BAIL APPLN.--1230/2017. Case: PRAKASH GUPTA Vs. STATE OF DELHI. High Court of Delhi (India)
| Case Number | BAIL APPLN.--1230/2017 |
| Citation | NA |
| Judgement Date | July 24, 2017 |
| Court | High Court of Delhi (India) |
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 24th July, 2017 + BAIL APPLN. 1230/2017
PRAKASH GUPTA ..... Petitioner Through: Mr. Ramesh Gupta, Sr. Advocate Ms.M. Begum, Mr. Bharat Sharma and Mr. Tushir, Advocates.
versus
STATE OF DELHI ..... Respondent
Through: Mr. Amit Chadha, APP for the State with SI R.P. Yadav, PS Vasant Kunj South, New Delhi. Mr. Vijay Kumar Aggarwal, Advocate
Mr.Neeraj Kumar Jha and Ms.Barkha Advocate for Complainant.
CORAM:
HON'BLE MR. JUSTICE VINOD GOEL VINOD GOEL, J.
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Apprehending his arrest, the petitioner has invoked the jurisdiction this court under Section 438 of the Code of Criminal Procedure, (in short „Cr.PC‟) praying for grant him anticipatory bail in a registered vide FIR No. 62/2017, under Section 409 of Indian Code, 1860 (in short „IPC‟) with Police Station Vasant Kunj
New Delhi.
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This bail application was considered by the learned Vacation
30.06.2017 when it was contended by the petitioner that he had paid amount of Rs.54,04,400/- to the complainant‟s firm. This
by the learned counsel for the Complainant.
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Status report has been filed.
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As per the case of the prosecution, the complainant Rajiv Kumar Gupta a Cost Accountant by profession, had 06 Kgs. of gold bars i.e. 03 pieces of 01 Kg. each and 30 pieces of 100 grams each as his property. He had good relationship with accused Nikesh Gupta, merchant, dealing in sale and purchase of raw gold with whom
met through a close acquaintance. On 07.12.2016, the
expressed his intention to Nikesh Gupta to sell his 06 Kgs. gold
some good buyers. Nikesh Gupta assured him that he arrange/facilitate the same within a span of one or two hours assistance of his partner/business associate Prakash Gupta accused/petitioner herein). Pursuant to this discussion, he telephonic call from the petitioner at about 02.30 PM, who claimed have a buyer for gold bars and told him that he would sell the said gold bars at the rate of Rs.3,140/- per gram. Believing the assurance petitioner, the complainant called him at his office to collect the
bars and at about 04.00 PM, after due confirmation with Nikesh
the complainant entrusted the said 30 gold bars of 100 gram each i.e. 03 Kgs. to the petitioner at his office at Laxmi Nagar, Delhi. He entrusted remaining 03 gold bars of 1 Kg. each to the petitioner in front of the gate of Santushti Apartment, Vasant Kunj, New Delhi. petitioner assured the complainant that he would deliver the consignment to his and Mr. Nikesh Gupta‟s associate at Vasant
and would make total payment of Rs.1,88,60,000/- by cheque. complainant specifically asked the petitioner not to sell the gold in cash and receive the payment only through cheque and only on his response, he entrusted 06 Kgs. of gold bars to the petitioner. petitioner confirmed to the complainant that he would deliver
cheque of Rs.1,88,60,000/- at about 07.00 PM. However, at
06.00 PM, the complainant received a call from Nikesh Gupta complainant informed him about the delivery of 06 Kgs. gold
the petitioner and requested him to take care of the transaction, was in his knowledge as he was the person, who was facilitating entire deal.
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The complainant was waiting for his cheque at his office and when petitioner did not turn up till 07.00 PM, the complainant made
calls to the petitioner, who informed the complainant at about 09.00 PM that the party, who had purchased the gold bars paid him cash instead of cheque and he would deliver him the same in his office within hour‟s time. At about 09.30 PM, the petitioner again called complainant and put up a concocted story that he had been robbed 2/3 persons near Mehrauli-Vasant Kunj Road, New Delhi. complainant called up Nikesh Gupta about the incident, who told
that the petitioner was also carrying his cash and that too was
which amounted to Rs.3,00,00,000/-. Later on, the complainant Nikesh Gupta at Hotel Shangrila, Ashok Road, New Delhi, who assured the complainant that he will go in depth of the story of the
and solve his problem. The complainant made some inquiries found that they have made false and frivolous story of robbery
fact they have misappropriated his 06 Kgs. of gold bars amounting Rs.1,88,60,000/- and converted the same to their personal use. complainant had expressed his apprehension that both these
have hatched a conspiracy and with common knowledge cheated
and misappropriated his gold worth Rs.1,88,60,000/-. The
further claimed that the accused persons had deliberately with motive have caused wrongful loss to him and wrongful themselves.
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This complaint was lodged in the Police Station Vasant Kunj New Delhi on 07.01.2017 and a DD No. 46B was entered into. said FIR was registered under Section 409 of IPC on 10.02.2017.
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It is submitted that before registration of the FIR, the petitioner filed an application for grant of bail before the learned Additional
Judge (in short „ASJ‟), which was dismissed as withdrawn premature. His second application is also stated to have dismissed. Mr. Gupta, learned senior counsel for the submitted that the petitioner had filed another application for anticipatory bail before the court of learned ASJ and the petitioner granted interim protection subject to his joining investigation. further submitted that the petitioner has joined the investigation however his bail application and that of the co-accused Nikesh
were dismissed by the learned ASJ on 30.05.2017 by a common
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Mr. Gupta submitted that in the bail application before the learned ASJ a reply dated 24.01.2017 was filed by the Investigating Officer (in short „IO‟) in which it was stated that the complainant delivered 06 Kgs.
to the petitioner at his office. He submitted that as per the allegations in the FIR gold bars weighing 03 Kgs. were delivered at Laxmi Office Delhi to the petitioner and remaining gold bars weighing 03 Kgs. were delivered in front of Santushti Apartment, Vasant Kunj, Delhi. He submitted that there are contradictory versions and
complainant is not truthful. He further submitted that the alleged bars were given without any receipt. He also submitted that complainant has claimed that the gold bars were his ancestral
but the complainant has not submitted any evidence as to his title. also submitted that the petitioner has joined the investigation pursuant to the interim protection granted to him by the learned
his bail application, which is not reflected in the present status report.
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Mr. Gupta further submitted that no case under Section 409 of
made out against the petitioner since the Section 409 of IPC
only to the public servants. He has relied upon a judgment of the Apex Court in the case of “R. Venkatakrishnan v. Central Bureau Investigation, (2009) 11 SCC 737. He submitted that since petitioner is not a public servant, the provisions of Section 409
are not attracted.
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Based on this arguments, Mr. Gupta submitted that at the most
under Section 406 of IPC is attracted to which the imprisonment is only up to three years and under Section 41A of Cr.PC, the IO is required to issue a notice to the petitioner and since the petitioner has joined investigation thrice pursuant to the directions of the learned ASJ, petitioner cannot be put to arrest under the guise of interrogation. He also submitted that under Section 41 (1) (b) of Cr.PC, a police officer may without an order from a Magistrate or
warrant arrest any person against whom reasonable complaint has made or a credible information has been received that he has committed a cognizable offence punishable with imprisonment for a term
may be less than seven years or which may extend to seven years
with or without fine unless such arrest is necessary to prevent person from committing any further offence; or for proper investigation of the offence; or to prevent the accused from causing the evidence the offence to disappear or tampering with such evidence in manner; or to prevent any such person from making any
threat or promise to a witness so as to dissuade him from
such facts to the court or the police officer or to ensure his presence the Court. Mr. Gupta submitted that the law further requires
police officer to record the reasons in writing which led him to
the accused. In this regard...
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