The discretion of the Magistrate in granting bail under Section 437 Cr.P.C must be judicially exercised, considering the nature of the offence and the prima facie view of the involvement of the accused.

JUDGMENT

Subramonium Prasad, J. - The present petition under Section 482 Cr.P.C is directed against the order dated 18.03.2021, in Case No.5444/2020, whereby the learned Metropolitan Magistrate, Saket Courts, Delhi, granted bail to the accused Vijender (respondent No.2 herein) and Brij Kishor (respondent No.3 herein) and exempted the other accused namely Anil Bhalla, Gautam and Gaurav from appearance. It is pertinent to mention here that the instant petition is restricted only to the portion granting bail to Vijender (respondent No.2 herein) and Brij Kishor (respondent No.3 herein).

2. The facts, in brief, leading to the instant revision petition are as under:

a) The petitioner was approached by the respondents herein to purchase an apartment unit in their project namely, 'Project Sovereign Next', Tower-A, The Sovereign Next, Sector-82A, Gurgaon-122002. It is stated that lured by the offer, the petitioner herein decided to purchase a unit of approximately 3250 sq. ft area in the said project at net basic sale price of Rs.6000/- sq ft. It is stated by the petitioner that at the time of purchase she was told that the project would be complete within a period of 4 years and 6 months and the possession would be given to her by 30th November 2017.

b) It is stated that the petitioner paid a total sum of Rs.1,10,09,459/- (One Crore Ten lakh Nine Thousand Four Hundred and Fifty Nine Rupees Only) to the accused, out of the total sale consideration of Rs.2,07,50,500/-(Rupees Two Crore Seven Lakhs Fifty Thousand Five Hundred only), which is more than 50% of the sale consideration. It is stated that since the project was not complete even after three years of the promised date a legal notice was sent by the petitioner herein on 22.04.2017, demanding refund of the total amount paid by the petitioner with interest at the rate of 18% per annum. It is stated that the petitioner issued several notices thereafter but it did not elicit any response. It is stated that the petitioner has filed a complaint being CC No.868/2018, before the National Consumer Disputes Redressal Commission (for short NCDRC) on 13.01.2021 for refund of Rs.1,10,09,974/. It is stated that the petitioner herein also filed an application under Section 156(3) Cr.P.C before the learned Metropolitan Magistrate, South East District, Saket Courts but the same was not pressed, instead a complaint under Section 200 Cr.P.C was filed. It is stated that the learned Metropolitan Magistrate, considering the facts and circumstances of the case took cognizance of offence under Sections 403/405/409/420 IPC. It is stated that the learned Metropolitan Magistrate issued notice against the accused vide order dated 23.02.2021 for appearance on 11.02.2021. It is stated that despite service of summons, the accused preferred not to appear before the Court on 11.02.2021 and accordingly bailable warrants in the sum of Rs.20,000/- were issued against the accused for securing their presence on 18.03.2021. It is stated that on 18.03.2021, out of five accused only two accused, i.e. the respondent No.2 and 3 herein appeared but the main accused preferred not to appear and filed an application seeking exemption from personal appearance. The learned Metropolitan Magistrate vide the order impugned herein granted bail to the respondent No.2 and 3 herein and also granted exemption to the other accused for not appearing.

c) It is this order which is under challenge in the instant petition.

3. Heard Mr. Rakesh Kumar Singh, learned counsel for the petitioner, Ms. Meenakshi Chauhan, learned APP for the State and perused the material on record.

4. Mr. Rakesh Kumar Singh, learned counsel for the petitioner argues very vehemently that after cognizance has been taken there was no reason for the accused not to appear before the learned Metropolitan Magistrate. It is submitted by the learned counsel for the petitioner that there are serious allegations against the respondent No.2 and 3 and other accused persons. He submits