Criminal Misc. No.M-33068 of 2009 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No.M-33068 of 2009 Date of decision: 9.12.2009. Sanjay Arora ....Petitioner Versus State of Haryana ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. R.S.Cheema, Senior Advocate with Mr. R.K.Trikha, Advocate for the petitioner Ms. Neena Madan, Addl. Advocate General, Haryana Mr. R.S.Rai, Senior Advocate with Mr. R.K.Lamba, Advocate for the complainant. S. D. ANAND, J. Petitioner-Sanjay Arora has applied for the grant of anticipatory bail in case FIR No.311 dated 31.10.2009 under Sections 419, 420, 467, 468, 471 and 120-B IPC registered at Police Station, NIT Faridabad. A plea filed by him before the Court of Sessions was negatived vide order 13.11.2009. For enabling appreciation of the respective pleas raised by the parties, it would be appropriate to notice the prosecution allegations in the first instance. Plot NO.5E-17-BP, NIT, Faridabad (400 sq. yards) is owned by Smt. Shukla Jagota, a NRI residing at 116, BROOK MILL BLVD,SCARBOR, ON, MIW-2K5, CANADA, who is real Bua(father's sister) of the first informant Kaushal Madan Lal Khanna, resident of House No.203, Trishala Apartment, Parley Point, Surat, Gujrat. He received a call from his aunt aforementioned wherein she informed him as under:- Criminal Misc. No.M-33068 of 2009 -2- **** Petitioner herein, in connivance with Kishan Chand, Satbir Yadav and certain other persons had brought into being a fake General Power of Attorney purported to have been executed by Smt. Shukla Jagota in favour of Kishan Chand aforementioned authorising the latter to sell off the plot aforementioned as attorney of the former. The fake General Power of Attorney had been brought into being by presenting some body else in place of Smt. Shukla Jagota. She forwarded the original sale deed and also an authority letter containing the authorisation (for management of that plot) through courier. Thereupon, the first informant came over to Faridabad from Gujarat and notified the facts to the police. As per finding recorded by the Investigating Agency, the petitioner herein and Kishan Chand and Satbir Yadav ( the former being purported of General Power Attorney holder of Smt. Shukla Jagota and the latter being the property dealer who was got instrumental in the execution of the purported deal) connived to usurp that property. On the basis of purported (fake) General Power of Attorney, Kishan Chand entered into an agreement to sell that plot to the petitioner herein for a sum of Rs.1.36 crores. A sum of Rs.20 lacs was indicated to have been paid by the petitioner herein to Kishan Chand as earnest money (Rs. 5 lacs was paid vide a cheque; while balance amount was paid in cash). In terms of clause 6 of the purported agreement dated 30.9.2009, the possession of the plot was also handed over to the petitioner herein and he was authorised to raise the construction thereupon. When the petitioner went over to the plot to effectuate the allowance aforementioned, he was not allowed to access it with intervention of the neighbourers. It created a doubt in his mind (about the genuineness of the impugned transaction.) He also got to understand that Kishan Chand had committed an act of forgery (in the obtaining of the General Power of Attorney). He required Kishan Criminal Misc. No.M-33068 of 2009 -3- **** Chand to return the cheque and also the cash amount to him and also to cancel the deal. However, Kishan Chand returned original cheque of only Rs.5 lacs and cash amount of Rs.10 lacs. The balance had not been returned by Kishan Chand aforementioned to the petitioner herein till date. Mr. R.S.Cheema, learned Senior Counsel (assisted by Shri R.K.Trikha, Advocate) raised the following points supportive of the plea for the grant of anticipatory bail:- 1) All the co-accused (with the exception of one) have since been arrested and released on regular bail after they had been interrogated by the police. 2) The petitioner had no association with the other accused and he was not a party to any past transaction with them. 3) The petitioner is gainfully engaged in a professional pursuit and has enough financial capacity and he had no reason to enter into a shady transaction, if he initially had reason to believe that there was any fishy in the General Power of Attorney. In support of this item of plea, the attention of this Court was invited to the various income tax returns filed by the petitioner. 4) On the basis of the above pleas, the view advocated is that the petitioner herein is, infact, himself a wronged person who had been lured into the impugned transaction by the other accused. Mr. R.S.Rai, learned Senior Counsel (assistant by Shri R.K.Lamba, Advocate) appearing on behalf of the complainant/first informant and also the learned State Counsel argued the contrary and raised the following items of stance to oppose the plea for the release of the petitioner on anticipatory bail:- Criminal Misc. No.M-33068 of 2009 -4- **** 1) The connivance of the petitioner herein in the transaction is apparent from the very fact that a property worth about more than two crores was alleged to have been agreed to be sold for a much lessor price. It was also unnatural that a sum of rupees only 20 lacs is alleged to have been paid as the earnest amount and further a sum of only Rs.5 lacs is averred to have been paid by the cheque and the balance amount by cash. The cheque is not even averred to have been presented by Kishan Chand to the banker and it has not seen the light of the day in the course of the investigation. 2) The petitioner is averred to be the main brain behind the entire transaction and his custodial investigation would be required to find out the necessary links in the transaction and it is his custodial investigation only which would enable the investigating agency to get hold of the original cheque. The fake character of the transaction is prima facie evident from the fact that it would be fairly unnatural to expect, in ordinary commercial parlance, that the possession of the plot ( sold for Rs.1.36 crores) would be handed over to the vendee only on payment on the alleged payment of Rs.20 lacs which would appear to be too meager in relation to the total sale consideration. The meager character of the earnest amount would assume added importance in the light of the fact that the vendee is also alleged to have been allowed to raise construction on that plot. Insofar as the gainful engagement and the financial capacity of the petitioner herein is concerned, it does not ipso facto detract from the prosecution plea for his custodial investigation and the same applies to the fact that all other co-accused, with the exception of one, have since been Criminal Misc. No.M-33068 of 2009 -5- **** arrested and granted bail after they had been interrogated. Whether the averred cheque, at all, came to be issued and whether any amount came to be paid in cash has to be ascertained in the course of the investigation. As per the averments made in the course of the petition, Kishan Chand had returned the cheque to the petitioner herein. In that view of things, the recovery of cheque has to be effected from the petitioner only and the fact of Kishan Chand having been interrogated does not enable the petitioner to raise a plea that his custodial interrogation would be infructuous just because Kishan Chand had already been interrogated. The fact that the petitioner herein has not had past my transaction with the other accused and that he had no association with the other accused also does not enure for his benefit in consideration of the plea for grant of anticipatory bail. In the natural course of the things, it is a matter of common observation that quite a bit of the total sale consideration is paid by the vendee to the vendor as earnest amount. Apart therefrom, it cannot be disputed that 400 sq. yards plot in the area of Industrial Township of Faridabad would be expected to fetch a price of more than Rs. 2 crores. It would appear unnatural that out of the alleged earnest amount of Rs.20 lacs, a sum of Rs.5 lacs only was paid through a cheque which, too, never ever came to be presented to the banker and it is alleged to have been returned by the General Power of Attorney holder Kishan Chand to the petitioner herein. The investigating agency has not been able to lay its hands upon that cheque. It would appear to be fairly unnatural that a vendee would be offered possession and permission to raise construction as well just on payment of a meager amount of Rs.20 lacs, out of a total agreed consideration of Rs.1.36 crores. It was, then, argued by the learned Senior Counsel appearing Criminal Misc. No.M-33068 of 2009 -6- **** on behalf of the petitioner that General Power of Attorney holder and Smt. Shukla Jagota had been in telephonic touch with each other and this fact, by itself, disproves the prosecution plea. In the context of that averment, learned Senior Counsel for the complainant pointed out that calls relied upon by the learned counsel for the petitioner are all those which are indicated to have been made by Kishan Chand aforementioned for a noticeably short duration and the possibility of his having attempted to create(exparte) evidence about his having been in touch with the original plot owner cannot be ruled out in the circumstances of the case, In the light of the facts noticed above, it is apparent that the Investigating Agency would require to conduct custodial investigation of the petitioner herein to find out whereabouts of the cheque. His custodial investigation would also be required to establish various links in the course of the averred transaction. The person of the petitioner would also be required to find out the correctness or otherwise of yet another prosecution allegation that he had forged the passport of Smt. Shukla Jagota, as the ID proof, at the time of registration of the General Power of Attorney. The effective endeavour to be made by the Investigating Agency to interrogate the petitioner cannot be set at naught by insulating the petitioner with an order on point of anticipatory bail. The grant of anticipatory bail is in exercise of an extraordinary jurisdiction which jurisdiction does not call for exercise in the circumstances of the case. The anticipatory bail plea shall stand rejected accordingly. December 09, 2009 (S. D. ANAND) Pka JUDGE