IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL [ARISING OUT OF SLP (Crl.) NO.2358 OF 2023]
RAMESH KUMAR …APPELLANT
THE STATE OF NCT OF DELHI …RESPONDENT
1. In the present case the appellant is the owner of an immovable property and entered into three agreements with one
Ashwani Kumar (the builder) dated 10th and 19th December, 2018 and 30th January, 2019 for redevelopment of his property.
2. That in terms of the agreement dated 19th December, 2018, the builder was required to construct a multi-storied building in which the appellant would have ownership rights in respect of the 3rd floor and the upper floor, apart from Rs.55,00,000/- (Rupees fifty five lakh) to be paid by the builder to him, whereas the builder would have rights in respect of the 1st and the 2nd floors of the said property together with other rights as detailed in the agreement.
3. That in pursuance of the aforesaid agreement, the builder entered into an agreement to sell and purchase/bayana dated 14th December, 2018 with one Vinay Kumar and Sandeep Kumar (the complainants) in respect of the 2nd floor of the proposed
property (without roof rights) but other rights as detailed in the agreement for a sum of Rs. 60,00,000/- (Rupees sixty lakh).
4. That the complainants had allegedly paid to the builder Rs. 11,00,000/- (Rupees eleven lakh), i.e, [Rs.1,00,000/- (Rupees one lakh) as token money and Rs. 10,00,000/- (Rupees
ten lakh) as earnest money], at the time of execution of the agreement dated 14th December, 2018.
5. That thereafter, at the behest of the builder, the complainants on different dates allegedly made payments of additional amounts to the appellant as well as the builder, in cash as well as by cheques, totalling to Rs. 35,00,000/- (Rupees thirty-five lakh).
6. That the complainants allegedly failed to comply with the terms and conditions of the above agreement with the builder dated 14th December, 2018 which resulted into an institution of a civil suit by the builder against the complainants seeking cancellation of such agreement and forfeiture of the amount of Rs.13,00,000/- (Rupees thirteen lakh).
7. That further as per the record, the builder also instituted an another civil suit inter alia against the appellant for specific performance of the agreements dated 10th and 19th December, 2018.
8. That the complainants were not handed over the possession of the second floor which they intended to purchase from the builder as late as on 18th November, 2021, therefore the complainants lodged a complaint against the builder, appellant and broker with the Station House Officer, Police Station Gulabi Bagh, Delhi. The said complaint was registered as FIR No.322 of 2021.
9. That it was the case of the Complainants that since the complainants had effected payment of substantial amount of money to the appellant and the builder having failed to deliver possession of the second floor of the proposed building property, the complainants felt cheated and urged the police to investigate the crime committed by the appellant and the builder.
10. That the appellant apprehending arrest, moved before the relevant criminal court for relief as per law.
11. That initially, the Presiding Officer granted interim protection from arrest to the appellant, subject to his cooperating with the investigating agency. However the Presiding Officer with the reason assigned in the order later withdrew the interim protection earlier granted to the appellant.
12. That the appellant thereafter approached the High Court seeking relief under law. Similarly the builder also approached the High Court and the High Court by its common order dated 24th November, 2022 granted bail to both the appellant and the builder, subject to conditions that as undertaken, the petitioners/builder Ashwani Kumar shall deposit a sum of Rs. 13,00,000/- (Rs. Thirteen lacs only) and the owner Ramesh Kumar shall deposit a sum of Rs. 22,00,000/- (Rs. Twenty-two lacs), with the learned Trial Court, in the form of FDR in the name of the Court initially for a period of one year with an automatic renewal clause, within 4 weeks.
13. That the appellantexpressing his difficulty in arranging for funds to deposit Rs. 22,00,000/- (Rupees twenty-two lakh), applied for extension of time before the High Court.
14. That the High Court granted extension of three day’s time to the appellant, failing which it was directed that anticipatory bail granted to the appellant shall stand automatically revoked.
15. That aggrieved by the aforesaid condition of the High Court for deposit against grant of bail, the appellant approached before the Hon’ble Supreme Court seeking revocation of the same while maintaining the other part of the order.
16. That it was contended on behalf of the appellant that he is a
victim of a conspiracy hatched by and between the builder and the complainants with the result that he is still unable to enjoy his own property which was required to be redeveloped by the builder within the time stipulated in the relevant agreement.
17. That it was contended on behalf of the appellant that having regard to the decision of this Court and precedence in law, the condition imposed for grant of bail requiring deposit of Rs.22,00,000/- (Rupees twenty-two lakh) in the form of FDR in the Trial Court is bad in law and liable to be set aside.
18. That the appeal was opposed by the State which contended that condition was imposed because the appellant through his counsel had volunteered to keep in deposit Rs. 22,00,000/- (Rupees twenty-two lakh) without prejudice to his rights and contentions.
19. That since the High Court had proceeded to make its order based on such undertaking and also that the appellant had applied for extension of time which was granted, it is not an appropriate case where this Court should interfere in the exercise of its jurisdiction.
20. That the Hon’ble Supreme Court after hearing the parties and on perusal of the materials on record observed that there remained a doubt that the appellant had volunteered to deposit Rs. 22,00,000/- (Rupees twenty-two lakh) without prejudice to his rights and contentions and that he had also applied for extension of time to make such deposit which was also granted; but having failed to arrange for sufficient funds, he is questioning the condition imposed by the High Court for grant of pre-arrest bail.
21. That further it was also observed that as per the status report of the progress of the building property submitted during the course of investigation filed before the High Court, it was apparent that the construction of the proposed building had progressed only up to the 1st floor and the 2nd and the 3rd floors were still not in existence. Therefore, it was apparent that neither was the floor which the complainants intended to purchase was complete nor the floors in respect whereof the appellant could exercise his rights were in existence.
22. That the Hon’ble Supreme Court while relying to the various precedence in law on the subject was of the view that the conditions to be imposed for bail must not be onerous or unreasonable or excessive.
23. That in the context of grant of bail, all such conditions that would facilitate the appearance of the accused before the investigating officer/court, unhindered completion of investigation/trial and safety of the community assume relevance. However, inclusion of a condition for payment of money by the appellant for bail tends to create an impression that bail could be secured by depositing money alleged to have been cheated which is really not the purpose and intent of the provisions for grant of bail.
24. That however in exceptional cases such as where an allegation of misappropriation of public money by the accused is levelled and the accused while seeking indulgence of the court to have his liberty secured/restored volunteers to account for the whole or any part of the public money allegedly misappropriated by him, it would be open to the concerned court to consider whether in the larger public interest the money misappropriated should be allowed to be deposited before the application for anticipatory bail/bail is taken up for final consideration.
25. That further it was also observed by the Supreme Court that from the materials on record it did not appeared that the complainants have instituted any civil suit for recovery of money allegedly paid by them to the appellant. Therefore if at all the offence alleged against the appellant is proved resulting in his conviction, he would be bound to suffer penal consequence(s) but despite such conviction he may not be under any obligation to repay the amount allegedly received from the complainants which the High Court failed to bear in mind while exercising jurisdiction under section 438 of the Cr.PC.
26. Therefore it was held by the Supreme Court that the High Court fell in grave error in proceeding on the basis of the undertaking of the appellant and imposing payment of Rs.22,00,000/- (Rupees twenty-two lakh) as a condition precedent for grant of bail and remitted the matter to the High Court for re-consideration of the application for pre-arrest bail.
The appeal was accordingly disposed off by the Hon’ble Supreme Court.