SUDHA DIWAN AND ORS. Vs. STATE

JUDGEMENT

(1.) By this petition filed under Sec. 438 of Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr.P.C.), the petitioners seek anticipatory bail in a case registered as FIR No. 879/2015 under Sec. 420/406/506/120B/34 of Indian Penal Code, at Police Station North Rohini, Delhi. Petitioners, in this case are above 80 years old and the dispute in question relates to the transactions of money for the sale of property. The gist of the case of is that one Mr. Raj Garg (hereinafter referred to as the complainant) has filed a complaint case against the petitioners herein alleging that the petitioners have induced him to enter into an agreement to sell dated 28.03.2014 for the purpose of causing wrongful loss to the complainant and wrongful gain to themselves and entered into an agreement to sell on 28.03.2014 in respect of basement, ground floor, first floor, second floor and third floor alongwith the roof rights of third floor of property bearing No. 12 and 57, Pocket C -9, Sector 7, Rohini, Delhi on a total consideration of Rs. 8 crores. The complainant paid a total sum of Rs. 80 lacs by way of different cheques and the same were duly encashed. It is alleged that the complainant was assured by the petitioners that half of the property under sale was free from all encumbrances, such as sale, mortgage, gift, Hen, decree, charges, surely, security etc. and the petitioners undertook to be responsible and liable for any defect. On demand, complainant paid another amount of Rs. 1.75 crores to the petitioners and despite the fact that petitioners had undertaken to hand over vacant physical possession of the property under sale, they expressed their inability to get the same vacated on or before 27.09.2014 and the time was extended for the purpose of handing over the possession to 15.01.2015 and further sum of Rs. 5 lacs was paid by the complainant to the petitioners. Later the complainant found that the property under sale was facing various litigations before Delhi High Court as well as District Court, Rohini. It is further alleged that the petitioners have executed a sale deed in respect of the first floor of the said property in favour of Smt. Poonam Deswat for a sum of Rs. 1,50,00,000/ -. As per the complainant he tried to visit the house of the petitioners for tendering the balance sale consideration and to execute the sale deed upon which he came to know that the petitioners have shifted to Goa. After obtaining their Goa address, the complainant visited them and requested them to accept the balance sale consideration and it is only thereafter, it was disclosed that the litigation was pending between the petitioners and tenants and they sought further extension of time i.e., in last week of October 2014 and as such the initial agreement was extended upto 30.04.2015. It is further alleged that the petitioners have kept the complainant in dark about the agreement to sell dated 10.02.2015 with one Shri Rakesh Gupta, who was tenant in the property, in respect of basement and ground floor of the property for a total sale consideration of Rs. 3 crores. Thereafter, complainant made a complaint to Police Station North Rohini, Delhi but no action was initiated against the petitioners and the complainant submitted further complaint to SHO, Police Station Rohini on 25.05.2015 but all in vain. Thereafter the complainant approached the Court under Sec. 156(3) Cr.P.C. and thereafter, FIR in question was registered.

(2.) On 02.12.2015, when the matter came up for hearing, both counsel for the parties agreed to appear before the Delhi High Court Mediation & Conciliation Centre for reaching to an amicable settlement between the parties. Accordingly, parties were directed to appear before Delhi High Court Mediation & Conciliation Centre on 16.12.2015 at 3.00 PM. The mediation report dated 12.01.2016 is received, wherein it is reported that the matter was discussed at length but despite best efforts, no settlement could be arrived at. The mediation ended as 'not -settled.'

(3.) Mr. J.P. Sengh, learned Senior Advocate appearing on behalf of the petitioners contended that the dispute between the parties is of civil nature and no criminal offence has been made out and it was the complainant who had defaulted in complying with the terms and conditions of the agreement dated 28.03.2014 which was subsequently extended, but he failed to make the payment in the agreed time, therefore the petitioners had no option except to forfeit the earnest money. In this regard, the petitioners have also sent legal notice dated 05.05.2015 to the complainant to which he did not reply. It is further contended that the present case is of civil nature and is based on documentary evidence and there is nothing to recover from the petitioners. Moreover, the petitioners have not received any notice from the Investigating Officer to join the investigation. It is further contended that as per Sec. 54 of the Transfer of Property Act, an agreement to sell does not confer any right, title and interest and it is complainant who had not complied with the provisions of Sec. 16 of the Specific relief Act. Lastly, it is contended that the petitioners are more than 80 years old and are not previous convict and have unblemished record throughout their life and they are ready to join the investigation as and when required.