JUDGMENT

ANISH DAYAL, J.

1 This bail application has been filed seeking regular bail for the petitioner in FIR No. 292 of 2017 PS Ranjit Nagar under Sections 420/34 IPC. The said FIR was registered on 20th September, 2017 against three accused persons namely the petitioner, Anoop Singh Bagga and Uday Singh Bagga, all sons of late Shri Sahender Singh on the complaint of Shri Sanjeev Yadav.

2. As per the case of the prosecution, the complainant alleged that accused No.1 had approached him through his acquaintance Joginder Singh in June 2016 claiming to be the co-owner of a three storey building property bearing No. 34, South Patel Nagar, New Delhi - 08 seeking to sell below the market value prevailing at the time since the accused were in dire need of money. The complainant, by agreement to sell dated 12th July, 2016 for a total consideration of Rs. 15 crores, ended up paying Rs. 2 crores on different dates. Later in the month of April 2017, the complainant came to know of a case pending in this Court pertaining to the said property where a restraint was there on creating third party interests. Accordingly, the said FIR was lodged.

3. The learned counsel for the petitioner contends that the transaction between the parties is of a civil nature and there was no dishonest intention or inducement as evident from the alleged agreement to sell. Moreover, the FIR itself would show that the accused wanted to sell the property below market value and therefore, it is contended that the complainant knew that it was a disputed property. The defense of the petitioner has been that the complainant knew fully well about the litigation on the property and therefore the agreement to sell it at a depressed sale value. Pursuant to the investigation, the petitioner and co-accused Uday Singh Bagga were arrested on 29th June, 2018 and the other co-accused Anoop Singh Bagga died during judicial custody. Charge-sheet was filed on 3rd August, 2018. Uday Singh Bagga pleaded guilty and has been convicted and sentenced for the period already undergone which is noted in the order of the learned Trial Court dated 21st December 2020. The petitioner has however been incarcerated for about 31 months and is therefore seeking bail. Not only has the co-accused Uday Singh Bagga, who had a similar role, been released on the sentence undergone, but also the punishment prescribed in Section 420 IPC can extend only up to 7 years out of which the petitioner has already spent 2 years and 7 months in custody. Moreover, in the Magisterial trial, which has been carried out in this case as per Section 29 Cr.P.C., a maximum sentence of 3 years can be awarded. Further, reliance was placed on Section 325 Cr.P.C. which lays down the procedure to be adopted by a Magistrate if there is a punishment different or more severe than what the Magistrate is empowered, which never was in this case. Reliance is also placed on Section 436A Cr.P.C for releasing an under trial once half of the maximum period of imprisonment specified for an offence has been undergone.

4. The petitioner is a senior citizen of 65 years of age and has been released on bail in FIR No. 624/2015, PS. Ranjit Nagar and FIR No. 380/2016, PS Ranjit Nagar vide orders dated 29th November, 2022 and 19th March, 2019 respectively, these cases having been cited as previous involvements of the petitioner, by the Ld. APP.

5. The counsel for the complainant however refuted these contentions and stated that order dated 28th February, 2020 had noted that the petitioner will settle all his disputes with the complainants within 6 months failing which he shall be liable to pay Rs.10 lacs per month as fine for the period he remains on interim bail and on this basis the complainants had agreed that they would facilitate him to get the FIR quashed. By order dated 21st October 2020, it was noted by this Court that the said period of 6 months had been completed and that the petitioner had violated the terms and conditions of the order dated