Facts of Case
The Petitioner decided to purchase a unit of approximately 3250 sq.ft area in the Respondent’s project namely, ‘Project Sovereign Next’ at a net basic sale price of Rs. 6000/- sq.ft. At the time of purchase, she was told that the possession would be given to her by 30th November 2017. More than 50% of the sale consideration was paid by the Petitioner in advance. A legal notice was sent by the Petitioner on 22.04.2017 to the Respondent since the project was not completed on the promised date.
The Petitioner filed a complaint before the National Consumer Disputes Redressal Commission (for short NCDRC) on 13.01.2021 for a refund of Rs.1,10,09,974/. The Metropolitan Magistrate, considering the facts and circumstances of the case, took cognizance of an offence under Sections 403/405/409/420 IPC. It was stated that the learned Metropolitan Magistrate issued notice against the accused vide order dated 23.02.2021 for an appearance on 11.02.2021.
On 18.03.2021, out of five accused only two accused, i.e. Respondent No.2 and 3 appeared but the main accused preferred not to appear and filed an application seeking exemption from personal appearance. The learned Metropolitan Magistrate vide the order impugned herein granted bail to the Respondent No.2 and 3 herein and also granted an exemption to the other accused of not appearing.
Arguments before the Court
Mr. Rakesh Kumar Singh learned Counsel for the Petitioner stated that after taking cognizance there was no reason for the accused to not appear before the learned Metropolitan Magistrate. It was submitted that there were serious allegations against Respondent No.2 and 3 and other accused persons and the Court could not grant bail to the accused of their asking. The Respondents were defended by learned APP Ms. Meenakshi Chauhan and perused the material on record.
The Court recognized that this was primarily a builder buyer dispute and the Magistrate had concluded that no Custodial Interrogation of the accused was necessary. Under Section 437 CrPC, which deals with matters regarding bail, the Magistrate had been given full discretion. Once the Magistrate had exercised his discretion it was not for the High Court to substitute its discretion to that of the Magistrate or to examine the case on merits to find out whether or not the allegations, if proved, end in conviction.
The Metropolitan Magistrate while considering was justified in holding that the dishonest intention of the accused at the time of agreement was not a matter of trial. There was also no material that substantiated any claims of criminal antecedents of the Respondent suggesting that they would try to flee from justice. In view of the above, the High Court called for no interference in the case at hand.
In matters of bail, the Magistrate had been given undoubted discretion which had been judicially exercised in this case according to the procedure, thus, the High Court could neither replace its discretion nor could they analyse this case on merits which could lead to conviction of the accused. The petition was dismissed along with the pending application.
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