have been done on the basis of fabricated seal of the Notary since the Accused No. 1 did not want that the GPA to be used on any of the Government/legal platform, as such, Accused No. 1 informed him that he himself will execute a fresh Agreement to Sell which will be registered before the Competent Authority. The complainant company received an information about Accused No. 1 having entered into another "Agreement to Sell" with one Kewal Talwar concerning the same property and Accused No. 1 already receiving a sum of Rs. 1,75,00,000/ - from said Kewal Talwar. When accused No. 1 was confronted with such revelation, accused No. 1 telephonically assured him that the matter has already been sorted out and accused No. 1 was willing to execute and get the Agreement to Sell registered. On 6th July, 2011, the Agreement to Sell was got registered. The entire transaction with Kewal Talwar was shrouded with suspicion, as such, Harvinder Singh insisted upon the accused persons to furnish No Objection from Mr. Kewal Talwar. The subsequent communication revealed that contrary stands were taken by the accused persons. It was also revealed that GPA dated 16th June, 2010 was forged. The complainant insisted upon the accused persons to clear all the ambiguities and conclude the deal, however, instead of adhering to the aforesaid request, accused No. 1 kept on dragging the issue. During occurrence of all this, accused No. 1 along with his father visited Harvinder Singh and they admitted having committed the fraud. However, accused No. 1 insisted upon the complainant to conclude the sale and presented a letter of apology. The complainant demanded the publication in newspaper to ensure that no other person is dealing with the said property. Thereupon, accused No. 1 filed a civil suit against the complainant. It was alleged that the accused persons fabricated documents and have caused wrongful loss to the complainant company, as such, action was prayed against the accused persons. Subsequently, on the direction of the Court, FIR u/s. 406/420/468/467/471/120 -B/109 IPC was registered.

(2.) I have heard Ms. Rebecca M. John, Sr. Advocate for the petitioner, Ms. Fizani Hussain, learned APP for the State duly assisted by Sh. D.S. Kohli, Advocate for the respondent/complainant.

(3.) IT was further submitted that mere allegations of the complainant regarding forgery of NOC obtained from Mr. Kewal Talwar regarding the sale of the property is without any basis. The applicant was informed by Mr. Abhay Aggarwal that the Receipt -cum -NOC executed by Mr. Kewal Talwar was duly sent by mail dated 2nd September, 2011 by Mr. Abhay Aggarwal to the complainant. The complainant is falsely relying on the e mail dated 2nd September, 2011 sent at 5:11 pm by Mr. Arun Pillani to the complainant by which the draft of the Receipt -cum -NOC was forwarded to the complainant. This document clearly demonstrates that Mr. Arun Pillani had already forwarded the draft of the Receipt -cum -NOC on 1st September, 2011 at 3:25 pm to the complainant. The mere fact of forwarding the draft of the said Receipt -cum -NOC to the complainant does not substantiate the allegation of forgery. Moreover, Mr. Kewal Talwar has also given a hand written NOC dated 25th September, 2011 clearly stipulating that he had no claim whatsoever in respect of the said property.