Anil Kumar v. State (Nct of Delhi)

Judgment reserved on : Judgment pronounced on: APPLN. 1794/2023, CRL.M.B. 1205/2 086/2023 UMAR .... versus (NCT OF DELHI) ..... R o appeared in this case: ner : Mr. Mohit Mathur, Sr. A Mr. Naginder Benipal, Sahaj Garg, Ms. Harith Bhati, Advocates ndent : Mr. Ajay Vikram Singh State with SI Amit Kum Cell Mr. Tanveer Ahmed Mi Mr. Tushar Th Yashovardhan, Mr. Sh and Mr. Aashish Pand for complainant R. JUSTICE TUSHAR RAO GEDELA JUDGMENT

AO GEDELA, J. ing has been conducted through Hybrid EW DELHI

25.08.2023

29.08.2023 2023 & CRL. . Petitioner Respondent Advocate with Mr. Ankit Mr. hi and Mr. Raj h, APP for mar, PS Special ir, Ayush Jain, hakur, Mr. hashwat Sarin dey, Advocates A d mode ]

¶1This is seeking release registered at P 170, 120-B IP custody since 2 on various med

¶2It is alleg had conspired them in respect DDA had purp get those plot defrauded the c drafts and Rs.4

¶3It is spe operandi emplo was, firstly by actual bid for a them against t creating a false of non-existent inducing the co drafts or cash b a bail application filed under Section e of the Applicant in FIR No. 14/2022 dat P.S.-Special Cell, Delhi, u/s 406, 420, 4 PC, under which the present applicant

28.11.2022, barring the spans of interim dical grounds. ged that the applicant alongwith other ac to cheat the complainants by committin t of the non-existent properties of the DD ortedly put up for auction and that the ap ts allotted to intended purchasers and complainants of Rs.11 crores by way of v 0 crores in cash. ecifically put forth in the chargesheet th oyed by the applicant and other co-ac identifying those persons who had in auctioned properties and 5% Earnest Dep their bids were forfeited by the DDA e website of DDA portal and the creation t properties or properties not belonging omplainants to part with money in the fo by promising the easy allotments of suc n 439 Cr.P.C. ted 19.01.2022 467, 468, 471, is in judicial release on bail ccused persons ng fraud upon DA, which the pplicant would d consequently various demand hat the modus ccused persons fact made an posits made by and secondly, n of a false list g to DDA and orm of demand ch non-existent plots as also as also be simultan

¶4That it is every stage of impersonated a the complainan would allure an in the name o amounts are go complainant fo were never dep to some other huge amounts associates on si

¶5It is thus persons are sta including the c names of the c returned to them

¶6The char accused person kingpin, has be APPLICANT' ssuring them that their forfeited Earnest D neously adjusted. s also alleged that apart from being an act the conspiracy, the present applicant is as an officer of the DDA while inducin nts to part with their monies. Thereafter nd induce the complainants to part with of DDA on its account on the promise oing to be deposited towards the plots s or the impending allotments. However, th posited towards such plots, but were, in plots on some other person's names. S of cash were also collected by the app imilar pretext and for services of similar k s alleged that the applicant alongwith t ated to have duped and cheated many complainants. Neither such plots were complainants nor the monies so parted w m. argesheet is detailed and the modus op ns, including the applicant, who is alle een elaborately explained. 's ARGUMENTS Deposit would tive member at stated to have ng and alluring r, the applicant demand drafts e that the said selected by the he said monies stead, diverted Similarly, even plicant and his kind etc. the co-accused such persons allotted in the with, was ever perandi of the eged to be the

¶7Mr Mohi by attacking th transactions ar

31.12.2020, ye submits that the FIR creates a fact that there explanation for

¶8As a sec submits that it i evidence on re been collected back to the app Senior Counsel Infact, he vehe been collected deposited in the have been actu learned Senior otherwise, has f Counsel, there frivolous allega it Mathur, learned Senior Counsel opens he date of registration of the FIR, in th re stated to have occurred between et the FIR was registered only on 19 e delay of a little more than 1 year in reg doubt upon the prosecution version cou e is no explanation at all, much less r the immense delay in lodging the FIR. cond limb of his argument, learned S is not the case of the prosecution, nor ha ecord to show that any of the money al by the applicant, by way of cash or ot plicant in some form or the other. Accord l, there is no money trail leading back to emently submits that even the amounts a in the form of DD's are admitted to have e account of the DDA. 11 of such DD's a ally deposited in the account of the DDA r Counsel submits, then what benef flown to the applicant. According to the is neither any explanation nor any rati ations and further contends that in any ca his arguments at, the alleged

01.01.2018 to

9.01.2022. He istration of the upled with the a reasonable enior Counsel as it placed any lleged to have therwise came ding to learned o the applicant. alleged to have e actually been are admitted to A. If that is so, fit, illegal or learned Senior ionale in such ase, apparently no benefit has the demand dra

¶9Learned aforesaid argum accruing to the commit such of

¶10Taking fu submits that th and the compla the other co-ac apparent reason the FIR or the bail, this Court case shall be c Senior counsel,

¶11The othe Counsel is that punishment is charged agains argument with A.C.M.M., hen the Court of A Senior Counsel accrued to the applicant from the amoun afts. Senior Counsel submits that keeping ments regarding lack of money trail an e applicant, the motive or mens rea for th ffence is completely absent. further the above argument, learned Senio here is neither any apparent link between ainants on the one hand, nor between the cused persons on the other. He submits t n why the name of the applicant has be e chargesheet. He further submits that a t need not examine the evidence in detai considered by the trial court. According , the applicant is entitled to bail on the ab er limb of the argument of Mr. Mathur, t, barring section 467 IPC, 1860 where maximum upto Life Imprisonment, all st the applicant are bailable. He supp the fact that the offences are being tried b nce, the maximum punishment that can b ACMM would be 7 years. On that pre l submits that applicant is being detaine nts covered by g in view the nd any benefit he applicant to or Counsel also n the applicant e applicant and that there is no en included in at this stage of l which in any to the learned ove ground. learned Senior the stipulated other sections plants the said by the Court of be imposed by emise, learned ed only due to the alleged offe to the learned the other offenc

¶12Learned filed by the St stated to be pe acquitted or co bail, in one of s only in one the Counsel, the n impede the gran the opinion that

¶13Learned stated to have Book/diary wa challans and fo examination. A opined that it questioned doc signatures. Th collected, does submits that ev alleged to hav ence under section 467 IPC. Such detent Senior Counsel is not justified, particul ces are bailable in nature. Senior Counsel also next referred to th tate. Particularly, to the table of cases/p ending adjudication or where the appli onvicted, to submit that in one case, the a such cases the FIR was quashed, one was e applicant was convicted. According to number of cases pending or of convicti nt of bail to an accused person, provided t the applicant is entitled to the same. Senior Counsel also referred to the a e been made in the hand of the ap as allegedly seized by the prosecuti orged property documents which were se According to the learned Senior Counsel was not possible to express any op cuments and signatures with the specime hus, he submits that even document not support the version of the prosecuti ven the mobile phones of the complainan ve audio and video recordings of the tion, according larly, when all he status report previous cases icant has been applicant is on s cancelled and learned Senior ion would not the Court is of alleged entries pplicant which ion alongwith ent for forensic l, the FSL has pinion on the n writings and tary proof so ion. He further ts, which were e incidents of transactions be and though se regarding the e nothing to conn

¶14Learned proof has been the ratio in the Sheila Sebastia would be squar would, resultan

¶15Learned on 29.11.2022 which has bee lastly been exte was directed to weeks. He subm roots well entre bail granted t applicant is ent STATE's ARG

¶16Per cont submits that the in nature involv tween the applicant and the complainant ent to the FSL, no report has been fi examination. Thus, he contends that pre nect the applicant to the crime. Senior Counsel submits that when the examined and does not show any link to e case of the Hon'ble Supreme Court an v. R. Jawaharaj, reported in (2018 rely applicable and the offence under se ntly, fail. Senior Counsel submits that the applican however, was released on interim bail n extended from time to time by this ended by the Supreme Court w.e.f. 16.8.2 o surrender by this Court, for a further mits that the applicant has clean antecede enched in the society and has not misus till date. Learned Senior Counsel sub titled to be released on bail. GUMENTS tra, Mr. Ajay Vikram Singh, learned AP e offences alleged against the applicant ar ving swindling of huge amounts of monie ts, were seized led on record esently there is e documentary o the applicant, in the case of 8) 7 SCC 581, ection 467 IPC nt was arrested in June 2023 Court and has 2023, when he period of two nts and has his sed the interim bmits that the P for the State re very serious es belonging to the complainan offences of si convicted in on which the appli settlement agre that the DDs w were never dep to the complai accounts; that has cheated the Rs.11 crores in belonging to th the applicant en for forensic ex instance, applic handed over the DDA towards t more instance w applicant in th show such frau investigated too their offices an may influence t nts; that the applicant has pervious in imilar nature: that the applicant has ne such similar case filed by the CBI; icant claimed were quashed, were only o eement arrived at with the complainants which were collected from the complaina posited towards the alleged plots supposed nants and were diverted elsewhere in o the applicant alongwith the other co-ac e complainants and others of Rs.40 cror n the form of Demand Drafts diverted to he complainants; that the audio and video ngaged in offences as alleged have been s xamination and the report is awaited; acc cant is also alleged to have diverted one e same to his own counsel for the counse the conversion charges of his own hous where one such DD was also allegedly de e name of his own son and that there i udulent transaction; that the officials of D o to find out how applicant and others nd the computer system etc. and as such the witnesses or tamper with the evidence volvements in already been that the cases on the basis of in those cases; ants and others d to be allotted other unknown ccused persons res in cash and o accounts not o recordings of sent to the FSL cording to one e such DD and el to pay to the e; there is one eposited by the is a challan to DDA are being had access to h the applicant e.

¶17In view of the offence applicant does n COMPLAINA

¶18Mr.Tanv the outset, refer a part of the c applicant and th the prosecution submits that th Officer of the D entire fraudulen DDA, the indu false promises Money Deposi complainants, c etc. were execu cheating and si complainants.

¶19Mr. Mir, statements of t Cr.P.C., 1973 a the complicity of the aforesaid innumerable allegations es of similar nature, learned APP sub not deserve any indulgence by this Court ANTS' ARGUMENTS: vir Ahmed Mir, learned counsel for the c rs to pages 115 and 116 of the bail applic chargesheet, to submit that the modus o he co accused persons have been clearly n and reiterates such contentions. That ap he applicant had audaciously, even impe DDA, in order to create a facade of genu nt transaction. The creation of a false w ucement done by creating non existing and assurances of adjusting/setting off t its, illegally diverting the DDs procu collecting huge amounts of cash for serv uted with the sole objective to commit lar iphoning and swindling of hard earned learned counsel also submits that a plain the complainants and other victims und and annexed to the chargesheet would c and culpability of the applicant in all th s and instances bmits that the . complainant, at ation, which is operandi of the y delineated by part, he further rsonated as an uineness to the website of the properties, the the 5% earnest ured from the vices rendered rge scale fraud, monies of the n reading of the er section 161 clearly indicate he offences as alleged. Accord ponzi scheme lightly. He furt yet to be inves the applicant is submits that th similar offence

¶20Mr. Mir submissions: (i.) (ii.) (iii.) (iv.) (v.) (vi.) OPINION & D

¶21This Co Counsel for the ding to learned counsel, the present case and a multi-victim scam which cann ther submits that monies as well as the stigated and proof thereof be collected, w s released on bail, shall be effectively ef he applicant is a convicted felon and and thus, does not deserve any leniency. relies upon the following judgements in Central Bureau of Investigation vs. V Sai Reddy (AIR 2013 SC 2216) ; Para Prasanta Kumar Sarkar vs. Ashis Cha & Ors. (2010) 14 SCC 496 ; Para 9-11 Neeru Yadav v. State of Uttar P

(2014) 16 SCC 508 ; Para 14, 16, 17 The State of Bihar & Ors. vs. Amit K (AIR 2017 SC 2487) ; Para 8, 9, 12 Sunil Grover v. State (2012) 3 DLT (C ; Para 11, 12 Sunil Dahiya v. State (2016) 4 DLT (c ; Para 55 DECISION OF THE COURT: ourt has heard Mr. Mohit Mathur, le e applicant, Mr. Ajay Vikram Singh, lear e is akin to the not be treated money trail is which, in case ffaced. He also that too for a support of his V. Vijay atterjee Pradesh Kumar Cri) 861 cri) 593 earned Senior rned APP, Mr. Tanvir Ahmed perused the rec

¶22At the ou

29.11.2022 and applicant was

16.06.2023 whi had directed th Supreme Court 9631/2023 gran

¶23The subs Counsel was th to establish t transaction and prima facie sh argument appea of the allegat impersonated a and fictitious information in over which DD available, but a this stage to b complicity of th Mir, learned counsel for the complainant ord with the able assistance of the learned utset, it is to be noted that the applicant w d was incarcerated for a period of around released on interim bail on medical ich was extended from time to time. Tho he applicant to surrender on 16.08.2023 t has by the order dated 14.08.2023 in nted two weeks extension of interim bail. stratum of the arguments of Mr. Mathur, hat there is no connecting factor or interlin that the applicant had benefitted fro d as such, the prosecution has been u how motive or mens rea. At the first b ars to be very attractive, however, on a d tions in the chargesheet as to how as the officer of DDA, the manner in whic website of the DDA was created a respect of the non-existent properties DA had no authority were projected as n also offered as auctionable properties, it be sufficient to this Court to, prima fa he applicant in the fraudulent transactions ts at length and d counsel. was arrested on 7 months. The grounds from ough this Court 3, the Hon'ble SLP (Crl) No. learned Senior nking evidence om the entire unable to even blush, the said deeper scrutiny the applicant ch a fraudulent and the false and properties not only being self appears at acie, show the s as alleged.

¶24All the c statements unde the manner in form of demand which were eve were non-existe the investigatio induced and all the name of properties so ca and fraudulentl monies were co allotment of a itself, prima f learned Senior otherwise as t collected from in DDA against complainants, t investigating a such document

¶25In fact, th draft from amo complainants and those appearing as witn er section 161 Cr.P.C., 1973 have unequ which they were duped and how monie d drafts as well as cash were taken from er deposited in the DDA towards the sai ent, nor ever returned to them. The witne ons have detailed as to how the comp lured to handover demand drafts of vario DDA and instead of being deposite alled allotted to them and in their names, ly diverted in the names of other persons ollected from the complainants against th auctionable properties against non-exist facie, shows culpability of the applica Counsel has not been able to show from to where the demand drafts alleged the complainants were deposited. If it w t the properties which were to be or were then such documents could have been su agencies under section 91 Cr.P.C., 1973 on record before this Court. the chargesheet mentions one instance wh ongst 11 DDs worth Rs.3,50,000/- was nesses, in their uivocally stated es, both in the them, none of id plots, which esses as well as plainants were ous amounts in d against the , were illegally s. The fact that he deposits for tent properties ant. Moreover, m the record or to have been were deposited e allotted to the ubmitted to the

¶3There is no here a demand found credited against a prope applicant. The s handed over th DDA to clear t his father. Tho underway, how of the complai promise and as the complainan the auctionable

¶26Similar cash. Though, itself from mak parties.

¶27Yet anoth regarding the p submitted that the cases, one ended in conv learned Senior inasmuch as th been able to fu APP as well as erty which belonged to the father of the said lawyer has given a statement that the his DD in lieu of his fee which he depo the charges of the properties which lie i ough the investigations in this regard ar wever, the said demand draft appears to be inants. The complainants were also lure ssurance that the 5% Earnest Money De nts on earlier occasions too would be ad e properties, which were non-existent. allegations are in respect of the monie in respect of the said transactions, this C king any observations, lest it prejudices her argument put across by learned Senio previous cases. Mr. Mathur, learned Senio out of the four cases, the applicant is on has been quashed, one cancelled and t viction. In respect of the case ending r Counsel submitted that there are n he applicant is presently hospitalized an urnish any information in this regard. How s Mr. Mir, learned Counsel for the com e lawyer of the e applicant had osited with the in the name of re stated to be e issued by one ed by the false eposit made by djusted against es received in Court restrains s either of the or Counsel was or Counsel had n bail in one of the fourth one in conviction, no instructions nd he has not wever, learned mplainants have submitted that t by the CBI in the Delhi Deve appeal against t far as the case handed over th Bench of this No.12/2014 u/ settlement agre

¶28Though pendency of ot sole factor to There is no do however, the pr in a case which definitely lend propensity to c whether the ap released. In the that too a serio cases appear to the applicant was convicted in the said c respect of the similar offences and that elopment Authority. It has also been info the conviction is pending adjudication in which is stated to have been quashed, lea he order dated 11.03.2015 passed by t Court in Crl.M.C. No.964 of 2015 wh s 420/120B IPC, 1860 was quashed on eement arrived at between the parties and Mr. Mathur, learned Senior Counsel, e ther cases and conviction in one of them disentitle the applicant from being enl oubt about the proposition of learned Se revious involvements and that too convic h is similar to the allegations in the prese credence to the presumption that the a commit such offences. It also creates pplicant will not commit such similar e view of this Court, this is definitely one ous one to be considered in the present be for similar offences of cheating etc. ase prosecuted too, regarding ormed that the n this Court. So arned APP has the coordinate hereby the FIR n the basis of not on merits. elaborated that m cannot be the arged on bail. enior Counsel, tion, moreover ent case, would applicant has a a doubt as to offences once e of the factors, t case. All the

¶29Another applicant is the their hard earne

¶30The char DDA too in th consider inasm impersonated a computer system

¶31The argu regard to the i concerned, it observation tha conclusive find to prove or consideration o embark upon re that the same w Hon'ble Suprem the applicant fo observation thi be noted that th of conviction an the stage of bai factor which may not work to the b e large number of persons who have be ed money. rgesheet also refers to the complicity of t he present offences. That may be a rele much as, prima facie, the applicant co as DDA officials and have access to t ms without the aid and assistance of som ument of Mr. Mathur learned Senior ingredients of section 467 IPC not bein is too early in the day to conclude at merely because the FSL report has ding on that aspect, there may not be any corroborate the said allegation. At of bail, it may not even be proper for eturning a finding upon such issue. Suffic would be subject matter of trial. The jud me Court in Sheila Sebastian (supra) r or this proposition is concerned, in view is Court need not consider the same. Ho he said judgement was rendered in an app nd not a proposition that can or should be il. benefit of the een cheated of the officials of evant factor to ould not have the office and e insiders. Counsel with ng made out is with definite not given any other evidence the stage of this Court to ce it to observe dgement of the relied upon by w of the above owever, it is to peal arising out e considered at

¶32Keeping opinion that th bail application as such.

¶33The app expiry of the ex order dated 14.0

¶34Needless not tantamount AUGUST 29, 2 rl in view the above, this Court is of t e applicant cannot be released on bail a n alongwith pending applications, if any, licant is directed to surrender immedia xtension period as granted by the Suprem

08.2023, as noted above. s to state that any observation made her to expression on merits. TUSHAR RAO 2023 the considered and the present , are dismissed ately upon the me Court in its reinabove shall

GEDELA, J.

* IN THE % + BAIL A M.A.230 ANIL KU STATE ( Advocates who For the Petition For the Respon CORAM: HON'BLE MR TUSHAR RA [ The proceedi E HIGH COURT OF DELHI AT NE