Anticipatory bail should balance the need for custodial interrogation against the individual's right to liberty.

ORDER

1. The present application has been filed under Section 438 Cr.P.C. for grant of anticipatory bail in respect of FIR No.435/2020, under Sections 420/406/34 IPC, registered at Police Station Safdarjung Enclave, Delhi.

2. The facts may be noted. The FIR has been lodged by Mr. Karan Sachar, authorized representative of M/s Vaishali Infratech (Pvt.) Ltd., on the allegations of cheating and misappropriation. The applicant, through his Company, M/s Rudra Buildwell Pvt. Ltd., is a builder and has a project, namely, 'Rudra Palace Heights', in which, the complainant/Company booked 11 flats. Large sums of money had also been paid for the flats amounting to Rs.1,33,87,500/- towards 75% of the consideration. The applicant is the promoter and Director of M/s Rudra Buildwell Pvt. Ltd. There were others also named as accused in the FIR. Fundamentally, the complaint was that these investments were made in the year 2015. However, despite the fact that the flats were to be fully constructed and handed over in 2018, till date, no flat had been handed over to the complainant, rather the complainant came across a Charge intimation to the Registrar of Companies filed by the applicant, informing of the sale of the very same 11 flats to 11 other persons. Thus, the allegation that the applicant had cheated the complainant.

ARGUMENTS

3. Ms. Rebecca John, the learned senior counsel for the applicant, submitted that the applicant admitted the fact that there was a Builder Buyers Agreement with the complainant in respect of 11 flats and that 75% of the consideration amounting to Rs.1,33,87,500/- had been paid for them by the complainant and that only 25% remained to be paid at the time when the possession was to be given. However, it was denied that there was any duplicate sale. It was explained that it was an inadvertent mistake when the names of the 11 others were shown as having purchased the 11 flats that were allocated to the complaint. Learned senior counsel underlined the fact that no flats have been sold to the complainant nor was it sold to any other person and what had taken place was mere allocation. Therefore, she submits that the applicant was ready to resolve the dispute.

4. It was submitted that in compliance of the orders of the learned Additional Sessions Judge dated 8th November, 2021 & 5th March, 2022, Rs.1,00,00,000/- had also been deposited in the form of three demand drafts in the Sessions Court. Today, the learned senior counsel submitted that apart from making the repayment of Rs.1,33,87,500/-, the applicant was ready to pay the penalty in terms of the Builder Buyers Agreement. In the alternative, 11 flats would be allocated in another Tower though the initial allocation was made in Tower B, since both the Towers had the same type of construction and floor area, the alternate allotment would not prejudice the complainant. The applicant was even willing to allocate the flats in a Tower that was nearing completion and to reallocate 11 flats in Tower B when they be constructed, as no construction could take place for two years on account of the Covid-19 pandemic.

5. Learned senior counsel pointed out to the details available on the RERA website alongwith the photographs and the site inspection report of the RERA that 75% of the project has been completed. In other words, the project was still alive and the interest of the complainant was still protected.

6. On the other hand, learned senior counsel for the complainant, urged that the offer made towards settlement could not detract from the fact that law had been violat