The court emphasized that giving false undertakings and misleading the courts amounts to a travesty of justice.

JUDGMENT

Swarana Kanta Sharma, J. (Oral)

1. The present bail applications under Section 438 of the Code of Criminal Procedure, 1973 ("Cr.P.C.") have been filed by the applicants seeking anticipatory bail in FIR bearing No. 81/2018, registered at Police Station Preet Vihar, Delhi for the offences punishable under Sections 420/34 of the Indian Penal Code, 1860 ("IPC").

2. Brief facts, leading to the case at hand, are that a friendly loan of Rs. 35 lakh was granted to applicants by the complainant M/s Netsity Systems Pvt. Ltd. in November 2006 and a further loan of Rs. 15 lakh in March 2008 by way of cheques. Thereafter, when the applicants were unable to pay the same, they agreed to sell the property bearing no. B-58, Preet Vihar, Delhi to the complainant and in this regard, an agreement to sell was duly executed. Later, it was found that the said property was already sold to others and also the cheques issued earlier by applicants were also dishonored when presented. A legal notice was accordingly sent and applicants replied by stating their inability to execute the sale deed. As per the allegations, the applicants have failed to execute all the agreements and have cheated the complainant by selling the property in question to some other person, regarding which both the applicants had already made an agreement to sale with the complainant.

3. Learned counsel for accused/applicants submits that the applicants be granted anticipatory bail since the chargesheet already stands filed without arrest of the applicants. It is also stated by learned counsel on behalf of applicants that the present case is in a nature of civil dispute between the parties and a case under Section 138 of Negotiable Instrument Act, 1881 ("NI Act") as well as a civil case is already pending between the parties. It is also stated that the financial condition of the applicants does not permit them to make payment of any money to the respondent despite such undertaking given by them repeatedly before this Court. It is, therefore, stated that no purpose will be served by sending the applicants in judicial custody.

4. Learned counsel for the applicants, however, states that as per the prosecution case itself, the respondent had clear knowledge that the property was not in possession of the applicants.

5. Learned counsel for respondent, on the other hand, states that the applicants had given an undertaking for payment of money about more than 3 years back and after having enjoyed the protection granted by this Court solely on the ground that they were ready to make the payment as they had undertaken before the Court, they cannot now take advantage of the same and state that their financial position does not permit them to make any payment. Learned counsel for respondent further states that the applicant is still in possession of the said property.

6. It is also stated by learned counsel for respondent that the FIR clearly discloses that the applicants have committed cheating by selling the property to respondent on the pretext that it was free from any encumbrances whereas it was already sold to someone else prior to be sold to him, and a bank loan had already been availed on the same as it was mortgaged with Kotak Mahindra Bank. It is also pointed out that another FIR bearing No. 238/2017 with similar allegations is pending against the applicants, registered at Police Station Preet Vihar, Delhi for the offence punishable under Section 420 of IPC. It is, therefore, stated that the applicants cannot be allowed to take advantage of their own wrong and cannot be granted anticipatory bail.

7. It is also stated by learned APP for the State that the judgment of Satender Kumar Antil v. CBI & Anr., (2022) 10 SCC 51 is not applicable to the facts of the present case since the applicants were granted interim protection when the charge-sheet had not been filed and having availed the said relief on their undertaking, now they cannot get out of this by claiming relief