AJAY TAYAL Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) Aggrieved by the order dated 12.08.2015, passed by the learned Special Judge, NDPS/ASJ (NW), Rohini, Delhi, vide which the bail application filed by the present petitioner has been rejected, the petitioner has preferred the present bail application under Section 439 read with Section 482 of the Code of Criminal Procedure, 1973 for seeking bail in a case registered under FIR No.433/2012 under Section 420/380/34 of Indian Penal Code, Police Station North Rohini, New Delhi.

(2.) The allegation levelled against the petitioner is that he, in connivance with other co-accused persons, induced the complainant for taking franchisee of leading international brands of apparels/readymade garments, such as "ALLEN COOPER" "FREE LOOK" and "LEE SOLLY" etc., by investing Rs.25,00,000/- as refundable security and in return the complainant would be paid a fixed amount of Rs.35,000/- every month in addition to commission of 4% on net sale. According to the FIR, the complainant was also fraudulently misrepresented by the present petitioner alongwith other co-accused persons, that the accused No.1 M/s. Ess Aay Fasions (India) Private Limited, will provide the showrooms to their franchisees at various places in Delhi & NCR. Due to misrepresentation of the petitioner alongwith other co-accused the complainant agreed to become franchisee of accused No.1 company for its brand "FREE LOOK" for Rohini Area and Rs.25 lacs were paid to the accused persons in the name of the company as refundable security. The complainant has also described the date and mode of payment of Rs.25 lacs to the accused persons. Consequently, Franchisee Agreement was executed on 19.06.2010 duly signed by the present petitioner on behalf of the company and the complainant and her brother Sanjay Bindal. The said agreement was valid for three years. According to the complainant, the showroom was opened on 19.06.2010 and up to December 2010 the readymade garments were supplied to complainant for sale in the showroom and the complainant regularly deposited the sale amount with accused No.1 company after deduction of expenses for running the showroom, Rs.35,000/- per month and 4% commission on the net sale. It is alleged that after May 2011, no fresh supply of garments was made by the present petitioner alongwith other co-accused and when the complainant asked to refund the deposit money of Rs.25 lacs, the petitioner in connivance with other co-accused persons, blatantly refused to refund the said money.

(3.) Mr. Ramesh Gupta, Senior Advocate, on instructions of the petitioner submits that the petitioner is in judicial custody since 20.05.2015 and vide order dated 30.04.2013, the petitioner and other co-accused were incorrectly, improperly and unjustifiably declared proclaimed offender by the Trial Court. It is further submitted that after the aforesaid order, the supplementary charge sheet qua the petitioner was filed on 06.07.2015 under Section 420/380/506/34/174 of IPC against the petitioner and co-accused Satish Mittal. It is further submitted that on 13.02.2013, the NBW were issued and according to the petitioner, the same was not executed. Thereafter on 15.03.2013 an application for initiating proceedings under Section 82 and 83 of Cr. P.C. against the petitioner by Sub-Inspector Satish Kumar, was moved and the application was allowed by the Trial Court. It is contended that the process under Section 82 & 83 of Cr. P.C. was sought to be initiated on the address C-7/160-161, Sector 7, Rohini, Delhi and no efforts were made to carry the said proceedings on the two other available addresses, as mentioned in the complaint and FIR. Ultimately, on 30.04.2013, the petitioner was declared proclaimed offender, and it was observed that despite execution of process, petitioner has failed to appear. It is also contended on behalf of the petitioner that on 12.08.2015, the Session Court had directed the Investigating Officer to report as to whether the NBW/process under Section 82 & 83 of Cr. P.C. were executed at the two other addresses or not, to which the Investigating Officer had made a false report that it was done so. It is however contended that no settlement could arrive at between the petitioner and complainant because of complainant's non-cooperative attitude. It is further contended that the complainant did not approach the court with clean hands and the Investigating Officer had misled the court in the manner of issuance of nonexecution of the NBW/process under Section 82 & 83 of Cr. P.C. and further by misleading the court got him declared as Proclaimed Offender. It is further submitted that the Investigating Officer had three available addresses with him but he did not make any effort to serve the NBW/82 & 83 Cr. P.C. proceedings on the other two addresses. It is further contended that the petitioner had no knowledge about the filing of the complaint and registration of FIR in question and therefore the petitioner had no occasion to appear before the Investigating Officer for the purpose of investigation in FIR in question or to appear before the Trial Court to attend the proceedings.