IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc M- 27056 of 2010 Date of decision: 22.2.2011 Raj Kumar Garg …Petitioner Versus State of Haryana …Respondent Present: Mr Lokesh Sinhal, Advocate for the petitioner. Mr GS Sandhu, AAG Haryana. S.S.SARON, J. Heard counsel for the parties. The petitioner seeks pre-arrest bail in a case registered against him on 23.8.2010 for the offences under Sections 420 and 406 IPC. The FIR in the case has been registered on the complaint of Ram Kumar Yadav. It is alleged by the complainant that in the month of January 2010, Raj Kumar Garg (petitioner) came to his house and represented that he had one plot measuring 500 sq yards bearing No.73, Sector 2, Faridabad, which he wanted to sell. By mutual consent, the deal of the plot was settled for `70,00,000/- and out of which, `10,00,000/- was paid as earnest money. At the time of paying the amount, two persons namely Jagdish Nagar and Munish Sharma were present. The time for execution of Cr Misc M- 27056 of 2010 2 the sale deed was fixed as 60 days. The complainant demanded documents regarding the plot in question but the petitioner avoided on one pretext or the other. In this manner, 60 days had completed but the sale deed was not executed. The complainant on account of suspicion, went to the HUDA office and enquired whether there was any plot of 500 sq yards in Sector 2 in the name of the petitioner. The HUDA office clarified that there was no plot in the name of the petitioner. Thereafter, the petitioner was informed that there was no plot in his name in Sector 2. When they pressurized him, the petitioner stated that he would give the money back. On this, one cheque No.087329 dated 11.8.2010 amounting to `10,00,000/- drawn on the Allahabad Bank, Fatehpur IC, Faridabad, was issued in the name of the complainant. The cheque was deposited for encashment in the account of the complainant with the State Bank of India, Ballabhgarh. After three days when the complainant went to the Bank for enquiring about the amount, then the Bank employees informed that the cheque had been returned as payment had been stopped by the petitioner. Therefore, it is alleged that the petitioner has grabbed the money from the complainant for harming and cheating him. It was requested that strict legal action be taken against the petitioner so that he may not harm anybody else in future and his money be returned back. Cr Misc M- 27056 of 2010 3 Learned counsel for the petitioner contends that no one in these days would give an amount of `10,00,000/- in cash without any receipt. Besides, it is submitted that the cheque which had been given in the year 2001 has been misused and the Bank has given a statement in this regard. It is submitted that the cheque reached the hands of the complainant as the complainant is running two firms by the name and style of ‘Victoria Rubber Udyog’ and the other ‘Rock Guard Pvt Ltd’ at village Sihi. The petitioner is doing his own business under the name of ‘Garg Trading Company’. It is submitted that the petitioner’s firm namely Garg Trading Company works as an agent of one Kishore Chandra B Dhanik Clay functioning in the area of Porbandar, Gujrat. A reference is made to the documents attached with the petition to show that there were business transactions between M/s Kishore Chandra B Dhanik Clay and Garg Trading Company; besides, Victoria Rubber Udyog owned by the complainant. According to the petitioner, the petitioner used to supply chalk powder during the year 2001-02 on credit basis. There was an outstanding of `3,38,500/- against the complainant. The petitioner had been repeatedly requesting the complainant to refund the outstanding amount but the complainant never paid the said amount to the petitioner. With regard to the cheque, it is submitted that the same was lost from the cheque book of the year 2002-03 or nearby and the said cheque has been misused Cr Misc M- 27056 of 2010 4 with malafide intention to harass the petitioner, otherwise the cheque would have been the one issued from the cheque book issued by the Bank in the year 2010. In response, learned counsel for the State submits that though the petitioner has joined the investigation; however, he is not cooperating with the investigation and the recovery of the amount has not been effected. It is submitted that the custodial interrogation of the petitioner is necessary so as to ascertain as regards the advance of `10,00,000/-, which had been received by the petitioner as earnest money for sale of his plot. It is submitted that the issuance of the cheque by the petitioner clearly establishes that he had received an amount of `10,00,000/- from the complainant. Besides, it is submitted that the statements of Jagdish Nagar and Munish Sharma have been recorded who have corroborated the fact that a sum of `10,00,000/- was given by the complainant to the petitioner as earnest money for the sale of a plot measuring 500 sq yard. I have given my thoughtful consideration to the matter. The facts and circumstances of the case show that the allegations of the complainant are that he paid a sum of `10,00,000/- as earnest money to the petitioner for the purchase of a plot measuring 500 sq yards. The petitioner, however, was not owner of the plot. The contention of the petitioner that no one would pay `10,00,000/- in cash Cr Misc M- 27056 of 2010 5 without the receipt, does appear to be quite plausible; however, it may be noticed that the petitioner himself has given a cheque of `10,00,000/- to the complainant, which, it is stated, had been misplaced in the year 2002-03. In any case, it is not a case where the cheque has been dishonoured on account of insufficient funds. It is a case where the payment of the cheque has been stopped. According to the petitioner, he has received a telephone call from the Bank for encashment of the cheque and this is how he made a request for stopping the payment. This aspect has to be investigated by the Police and this Court at this stage, is not to go into this matter. Be that as it may, it is quite evident that the petitioner indeed had given a cheque for `10,00,000/-. The question whether it has been misplaced in the year 2002-03, would be considered by the investigating authorities or by the Court, as the case may be, in case the charge report is filed. The fact that the petitioner had dealings with two firms of the complainant namely Victoria Rubber Udyog and Rock Guard Private Ltd, has been considered by the learned Additional Sessions Judge, Faridabad in his order dated 7.9.2010 (P8) while declining bail to the petitioner. It was observed that from the reply filed by the Police, it was clear that the complainant had no concern with the Victoria Rubber Udyog and Rock Guard Chemicals Pvt Ltd which belonged to his elder brother – Mool Chand and similarly Rock Guard firm Cr Misc M- 27056 of 2010 6 belonged to the brother of the complainant (now deceased). The plea of the petitioner that he used to supply chalk powder to these firms owned by the complainant, was held to be not tenable. It was observed that the matter required thorough investigation and also probe whether the cheque of `10,00,000/- alleged to have been issued by the petitioner was misplaced or not. Therefore, the custodial interrogation of the petitioner, it was observed, was required. The facts and circumstances of the case indeed show that the custodial interrogation of the petitioner would be required for the purposes of ascertaining the question regarding the cheque which he gave to the complainant and which has been dishonoured on the request of the petitioner for stopping the payment. At this stage, no material has been shown as to how the petitioner came to know that the cheque has been presented for encashment and that he issued instructions for its stop-payment. In a case of pre- arrest bail, the advantage of custodial interrogation for eliciting more and useful information and material is to be kept in view; besides, the exercise of power to grant pre- arrest bail is somewhat extra-ordinary in character. In the facts and circumstances of the case, no ground for bail is made out. Dismissed. 22.2.2011 ( S.S.SARON ) ASR Judge