Crl. Misc. No. M-14534 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. M-14534 of 2009 Date of decision : 28.5.2009 Rakesh Kumar ….. Petitioner Versus U.T., Chandigarh ….. Respondent Present: Mr. Sanjay Mittal, Advocate for the petitioner. **** S.S. SARON, J. The petitioner Rakesh Kumar who is a marginal witness to the agreement to sell dated 15.10.2008 (Annexure P-2) seeks pre-arrest bail in a case registered against him on 20.4.2009 for the offences under Sections 419, 420, 120-B Indian Penal Code (“IPC” – for short). When the case was taken up, Sh. B.S. Walia, Advocate has put in appearance on behalf of complainant Nirmal Kumar and has filed his vakalatnama which is taken on record. Heard counsel for the parties. The FIR in the case has been registered on the statement of Nirmal Kumar-complainant against Raj Paul son of Sh. Bishan Dass , Rakesh Kumar (petitioner) and Raj Kumar son of Harbans Lal. It is inter alia alleged that in the year 1972, the Estate Officer, UT, Chandigarh invited applications for allotment of residential sites on leasehold basis. One Raj Paul son of Tirath Ram resident of House No.21-D, Sector 30, Chandigarh applied for allotment of residential site on Crl. Misc. No. M-14534 of 2009 -2- leasehold basis in Chandigarh vide application dated 13.1.1972. On the basis of the said application, plot No.3099, Sector 37-D, Chandigarh measuring 169 sq. yds. was allotted to Raj Paul son of Tirath Ram for a period of 99 years lease. On the basis of allotment, a lease deed dated 21.2.1975 was executed between the Estate Officer, UT, Chandigarh (lessor) and Sh. Raj Paul son of Tirath Ram (lessee). After allotment, the allottee constructed a house at the site. The said house had been lying vacant and abandoned. The fact of the house lying vacant it is alleged came to the knowledge of Raj Paul son of Bishan Dass. Taking benefit of the abandoned house and with an intent to cheat, it is alleged that Raj Paul son of Bishan Dass lodged a DDR with the Chandigarh Police that the original documents of the house had been lost. A false affidavit was also submitted with the Chandigarh Police. Thereafter, Raj Paul son of Bishan Dass applied for duplicate documents from the Estate Officer, UT Chandigarh. The Estate Officer, U.T. Chandigarh issued duplicate sets of documents. On obtaining the same, the said house i.e. House No.3099, Sector 37-D, Chandigarh was put up for sale. The complainant Nirmal Singh was in search of a house and he came in contact with Raj Paul son of Bishan Dass through Rakesh Kumar (petitioner) and Raj Kumar son of Harbans Lal. They introduced Raj Paul son of Bishan Dass as a bona fide, original and genuine allottee of the aforesaid house. On the basis of such representation, the complainant entered into an agreement deed with Raj Paul son of Bishan Das and paid a sum of Rs.20 lacs to him which was witnessed by Rakesh Kumar (petitioner) and Raj Kumar son of Harbans Lal. Thereafter, another demand to the tune of Rs.5 lacs was made from the complainant. The complainant presuming the same to be true made further payment of Rs.5 lacs against a receipt dated 10.11.2008. Physical and vacant possession of the house had been agreed to be delivered to the complainant on payment of Rs.25 lacs. However, the possession of the house had not been delivered. Thereafter, when the complainant verified the particulars of the seller Raj Paul son of Bishan Dass, he came to know that he was not the original allottee but had impersonated himself as an Crl. Misc. No. M-14534 of 2009 -3- allottee. The father’s name of the actual allottee Raj Paul was Tirath Ram, whereas the father’s name of the seller Raj Paul was Bishan Dass. Even the signatures of the actual allottee Raj Paul son of Tirath Ram did not tally with that of Raj Paul son of Bishan Dass who was representing himself as an allottee. It is also alleged that the date of birth of Raj Paul son of Bishan Dass who was claiming to be an allottee is 9.2.1958 as per his driving licence and the allotment has been made on 28.9.1972 when Raj Paul son of Bishan Dass was working as Supervisor in Sudesh Industries, 13 Industrial Area, Phase –I Chandigarh. Raj Paul son of Bishan Dass was in this manner only 14 years of age at the time of signing the lease deed on 21.2.1975. Raj Paul son of Bishan Dass never resided in House No.21-D, Sector 30, Chandigarh. It is also alleged that Raj Paul son of Bishan Dass had impersonated himself in place of Raj Paul son of Tirath Ram who was the real allottee of the house and thereby had committed fraud. Earlier Criminal Misc. No. M-14106 of 2009 filed by Raj Paul son of Bishan Das for the grant of anticipatory bail came up for hearing before this Bench on 21.5.2009 in which the following order was passed :- “Learned counsel for the petitioner inter alia contends that the petitioner is the original owner and allottee of House No.3099, Sector 37-D, Chandigarh and his father’s name is Bishan Dass. The petitioner entered into an agreement of sale dated 15.10.2008 (Annexure P2) with Nirmal Kumar – complainant. It is submitted that the complainant is a property dealer and in view of recession in the market, he is not agreeing to execute the sale deed and buy the property. Therefore, to wriggle out of the agreement (Annexure P-2), the complainant has manipulated the record of the Estate Office in which father’s name of Crl. Misc. No. M-14534 of 2009 -4- the petitioner is now shown as Tirath Ram whereas the father’s name of the petitioner is Bishan Dass. Learned counsel has made a reference to the letter (Annexure P3) issued by the Estate Office, UT, Chandigarh Administration, regarding payment of Government dues in respect of House No.3099, Sector 37-D, Chandigarh in which the father’s name of the petitioner is correctly recorded as Bishan Dass. Therefore, it is submitted that the stand that the petitioner’s father’s name is not correctly mentioned is false. Notice of motion is Standing Counsel, UT, Chandigarh for 28.7.2009. Meanwhile, in the event of arrest, the petitioner on his furnishing personal bond and surety to the satisfaction of the Arresting/Investigating Officer shall be admitted to bail. The petitioner shall, however, join the investigation as and when called and shall abide by the conditions laid down under Section 438(2) CrPC.” A perusal of the above order shows that it was represented by Raj Paul son of Bishan Das that he was the allottee of the house and that his father’s name is Bishan Dass. The complainant was a property dealer and in view of the recession in the market, he was not agreeing to execute the sale deed and buy the property. Therefore, in order to wriggle out of the agreement, the complainant had manipulated the record of the Estate Office in which the father’s name of the petitioner had now been shown as Tirath Ram, whereas the father’s name of the petitioner is Bishan Dass. A reference was also made to the letter (Annexure P3) attached with the said Crl. Misc. No. M-14534 of 2009 -5- Crl. Misc. petition issued by the Estate Office, UT, Chandigarh Administration in which the father’s name of the seller of the house was recorded as Bishan Dass. Sh. B.S. Walia, Advocate learned counsel appearing for the complainant Nirmal Kumar has submitted certified copies of various documents. A perusal of the same shows that in terms of the application, dated 13.1.1972 for allotment of residential site on leasehold basis, the father’s name of Raj Paul is mentioned as Tirath Ram. In the affidavit dated 13.1.1972 also, the name of applicant applying for allotment of plot on lease hold basis is mentioned as Raj Paul son of Tirath Ram resident of House No. 21-D, Sector 30, Chandigarh. The allotment letter dated 28.9.1972 shows that the allotment had been made to Raj Paul resident of H. No. 21- D, Sector 30, Chandigarh. However, there is a cutting on the said allotment letter in which “21-D/Sector 30” has been scored off and it has been mentioned as “Supervisor c/o Sudesh Industries, 13 Industrial Area, Chandigarh”. According to the learned counsel for the complainant, the accused Raj Paul son of Bishan Dass never worked at Sudesh Industries, 13 Industrial Area, Chandigarh. A perusal of the copy of the lease deed dated 21.2.1975 between the Estate Officer, UT, Chandigarh and the allottee (lessee) shows that the same has been executed between the Estate Officer and Raj Paul (lessee). The name of the lessee below the signatures of Raj Paul is mentioned as Raj Paul Sachdeva. It is submitted that the surname of Raj Paul son of Tirath Ram is Sachdeva and that of Raj Paul son of Bishan Das is not Sachdeva. A copy of the affidavit dated 29.9.2008 has also been submitted in which it is deposed by Raj Paul son of Bishan Dass that he was the owner/allottee of House No.3099, Sector 37-D, Chandigarh and the house is free from all sorts of encumbrances. The application has been submitted by Raj Paul son of Bishan Dass for correcting the father’s name of the applicant in the record with regard to house No. 3099, Sector 37-D, Chandigarh as Bishan Dass instead of Tirath Ram. In the affidavit dated 30.1.2009 deposed by Raj Paul son of Bishan Dass it is deposed that due to oversight in one of the affidavit submitted with U.T. Administration, the Crl. Misc. No. M-14534 of 2009 -6- father’s name of the deponent was written as Tirath Ram instead of Bishan Dass. The ration card of Raj Paul son of Bishan Dass issued by the Food and Supplies Authority on 23.8.2008 shows that Raj Paul son of Bishan Dass is resident of Main Bazar, Gali No.8, Abohar. From the perusal of the aforesaid documents, the contentions that was raised by Raj Paul son of Bishan Dass in the earlier Crl. Misc. No. 14106-M of 2009 that the complainant was a property dealer and had manipulated the record of the Estate Office in which the father’s name of the petitioner therein namely Raj Paul son of Bishan Das is shown as Tirath Ram does not appear to be correct. In the said Crl. Misc. petition, notice of motion was issued to the Standing Counsel, UT, Chandigarh for 28.7.2009. In the face of the documents now submitted, it appears that the allottee of the house indeed is Raj Paul son of Tirath Ram and not Raj Paul son of Bishan Dass. Besides, there is nothing to show that Raj Paul son of Bishan Dass was resident of H. No. 21-D, Sector 30, Chandigarh or that Raj Paul son of Tirath Ram was Supervisor with the Sudesh Industries, 13 Industrial Area, Chandigarh which is the address that has been changed in the allotment letter dated 28.9.1972 of residential site. Rather the ration card of Raj Paul son of Bishan Dass which has been produced by the complainant shows that he is a resident of Abohar. Moreover, the surname of Raj Paul son of Bishan Das is not shown to be Sachdeva. Learned counsel for the petitioner, however, submits that even if the said facts and circumstances are to be accepted, it cannot be said that the petitioner is in any manner liable for the alleged fraud as he is only a marginal witness to the agreement dated 15.10.2008 (Annexure P2) and he had correctly identified the seller Raj Paul son of Bishan Dass. Besides, it is submitted that the petitioner is in no manner the beneficiary of the agreement dated 15.10.2008 (Annexure P2) that has been executed. It is also submitted that as a marginal witness to the agreement, the only duty of the petitioner was to verify the identity of the seller and the fact that the Crl. Misc. No. M-14534 of 2009 -7- earnest money of Rs.20 lacs was paid in his presence which is not disputed by the complainant. In response learned counsel for the complainant has submitted that the petitioner is very much a part and parcel of the fraud that has been committed and during the course of proceeding before Economic Offences Wing of the Chandigarh Police, he admitted that he had received a sum of Rs.5 lacs out of the earnest money of Rs.25 lacs which was paid by the complainant to the intending seller Raj Paul son of Bishan Dass. After giving my thoughtful consideration to the entire matter, it may be noticed that in order to unearth the actual and real conspiracy which led to the representation by Raj Paul son of Bishan Dass as Raj Paul son of Tirath Ram the matter would be required to be gone into. For the said purpose, it is be kept in view that in case of pre-arrest bail, the advantage of having custodial interrogation is qualitatively more elicitation oriented than questioning a suspect who is enconsed with an order of pre-arrest bail. Besides, power to grant pre-arrest bail is somewhat extraordinary in character. It may also be noticed that earlier order dated 21.5.2009 passed in Crl. Misc. No. M-14106 of 2009 it appears was obtained by misrepresentation. However, that aspect would be required to be considered at the time of hearing the said petition which is listed for hearing on 28.7.2009. Keeping in view the facts and circumstances as have been brought on record, there is no merit in the present petition and the same is accordingly dismissed. A copy of this order shall be placed on record of Crl. Misc. No. M- 14106 of 2009. (S.S. SARON) JUDGE May 28, 2009 amit