Court rejected bail application of Vinay Jain, a builder accused of cheating under Sections 420/406 IPC. Court held applicant knowingly allotted a mortgaged flat and his history of 39 fraud cases precludes bail to sort out civil disputes.
Bail application rejected and applicant denied release on bail.
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Court No. - 10
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23159 of 2020 Applicant :- Vinay Jain Opposite Party :- State of U.P. Counsel for Applicant :- A.C.Srivastava, Ravitendra Pratap Singh Chandel
Counsel for Opposite Party :- G.A.
Hon'ble Rohit Ranjan Agarwal,J.
Heard learned counsel for the applicant and learned AGA for the State. By means of this application, the applicant Vinay Jain, who is involved in Case Crime No. 431 of 2019, under Sections 420/467/468/471 IPC Police Station Surajpur, District Gautam Budh Nagar, is seeking enlargement on bail during the trial.
It is contended that the applicant has been falsely implicated in the present case. As per the prosecution story flat allotted to the complainant is alleged to have been mortgaged with Allahabad Bank and there is lone of one Yogesh. According to the applicant he is in the business of real estate and is a builder. The complainant had approached the applicant on 05.12.2011 and was allotted Flat No. B-402, AVJ Heights Zeta-I, pursuant to which he had taken loan from HDFC Bank. According to the applicant a fresh flat buyer agreement was signed on 20.11.2014 and the complainant was given possession of new allotted Flat No. D-602 on 06.01.2015, but since completion certificate could not have been obtained the builder could not execute registry in favour of complainant. While Yogesh has been given Flat No. B-608 and he had never made complaint of Flat No. D-602 and the company had asked Yogesh to get the details of newly allotted Flat No. B-608 endorsed in place of Flat No. D-602 in loan records of Allahabad Bank which he had agreed and promised but had not
done. It is further contended that in case the applicant is released on bail he would get the matter sorted out and would execute the sale-deed in favour of complainant.
Per contra learned AGA has submitted that the applicant has a criminal history of 39 cases and all the cases have been registered by the buyers for playing fraud on them by the applicant, details of which are as under;
1. Case Crime No. 192 of 2019, under Section 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar
2. Case Crime No.639 of 2016, under Section 420 I.P.C., Police Station- Surajpur, Gautambudh Nagar 3. Case Crime No. 756 of 2018, under Section 2/3 Gangster Act, Police Station- Surajpur, Gautambudh Nagar
4. Case Crime No. 1367 of 2018, under Sections 420/467/468/471 I.P.C., Police Station- Face 3, Gautambudh Nagar
5. Case Crime No. 1413 of 2019, under Sections 420/406 I.P.C., Police Station- Secton 49, Gautambudh Nagar 6. Case Crime No. 1416 of 2019, under Sections 420/406 I.P.C., Police Station- Section 49, Gautambudh Nagar 7. Case Crime No. 1421 of 2019, under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar
8. Case Crime No. 1435 of 2019, under Section 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar 9. Case Crime No. 1440 of 2019 under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar
10. Case Crime No. 1444 of 2019 under Section 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar
11. Case Crime No. 1448 of 2019, under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar
12. Case Crime No. 1450 of 2019, under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar
13. Case Crime No. 1453 of 2019, under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar 14. Case Crime No. 38 of 2020 under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar
15. Case Crime No. 63 of 2020 under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar
16. Case Crime No. 64 of 2020 under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar 17. Case Crime No. 65 of 2020 under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar 18. Case Crime No. 66 of 2020 under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar
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19. Case Crime No. 78 of 2020 under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar
20. Case Crime No. 90 of 2020 under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar 21. Case Crime No. 91 of 2020 under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar 22. Case Crime No. 92 of 2020 under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar 23. Case Crime No. 101 of 2020 under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar 24. Case Crime No. 165 of 2020 under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar 25. Case Crime No. 166 of 2020 under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar 26. Case Crime No. 167 of 2020, under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar 27. Case Crime No. 168 of 2020, under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar 28. Case Crime No. 169 of 2020, under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar 29. Case Crime No. 188 of 2020, under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar 30. Case Crime No. 190 of 2020, under Sections 420/406 I.P.C., Police Station- Sector 49, Gautambudh Nagar 31. Case Crime No. 1262 of 2018, under Sections 120-B/406/420/467/468/471/504 I.P.C., Police StationSurajpur, Gautambudh Nagar
32. Case Crime No. 431 of 2019, under Sections 420/467/468/471 I.P.C., Police Station- Surajpur, Gautambudh Nagar
33. Case Crime No. 438 of 2019, under Sections 174A I.P.C., Police Station- Surajpur, Gautambudh Nagar
34. Case Crime No. 606 of 2019, under Sections 120B/34/4420 I.P.C., Police Station- Surajpur, Gautambudh Nagar 35. Case Crime No. 1215 of 2019, under Section 420 I.P.C., Police Station- Surajpur, Gautambudh Nagar 36. Case Crime No. 1225 of 2019, under Section 420 I.P.C., Police Station- Surajpur, Gautambudh Nagar 37. Case Crime No. 1584 of 2019, under Sections 420/406 I.P.C., Police Station- Surajpur, Gautambudh Nagar 38. Case Crime No. 1585 of 2019, under Sections 420/406 I.P.C., Police Station- Surajpur, Gautambudh Nagar
39. Case Crime No. 721 of 2018, under Sections 420/406/467/468/471 I.P.C., Police Station- Surajpur, Gautambudh Nagar
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It is further contended that in pursuance of the Buyer Builder Agreement for Flat No. B-402 the complainant had repaid the entire amount to HDFC Bank, which was taken as a loan and pursuant thereto Flat No. D-602 was given, but on the said flat there was a loan of one Yogesh taken from Allahabad Bank and the property was mortgaged with the bank. Further the complainant had received notice from the Allahabad Bank for repayment of dues of Yogesh.
Replying to the argument of the State counsel, learned counsel for the applicant has submitted that out of 39 cases, as pointed out by the State, in 22 cases the police has submitted final report under Section 173 (2) Cr.P.C. copy of the list has been brought on record as SA-1 to the supplementary affidavit.
Having heard learned counsel for the parties and from perusal of the material on record it is clear that the complainant was allotted flat in the year 2011 pursuant to which he had taken loan from HDFC Bank, but when the possession of the Flat No. B-402 was not given the applicant had assured the complainant that another flat would be given in case he repays the loan taken for Flat No. B-402. Acting on the assurance of the applicant, the complainant repaid the entire loan in the year 2014 and was given possession by the applicant of Flat No. D-602 but no sale-deed was executed for the said flat on the ground that completion certificate has not been granted by the development authority till date.
It was to the utter surprise of the complainant that he received notice from Allahabad Bank and came to know that Flat No. D-602 was mortgaged with the Allahabad Bank for the loan taken by one Yogesh. The argument made on behalf of the applicant that as Yogesh was not traceable and applicant is in jail, the matter could not be sorted out, and once the applicant is released on bail some effort will be made to get the sale-deed executed, cannot be accepted.
As it is clear that the applicant knew that Flat No. D-602 was mortgaged with the Allahabad Bank he should not have given the possession to the
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complainant as the said flat was already allotted to Yogesh and he had taken loan from Allahabad Bank, as such, subsequent allotment could not have been made in favour of complainant. Further, looking to the fact that 39 FIRs had been lodged against the applicant by different allottees under Sections 420/406 IPC ranging from the year 2016 to 2020 it is clear that the applicant, who is a builder, has been playing fraud with innocent buyers and after taking money for the flat is not handing over the flat with clear title.
In the present case the allotment made in favour of the complainant is of the year 2011 while the possession was given in the year 2015 and that too of a flat allotted to a different person mortgaged with the bank, though the complainant had paid the entire amount. No case of interference is made out.
Bail application stands rejected.
Order Date :- 8.12.2020 Shekhar
Justice Rohit Digitally signed by Justice Rohit Ranjan Ranjan Agarwal Date: 2020.12.14 Agarwal 15:06:47 +05'30'
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3 issues framed by the court
Whether bail should be granted to the applicant who is accused in a cheating case involving false implication.
Whether the applicant's criminal history and lack of clean title to the mortgaged property justifies refusal of bail.
Whether the assurance that the sale deed would be executed post-bail is a valid ground for release.
2 provisions across 2 enactments
Vinay Jain
Rohit Ranjan Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
