Delhi High Court High Court

Brahm Arenja vs Govt Of Nct Of Delhi on 25 August, 2011

Delhi High Court
Brahm Arenja vs Govt Of Nct Of Delhi on 25 August, 2011
Author: Ajit Bharihoke
*      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