Kamal Arjan Mirchandani Through Her C.A. Satish Nagesh Zore vs. The State Of Maharashtra And Ors

Held

The Court held that a prima facie case of fraud played upon the complainant was evident from the FIR, documents, and investigation papers. The Court found that Applicant No. 1 approached the complainant with malafide intentions, developing acquaintance and emotional closeness. False representations were made by both applicants regarding the sale of Flat No. 14 and the provision of houses in the Kuloo project. The applicants failed to establish that they paid the consideration to the complainant. Significant discrepancies were noted in the agreement for sale, sale deed, and receipts concerning the payment of consideration, including the existence of three different receipts, one of which claimed cash payment, raising doubts about their genuineness. The Court concluded that Applicant No. 1 actively participated with Applicant No. 2 in all transactions, and both acted in connivance. The statements recorded during the investigation indicated the applicants' complicity. Given that neither the consideration was paid nor the Kuloo flats were provided, and the other flat was given on leave and license with alleged non-payment of rent and difficulty in regaining possession, the Court found no case for granting anticipatory bail. Therefore, the anticipatory bail application was rejected.

Facts

The applicants, Shikha Sharma and Sumit Khanna, sought anticipatory bail apprehending arrest in a criminal case registered for offences under Sections 406 and 420 of the Indian Penal Code. The FIR was lodged by a 75-year-old complainant alleging that Applicant No. 1 developed acquaintance and proposed a rental arrangement for the complainant's flats, suggesting she sell one flat and buy houses in Applicant No. 2's Himalayan Habitat project. Applicant No. 2, a builder, allegedly misrepresented the transaction, suggesting the complainant sell Flat No. 14 for Rs. 1,90,00,000/-, but then advised reducing the consideration to Rs. 1,30,00,000/- to avoid duty, with Rs. 60 Lakhs in furniture to be provided. The complainant paid Rs. 6 Lakhs for the project. Subsequently, Flat No. 14 was sold for Rs. 1,74,15,000/-, and Flat No. 10 was given on rent to Applicant No. 1's daughter, with alleged non-payment of rent and failure to provide possession of the Kuloo flats. The Sessions Court rejected the anticipatory bail application.

Key Issues

1. Whether the allegations in the FIR and investigation papers prima facie establish offences under Sections 406 (criminal breach of trust) and 420 (cheating) of the Indian Penal Code against the applicants, warranting custodial interrogation? Petitioner's arguments: The applicants contended that the property was transferred in accordance with Section 54 of the Transfer of Property Act, the complainant signed necessary documents including a sale deed and agreement to sell, and the offence under Sections 406 and 420 IPC is not made out. They argued that the documents were duly registered, there is no bar to cash payments, and the complainant's remedy lies in civil proceedings. They also submitted that notice under Section 41A of Cr.P.C. was issued and replied to, making custodial interrogation unnecessary. The role of Applicant No. 1 was limited to introduction, and there was a delay in lodging the FIR. Revenue/State's arguments: The State argued that both applicants were involved in deceiving the complainant and acted in connivance. Applicant No. 1 played a vital role beyond mere introduction, and there was dishonest intention from the inception. They asserted that thorough investigation is required, and the Sessions Judge rightly considered the fraudulent acts. They highlighted the lack of proof of consideration payment, the complainant being deprived of her flat, and the discrepancies in the three different receipts presented. Custodial interrogation was deemed necessary due to the serious nature of the offence and the clandestine manner of deception.