The court emphasized the elements of cheating and breach of trust under the Indian Penal Code and the significance of the disputed property transaction in determining the grant of anticipatory bail.

P.S. TEJI, J.

1. The present application under Section 438 of Code of Criminal Procedure, 1973 (hereinafter referred to as the Cr. P.C.), has been filed by the petitioner for seeking anticipatory bail in a case registered as FIR No.841/2014, under Sections 406/420/34 of Indian Penal Code, at Police Station Preet Vihar.

2. As per FIR, the allegations leveled are that the complainant, Sh. C.M. Sethi had made a written complaint to the police. In the complaint, it was mentioned that the complainant is engaged in the real estate business and that sometime in the month of January, 2012, Mr. Sumit Kathuria one of the directors of M/s. Harsha Associates Pvt. Ltd., 117, Hargovind Enclave vikas Marg Ext. Delhi, 110092 approached the complainant at his residence and represented that the said company is the owner of freehold commercial plot no. B Shakti Khand-II, Indirapuram, Ghaziabad, U.P. and further stated that the said property is free from all encumbrances and of any charge. The company is legally competent to sell the said property or any part thereof. In the process, the above named Director offered an agreed to sell the entire second floor, admeasuring 20148.04 sq. feet with all roof rights to the commercial complex constructed over the said property for a total consideration amount of 1,50,00,000/-. On the strength of property related documents i.e. sale deed, letter of possession of the said property, permission of the use of the said property for commercial purposes, the accused Sumit Kathuria convinced the complainant for the proposed offer for sale of the entire second floor. It is alleged that unaware of the alleged tactical strategy and by relying upon the oral averments supporting the documents, Sale Agreement of the second floor of the said property was entered into on 31.01.2012 through the accused persons. Rs.15 lakhs cash was given at the time of signing of the agreement. On 31.02.2012, remaining sum of Rs.1.35 crores was paid by RTGS through the bank account of the complainant. It was agreed that the seller shall complete the remaining construction work at the site and in lieu of that, the seller was given Rs.15 lakhs. It was further alleged that the accused persons failed to complete the remaining work and on the demand of the complainant, Rs.15 lakhs were remitted back to the complainant on 02.07.2012. Meanwhile, the complainant came across a public notice dated 01.08.2013 issued by U.P. Financial Corporation informing the public at large that the entire property in question is mortgaged with U.P. Financial Corporation and no sale or purchase was valid without the permission of U.P. Financial Corporation. It was also notified that the said Corporation was going to take over the possession of the said property had defaulted and not paid the loan. Upon confrontation with the accused persons, they admittedly acknowledged the suppression of material fact and execution of sale agreement in respect of the said property which was mortgaged with U.P. Financial Corporation. The accused persons refused to pay the remaining amount and also threatened the complainant.

3. The complaint made by the complainant led to the registration of the instant FIR.

4. Argument advanced by the learned Senior Counsel for the petitioners/accused persons is that the FIR is full of inconsistencies and contradictions. The complainant has tried to convert the dispute of repayment of loan as dispute regarding property and has given it a colour of criminal case, whereas the present dispute is purely civil in nature. The company of the petitioners had availed a friendly loan of Rs.1.35 crores @ 1% per month from the complainant. The complainant had taken an undated cheque of Rs.1.35 crores and signatures on some blank papers including one stamp paper as security. Such loan was duly repaid by equal monthly installments and a payment of Rs.15 lakhs was made in July, 2012 towards partial repayment of the principal amount. In March, 2013, the petitio