IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No. M-2296 of 2011 Date of decision : 24.2.2011 Vivek Bansal and another …. Petitioners Versus State of Haryana …. Respondent Present: Mr. JR Mittal, Senior Advocate with Mr. SK Garg Narwana, Advocate for the petitioners. Mr. H.S. Deol, Addl. A.G., Haryana. Mr. Atul Aggarwal, Advocate for the complainant. *** S.S. SARON, J. Heard counsel for the parties. The petitioners seek regular bail in a case registered against them on 10.6.2010 for the offences under Sections 406, 420, 467, 468, 471, 120-B, 34 and 506 IPC. The FIR in the case has been registered on the complaint of Meena Jain who has alleged that Mukesh Goyal entered into an agreement to sell his house measuring 220 sq. mt. bearing No.1052-P, Sector-16, Panchkula to Manish Sehajpal vide agreement dated 8.1.2010 (Annexure P4). Mukesh Goyal received a sum of `58 lacs in cash from Manish Sehajpal. Clause 5 of the said agreement provided that purchaser could get his house transferred in his or his nominee’s name whosoever the purchaser may want and the seller would have no objection. The purchaser was also authorized by the seller to receive earnest money/advance. Manish Sehajpal the intending purchaser from Mukesh Goyal then entered into an agreement to sell the said CRM No. M-2296 of 2011 [2] house to the complainant Meena Jain on 17.2.2010 (Annexure P1). The complainant gave `45 lacs as earnest money vide cheque dated 17.2.2010; besides, `13 lacs was given in cash. Total sale consideration for the sale of the house was `1,22,00,000/-. Last date for execution of the sale deed was 10.5.2010. The complainant came to know that as the prices of the property had increased, Mukesh Goyal and Manish Sehajpal in connivance with each other executed a cancellation agreement dated 2.4.2010 whereby the agreement to sell dated 8.1.2010 (Annexure P4) between Mukesh Goyal and Manish Sehajpal was cancelled. It is alleged that Mukesh Goyal had specifically deposed and declared that house No.1052-P, Sector -16, Urban Estate, Panchkula was free from all sorts of encumbrances/attachments till date. The application for transfer was however rejected by the HUDA Authorities vide letter dated 5.4.2010 by assigning the reason that the house was under mortgage. Therefore, it is alleged that the accused in connivance with each other had failed to take steps to get the sale deed registered in the name of the complainant qua the property in question. They had cheated and committed fraud with the complainant firstly by entering into an agreement to sell with her on 17.2.2010 (Annexure P1) and by taking `58 lacs from her on the belief that they were selling the property and thereafter in connivance with each other, Mukesh Goyal and Manish Sehajpal cancelled the agreement between them. Learned Senior counsel for the petitioners has contended that the case is triable by the learned Judicial Magistrate Ist Class. The prosecution is to establish and prove its case by leading evidence. The petitioners are in custody since 5.1.2011. Their further incarceration is not required for the CRM No. M-2296 of 2011 [3] purposes of investigation. Besides, there is in any case no direct role of the petitioners in the transactions between the complainant Meena Jain and the sellers Manish Sehajpal and Mukesh Goyal. Nikhil Garg (petitioner No.2) is only a witness to the agreement dated 17.2.2010 (Annexure P1) and Vivek Bansal (petitioner No.1) is in no way involved. In response, learned State counsel and the counsel for the complainant have submitted that the petitioners have acted in a surreptitious manner and cheated the complainant by taking an amount of `58 lacs from her. They have stage- managed a drama by firstly Mukesh Goyal, owner of the plot entering into an agreement to sell dated 8.1.2010 (Annexure P4) with Manish Sehajpal and then Manish Sehajpal entering into an agreement dated 17.2.2010 (Annexure P1) with Meena Jain, complainant and receiving an amount of `58 lacs. Thereafter, Mukesh Goyal and Manish Sehajpal cancelled the agreement between them and Manish Sehajpal has been refunded the amount of earnest money that he paid to Mukesh Goyal. It is also submitted that Nikhil Garg (petitioner No.2) is an attesting witness to the agreement dated 17.2.2010 (Annexure P1) which is between Manish Sehajpal and Meena Jain, complainant. Besides, it is submitted that Vivek Bansal (petitioner No.1) has planned the entire fraud by remaining in the background. It is submitted that the statement of Ajay Khurana who is a witness to the agreement dated 17.2.2010 (Annexure P1) has been recorded. It has been stated by him that Swati Bansal wife of Vivek Bansal (petitioner No.1) has a house in respect of which she has entered into an agreement to sell with Manish Sehajpal and Manish Sehajpal has put the said house of Swati Bansal wife of Vivek Bansal (petitioner No.1) for sale and tried to cheat in a CRM No. M-2296 of 2011 [4] similar manner by executing two agreements and then after taking earnest money cancelling the first agreement. Rakesh Sharma who is a witness to the agreement dated 8.1.2010 (Annexure P4) between Mukesh Goyal and Manish Sehajpal has stated that the said agreement does not bear his signatures and the same are forged. Besides, his signatures have also been forged on the agreement dated 19.3.2010 between Swati Bansal wife of Vivek Bansal (petitioner No.1) and Manish Sehajpal. Besides, Rakesh Sharma was an employee of Vivek Bansal (petitioner No.1). It is also submitted that the call details of Mukesh Goyal, Manish Sehajpal and Vivek Bansal (petitioner No.1) on the day of agreement i.e. on 17.2.2010 (Annexure P1) with complainant-Meena Jain have been taken and the same show their complete complicity and connivance. I have given my thoughtful consideration to the contentions of the learned counsel appearing for the parties. It may be noticed that the petitioners are in custody since 5.1.2011. The trial in the case is likely to take time. The prosecution is to establish and prove its case by leading evidence. The prosecution has been taking time so as to enable it to arrest Manish Sehajpal. He, it is submitted, has been arrested and is presently under police remand which is expiring tomorrow. The nature of allegations against the petitioners are to be proved and established by leading evidence. Petitioner No.2 is a marginal witness only to the agreement dated 17.2.2010 (Annexure P1). He is not shown to be a beneficiary. Besides, petitioner No.1 is not a signatory to any document. The challan is to be presented by the prosecution after investigation is complete. Therefore, the further incarceration of the petitioners would be unnecessary and it would be just and CRM No. M-2296 of 2011 [5] expedient in the facts and circumstances of the case that they are admitted to bail. In the facts and circumstances, the Crl. Misc. petition is allowed and the petitioners on their furnishing personal bonds and surety each to the satisfaction of the learned Chief Judicial Magistrate, Panchkula shall be admitted to bail. (S.S. SARON) February 24, 2011 JUDGE amit