R.K.Aggarwal vs U.T., Chandigarh

Prayer in this petition is to release the petitioner on

regular bail in case FIR No.51 dated 14.03.2014, under Section 420

IPC, registered at Police Station North, Sector-3, Chandigarh.

Briefly it may be noticed that the FIR came to be

registered on the statement of Sh. Kewal Garg. As per

complainant, an amount in excess of Rs.10 crores was invested

with Shalimar Estates Private Limited (hereinafter to be referred to

as the Company), during the period of 2006-2009 and in which the

present petitioner was a Managing Director. An MOU

(memorandum of understanding) was stated to have been

executed on 10.06.2013 between the parties and it was mutually

agreed that Sh. Kewal Garg as also his family members would be

entitled to one third share in the income of the Company as also

from the sale proceeds of the commercial space in a shopping

mall. Further complainant asserted that a joint bank account was

to be opened and the income from the shopping mall with effect

from the date of execution of the MOU i.e. 10.06.2013 was to be

deposited in such account and which was to be operated jointly

under the signatures of Sh. Kewal Garg and as also the

accused/present petitioner. The principal accusation against the

petitioner is that a resolution dated 29.10.2013 was subsequently

passed fraudulently and on the strength of which the petitioner

was authorized to operate the account in question all by himself

and even a fresh cheque-book was got issued. It was alleged that

based upon such fraudulent resolution dated 29.10.2013 petitioner

has unauthorizedly operated the joint account and has embezzled

huge sums of money.

Petitioner was arrested on 14.03.2014. Investigation

having been completed, challan was presented on 12.05.2014.

Petitioner earlier filed CRM No.M-15570 of 2014

seeking concession of regular bail and which was allowed by this

Court in terms of order dated 20.05.2014.

Petitioner having evaded the trial proceedings was

declared a proclaimed offender on 28.09.2016. An application

preferred by the petitioner seeking regular bail stands rejected

vide order dated 28.09.2017 (Annexure P-20) passed by the

learned Additional Sessions Judge, Chandigarh.

It is against such factual backdrop that the second

petition under Section 439 Cr.P.C. seeking regular bail has been

preferred before this Court.

Learned counsel representing the petitioner would

submit that the petitioner after grant of concession of bail by this

Court had duly appeared before the trial Court but however, there

was a turn of events inasmuch as litigation arose qua another mall

being built by the Company in Mohali and which could not be

completed on account of certain unavoidable circumstances.

Consequently, the allottees in the said mall filed consumer

complaints against the Company as well as the petitioner. Awards

were passed against the petitioner and who then engaged in the

process of selling properties owned by the Company to repay the

allottees. It is sought to be contended that it is under such peculiar

circumstances that the petitioner had to go in hiding to avoid

arrest. Counsel further adverts to the orders placed on record at

Annexure P-23 (colly.) passed by the National Consumer Disputes

Redressal Commission, New Delhi to assert that settlement was

arrived at with the allottees and taking cognizance of the same, the

National Consumer Disputes Redressal Commission has modified

the orders passed by the State Commission in execution

proceedings and the orders of arrest of the petitioner were set

aside. While pressing for grant of bail, it is submitted that the

petitioner was arrested on 30.10.2016 in a different FIR and

subsequently brought on production warrants in the present FIR

on 22.11.2016. It is argued that the petitioner has now faced

incarceration for a period of more than 01 year. Counsel would

also make an attempt to impress upon this Court that the petitioner

having been arrested, the order dated 28.09.2016 declaring him as

a proclaimed offender would cease to operate.

Prayer for bail has been vehemently opposed by

learned counsel representing U.T., Chandigarh. It is submitted

that the petitioner has misused the concession of bail that had

been granted. In spite of numerous opportunities having been

granted by the trial Court, petitioner did not cooperate in the

proceedings and numerous applications were filed seeking

exemption from personal appearance. Thereafter, due procedure

was followed and the trial Court declared him as a proclaimed

offender. It is urged that the conduct of the petitioner is such that

he is not entitled to the concession of bail.

Counsel appearing for the complainant has also

opposed the grant of bail on the same lines and has reiterated the

submissions advanced on behalf of U.T., Chandigarh. Detailed

and lengthy submissions were advanced in an attempt to

demonstrate to this Court that even after grant of concession of bail

by this Court vide order dated 20.05.2014, the petitioner/accused

has failed to discharge his obligations as per terms and conditions

of the MOU executed on 10.06.2013.

Counsel for the parties have been heard at length.

It has gone uncontroverted that the complainant

Sh. Kewal Garg as also his family members had already instituted a

suit for declaring the subsequent resolution dated 29.10.2013 as

null and void and had prayed for grant of an injunction to restrain

the petitioner from operating the account in question i.e. the

Account Number 250000209999 at Indusind Bank, Sector 8-C,

Chandigarh. Such suit was instituted in November, 2013 i.e. almost

04 months prior to the registration of the FIR. Subject matter of the

accusation/allegations contained in the FIR as such are a subject

matter of adjudication in civil proceedings that already stand

initiated. It is also not in dispute that an application moved under

Order 39 Rule 1 and 2 CPC by the complainant seeking a restraint

against the petitioner to operate the account in question has been

dismissed and such order of dismissal has been affirmed in an

appeal preferred.

Dispute between the parties is essentially civil in

nature. This Court would refrain from passing any observations

with regard to the rights and obligations flowing from the

memorandum of understanding dated 10.06.2013 lest the same

may influence proceedings taken out by either party in relation

thereto.

Conduct of the petitioner after grant of bail by this

Court on 20.05.2014 has not been above board as would be

discernible from the proceedings leading to his being declared a

proclaimed offender.

Be that as it may petitioner has now faced incarceration

in the present case since 22.11.2016 i.e. for a period of one year

and one month.

Investigation having been completed, challan had been

presented on 12.05.2014. Trial would take time to conclude.

In the totality of the circumstances and without making

any observations on merits, petition is allowed.

Petitioner is directed to be released on bail to the

satisfaction of the trial Court/Duty Magistrate. However, having

regard to the past conduct of the petitioner and that he had been

declared a proclaimed offender, trial Court will ensure that the

petitioner is released on bail on furnishing adequate bail bonds

and at least two sureties of the like amount apart from imposing

other stringent conditions so that the possibility of the petitioner

absconding from trial is ruled out.

Liberty is also granted to the prosecution/complainant

to move an appropriate application for recalling of this order upon

showing that the petitioner has made any attempt to evade trial

proceedings or has interfered in the course of a fair and

unhampered trial.

Petition allowed.