JUDGMENT

Dinesh Kumar Sharma, J. (Oral)

CRL.M.A. 14902/2023

Exemption allowed subject to just exceptions.

BAIL APPLN. 1827/2023

1. The present anticipatory bail application has been moved on behalf of the petitioner in case FIR No. 0006/2023 under Sections 406/420/120B IPC registered at PS Model Town.

2. The facts in brief are that the complainant entered in a collaboration agreement which was executed between the present petitioner and builder namely Sunil Kumar Gupta on 20.09.2018. The present petitioner is the owner of the suit property and as per the agreement builder Sunil Kumar Gupta was to build a four storey building along with a stilt parking. It has been alleged that the petitioner and the builder assured and agreed to register the sale deed of the upper ground floor in the said property in favour of the complainant. It has been alleged that the complainant paid a sum of Rs. 51 Lacs (Rupees Fifty One Lacs Only). The Agreement to sale was executed on 16.04.2019 between Sunil Kumar Gutpa and Umesh Kumar. As per the said agreement to sale, the complainant had agreed to purchase upper ground floor admeasuring 78 Sq.Yds. for a total consideration of Rs. 62,25,000/- (Rupees Sixty Two Lacs Twenty Five Thousand Only). The agreement to sale indicates that an advance of Rs. 7,50,000/- (Rupees Seven Lacs Fifty Thousand Only) was paid and the remaining amount of Rs. 54,75,000/- (Rupees Fifty Four Lacs Seventy Five Thousand Only) was to be paid in the following manner:

1. Rs. 6,00,000/- (Rupees Six Lacs only) to be paid per linter/slab, and due to this being a four storey building five slabs would be built that makes it a sum of Rs. 30,00,000/- (Rupees Thirty Lacs only) to be paid by complainant to the builder before the completion of the building.

2. Balance amount of Rs. 24,75,000/- (Rupees Twenty Four Lacs Seventy Thousand only) to be paid at the time of execution of the sale deed.

3. The complainant alleged that he has already paid a sum of Rs. 51,00,000/- (Rupees Fifty One lacs only) which includes the payment of Rs. 31,00,000/- (Rupees Thirty one lacs only) in cash.

4. Learned counsel for the complainant has submitted that despite having received this amount, the petitioner and the builder has failed to execute the sale deed in favour of the complainant and nor did they give possession.

5. Learned counsel for the complainant states that in view of these grounds the builder and the petitioner in conspiracy with each other has committed an act of cheating with the complainant and therefore is not entitled to be admitted to bail.

6. Per Contra, Learned counsel for the accused submits that the present case is civil in nature and petitioner has also filed a suit for declaration, recovery of damages and for breach of contract and injunction against the builder and the present complainant along with other persons.

7. Learned counsel submits that infact the construction done by the builder was of very low quality and the petitioner spent R.10,00,000/- out of his own pocket. Learned counsel for the petitioner submits that as alleged by the complainant party that the agreement to sell is between the builder and him and therefore the petitioner is a third party. Learned counsel for petitioner submits that the petitioner herself is a victim of cheating committed by the builder.

8. Learned APP for the State submits that plea of the petitioner could not be taken on the face value as per the collaboration agreement between the petitioner and Sunil Kumar Gupta, the petitioner had given the right to builder Sunil Kumar Gupta to further sell the upper ground floor to any party.

9. I have considered the submissions.

10. The petitioner is stated to be 65/70 years of age and the present FIR was lodged pursuant to an order under Section 156(3) Cr.P.C. Without going into the merits of the case or making any observation whether the present case is civil in nature or not, and owing to the fact that the case is yet to be investigated.

11. I con