SANDEEP CHAUDHARY Vs. STATE OF DELHI

JUDGEMENT

(1.) Petitioners had business dealings with the respondents No. 2 to 4, who are the partners of M/s. Jain Art Jewels (hereinafter referred to as the Complainants'). According to the complainants, while dealing with them, the petitioners committed fraud and cheating. Accordingly, FIR No. 283/05 has been lodged with the Police Station Connaught Place, New Delhi under Sections 420/406/467/468/471/120-B IPC. Though it is not necessary to go into the details of the allegations regarding the said fraud and cheating in this petition, suffice it to mention that the petitioners were working as commission agents for the complainants. They were obtaining orders from Dubai for stainless steel utensils, which used to be executed by the complainants and the petitioners were getting commission thereon. As per the allegations, after gaining confidence of the complainants in this manner, both the petitioners, who are brothers, represented in January, 2004 that they had got a very huge order for which they needed advance payment from the complainants to be given to M/s. Prima Enterprises, Wazirpur Industrial Area, Delhi. Various cheques were thus issued in favour of M/s. Prime Enterprises for a total amount of Rs. 77 lacs, but no utensils were received from M/s. Prime Enterprises. When the complainants met the petitioners, they informed that since the utensils were not manufactured/finished as per the requirement, the same were rejected and they had asked M/s. Prime Enterprises to return the money. From May, 2004 to July, 2004 only Rs. 35,61,500/- were returned and balance amount of Rs. 41,38,500/- still remained. However, afterwards the complainants came to know from M/s. Prime Enterprises that they had never received the payment as aforesaid nor any order from the complainants was received for fabricating utensils nor was the consignment ever rejected. Since cheques were issued in the name of M/s. Prime Enterprises by the complainants the complainants approached their bankers and found out that the petitioner No. 2 had opened an account in the name of M/s. Prime Enterprises, which was introduced by the petitioner No. 1 in Model Town Branch of Federal Bank in the name of proprietorship firm and got the money in question from the complainants. In the FIR dated 18.5.2005, the petitioners were arrested on the same date. On 22.5.2005, bail was granted to the petitioners when they represented that they would settle the accounts of the complainants and two months' time was given for this purpose. However, thereafter the respondent No. 2 moved application for cancellation of bail before the learned AJS, which was allowed and bail of the petitioners was cancelled and consequently, the petitioners surrendered on 7.6.2005. The petitioner No. 1 was granted interim bail subsequently on 28.8.2005. On 10.9.2005, the petitioner No. 2 was also granted interim bail. A Memorandum of Understanding (MOU) was entered into by the petitioners with the respondents No. 2 to 4 (complainants) agreeing to make payment of Rs. 97.80 lacs. Out of this, from time to time a sum of Rs. 48.50 lacs was paid. Since interim bail was granted to the petitioners to settle the matter with the respondents, on 23.3.2006 this bail was extended by another six months. However, as during this period no payment was made, on 14.9.2006 the learned ASJ declined to extend the time for payment and also declined to extend the interim bail. The petitioners approached this Court and moved Crl.M.C. No. 5987-88/2006 seeking extension of time for payment of instalment money. In these petitions order dated 19.9.2006 was passed extending the interim bail till 16.10.2006. During the interim protection, present petition was filed challenging the orders of the ASJ and the legal ground taken is that for violation of the terms of the MOU bail cannot be rejected. In support learned counsel for the petitioners relied upon the judgment of the Supreme Court in the case of Biman Chatterjee v. Sanchita Chatterjee and Another, 2004 (3) SCC 388 and while issuing notice, interim bail was extended. Since the petitioners wanted to press this petition on the aforesaid legal grounds, earlier petition filed, namely, Crl.M.C. No. 5987-88/2006 was withdrawn by the petitioners and the same was dismissed as withdrawn on 16.10.2006. Mr. Mittal, learned senior counsel appearing for the petitioners, referred to various orders passed by the learned ASJ from time to time as mentioned above and submitted that interim bail was given to settle the matter, which was extended from time to time. Ultimately, settlement was arrived at. Even if there was some default in making payment in terms of the said settlement, though some amount was paid, bail now could not be denied only on this ground, namely, failure to adhere to the said settlement by the petitioners. He also submitted that investigation had been concluded, charge-sheet had been filed and the case was fixed for arguments on charge. The petitioners had remained in custody for about three months. When they remained in custody for this period, under duress and compulsion they agreed to enter into settlement with the complainants on the terms and conditions dictated by them and the total amount of Rs. 48.50 lacs was paid. He also submitted that due to sudden depletion of working capital the petitioner could not generate the returns from the business as expected and because of that they could not make monthly payment of Rs. 3.50 lacs after July, 2006. They had even approached the complainants pleading their difficulty but not only their bona fide request was refused by the complainants, the complainants were also threatening them that they would not co-operate in the quashing of the FIR/judicial proceedings even when the entire payment is made. He submitted that in this backdrop judgment of the Supreme Court in Biman Chatterjee (supra) was applicable where the Court held that non-adherence to terms of compromise could not be the basis for cancelling the bail. That was a case where the complainant was the wife, who had filed complaint under Section 498-A of the IPC. The husband/accused was arrested and he sought the grant of bail. On hearing both the sides and noticing the fact that there was a possibility of compromise between the parties, the accused was released on bail by the Magistrate. Thereafter, application for cancellation of bail was preferred by the complainant alleging that the accused was not co-operating in the compromise talks. Bail was cancelled on this ground and revision petition filed by the accused was also rejected by the High Court of Judicature at Patna. The accused, in these circumstances, challenged the said order in the Supreme Court and reversing the order of the High Court and holding that it was not proper to cancel the bail in these circumstances, the Court made the following observations:-

(2.) Learned counsel for the respondent, on the other hand, submitted that after the petitioners stopped the payment, they even entered into another MOU pursuant whereto the properties given in security earlier by the petitioner were released. On the one hand they were not making the payment, on the other hand, they started disposing off their assets. He further submitted that there was no agreement regarding quashing even if the payment is made fully and, therefore, there was no question of the complainants agreeing for this course of action. In the case of Narayanan v. State of Delhi, 2002 (VIII) AD (Delhi) 768, a Division Bench of this Court took note of three judgments of the Single Judges of this Court as it was argued that there was some conflict of opinion taken in these judgments. Whereas in one case interim bail was granted when the petitioners had voluntarily undertaken to deposit the amount and on failure to deposit the said amount bail was rejected, in other case condition imposed by the Magistrate being a condition precedent for confirmation of bail was held to be contrary to law, the Division Bench held that there was no conflict between the three cases, which were decided on their facts. The relevant portion is contained in the following paras:

(3.) It is clear from the reading of para 18 that the Division Bench referred to the judgment in the case of M. Sreenivasulu Reddy v. State of Tamil Nadu, 2001 (2) CRIMES 230 (SC) and the dicta of the said judgment was explained by them in the following terms:-