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Judgment
This is an application for anticipatory bail in connection with Karaya Police Station Case No.340 of 2018 dated 25.06.2018 under Sections
120B/384/403/406/409/420/506 of the Indian Penal Code. It is alleged that despite receiving the consideration money, the petitioners who are the
owners of the property and the co-accused developer did not execute a deed of sale in favour of the de facto complainant/purchaser in respect of the
2nd and 4th floors of the premises in question situated at 54, Syed Amir Ali Avenue, Kolkata-700019.
The learned counsel appearing on behalf of the petitioners submits that surprisingly the First Information Report in this case was registered after 26
days from the submission of the written complaint. He submits that the petitioners had complied with the notice given under Section 41A of the Code.
He submits that in a similar case which was started on 6th July, 2018 the petitioner no.2 was arrested despite the fact that he had gone to comply with
a notice under Section 41A of the Code. The learned counsel submits that it was only after the petitioners filed a writ application before this Court
alleging insufficient stamp duty for the agreement in question that the present case was started.
According to the learned Advocate, the grudge of the petitioners is that although they were entitled to 60% of the project, they were effectively given
about 53%. He submits that there was a tripartite agreement entered into between the parties wherein it was specifically mentioned that the deed of
conveyance was to be executed only after compliance of all obligations. He further submits that an arbitration is already pending between the parties
over the dispute that had given rise to the present case. He further submits that according to Section 17(1A) of the Registration Act unregistered
documents regarding conveyance of properties cannot be looked into by any court.
The learned Public Prosecutor appearing on behalf of the State submits that dispute at hand constitutes both a civil wrong as well as a criminal
offence. He submits that both the developers and the owners have conspired here with each other and after taking money, raised false pleas so that
the deed of conveyance need not be executed. The learned Public Prosecutor refers to two Power of Attorneys entered into between the land owners
and the developer, one on 14th August, 2007 and the other on 4th July, 2008. He submits that by the unregistered Power of Attorney dated 14th
August, 2007 the owners gave the power to sell the property to the developer. He submits that it was on the basis of this Power of Attorney that the
agreement for sale was entered into between the parties. On the basis of this agreement the purchaser was induced to part with valuable
consideration yet finally the sale deed was not executed on some pretext or the other.
He submits that registered Power of Attorney dated 4th July, 2008 entered into between the owner and the developer took away any right to transfer
or sale the property on behalf of the owners. He submits that this subsequent Power of Attorney was not disclosed to the owners. The learned Public
Prosecutor further submits that although initially the petitioners responded to the notice under Section 41A of the Code, but they did not really
cooperate with the investigation and kept on avoiding to give the replies to questions. He submits that custodial interrogation of the petitioners are
required in this case to unearth the true extent of the crime and to find out whether any further documents pertaining to the offence in questions are
available with the petitioners.
The learned Senior Counsel appearing on behalf of the de facto complainant supports the contentions of the State. He submits that the stamp duty was
deposited as per valuation. We have heard the submissions of learned advocates on behalf of the parties and have considered the application for bail
and perused the case diary. Although the delay in registration of the FIR raises some suspicion, yet the investigation subsequently done shows
presence of sufficient materials to support the contention that both the developer and the owners entered into agreement with the purchaser
representing the existence of a Power of Attorney which gave power to the developer to sell the property on behalf of the owners and in pursuance
thereof valuable consideration was paid by the intending purchaser. Yet the developer and the owners raised some plea or the other to avoid execution
of the sale deed. We find sufficient materials in the case diary and are quite in agreement with the submission of learned Public Prosecutor that the
true extent of the crime is to be unearthed. As regards the contention of the petitioners about non registration of documents pertaining to conveyance
of properties, it appears that Section 17(1A) of the Registration Act declares that such unregistered agreements for sale would have no effect for the
purpose of Section 53A of the Transfer of Property Act.
In view of the prima facie involvement of the petitioners in the commission of the alleged offences, we do not find this to be fit case for granting
anticipatory bail. Accordingly, the prayer for anticipatory bail is refused. The application being C.R.M.6204 of 2018 is thus disposed of. Urgent
certified copy of this order be immediately made available to the petitioners subject to compliance with all requisite formalities.