Court No. - 45
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25937 of 2018 Applicant :- Smt. Kavita Opposite Party :- State Of U.P.
Counsel for Applicant :- Amit Misra,Daya Shanker Pandey Counsel for Opposite Party :- G.A.,Gaurav Kakkar,Gaurav Kakk
Hon'ble Siddharth,J.
Heard Sri Viresh Mishra learned counsel for the applicant assisted by Sri B.S. Pandey and learned A.G.A. for the State and Sri Gaurav Kakkar, learned counsel for the informant.
It has been argued by the learned counsel for the applicant that the allegation in the First Information Report is that the applicant along with her husband Sri Pramod Tyagi executed a registered agreement to sell in favour of the informant. The total sale consideration agreed between the parties was Rs. 1.30 Crore. The advance sale consideration of Rs. 13 lakhs was paid at the time of registration of the agreement to sell dated 07.08.2015. Balance sale consideration was required to be paid at the time of execution of sale deed. The allegation is that the applicants had taken bank loan against the property agreed to be sold and they informed the informant that they have repaid the loan and produced the receipts which were found to be forged and fabricated, after inquiry from the bank authorities. The First Information Report has been lodged alleging the offences detailed in the First Information Report.
Learned counsel for the applicant has further argued that possession of the property was delivered to the informant in part performance of the contract and they are in possession and therefore her innocence cannot be doubted at this stage. Regarding the allegation of non- execution of sale deed, recourse to the civil court has been pointed out and it has been argued that it is always open for a holder of an agreement to sell to file a suit for specific performance of contract.
Per contra, Sri Gaurav Kakkar, learned counsel appearing on behalf of the informant has referred to documents filed along with counter affidavit to show that this property has been earlier sold of four persons, namely, Mukesh Sharma, Chandradhari Singh, Vikas Goyal and Vijay Talwar and the informant is the fifth person who has been made to enter into an agreement with the applicant and her husband, Pramod Tyagi, for sale of the same property which has been earlier sold to four other persons named above.
He has further argued that the applicant and her husband are fraudsters who are indulging in the business of duping persons time and again by selling the same property to different person and taking money in lieu thereof repeatedly.
One such agreement to sell executed in favour of Mukesh Sharma, one such purchaser has been brought on record as Annexure CA- 2 along with the counter affidavit to show that the applicant and her husband have executed the document regarding the same property. The other agreements to sell are non-registered and some Power of Attorney has been executed by the non-applicant accused, Pramod Tyagi, which is also not registered.
After hearing the rival submissions it is clear that the applicant along with her husband have executed documents for sale of the property in dispute some of which are registered and some unregistered. However, the possession of the property is with the informant and in part performance of contract. The other documents evidencing sale in favour of the four other persons are only documents which are yet to be proved before the competent court in the relevant civil proceedings and therefore cannot be relied upon in the present proceedings. The applicant is in jail since 09.04.2018 and she has no criminal history to her credit and is entitled to benefit of Proviso (1) to Section 437(1) Cr.P.C.
Let the applicant Smt. Kavita, be released on bail in Case Crime No. 0606 of 2018, under Sections 420, 467, 468, 471, 506, 504, 406 I.P.C, P.S. Sihani Gate, District- Ghaziabad on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice :-
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 26.7.2018 Rohit