Full Judgment
$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI DATE OF DECISION:
03. d DECEMBER, 2013 + BAIL APPLN. 1748/2013 AAKASH MADAAN Through ..... Petitioner Mr. Sudhir Nagar, Advocate with wife of the petitioner in person. versus STATE Through ..... Respondent Mr. Amit Ahlawat, APP for the State. Mr. Baldev Raj, Advocate for the complainant. CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA JUDGMENT
: SUNITA GUPTA, J.
1. This is an application u/s 439 Cr.P.C moved by the petitioner for grant of bail in case FIR No.09/12 u/s 448/380 IPC, P.S. Tilak Nagar.
2. As per the prosecution, the complainant had advanced a sum of Rs.10 lakhs in cash to the mother of the petitioner as loan and mother of the petitioner had executed the receipt, mortgage deed, possession letter, agreement to sell and purchase in favour of the complainant in respect of a portion of her property. It has also been alleged that the mother of the petitioner had given the possession of the property to the complainant and complainant had placed certain articles in the room. The petitioner had assured that he will return the money after about 11 months and in case he fails to return the money he will get the sale deed executed in favour of the complainant after taking a further payment of Rs. 2 lakhs. Meanwhile, mother of the petitioner expired. The petitioner and his mother had failed to return the amount despite repeated demands by the complainant. The petitioner has also refused to accept the remaining payment of Rs. 2 lakhs to execute sale deed in favour of the complainant. The petitioner had broken the wall which was between the property belonging to the complainant and that of petitioner; he trespassed into the portion of the property belonging to the complainant and also committed theft of the articles lying in the property.
3. It is alleged in the application itself that the petitioner had applied for grant of anticipatory bail before this Court vide Bail Application No.1545/12 wherein interim protection was granted to the petitioner vide order dated 19.10.2012 in view of the submission made on behalf of the petitioner that he would make a payment of Rs. 10 lakhs to the complainant without prejudice to his rights and contentions. However, the petitioner could not arrange the said amount, as such his application was dismissed and he was taken into custody. It is submitted that the dispute is primarily civil in nature and the complainant has falsely implicated the petitioner. As per the FIR, the complainant had paid the money to the mother of the petitioner and she had executed the mortgage deed in favour of the complainant, as such complainant can avail civil remedies in case of default in the payment of loan. Petitioner was not party to the transaction between the complainant and his mother. The undertaking to repay Rs. 10 lakhs was given without prejudice to his rights. However, he could not arrange the same. Physical possession of the property was never given to the complainant. Complainant is trying to grab the property belonging to the petitioner. Petitioner is in custody since last more than 8 months, as such, he be released on bail.
4. Application is opposed by learned APP for the State as well as by learned counsel for the complainant and it was submitted that a sum of Rs. 10 lakhs was given by the complainant on request of the petitioner and in lieu thereof various documents, being agreement to sell and purchase, receipt, mortgage deed etc. were executed. Physical possession of portion of the property was also handed over to the complainant who kept his bed, sofa and other articles in the rooms and put his locks on his portion. When the accused failed to return the money, he assured the complainant that he will get the sale deed executed in his favour after taking 2 lakhs more from him. In between, mother of the petitioner expired. On 07.01.2012, the complainant found that the accused has illegally taken possession of his portion of the property after breaking his locks and also stole the goods kept inside. It was further reported that the petitioner was absconding for a long time and proceedings u/s 82/83 Cr.P.C were initiated against him. He moved application for grant of anticipatory bail before this Court and on his assurance that he will pay Rs. 10 lakhs to the complainant, he was granted interim bail. However, he failed to pay the amount, as such, the interim bail was cancelled and he was taken into custody. It was further submitted by counsel for the complainant that thereafter, the petitioner has been moving one application after the other before the learned M.M and Sessions Judge. However, he has not returned the money.
5. During the course of arguments, it was stated by the wife of the petitioner who was present in Court, that the amount has been returned to the complainant in cash. However, she could not produce any receipt for payment of the amount to the complainant. It was also submitted that the agreement was with the mother of the petitioner who has since expired. As per the case of the petitioner himself, he has become the owner of the property and it is he, who has initiated civil proceedings against the complainant. That being so he cannot take any benefit from the death of his mother. As per the allegations made in the FIR, a portion of the property was handed over to the complainant when Rs. 10 lakhs was paid to the petitioner and the petitioner has committed trespass and also stolen the goods.
6. Keeping in view the entire facts and circumstances of the case, at this stage, there is no ground for grant of bail to the petitioner. However, keeping in view the fact that the petitioner is in custody for the last about 8 months and charges have already been framed, it is impressed upon the learned Metropolitan Magistrate to expedite the trial of the case and make endeavour to dispose of the case within six months as far as possible. Application stands disposed of. SUNITA GUPTA (JUDGE) DECEMBER03 2013 as