DEVINDER GUPTA - (1.)This petition has been posted before Division Bench pursuant to the order passed on 7.2.2002 by learned Single Judge saying that there is conflict of views in judgments dated 26.11.2001 in Cr.R.638/2001 titled as Mrs. RaJeshwari Verma & Anr. vs. State; Sarkar Saheb vs. State 93 (2001) DLT 585 and Vansh Bahadur Singh vs. State 1998 (2) JCC (Delhi) 39.
(2.)Facts giving rise to the reference may be stated in short. On the complaint dated 25.11.99 of Tej Bhan Sharma FIR No.42/2001 dated 16.1.2001 was registered at P.S. Hauz Khas for offences under Section 406/420 IPC. The complainant alleged that the accused had cheated him to the tune of Rs.65,00,000/- by representing himself as a renowned builder and thereby inducing the complaint to invest a sum of Rs.65,00,000/- for purchasing property bearing No.FC-59, Shivaji Enclave, New Delhi and further allured the complainant that he will gain double the amount within one year and also assured that in case his promise proves otherwise, he would pay double the amount to the complainant. The complainant having come under such inducement made payments of different amounts, at different times between 1996-97 to the accused. It was further stated in the complaint that instead of investing the amount in the property the petitioner misappropriated the amount. Although a post dated cheque for a sum of Rs.10,00,000/- was given on 9.8.1997 by the accused to the complainant. The same on presentation was dishonoured.
(3.)On registration of FIR investigation commenced. Petitioner's application for being released in the event of his arrest i.e. application for anticipatory bail was rejected by the Additional Sessions Judge on 7.2.2001. The petitioner approached this Court by filing Cr.M.(M) 624/2001 on 15.2.2001. Initially interim order was passed on 8.3.2001 for releasing the petitioner on bail but the said order was cancelled on 13.8.2001. During investigation the petitioner was arrested from his office at Hyderabad on 19.9.2001 and was brought to Delhi. He was remanded to police custody and then to judicial custody. The petitioner then filed an application under Section 439 Cr.P.C. for being admitted on bail. Application was taken up on 29.9.2001 by the Additional Sessions Judge. Counsel for the petitioner on that date stated that there was possibility of some settlement and suggested that the counsel for the complainant may meet the counsel for accused in Chamber No.79 for negotiations. On this statement the bail application was adjourned to 1.10.2001. Production warrants of the petitioner were also issued. On 4.10.2001 on behalf of the petitioner a proposal was made that within 15 or 20 days a sum of Rs.5 lakh will be deposited by the petitioner by way of FDR in the name of the Court and the remaining amount of Rs.16 lakhs will be deposited within six months (Rs.Two lakh per month by 10th of every month) without prejudice to the petitioner's rights. The bail application was adjourned for 5th October, 2001 in order to enable the complainant to consider the said proposal. On 5.10.2001 the complainant was present in court and stated that he was not agreeable to the proposal referred to in the order dated 4.10.2001. Bail application thereafter was adjourned to 8.10.2001 and then to 10.10.2001. On that date learned counsel for the complainant appears to have agreed to the proposal saying that if the money would not come the purpose would not be served. In case money is deposited with the court the court may pass appropriate direction for its deposit. In view of this stand of the complainant the bail application was directed to be taken in the post lunch session. In post lunch session order was passed by the Additional Sessions Judge recording therein the undertaking of the petitioner to deposit Rs.Five lakh by 1.11.2001 and the remaining amount of Rs.Twenty lakh by way of FDRs in 10 months (instalments of Rs.Two lakh per month). In view of the undertaking of the petitioner he was admitted on bail upto 5.11.2001 on his executing a personal bond in the sum of Rs.40,000/- with two sureties in the like amount. The order reads:-
"10.10.2001 Present: Applicant/accused in J.C. with counsel Sh.Sidharth Luthra Addl. PP for State alongwith complainant and counsel Shri J.S. Rawat Adv. Heard. The accused/applicant has agreed to make payment of rupees five lacs on 1st Nov.2001 which amount will be deposited in the lower court by way of FDR in the name of District & Sessions Judge, Delhi and the accused/applicant has also agreed to pay remaining amount of rupees twenty lacs by way of FDRe in the name of District & Sessions Judge, Delhi within 10 months by way of instalment of rupees two lacs in a month. In view of this submissions of accused/applicant, he is allowed to deposit this amount in the Lower court. However, this amount is being deposited without prejudice to the rights of the accused and the Complainant. In view of this the accused/applicant is granted interim bail upto 5.11.2001 on his executing a personal bond in the sum of Rs.40,000/- with two sureties of the like amount and in case any of the condition is not fulfilled by the accused/applicant and the amount is not deposited on any date, his bail shall be cancelled without any further orders. The accused/applicant is also directed to deposit the instalments of rupees two lacs per month from Nov.2001 onwards till the whole balance amount of Rs.2.00 lacs is deposited by him in the lower court by way of FDRs as ordered above."
Put up on 5.11.2001 for further consideration. sd/- ASJ/New Delhi 10.10.2001