VINOD GOEL, J.

Crl.M.A. 16678/2017 (exemption)

Exemption allowed subject to all just exceptions.

Application is disposed of.

BAIL APPLN. 2038/2017

1. Notice. Learned APP for the State, who appears on advance copy having been served, accepts notice.

2. Apprehending his arrest in a case registered against him and his wife Smt.Aarti Chadha vide FIR No.95/2017 dated 18.03.2017, PS Patel Nagar, Central District, Delhi under Section 420/406 of Indian Penal Code, 1860 (in short ‘IPC’), the petitioner has approached this court for granting him anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973 (in short ‘Cr.PC’).

3. Learned counsel for the petitioner submits that the anticipatory bail application of his wife, being Bail Appln. 1563/2017, was dismissed by this Court on 11th August, 2017. He submits that there is no reason as to why the investigation of this case cannot be completed without apprehending and arresting the petitioner. He submits that under Section 438 of Cr.PC there is a provision for grant of interim protection. He submits that the IO has not made compliance of the judgment of the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar & Anr., (2014) 8 SCC 273.

4. He submits that the petitioner is not the owner of the property in question. He is not the signatory to the collaboration agreement dated 3rd February, 2016. He submits that in fact the wife of the petitioner is the owner of the property in question and she had entered into the collaboration agreement with the complainant and received the amount and the petitioner has nothing to do with the collaboration agreement or receipt of the payment.

5. Per contra, the request of the petitioner is vehemently opposed by the learned APP for the State. He submits that the petitioner was issued a notice by the IO on 25th August, 2017 but he failed to join the investigation. He submits that there are serious allegations against both of them i.e. the petitioner and his wife. He submits that though technically the wife of the petitioner is the owner of the property and signed the collaboration agreement with the complainant but there are specific allegations that the petitioner along with his wife Smt.Aarti Chadha had approached the complainant and entered into the transaction in question. He submits that at the time of collaboration agreement, the petitioner and his wife had assured the complainant that the property in question is free from all encumbrances i.e. sale, mortgage, gift, lease, family dispute, attachment, litigation, acquirement, notification etc. However, in December, 2016 when officials of M/s.Dewan Housing Finance Ltd. (in short ‘DHFL’) visited, they informed him about mortgage of said property and outstanding liability of over Rs.5 crores. He submits that to further cheat the complainant, a Sale Deed dated 07.01.2017 was executed by which the roof/terrace of the entire first floor with construction right of the second floor and third floor with further roof/terrace right up to sky for a valuable consideration of Rs.1,50,00,000/- was sold to one Narender Kumar knowing fully well that the possession of the property was with the complainant. He submits that though the said sale deed was executed by the wife of the petitioner, being the recorded owner, yet the petitioner had all along been active participant in the transactions. He submits that the custodial interrogation of the petitioner is required for the purpose of the investigation. He submits that the petitioner and his wife have been absconding and attempt of the IO to locate and arrest them remained unsuccessful despite raids being conducted at their residence and at Banaras.

6. I have heard the learned counsel for the petitioner, learned APP for the State and learned counsel for the complainant.

7. Pursuant to the Collaboration Agreement with the complainant by the petitioner and his wife, the complainant had raised and completed the construction of basement, stilt car parking, up