* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: August 12, 2011
Decided on: August 25, 2011
+ BAIL APPLICATION NO. 1078/2011
BRAHM ARENJA ....PETITIONER
Through: Mr. Neeraj K. Kaul, Sr. Advocate with
Mr. Subodh K. Pathak, Advocate &
Mr. Puneet Relan, Advocate.
Versus
GOVT OF NCT OF DELHI .....RESPONDENT
Through: Ms. Jasbir Kaur, APP for the respondent.
Mr. Rajiv Nayar, Sr. Advocate with
Mr. Akshay Ringe, Advocate for the
complainant
AND
+ BAIL APPLICATION NO. 1079/2011
BRINDA ARENJA ....PETITIONER
Through: Mr. Vikas Pahwa, Sr. Advocate with
Mr. Subodh K. Pathak, Advocate &
Mr. Puneet Relan, Advocate.
Versus
GOVT OF NCT OF DELHI .....RESPONDENT
Through: Ms. Jasbir Kaur, APP for respondent.
Mr. Rajiv Nayar, Sr. Advocate with
Mr. Akshay Ringe, Advocate for the
complainant
CORAM:
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
Bail Appln. Nos.1078/2011 & 1079/2011 Page 1 of 6
3. Whether the judgment should be
reported in Digest ?
AJIT BHARIHOKE, J.
1. By this order, I propose to dispose of anticipatory bail applications of
Brahm Arenja and his wife Brinda Arenja whereby they are respectively
seeking bail in case FIR No.55/2011 under Section 420/406/120B IPC P.S.
Economic Office Wing, New Delhi.
2. Briefly stated, background facts for disposal of above two
applications are that Shri Rajiv Rattan filed a written complaint with the
police claiming that the petitioners, in conspiracy with their co-accused
Ajay Ahlawat and Sangeeta Ahlawat, have cheated the complainant of
`6.45 crores by fraudulently inducing him to agree to purchase a piece of
land measuring 7 bighas 9 biswas claiming part of Khasra No.459 (1-15),
460(3-11) and 483(2-3) situated in village Satburi, New Delhi, which land
was neither owned by the petitioners nor was free from encumbrances.
Rajiv Rattan in his complaint claimed that the land in question was under
acquisition since 1980 vide Notification No.F.9(16)/80L&B dated
25.11.1980 issued under Section 4 of the Land Acquisition Act, 1984. It is
alleged that the aforesaid fact was also concealed from the complainant,
which led him to part with the consideration amount of sale i.e. `6.45
crores on different dates. On the basis of said complaint, FIR under
Section 420/406/120B IPC was registered against the petitioners and two
others.
Bail Appln. Nos.1078/2011 & 1079/2011 Page 2 of 6
3. Learned Shri Neeraj K. Kaul, Sr. Advocate appearing on behalf of the
petitioner Brahm Arenja and learned Shri Vikas Pahwa, Sr. Advocate
appearing on behalf of the petitioner Brinda Arenja have made almost
similar submissions. It is submitted on behalf of the petitioners that the
transaction under FIR is a purely civil transaction bereft of the ingredients
of the offence of cheating or criminal misappropriation. Learned counsels
for the petitioners contended that actually Col. Ajay Ahlawat, who has
been made co-accused of the petitioners in the FIR, was the
representative of the complainant. He negotiated the deal of purchase of
the land which is subject matter of FIR with the petitioner Brahm Arenja.
The sum of `6.45 crores was paid as part payment of the total
consideration amount of ` 22.5 crores, however, no document but for a
kachcha receipt dated 28.12.2006 was executed and it was signed by the
petitioner Brahm Arenja as also Col. Ajay Ahlawat on behalf of and under
instructions of the complainant. It is contended that there was no
concealment on behalf of the petitioners. The complainant, who is the
Managing Director of M/s India Bulls, a company involved in the real
estate business, after due verification and having knowledge of
Notification under Section 4 of the Land Acquisition Act had entered into
the deal. Learned counsels argued that it was a purely speculative deal
entered into by the complainant with a view to make profit and that is
why neither an agreement to sell nor a sale deed or a pucca receipt of
payment was executed. Learned counsels submitted that the element of
deception, which is an essential ingredient to constitute offence of
cheating, is missing in this case, therefore no offence under Section 420
Bail Appln. Nos.1078/2011 & 1079/2011 Page 3 of 6
IPC is, prima facie, made out. It is further argued that ` 6.45 crores was
paid as earnest money in respect of the agreement to sell of the property,
as such, it cannot be said to have been misappropriated by the petitioners
to attract Section 406 IPC. Thus, it is contended that the FIR is a ploy to
convert a civil dispute into an offence, as such, the petitioners are entitled
to anticipatory bail. It is further submitted that the petitioners are ready
to abide by any condition which may be imposed by the Court in the event
of grant of anticipatory bail.
4. Learned APP as well as learned Shri Rajiv Nayar, Sr. Advocate
appearing for the complainant have strongly opposed the bail
applications. It is submitted that the petitioners have cheated the
complainant of `6.45 crores in connivance with their co-accused persons,
including Col. Ajay Ahlawat by falsely claiming that petitioner Brinda
Arenja was the owner of the property in question, whereas there was no
sale deed or document of title in her favour. They also concealed that the
land in question was notified for acquisition under Section 4 of the Land
Acquisition Act and this deliberate misrepresentation and concealment led
the complainant to part with the money, as such the offence of cheating is
made out. It is further submitted that the custodial interrogation of the
petitioners is necessary for recovering the cheated amount. It is
submitted that the petitioners concealed the fact that there was no sale
deed in favour of petitioner Brinda Arenja, otherwise the complainant
would not have entered into the deal and that the land in question was
under notification for acquisition.
Bail Appln. Nos.1078/2011 & 1079/2011 Page 4 of 6
5. I have considered the rival contentions and perused the record.
There appears to be some merit in the contention of the petitioners that
the FIR in question is a ploy to convert a civil dispute into a criminal
offence. Undisputedly, the complainant is a businessman. It is not denied
that he holds an important position in M/s India Bulls, a company involved
in the business of real estate development. Therefore, prima facie, it is
not expected of the complainant to part with a huge sum of `6.45 crores
as full consideration amount for the purchase of the land without verifying
the title of the petitioners and without verifying if the land in question was
under notification. It is also not, prima facie, probable that a person who
is in the business of real estate development would part with entire
consideration amount for the purchase of property without insisting on
execution of a sale deed in his favour. Further, the complainant, in the
FIR apart from other allegations has inter alia claimed thus:
“4. In about 2005 Colonel(Rtd) Ajay Ahlawat met me and introduced
himself as a person having close contacts within the Government,
DDA, MCD, land revenue officers etc. He told me that he had several
projects in mind where I could invest some money. As n example, he
told me that some land (measuring about 7 Bighas 9 Biswas) was
available for sale in the vicinity of Park Land Restaurant and Bar which
runs in Fatehpur Beri area, New Delhi and told me that he had inside
information that construction of a road and change of land use was
being sanctioned near the Sand which would result in appreciation of
the value of the said land in the immediate future. Colonel (Rtd) Ajay
Ahlawat also told me that he personally knew the owners of the
aforesaid land, Mr. Brahm Arenja and Mrs. Brinda Arenja and would use
his relations with them to have to get transaction of land carried out
swiftly and smoothly….”
6. On reading of the above, it is prima facie, apparent that the
complainant had actually entered into a speculative transaction to make
Bail Appln. Nos.1078/2011 & 1079/2011 Page 5 of 6
profit in anticipation of the withdrawal of Notification under Section 4 of
the Land Acquisition Act. Otherwise, there was no reason for seeking an
assurance about the close contacts of Col. Ajay Ahlawat with the
“Government, DDA, MCD and State revenue officers etc.” From this, it
appears that the complainant, at the time of the deal, was aware of the
Notification under Section 4 of the Land Acquisition Act and that is why
the government connections assumed importance. It may not be out of
place to mention that the alleged transaction of cheating took place in the
year 2006-07, but the FIR in question was lodged much later on
23.03.2011 i.e. after the dismissal of the SLP by the Supreme Court
challenging the Notification issued under the Land Acquisition Act.
7. Taking into account the above factors, I allow both the petitions and
direct that the petitioners, in the event of their respective arrest, be
released on bail on furnishing a personal bond in the sum of `1 lakh with
one surety each in the like amount to the satisfaction of the arresting
officer. This, however, is subject to the condition that neither of the
petitioners shall leave the country without the permission of the court and
that the petitioners shall join the investigation as and when required.
8. Bail applications stand disposed of.
(AJIT BHARIHOKE)
JUDGE
AUGUST 25, 2011
pst
Bail Appln. Nos.1078/2011 & 1079/2011 Page 6 of 6