Criminal Misc. No. M-20947 of 2009 & Criminal Misc. No. M-20594 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** Date of Decision:21.08.2009 1. Criminal Misc. No. M-20947 of 2009 Ninad Sharma .....Petitioner Vs. State of Punjab .....Respondent 2. Criminal Misc. No. M-20594 of 2009 Nipun Sharma .....Petitioner Vs. State of Punjab .....Respondent CORAM:- HON'BLE MR. JUSTICE HARBANS LAL Present:- Mr. Naresh Kaushik, Advocate for the petitioner. Mr. Arshvinder Singh, Deputy Advocate General, Punjab. Mr. V.K. Kaushal, Advocate for the complainant. **** HARBANS LAL, J. This judgment shall dispose of Criminal Misc. No.20947 of 2009 moved by Ninad Sharma as well as Criminal Misc. No. M-20594 of 2009 filed by Nipun Sharma seeking their anticipatory bail in case FIR No.88 dated 3.7.2009 registered under Section 420 IPC at Police Station `A' Division Amritsar. This case has been registered on the basis of the statement of Dalip Kumar son of Sukhdev Raj, who stated that his brother-in-law Criminal Misc. No. M-20947 of 2009 & Criminal Misc. No. M-20594 of 2009 -2- (husband of wife's sister) Pawan Kumar and his partner Prem Parkash have purchased a plot in Delhi, which is under unauthorised possession of Police Station, Gandhi Nagar, Delhi. Ninad Sharma alias Sonu told him that his uncle R.K. Sharma is posted as C.B.I. Chief and prior to this, he has got a number of property disputes resolved through him. Sonu told him that if your brother-in-law and his partner are ready to bear expenses, they will get the possession of the said plot vacated without any legal litigation. On 1.3.2008, at about 2:30 P.M., he along with his father-in-law Dr. B.R. Rastir and uncle Prem Parkash paid a sum of Rs.5,50,000/- to both Ninad Sharma as well as Nipun Sharma (petitioners) at Shangri-La Hotel, Sangam Theatre Side, near Bus Stand and it was promised that the possession of the plot will be got delivered by 15.3.2008. In the meeting held previously, it was admitted by Ninad Sharma, that in case the task is not accomplished within 15 days, they will pay double amount. On the next day of receiving the amount, he gave him (complainant) a self cheque from the account of his firm by filling in date 6.4.2008 on it on account of guarantee. It was containing the signature of his brother Nipun Sharma and stamp of the firm. He (complainant) delivered the said cheque to his brother-in-law and he (complainant) went to Delhi with Sonu. At Delhi, he (Sonu) arranged his meeting with some persons in connection with getting vacated the plot and discussed the matter in his presence. When he returned, he narrated the entire matter to his father-in-law. He said that everything is fine, but you just replace this self cheque with payees account cheque. He (complainant) received the cheque from him and delivered to Sonu. That neither the cheque has been returned nor the above-mentioned job has been done as per terms. Criminal Misc. No. M-20947 of 2009 & Criminal Misc. No. M-20594 of 2009 -3- I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Learned counsel for the petitioner has submitted that there is no mention in the FIR as to in whose presence, the alleged money was paid. This apart, the source of money has also not been disclosed. Moreover, no one can get possession of the land unless the Court gives any order. That in fact, the complainant is pressurising the family of the petitioner to grab his property in Delhi. As against this, the learned State Counsel maintained that a glance through the letter purportedly issued by the Punjab National Bank on 13.8.2009 would reveal that two demand loans of Rs.1,50,000/-and another of Rs.1,20,000/- were raised on 1.3.2008 against the surety of six FDRs and furthermore, as per the details, the other amounts were borrowed from certain persons to make up the amount of Rs.5,50,000/- and the complainant party has been duped of this hefty amount. I have well considered the rival contentions. As per Annexure P.2, the report of the Economic Office Wing, Amritsar City, the investigation revealed that Dalip Kumar had given a sum of Rs.5,50,000/- to Ninad Sharma (referring to the petitioner) and Nipun Sharma (referring to the petitioner) for getting the possession delivered at Delhi. Thus it is clear even from this report that both the petitioners have received the aforesaid amount. As per the letter referred to by the learned State Counsel, the amounts mentioned therein were withdrawn from the bank on 1.3.2008 on which date, the payment was made to the petitioners. This apart, the Investigating Officer through the learned State Counsel has supplied more information which revealed that some amount was arranged by getting the FDRs encashed. Thus, the complainant party has prima-facie Criminal Misc. No. M-20947 of 2009 & Criminal Misc. No. M-20594 of 2009 -4- disclosed the source from which the amount was arranged. Keeping in view the seriousness of allegations, the custodial interrogation of the petitioners is required. In re: State Represented By the C.B.I v. Anil Sharma, 1997 (4) Recent Criminal Reports (Criminal) 268 (SC), it has been held as under:- “We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.” The provisions of Section 438 ibid cannot be invoked where Criminal Misc. No. M-20947 of 2009 & Criminal Misc. No. M-20594 of 2009 -5- custodial interrogation is necessary or may hamper proper investigation. A Court considering an application under this Section must strike a balance between the rights of an accused and the duties and obligation conferred upon an investigating agency. Considering the facts of the present case in the light of the provisions of Section 438 ibid, I am of the considered opinion that the present petition merits dismissal. Thus, both the petitions are dismissed. However, it is clarified that the above observations in no manner shall be construed to mean an expression of opinion on merits of the case. August 21, 2009 ( HARBANS LAL ) renu JUDGE