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Bhushan Lal Khanna vs State on 11 July, 2018

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on :3rd April, 2018
Date of decision :11th July, 2018

BAIL APPLN. 2529/17
BHUSHAN LAL KHANNA ….. Petitioner
Through Mr. Vikas Pahwa, Sr. Advocate
with Mr. L.K. Mishra and
Ms.Kinnori Ghosh, Advocates
versus

STATE ….. Respondent
(GOVT. OF NCT OF DELHI)
Through: Mr.Ashish Dutta,APP for the
State with Inspector Jeevat
Ram, PS DIU

Mr.Saleem Ahmed, Ms. Charu
Dalal and Mr.Ajay Pratap
Singh, Advocates for the
complainant.

CORAM:
HON’BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT

ANU MALHOTRA, J.

1. The applicant of Crl. M. (Bail) 2529/2017 seeks the grant of
anticipatory bail under Section 438 read with Section 482 Code of
Criminal Procedure, 1973 in relation to allegations levelled against
him qua the alleged commission of rape of the prosecutrix Ms. „X‟ of
the offence punishable under Section 376 Cr.P.C. qua which the FIR

Bail Appln. No. 2529/17 Page 1 of 47
with Police Station New Ashok Nagar was registered against the
applicant on 8.6.2017 with the period of the alleged commission of the
offence being from the date 7.3.2017 to 30.4.2017.

2. As per the averments made in the FIR dated 08.06.2017, the
prosecutrix a resident of New Ashok Nagar, Vasundhara Enclave, East
Delhi on 7.2.2017 after having taken a mobile number of the builder
from her name sake brother Dalip Kumar, had gone to see a flat to be
taken on rent where she met Alok Vats of the Newtech Group at his
office and there were conversations in relation to rent and sales and in
the meantime Alok Vats introduced her to Bhushan Lal Khanna, i.e.
the petitioner herein and his partner Sanjiv, and they also insisted that
she had lunch with them and they had lunch at Sagar Ratna and
thereafter she was shown the flat and they came back to the office of
Alok Vats who asked his driver to get her dropped at her residence
and thereafter at about 10:22 p.m. she received a message on the
WhatsApp from mobile No. +12516481314 in which it was stated that
“How r you Shivani-10:22 p.m. This is Bhushan from Atlanta-10:29
p.m.” and on her asking that person told her that he had taken her
number from Alok Vats. The prosecutrix further through the FIR
submitted that she took the message lightly and chatted with that
person and he asked her to make a phone call and WhatsApp call to
her and that night they had a conversation in relation to rent and sales
of flats whereafter there were daily conversations and the petitioner
also told her that one of his apartments was to be vacated and she
could take the same on rent @ Rs. 10,000/- per month. The

Bail Appln. No. 2529/17 Page 2 of 47
prosecutrix stated that she requested that she be allowed to see the flat
but she was not shown the flat and the petitioner kept on repeatedly
making chats and WhatsApp calls to her.

3. As per the FIR, thereafter on 13.2.2017, the petitioner
telephoned her and informed her that he had booked movie
tickets for 1:30 p.m. and during the movie he held her hand and
she did not take this act lightly and pushed off his hand and after
the movie, the petitioner left her home and called her in the night
and told her that the next day, i.e., on 14.2.2017, he was going to
Atlanta, U.S.A and that he would show her the flat and then he
suddenly told her to meet him between 4 p.m. to 4:30 p.m. on
14.2.2017. As per the FIR, the prosecutrix submitted that the next
date on 14.2.2017 she went to meet him and the petitioner started
speaking to her sweetly and told her that he was a divorcee and
wanted to marry a girl like her and he gave her a rose and a
chocolate and proposed love to her and on hearing the same she
was taken slightly aback and told him that there was a lot of
difference in their ages to which the petitioner responded that in
Atlanta, USA, this was a normal feature and asked her to accept
his proposal and told her that she could take time and then he
took his flight to USA, whereafter both of them continued on the
WhatsApp chat and there were conversations about themselves
made by them, i.e., the petitioner and the prosecutrix and they got
attracted to each other and the petitioner also informed her that
he was returning to India and that he would take a flat on rent

Bail Appln. No. 2529/17 Page 3 of 47
near her residence and would also teach her a lot of things like
speaking English, reducing weight and becoming self dependent
and he showed her big dreams and made her dream.

4. As per the FIR after several days he told her that when he came
to the airport at India, she alone should come and meet him and on
3.3.2017 she went to the Indira Gandhi International Airport to
pick him up and she gave him a bouquet whereupon he told her
that he be taken to her flat because he had to go to attend a
marriage and she should also accompany him and she, the
prosecutrix, agreed to the same and during this period, the petitioner
kept his articles in her room. The prosecutrix further submitted that
the photographs of that wedding were there in her mobile and after
they came back from the wedding to her room, the petitioner stayed at
her room and when she asked him the next day to leave the room, he
told her that he would search a new flat and would shift in the same
and she accompanied him the whole day in search of a flat and he
stated that rather than living with his family members he would live in
a flat nearby her residence, but despite a lot of efforts and search, they
could not find an appropriate flat and the prosecutrix submitted
through the FIR that this was a ploy of the petitioner and he stated that
he would live with her and as a consequence thereafter the petitioner
started living with her and duped her into physical relations with him
stating to her that he would marry her and he started using her debit
card and her cash and though she used to oppose the same, he used to
make her keep quiet stating that he would marry her and would take

Bail Appln. No. 2529/17 Page 4 of 47
her to USA and when she informed him that she did not have a
passport, as a consequence thereof he also got her passport prepared
through his e-mail and assured her that she should trust him as he had
even got her passport prepared. The prosecutrix further submitted that
thereafter several times, the petitioner forcibly had physical relations
with her and also purchased medicines for her, one of which was
named 72 Hours Pills and he also gave her several other medicines
stating that these medicines would result into reduction of her weight
and would make her fit. The prosecutrix stated that after consuming
of these medicines she had become giddy. Some of these medicines
that had been purchased by the petitioner from the USA were with her
and after 30 to 45 days with her, the petitioner went back to the USA
and after a month she realized that she did not have her periods as a
consequence of which she informed the petitioner of the same who
asked her to get a pregnancy test done and also sent her the photo of
the company kit for getting the test done through WhatsApp and she
received that kit from an unknown person through a shop which
indicated a positive result and on 15.4.2017 she telephoned the
petitioner to which the petitioner did not respond and thus she
telephoned Alok Vats to which Alok Vats told her not to make any
complaint to the police and also told her that he was of the age of her
father and would not advise her wrongly and would look after her like
her parents. She further stated that she does not know what plan was
prepared by Alok Vats and the petitioner and they made her sign on a
paper and deposited some money in her account and told her that the
said money was for her expenses and recovery and that she would

Bail Appln. No. 2529/17 Page 5 of 47
soon be better and also stated that he would always support her and
that the petitioner also told her that when he would return to India,
they would marry but the petitioner had started retracting from his
promise and had started saying that if she continued persisting for the
same he would get her killed and that he had a lot of money and that
he could purchase the police, the lawyer and the judge. The
prosecutrix further stated through the FIR that on 6.6.2017 in the night
she received a call from Alok Vats that she must not complain to the
police and that he would manage everything and asked her to leave
Delhi but despite that she wrote a complaint to the police. The
prosecutrix further stated through the FIR that on 6.6.2017 at about
12:30 a.m. she received a call from the petitioner from mobile No.
+91 9939259051 who told her that he would kill her and asked her to
leave Delhi. The prosecutrix thus sought action against the petitioner
who had raped her. As per the FIR, the prosecutrix was of the age of
25 years at the time of lodging of the FIR and thereafter she was got
medically examined at the Lal Bahadur Shastri Hospital at Khichiripur
whereafter on the basis of her complaint, the FIR was got registered
on 8.6.2017.

5. As per the status report dated 14.12.2017 submitted under the
signatures of the SHO New Ashok Nagar, the prosecutrix Ms. „X‟
refused her internal medical examination and her statement under
Section 164 of the Code of Criminal Procedure, 1973, was thereafter
recorded in which she supported the averments made in the FIR.

Bail Appln. No. 2529/17 Page 6 of 47

6. In her statement under Section 164 Code of Criminal Procedure,
1973, dated 09.06.2017, apart from the prosecutrix putting forth the
same version as brought forth by the FIR, she also stated that the
movie they watched at Wave Mall, Sector-18, Noida was Jolly LL.B-
2, which they so watched and the tickets which were expensive were
bought from her SIM and that the cost of the same was Rs.1200/- and
on 14.2.2017, the petitioner wished her Valentine‟s Day. Through
her statement under Section 164 of the Code of Criminal
Procedure, 1973, the prosecutrix also stated that the petitioner
had asked her to come to the airport with flowers which she had
taken. In her statement under Section 164 of the Code of Criminal
Procedure, 1973, the prosecutrix has further stated that the petitioner
used to take her for a run at the park each morning. As per the
statement under Section 164 of the Code of Criminal Procedure, 1973,
the prosecutrix further stated that when the petitioner learned that she
had suffered a miscarriage he refused to come to India but also
stopped payment of two cheques, the prosecutrix having also stated
that she had been given a cheque for Rs.4 lakhs previously when she
had been made to sign a paper in English, so that she did not get the
FIR lodged against the applicant till he came to India.

7. During the course of the hearing of the present petition vide
order dated 08.12.2017, the applicant was directed not to be arrested
till 18.12.2017 subject to the conditions that he joined the
investigation of the case as and when required that he would not leave
the city and would not intimidate the witnesses, and would not contact

Bail Appln. No. 2529/17 Page 7 of 47
the complainant and would not tamper with the evidence which
interim protection is in existence till date in terms of order dated
03.04.2018. It was submitted on behalf of the State that a LOC had
issued against the applicant.

8. As per the averments made in the application under
consideration, the petitioner contended that the prosecutrix herself had
gone to the airport to receive him and herself had taken him to her
house where the alleged physical relations had taken place on several
occasions and that as per the averments made by the petitioner she had
gone to see the movie with the petitioner which clearly brought forth
her sweet will and consent. The petitioner has further submitted that
the prosecutrix was well aware that the petitioner was already married
and he was double the age of the prosecutrix and that the prosecutrix
had initially compelled the petitioner for physical relations and
subsequently started black mailing him and due to fear and in order to
save her reputation, the petitioner had become tensed and started
providing all requirements including gifts and cash as demanded by
the prosecutrix.

9. The petitioner further submitted through the application that on
25.4.2017 the final settlement agreement, affidavit and an indemnity
bond were executed between the petitioner and the prosecutrix in
which the petitioner agreed to pay Rs.31,00,000/- to the prosecutrix
under compulsion and issued the Post dated cheques i.e., first cheque
of Rs.4,00,000/- bearing No.0004010 of the RBL Bank which was
duly encashed in the account of the prosecutrix and that another

Bail Appln. No. 2529/17 Page 8 of 47
cheque dated 8.6.2017 of a sum of Rs.5,00,000/- had been given by
the petitioner to the prosecutrix but when the petitioner learnt of the
registration of the FIR, he stopped the payment of the other cheque.
The petitioner has further submitted that the directors of the company
had planned to take a sum of Rs.7 crores from the petitioner but the
matter was settled according to the petitioner at Rs.31,00,000/- only
and then they instigated the prosecutrix and under a pre-planned
conspiracy, the FIR was registered against the petitioner.

10. The copy of the said final settlement agreement dated 23.5.2017
between the petitioner as the first party and the prosecutrix as the
second party is placed on the record along with the application under
consideration to which the petitioner and the prosecutrix are indicated
to be signatories with the witnesses thereto being Alok Vats and Yusuf
S/o Allanoor with the said documents being notarized on 24.5.2017.
Along with the same is also an affidavit of the prosecturix dated
23.5.2017.

11. As per the said agreement, the aspect of the petitioner and the
prosecutrix having fallen in love within a short span of time and of
staying together and the financial transactions taking place and SMS-
chat messenger conversations taking place between the parties who
lived together to be married and also having entered into physical
intimacy and of the petitioner having shifted to his temporary
residence at Noida on 23.3.2017 and finally returning to the USA on
5.5.2017 and of the prosecutrix having felt aggrieved and deserted,
physically and emotionally misused/tortured despite the relations

Bail Appln. No. 2529/17 Page 9 of 47
being consensual are all dealt with and the final settlement agreement
also indicated that the sum of Rs.31 lakhs was paid through cheques to
the prosecutrix by the petitioner and the prosecutrix had also
undertaken to withdraw her complaint lodged by her in the Police
Station New Ashok Nagar and she undertook that there will not be
litigations anymore if the agreement was signed.

12. As per the status report, the first cheque bearing No. 000010
was to be paid to the tune of Rs.4,00,000/- in favour of the prosecutrix
drawn on RBL Bank dated 23.5.2017. As per the settlement
agreement, the prosecutrix under took that the settlement had a
binding condition of „non-disclosure document clause‟ and that she
undertook not to utilize any private or financial information in any
manner and an indemnity bond dated 23.5.2017 was also annexed to
this settlement agreement as executed by the prosecutrix through
which she stated that she had received a cheque amounting to
Rs.31,00,000/- as detailed in the settlement agreement.

13. Vide order dated 08.12.2017, a status report was called for from
the police qua the said settlement document. The status report dated
14.12.2017 submitted by the SHO, Police Station New Ashok Nagar,
reports that the prosecutrix on being enquired about the said final
settlement stated that she had not signed such type of settlement but
that the witnesses mentioned in the said settlement Alok Vats, and
Yusuf Khan from whom also enquires were made stated that the said
final settlement had been executed in their presence and that they had
signed the said final settlement and the complainant had also signed

Bail Appln. No. 2529/17 Page 10 of 47
the final settlement in their presence. An Advocate, Sh. D.K.Sharma
from whom enquiries were made also stated that the said final
settlement was executed in his presence at Noida, U.P. and stated the
complainant also signed the said settlement agreement in his presence.
As per the enquiry conducted by the Investigating Agency, the cheque
bearing No.000010 of the RBL Bank amounting to Rs.4 lakhs which
was mentioned in the final settlement was credited in the account of
the complainant and the complainant had also withdrawn the said
amount.

14. Pursuant to the directions of the Court, the petitioner as directed
is reported to have joined the investigation on 11,12,13/12/2017 and
on 15.12.2017 the investigation was transferred to DIU (East).

15. The petitioner through his petition has submitted that he is a law
abiding and peace loving citizen and an NRI and has never been
involved in any manner in any criminal case and his antecedents are
crystal clear and that he has been falsely implicated by the prosecutrix
in connivance with the other Directors of Newtech La Palacia Pvt.
Ltd., office at 219, SF, Vasundhra Enclave, Plot No.1 Delhi-110096
with the sole intention to grab Rs.7 crores which had been invested
by the petitioner in the said company. According to the petitioner, he
was willing to invest his money in a construction business and his
friend , namely, Mukesh Rai introduced the petitioner to the Directors
of the said company Alok Vats, Roshan Prakash and Sanjeev Kumar
and he was to get 25% share of the company and the petitioner was
also assured of higher returns and fixed return and on 23.12.2016 on

Bail Appln. No. 2529/17 Page 11 of 47
the assurance of the directors of the said company, the petitioner
transferred Rs.7 crores through RTGS, and the petitioner was
subsequently appointed as the Director of the said company. It has
been submitted by the petitioner that subsequently on 10.2.2017 one
of the directors of the said company, namely, Alok Vats introduced
the prosecutrix to the petitioner as a Chief Officer of the company and
the prosecutrix had taken the number of the petitioner and started
honey trapping the petitioner in a pre-planned manner and as per the
version of the FIR, it has been submitted by the petitioner, that the FIR
itself indicates that the prosecutrix herself went on 5.3.2017 to receive
the petitioner and took him to her house and thus the alleged physical
relations that had taken place at her house on numerous occasions
itself indicate that it cannot be termed to be a rape.

16. It has been submitted by the petitioner that the prosecutrix was
well aware that he was already married and was double the age of the
prosecutrix and there was no question of any promise to marry and
that the version put forth by the prosecutrix in the FIR is wholly
concocted. The petitioner contended that the prosecutrix herself
initiated/compelled the petitioner to establish physical relations and
subsequently started blackmailing him and due to fear and in order to
save her reputation the petitioner became tense and provided her all
requirements including gifts and cash as demanded by the prosecutrix
whereafter the agreement dated 24.5.2017, referred to herein above,
affidavit and the indemnity bond between the petitioner and the
prosecutrix were executed. The petitioner has further submitted that

Bail Appln. No. 2529/17 Page 12 of 47
he has been falsely implicated in the instant case and the FIR has been
registered after five months of the alleged incident and the inordinate
delay in the registration of the FIR under Section 376 Indian Penal
Code, 1860, is fatal to the chances of conviction as the medical,
scientific and circumstantial evidence is most likely to vanish as laid
down by a catena of verdicts.

17. It has also been submitted by the petitioner that on
21.5.2017, i.e., prior to the registration of the FIR registered on
08.06.2017, the petitioner had already submitted a written
complaint to the SHO, Police Station Sector 20, Gautam Budh
Nagar against the prosecutrix and to the Prime Minister of India
on 23.5.2017 and to the higher police officers and ministers on
18.5.2017 and the petitioner had also moved an appropriate
application under Section 156(3) Code of Criminal Procedure,
1973 against the prosecutrix and her associates for registration of
the FIR in the Court of CJM Gautam Budh Nagar which
application was filed on 22.5.2017 and the CJM, Gautam Budh
Nagar, directed the registration of the FIR against the prosecutrix
vide Crime Case No. 0762 dated 6.7.2017 under Sections
388/406/467/468/471/120-B Indian Penal Code, 1860, at Police
Station Sector-20, Noida. The petitioner has further submitted
that after the petitioner learnt of the registration of the present
FIR No. 271/17, Police Station New Ashok Nagar against him, the
petitioner gave a written complaint on 12.8.2017 to the Delhi

Bail Appln. No. 2529/17 Page 13 of 47
Police annexing all the documents for verification of the true facts
behind the registration of the case against him.

18. The petitioner has further submitted that the prosecutrix had
refused to undergo any medical examination and reliance was thus
placed on behalf of the petitioner on the verdicts in Deepak Dua v.
State of NCT of Delhi; Bail Appln. No. 2369/16; and the verdict of
Mohd. Moiz v. State (Govt. of NCT of Delhi); bail application
No.2207/16; Sandeep Kumar v. State (NCT of Delhi); Bail Appln
No. 1182/2017 where medical examination was refused by the
prosecutrix therein and the applicants were held entitled to be released
on anticipatory bail.

19. It has further been submitted by the petitioner that the
intention of the prosecutrix was mala fide since inception as she
was representing herself as Ms.X Chaudhary, Ms.X Jain, Ms.X
Vats, Ms.X Singh and Ms.X Devi with the sole intention to trap
innocent persons to extort money and that rather the petitioner is
the real victim and the prosecutrix is the accused. The petitioner
further contended that the prosecutrix is aged 25 years, highly
qualified doing a private job and can understand what is good or bad
for her and in a similar situation in Hon‟ble High Court of Bombay in
Sumit Siddramappa Patil v. State of Maharashtra Anr. decided on
10.3.2016 and in Sqnlder Rohit Kumar Tomar v. State of NCT of
Delhi; Bail Application No. 240/16 in this Court, anticipatory bail has
been granted. It has also been submitted on behalf of the petitioner

Bail Appln. No. 2529/17 Page 14 of 47
whilst placing reliance on the verdicts of the Hon‟ble Supreme Court
in:-

 Dilip Singh v. State of Bihar; (2005) 1 SCC 88,

 Prashant Bharti v. State of NCT of Delhi; (2013) 1 Crimes 495

(SC),

 K. P. Thimmippa Godda v. State of Karnataka; Crl.appeal No.

499/2004,

 Uday v. State of Karnataka; 2003 (1) JCC 506 and

 Harish Kumar v. State 2010 (4) JCC 2371,

to contend that a promise to marry which is later denied does not
amount to the commission of the offence of rape and it is a breach of
promise and the complainant should seek a civil remedy.

20. Reliance was placed on behalf of the petitioner on the verdict of
this Court in Jagdish Nautiyal v. State; Bail Appln. No. 1317/12,
Rohit Chauhan v. State of NCT Delhi; Bail Appln No. 311/13, Vikas
Rana V. State; Bail Appln. No. 2158/14, Vishal Grover v. State; Bail
Appln No. 2355/16, Dinesh Malhotra V. State of NCT of Delhi; Bail
Appln. No. 1377/2017, Sarabjeet Singh V. State; Bail Appln. No.
1579/2017, Mukesh v. State of Delhi; Bail Appln No. 1420/2013,
Arshu @ Ashar v. NCT of Delhi; Bail Appln. No. 1981/2015, Pankaj

Bail Appln. No. 2529/17 Page 15 of 47
v. State of NCT of Delhi; Bail Appln. No. 339/2016 and Ashu
Kumar v. State of NCT of Delhi; Bail Appln No. 262/2009.

21. Inter alia, the petitioner has submitted that he was granted
interim protection and he joined the investigation. He submitted
further that the Sessions Court had dismissed his bail application
holding that NBWs, and proceedings under Section 82 Code of
Criminal Procedure, 1973 had already been initiated but that the same
did not suffice to negate the grant of bail where the applicant seeks the
grant of bail, submitting to the effect that in Bail Appln. No.
2110/2015 Anuj Ahuja v. Govt. of NCT of Delhi and Bail Appln. No.
1161/2012 Manju Garg Another v. State, even though proceedings
under Section 82 Code of Criminal Procedure, 1973 had been initiated
and the accused of the crime was yet to be arrested, it was held that
that was no ground for denial of anticipatory bail. As regards this
submission, it is essential to observe that the proceedings under
Section 82 of the Cr.PC, 1973 against the petitioner qua FIR
No.271/17, PS New Ashok Nagar have already been dropped vide
order dated 21.12.2017 of the Ld. ACMM.

22. The petitioner has further submitted that he is innocent and the
physical relations between the prosecutrix and himself were
consensual and that whether they were on the pretext of a marriage or
not, his custodial interrogation was not required in the instant case.
The applicant has further submitted that he is willing to join the
investigation and has already joined the investigation and is ready to
abide by the terms and conditions imposed by the Court.

Bail Appln. No. 2529/17 Page 16 of 47

23. The status report dated 17.1.2018 submitted by the Inspector
Rambir Singh, DIU/East Distt. in the case indicates that a Look Out
Circular was issued by the Bureau of Immigration (MHA) Govt. of
India dated 28.7.2017 (LOC Suspect No.-746803) which is valid upto
21.07.2018 and that proceedings under Section 82 Code of Criminal
Procedure, 1973, were initiated against the petitioner on 29.7.2017.

24. The report of Inspector Rajeev Vimal, Police Station New Ashok
Nagar, on the complaint of the petitioner Bhushan Lal Khanna reads
to the effect:

“It is submitted that the complainant Mr. Bhushan Lal
Khanna has lodged a complaint in reference to case FIR
No.271/17 U/S 376 IPG P.S. New Ashok Nagar
registered against him. The complainant has alleged that
he is trapped in above cited case under a criminal
conspiracy. The complainant has stated in his complaint
that one of his friend Mukesh Ray introduced him to Alok
Vats one of the director, Newteck Palacia Pvt. Ltd and
lured him to invest in his company and promised him for
good returns. The complainant Bhushan Lal Khanna
invested Rs. 7 crore in his company and be was
appointed as one of the directors with 25% share in
company. On dated 10, Feb 2017 the complainant visited
at the office of Alok Vats, Director of the Company and
Alok Vats introduced him with a lady Ms.X, an employee
of the Company. The lady Ms.X got the mobile number of
the complainant and started conversation with Bhushan
Lal Khanna. On dated 13.02.17 the lady Ms.X invited him
at her residence i.e C-271/A, New Ashok Nagar, Delhi –
96 and dinned there. On 14.02.17 the complainant
Bhushan and Ms.X celebrated Valentine day at Sect. 18,

Bail Appln. No. 2529/17 Page 17 of 47
Noida and in the evening of 14.02.17 the complainant left
for America. The lady Ms.X made regular calls and
messages to him and on 05.03.17, the complainant
arrived in India and the lady Ms.X received him at
Airport and asked him to stay at her residence. The
complainant stayed with her till 23.03.17 and gave Rs. 1
Lakh to Ms.X for her basic needs. Soon after Ms.X
started black mailing him and asked for Rs. 31 Lakh or
she would register a rape case against him. The
complainant gave PDC of Rs. 31 Lakh to Ms.X and an
agreement was signed by both not to proceed with any
action out of which a cheque of 4 lakhs was clear in the
account of Ms.X and Rs. 4 Lakhs was deposited in the
account of Smt. Babita and is 6 lacs was given in cash to
Mukesh Ray. Later when the complainant came to know
that Ms.X has registered a rape case against him, the
further payments were stopped by him. The complainant
has alleged that he was trapped by the lady Ms.X and
Alok Vats under a criminal conspiracy to extort money
from him.

Gist of FIR and Investigation:-

On dated 08.06.17 Ms.X D/o Bhoram Singh R/o C-271,
New Ashok Nagar, Delhi reported at P. 8 New Ashok
Nagar and lodged a complainant that she was introduced
to Bhusan Lal Khanna by Alok Vats and thereafter
Bhushan Khanna started calling and messaging her
regularly. She also stated that on 14.02.17, Bhushan
Khanna proposed her and left for America. But when he
came back on 03.03.17, he stayed with her at her
residence and on the pretext of marriage he forcibly
made physical relation with her. After a month he again
left for America and thereafter he ignored her and

Bail Appln. No. 2529/17 Page 18 of 47
refused to marry her and also threatened her to kill. A
case U/S 376 IPC vide FIR No. 271/17 was registered
and the investigation was assigned to W/Sl Seema Bhati
P.S. New Ashok Nagar,Delhi. During the investigation
the prosecutrix Ms.X was examined and her statement
U/s 164 Cr.P.C was recorded by the Hon’ble Court. The
accused is presently abroad and necessary proceedings
are on the way to finalize the investigation of the case.

Enquiry:-

Enquiry in the matter has been conducted by the under
signed and call details of the lady Ms.X and the alleged
person Bhushan Lal Khanna have been analysed and it is
revealed that there was regular conversation between
both of them. The transaction of money invested by
Bhushan Kharma in the Company of Mukesh Ray and
Alok Vats is also verified and found genuine. The
agreement of final settlement between Ms.X and Bhushan
Lal Khanna is signed by both with mutual understanding
for a deal of Rs. 31 Lacs and PDC had been issued to
Ms.X vides cheque Nos.

1 Cheque No. 000010 Dt. 23.05.17 RBL Bank Rs. 4,00,000/-

2 Cheque No. 000011 Dt. 08.06.17 RBL Bank Rs. 5,00,000/-

3 Cheque No. 000012 Dt. 23.06.17 RBL Bank Rs. 5,00,000/-

4 Cheque No. 000013 Dt. 08.07.17 RBL Bank Rs. 5,00,000/-

5 Cheque No. 000014 Dt. 23.07.17 RBL Bank Rs. 6,00,000/-

6 Cheque No. 000015 Dt. 08.08.17 RBL Bank Rs. 6,00,000/-

and one of the cheque for Rs. 4 Lac was cleared in the
account of Ms.X. It has also been revealed that the Rs.
6.94 Crore were invested by Bhushan Lal Khanna in the

Bail Appln. No. 2529/17 Page 19 of 47
Comapany Newtech Palacia Pvt. Ltd. through RTGS on
dated 23.12.2016. The message between Bhushan
Khanna and Ms.X has also been examined and it can not
be proved that Bhushan Lal Khanna had ever promised
her for marriage. Moreover it is also to mentioned that as
per the order / direction of The Hon’ble Court of CJM,
Gautam Budh Nagar UP, A Case vide FIR No. 762/17
U/S 388/420/406/467/468/471/120-B IPC P.S. Sect. 20
Noida has been registered on the complainant of Sh.
Bhushan Lal Khanna against Ms.X and other. The case is
presently under investigation.

In view of above fact and the investigation of the
registered case and facts revealed out from enquiry, both
Ms.X and Bhushan Khanna lived together in live-in-
relationship with their own consent. Ms.X has received
Rs.4,00,000/- through Cheque and signed the agreement
for final settlement of separation. As a Case, as per the
order of Hon’ble CJM Gautam Budh Nagar, vide FIR No.
762/17 U/S 388/420/406/467/468/471/120-B IPG P.S.
Sect. 20 Noida has been registered on the complainant of
Sh. Bhushan Lal Khanna against Ms.X and other in
Noida. Hence ingredients of criminal conspiracy cannot
be ruled out. As the case registered in Noida is presently
under the investigation so its investigation can also be
effected by the present case. There are no specific
grounds for the arrest of the accused for custodial
interrogation. The case can be finalized without arrest of
the accused. IO of the case may be directed to conduct
the investigation of the case properly and submit the final
report before the Hon’ble court shortly.”

(The name of the complainant stated in the report is
mentioned hereinabove as Ms. X.)

Bail Appln. No. 2529/17 Page 20 of 47

25. The status report dated 17.1.2018 under the signatures of
Inspector Rambir Singh DIU/East Distt. Delhi, indicates that presently
the petitioner holds one USA Passport No.529312815 along with
corresponding OCI Card No.A2460851 which was updated on
27.10.2016 by Consulate General of India, Atlanta, U.S.A.

26. During the proceedings dated 17.1.2018 of this Court, it was
submitted on behalf of the applicant/petitioner that the stated mobile
had been handed over by the applicant to the Investigating Agency.
The status report in relation to investigation conducted qua the said
mobile phone was directed vide order dated 17.01.2018 to be
submitted by the State.

27. Written submissions were submitted on behalf of the
prosecutrix contending to the effect that the petitioner who is accused
of rape, threat, fraud and forgery is misleading the Court to believe
that he had been falsely implicated though he was the master mind
behind trapping the prosecutrix and exploiting her physically as well
as emotionally and thus he has trapped the prosecturix by obtaining
her mobile number from Alok Vats and contacted her on WhatsApp
and trapped her and lured her into believing him that he wished to
marry her. It is further submitted on behalf of the prosecutrix that the
WhatsApp chats annexed alongwith the written submissions are valid
proof of the actions of the petitioner and the livid details are clear that
the petitioner lured the prosecturix with a false promise of marriage so
as to cause her to trust him and enter into a relationship with him by
demonstrating his name, fame, money and impact in India and abroad.

Bail Appln. No. 2529/17 Page 21 of 47

It is further submitted on behalf of the prosecutrix that the petitioner
constantly used to send photographs to the prosecutrix along with
pictures of his swanky cars, household articles so as to impress the
prosecutrix and lured her into believing that he was a good and well
established match for her.

28. Inter alia on behalf of the prosecutrix reliance was placed on
the verdict of the Supreme Court in Uday v. State of Karnataka; 2003
(2) SCALE 329, Yedla Srinivasa Rao V. State of A.P.; 2006 VIII AD
(SC) 309, to contend that where the intentions of the accused are
dishonest right from the beginning and he kept on promising that he
would marry her till she became pregnant, it was a clear indication to
the effect that the consent for sexual intercourse had been obtained in
total misconception and cannot be treated as a consent. It has been
submitted through the written submissions of the prosecutrix that the
agreement relied upon on behalf of the petitioner as executed between
him and the prosecutrix was invalid and forged in as much as the
prosecutrix had not signed the same and had not appeared before any
Notary/Oath Commissioner in Noida (U.P.) and the signatures
appended on the agreement are not hers and that the same is a forged
document placed on record to seek grant of anticipatory bail .

29. It has been submitted on behalf of the prosecutrix that the sum
of Rs.4,00,000/- was given to the prosecutrix by the petitioner through
a cheque before leaving India so as to enable her to shop for her
engagement with him which was to take place on 31.05.2017 but the
same was also a false statement as the prosecutrix waited for him to

Bail Appln. No. 2529/17 Page 22 of 47
return but he did not return as the petitioner never intended to marry
her and this is when the prosecutrix realized that she had been
wronged and filed the present FIR. It has been further further
submitted on behalf of the prosecutrix that if the applicant is released
on anticipatory bail he would indulge in influencing the trial by
intimidating and threatening the prosecutrix as well as the witnesses to
depose in his favour to avoid the punishment at any cost.

30. Reliance was also placed on behalf of the prosecutrix on the
verdict of the Supreme Court in Jagtar Singh v. Satendra Kaur;
2002(6) SCALE 177 to contend that the accused having been
absconding there is no question of grant of anticipatory bail or regular
bail and as laid down by the Hon‟ble Supreme Court in State of
Maharashtra V. Mohd. Sajid Hussain; 2008(1) SCC (Crl.) 176 one
of the factors, while considering the application for grant of
anticipatory bail is the possibility of the applicant, if granted bail,
fleeing from justice. It has further been submitted on behalf of the
prosecutrix that the investigation of the case is still at its nascent stage
and that the applicant can misuse the grant of bail and tamper with the
evidence and also blackmail/threaten the prosecutrix to depose in his
favour.

31. Vide the additional affidavit of the petitioner placed on record
dated 15.2.2018, it is inter alia indicated that the petitioner is married
to Anjali Khanna and has a daughter, namely, Arpita Khanna and stays
at 840 Mashburn Dr, Alphretta, GA 30022 USA. The petitioner
through the said affidavit has also sought to put forth that he runs

Bail Appln. No. 2529/17 Page 23 of 47
several business entities and that he is a real estate entrepreneur and he
is owner of BAPS HOLDINGS LLC, a commercial land holding
company, he is the owner of KNA Family Investments which deals in
real estate backed security deed, mortgage notes acquisition, that the
petitioner also manages KNA Hospitality Management LLC which
manages, operates and maintains lodging properties and that the
Hairston Square LLC is also owned by the petitioner. Inter alia the
petitioner has submitted that there are several Court cases pending in
the USA between him and other businesses in USA.

32. During the course of the present proceedings on 3.4.2018 qua
Crl. M. A. No. 1356/2018, an application moved by the petitioner to
seeking permission to leave the country to attend the mediation
proceedings and other proceedings pending abroad, was vide order
dated 3.4.2018 dismissed as not being pressed at that time.

33. Reliance was placed on behalf of the petitioner on the verdict of
this Court in Bail Appln. No.2110/2015 titled Anuj Ahuja v. Govt. of
NCT of Delhi, and on the verdict of this Court in Vikul Bakshi v.
The State (NCT of Delhi); 2016 [1] JCC 54 to contend that where the
parties were acquainted with each other before the incident and
physical relations took place between the two on the alleged promise
to marry and the prosecutrix lodged the FIR when allegedly the
petitioner and his parents declined to solemnize their marriage, there is
delay in lodging the FIR and the accused was allowed to be released
on anticipatory bail subject to the conditions as imposed therein.
Reliance was also placed on behalf of the petitioner on the verdict of

Bail Appln. No. 2529/17 Page 24 of 47
this Court in Ashok Kumar v. State; 2014 [4] JCC 2399 to contend
that where there was enough material on record to indicate that the
prosecutrix had got the FIR registered to create an escape route for
her family entangled in litigations, it was a fit case for enlargement of
the petitioner on anticipatory bail conditionally.

34. The status report dated 16.3.2018 submitted under the
signatures of Inspector Jeewat Ram Parmar, DIU/East Distt. Indicates
that the original settlement documents dated 23.5.2017 was being sent
to FSL Rohini and that a notice had also been issued to the Branch
Manager RBL Bank to provide the account opening form of the
petitioner and that the admitted signatures of the complainant had been
obtained from the SBI Bank, Noida Branch and admitted signatures
of Alok Vats had been obtained from the HDFC Bank, Noida UP and
that the specimen signatures of the petitioner and the complainant
were also obtained and all were sent to the FSL, Rohini, for
examination. The stamp paper vendor Sanjay Upadhyaye was also
examined by the investigating agency and a copy of the stamp papers
sale register was obtained from him.

35. During the course of submissions that were made on behalf of
the petitioner, reliance was also placed on the verdict of this Court in
Prem Prakash Choudhary v. State ; 2018 SCC Online Del 6764 in
which it was observed to the effect:

“15. In the instant case, assuming that the allegations
against the petitioner are correct, at best, a case of
consent of the complainant having been obtained on the

Bail Appln. No. 2529/17 Page 25 of 47
pretext of marriage would be made out. It may also be
noticed that FIR has been lodged on 28.12.2017 relating
to incidents, which allegedly occurred as far back as in
April, 2016. The complainant alleges to have gone on a
sightseeing trip to Kangra in January 2016. The
complainant is alleged to have continued her relationship
with the Petitioner even after the alleged incident of
giving an intoxicant in Soup. The complainant does not
deny having written the note on 15.10.2017, wherein the
alleged incident of petitioner giving intoxicant in a soup
is stated to have happened in January 2016 in Kangra.
Though the contention is that the note was written on the
dictation of a police officer, there is no such mention in
the FIR which is lodged on 28.12.2017 and further no
complaint about the same was made till 22.01.2018 after
the first listing of this petition.

16. Further, the case of the prosecution that consent of
the complainant for marriage was obtained by
misrepresentation or on the guise of marriage would be
established by the complainant entering into the witness
box – prosecution leading appropriate evidence for
which no custodial interrogation or consequent recovery
is required to be made,”

and the accused therein was allowed to be released on
anticipatory bail subject to conditions as imposed.

36. Reliance was also placed on behalf of the petitioner on the
verdict of the High Court of Judicature of Bombay in Akshay Manoj
Jaisinghani v. The State of Maharashtra; Bail Application No.
2221/2016 wherein it was observed to the effect:

Bail Appln. No. 2529/17 Page 26 of 47

“Only because two individuals are sexually
involved with each other, it is not compulsory for
them to marry. Initially, a boy and a girl
genuinely may want to marry and are true to their
emotions and establish sexual relationship,
however, after some time, they may find that they
are not mentally or physically compatible and one
decides to withdraw from the relationship. Under
such circumstances, nobody can compel these two
persons to marry only because they had sexual
relationship. It is necessary to have a healthy,
objective and legal approach towards these
incidents. There may be moral bonding between
the two persons when they indulge into sexual
activities with promise to marry and it is also a
fact that ultimately women only can remain
pregnant and therefore, she suffers more than the
man. However, in law this cannot be labeled in
any manner as a rape.”

The applicant in this case was allowed to be released on bail
subject to the conditions imposed.

37. Reliance was also placed on behalf of the petitioner on the
verdict of this Court in Ritanshu Delory v. State; Bail Appln No.
1439/2016 wherein it was observed to the effect:

“4. The petitioner is aged around 25 years; the
prosecutrix was major on the day of occurrence.
Physical relations took place with her consent on
several occasions albeit on the alleged promise to
marry. When the marriage did not take place, the
prosecutrix lodged the FIR in question. It is
relevant to note that earlier friendship had
continued from 2008 – 2011. When the marriage
between the prosecutrix and the petitioner did not

Bail Appln. No. 2529/17 Page 27 of 47
occur, realising her mistake, the complainant
purportedly snapped the relationship. Again in
2014, the friendship developed between the two
and the complainant established physical relation
with consent allegedly on promise to marry.
Apparently, the prosecutrix was aware of the
consequence of her act. After being allegedly
befooled from 2008 – 2011, when the petitioner
did not come forward to marry her, there was no
compelling reasons for her to trust the petitioner
again and to establish physical relation in 2014 on
the alleged promise to marry.”

38. Reliance was also placed on behalf of the petitioner on the
verdict of the High Court of Judicature at Bombay in Tejas
Udaykumar Sarvaiya v. The State of Maharashtra Ors.; 2016 SCC
Online Bom 6347 wherein there was reference made to the verdict of
the Supreme Court in Tilak Raj v. State of Himachal Pradesh;
reported in 2016 SCC Online SC 11 wherein it was observed to the
effect:

“20. The evidence as a whole including FIR, testimony of
prosecutrix and MLC report prepared by medical
practitioner clearly indicate that the story of prosecutrix
regarding sexual intercourse on false pretext of marrying
her is concocted and not believable. In fact, the said act
of the Appellant seems to be consensual in nature. The
trial court has rightly held thus:

“23. If the story set up by the prosecutrix
herself in the court is to be believed, it
does come to the fore that the two were in
a relationship and she well knew that the

Bail Appln. No. 2529/17 Page 28 of 47
accused was duping her throughout. Per
the prosecutrix, she had not succumbed to
the proposal of the accused. Having
allowed access to the accused to her
residential quarter, so much so, even
having allowed him to stay overnight, she
knew the likely outcome of her reaction.
Seeing the age of the prosecutrix which is
around 40 years, it can be easily inferred
that she knew what could be the
consequences of allowing a male friend
into her bed room at night.

24. The entire circumstances discussed
above and which have come to the fore
from the testimony of none else but the
prosecutrix, it cannot be said that the
sexual intercourse was without her
consent. The act seems to be consensual
in nature.””

39. Reliance was also placed on behalf of the petitioner on the
verdict of this Court in Rohit Chauhan v. State of NCT of Delhi;

2013 SCC online Del 2106

“14.Undoubtedly there is a manifold increase in
the crime concerning rapes, but all the rape cases
which are filed have their own individual story and
factual matrix. While most of the cases may be
genuine, wherein the girl is a victim of this
horrifying crime, or has been forced, blackmailed,
threatened to enter into physical relationship with
a male on the false pretext of marriage with the
sole intent to physically exploit the girl but there

Bail Appln. No. 2529/17 Page 29 of 47
may be cases where both persons out of their own
will and choice, develop a physical relationship.
Many of the cases are being reported by those
women who have consensual physical relationship
with a man but when the relationship breaks due to
one or the other reason, the women use the law as
a weapon for vengeance and personal vendetta to
extort money and sometimes even to force the boy
to get married to her. Out of anger and frustration,
they tend to convert such consensual sex as an
incident of rape, defeating the very purpose of the
provision. There is a clear demarcation between
rape and consensual sex and in cases where such
controversies are involved, the court must very
cautiously examine the intentions of both the
individuals involved and to check if even the girl
on the other hand is genuine or had malafide
motives. Cases like these not only make mockery of
the sacred institution of marriage but also inflate
the statistics of rape cases which further
deprecates our own society.

15. In the facts of the present case, here is a
complainant who appears to be quite an ultra-

modern lady with an open outlook towards life,
enjoying alcohol in the company of men which is
evident from the photographs placed on record,
which have not been denied by the prosecutrix
present in court. She does not appear to be such a
vulnerable lady that she would not raise her voice
on being immensely exploited over such a long
period of time. As per the prosecutrix, she had a
physical relationship with the petitioner for the last
more than 2 ½ years and it is not just a single act

Bail Appln. No. 2529/17 Page 30 of 47
of sharing physical intimacy but the same
continued for almost a long period of three years.
There lies a possibility that the petitioner might
have then refused to marry the prosecutrix and this
refusal on the part of the petitioner gave a serious
jolt to the prosecutrix who then with the help of
police, solemnized the marriage with him, in the
wee hours of the night when petitioner was in his
casual apparels(track suit). It is only on
30.01.2013, that the complainant raised her voice
for the first time and made allegations of rape
against the petitioner. It is an admitted case that
the said marriage ultimately did not consummate
as the complainant was never brought to the
matrimonial home and the petitioner has already
filed a civil suit to seek decree of declaration for
declaring the said marriage as null and void.”

it was also observed vide this verdict to the effect that:

“17.It is a settled position of law, that every case is to be
dealt based on its individual factual matrix and no set
principle or straight jacket formula can be applied
specifically while dealing with bail matters where only
prima facie view can be taken to appreciate the facts in
a given case.”

40. Reliance was also placed on behalf of the petitioner on the
verdict in Arif Iqbal @ Imran v. State; 2009 SCC Online Del 3561.
The observations therein are to the effect:

“Without expressing any view on the merits of the
case, it is quite apparent from the contents of some
of the letters placed by the petitioner on record
that the prosecutrix was deeply in love with the

Bail Appln. No. 2529/17 Page 31 of 47
petititioner . In one of the letters, the prosecutrix
has expressed her desire to come close to the
petitioner and she also expressed her desire to
embrace him. In another letter she even expressed
her desire to have a child from the petitioner with
the same name and to have the company of the
petitioner for her entire life. It is not in dispute
that the petitioner had physical relations with the
prosecutrix not at any strange place but at the
residence of the prosecutrix itself. In her madness
for love with the petitioner, the prosecutrix went to
the extent of administering intoxicating pills to her
family members to induce them to go in fast and
deep sleep and during which period the petitioner
had sex with the prosecutrix. No doubt the
prosecutrix has alleged that she allowed the
petitioner to have sex with her because of the
false promise of marriage extended by the
petitioner but in my view mere false promise of
marriage should not have prompted the
prosecutrix to establish physical relationship with
the petitioner.”

41. Reliance was also placed on behalf of the petitioner on the
verdict of the Supreme Court in Vinod Kumar v. State of Kerala;
(2014) 5 Supreme Court Cases 678 to contend inter alia that there
were sexual relations between the accused and the prosecutrix with the
knowledge of the prosecutrix and that the accused was already a
married man, as in the instant case, the physical relations between
them would have to be held to be consensual and not rape.

42. Reliance is placed on behalf of the petitioner on the verdict of
the Supreme Court in Siddharam Sattlingappa Mhetre v. State of
Maharashtra; (2011) 1 SCC 694 to contend that in a case where the

Bail Appln. No. 2529/17 Page 32 of 47
Court is of a considered view that the accused has joined the
investigation and he is fully cooperating with the investigating agency
and is not likely to abscond, in that event, custodial interrogation
should be avoided, and anticipatory bail should be granted and the
Hon‟ble Supreme Court laid down the following factors and
parameters to be taken into consideration while dealing with the
anticipatory bail:

“112. The following factors and parameters can be
taken into consideration while dealing with the
anticipatory bail:

i. The nature and gravity of the accusation and the exact
role of the accused must be properly comprehended
before arrest is made;

ii. The antecedents of the applicant including the
fact as to whether the accused has previously
undergone imprisonment on conviction by a Court
in respect of any cognizable offence;

iii. The possibility of the applicant to flee from
justice; iv. The possibility of the accused’s
likelihood to repeat similar or the other offences.

v. Where the accusations have been made only with
the object of injuring or humiliating the applicant
by arresting him or her.

vi. Impact of grant of anticipatory bail particularly
in cases of large magnitude affecting a very large
number of people.

vii. The courts must evaluate the entire available
material against the accused very carefully. The

Bail Appln. No. 2529/17 Page 33 of 47
court must also clearly comprehend the exact role
of the accused in the case. The cases in which
accused is implicated with the help of sections
34 and 149 of the Indian Penal Code, the court
should consider with even greater care and caution
because over implication in the cases is a matter of
common knowledge and concern;

viii. While considering the prayer for grant of
anticipatory bail, a balance has to be struck
between two factors namely, no prejudice should
be caused to the free, fair and full investigation
and there should be prevention of harassment,
humiliation and unjustified detention of the
accused;

ix. The court to consider reasonable apprehension
of tampering of the witness or apprehension of
threat to the complainant;

x. Frivolity in prosecution should always be
considered and it is only the element of
genuineness that shall have to be considered in the
matter of grant of bail and in the event of there
being some doubt as to the genuineness of the
prosecution, in the normal course of events, the
accused is entitled to an order of bail.”

it was also laid down by the Supreme Court in this case to the
effect:

“113. Arrest should be the last option and it should
be restricted to those exceptional cases where
arresting the accused is imperative in the facts and
circumstances of that case. The court must
carefully examine the entire available record and

Bail Appln. No. 2529/17 Page 34 of 47
particularly the allegations which have been
directly attributed to the accused and these
allegations are corroborated by other material and
circumstances on record.

114. These are some of the factors which should be
taken into consideration while deciding the
anticipatory bail applications. These factors are by
no means exhaustive but they are only illustrative in
nature because it is difficult to clearly visualize all
situations and circumstances in which a person
may pray for anticipatory bail. If a wise discretion
is exercised by the concerned judge, after
consideration of entire material on record then
most of the grievances in favour of grant of or
refusal of bail will be taken care of. The legislature
in its wisdom has entrusted the power to exercise
this jurisdiction only to the judges of the superior
courts. In consonance with the legislative intention
we should accept the fact that the discretion would
be properly exercised. In any event, the option of
approaching the superior court against the court of
Sessions or the High Court is always available.”

43. Reliance was also placed on behalf of the petitioner on the
verdict of this Court in Sharad Kumar Aggarwal v. State (2012) 194
DLT 489 to contend that where the allegations made against the
accused require an analysis at the stage of investigation itself, the
same is an aspect which necessarily needs evidence and the relevance
of custodial interrogation would require consideration.

44. Reliance was also placed on behalf of the petitioner on the
verdict of the Hon‟ble Supreme Court in Shiva Shankar @ Shiva v.
State of Karnataka; in Crl.Appeal No. 504/2018 vide which the
appeal was allowed vide order dated 6.4.2018 of the Hon‟ble Supreme

Bail Appln. No. 2529/17 Page 35 of 47
Court to contend that where the accused and the prosecutrix had lived
together like a married couple, and the sexual intercourse had lasted
over a period of time, it was observed to the effect that especially in
the face of the complainant‟s own allegations of their living together
(though in that case as man and wife), cannot be termed to be a case of
„rape‟.

45. On behalf of the prosecutrix, reliance was placed on the verdict
of the Supreme Court in Yedla Srinivasa Rao v. State of Andhra
Pradesh-29.9.2006, the verdict of Gaurav Shukla v. State 15.10.2015
in Bail Appln. No.1755/2015 to contend that facts thereby are pari
materia to the facts of the instant case. Reliance was also placed on
behalf of the prosecutrix on the verdict of this Court in Karan Girotra
v. State and Anr. Bail Appln.977/2011 dated 8.5.2012 to contend that
the allegations against the petitioner and the severity of the charges
against him did not get lessened by the prosecutrix having fallen in
love with the petitioner. Reliance was also placed on behalf of the
prosecutrix on the verdict of Nikhil Parasar v. State (Govt. of NCT of
Delhi); Bail Appln. No.1745/2009 to contend that where since the
very inception of the making of the promise, the accused did not
entertain the intention of the marriage and the promise to marry held
was a mere hoax, the consent ostensibly given by the victim can be
held to be of no avail.

46. On behalf of the State it was contended by the learned APP that
the custodial interrogation of the applicant was required to ascertain
the facts of the case and that there was a likelihood of the petitioner

Bail Appln. No. 2529/17 Page 36 of 47
fleeing from justice and tampering with the evidence, if released on
anticipatory bail.

ANALYSIS

47. On a consideration of the rival submissions put forth on behalf
of either side, it is essential to observe that the FIR in the instant case
is indicated to have been registered on 21.05.2017 in relation to the
allegations of alleged rape on the prosecutrix by the petitioner during
the period 07.03.2017 to 30.04.2017. As per the investigation
conducted, a settlement agreement was also executed between the
petitioner and the prosecutrix on 25.04.2017 pursuant to which a sum
of Rs.4 lakhs vide a post dated cheque bearing no. 000010 Dt. 23.05.17
drawn on the RBL Bank was also issued to the prosecutrix by the
petitioner in relation to part of the settlement amount of Rs.31 lakhs to
be paid to her, of which a sum of Rs.4 lakhs was also duly encashed in
the account of the prosecutrix.

48. The FIR and the statement under Section 164 of the Cr.P.C.,
1973 indicate that the petitioner is already a married man with
children and the prosecutrix has initially shared her room with the
petitioner since 03.03.2017 qua which she stated through the FIR that
that was the day when the petitioner had come from Atlanta USA and
had asked her to meet her at the Airport alone and that she had gone to
the Airport with a bouquet and picked him up and he asked her to take
him to his flat saying that he wanted to go for a wedding and that she
too should accompany him and that they had taken photographs of the

Bail Appln. No. 2529/17 Page 37 of 47
wedding whereafter, the petitioner stayed in her room and she asked
him the next day to go from the room when the petitioner told him
that he was searching for a flat and would shift in the same and she
had alongwith the petitioner had been in search of the flat and that the
petitioner had stated that rather than living with his family members
he would live somewhere close to her but that they could not find the
place which appeared to be a ploy of the petitioner and thereafter the
petitioner started living with her and kept assuring her of marriage and
continued to make physical relations with her and started utilizing her
debit card and cash and whenever she objected, he used to make her
quiet saying that he would marry her. These assertions in the FIR and
the averments made in the statement under Section 164 of the Cr.P.C.,
1973 dated 09.06.2017 of the prosecutrix indicate that on 13.02.2017,
the prosecutrix accompanied the petitioner to the Wave Mall, Sector-
18, Noida to see Jolly LLB-2 qua which the tickets were purchased
from her SIM Card and on the morning of 14.02.2017, the petitioner
wished the prosecutrix a Valentine‟s day and in the afternoon
telephoned her and informed her that he was leaving for the USA that
night and asked her to meet and she told him that she would meet in
the evening and she was then studying and then she went to meet
him at Sector-18, Noida in the evening when he gave her a bouquet
and chocolates, told her that she was a very nice girl and offered to
marry her to which she stated that her family members would not
agree and he stated that he would make him capable and then her
parents would not disagree to the match and he went to leave her at the
house and thereafter went to the USA and thereafter they continued

Bail Appln. No. 2529/17 Page 38 of 47
with their conversations and on 04.03.2017, the petitioner had to
come to Delhi and he sent his ticket through a WhatsApp to her
asked her to come with flowers at the Airport to pick him up and
she went to pick him up and from that time till the end of April,
the petitioner stayed at her room and at that time, her sister had
gone home and the petitioner told her that he would marry her and had
asked her for physical relations with her and when she refused, he told
her that he would marry her and then gave her some pills and had
physical relations with her daily and also gave her several vitamins
which were there with her at her house even at the time when she
made her statement, that he made her run everyday at the Amitabh
Park and brought her a watch, got her passport made told her that he
would have a Court marriage with her and would take her to USA but
did nothing of the sort and he also took Rs.1,500/- from her ATM for
the passport fee and went to USA towards the end of April informing
her that there was a Court hearing and told her that he would come
back and marry her but did not return and that she informed him in the
month of May that she had not had her periods and he asked her to
wait till the 10th and told her that a man would come with the
pregnancy test kit and the man came with the same and she checked
and the test proved positive about which she informed the petitioner
who asked her not to worry and told her that he would marry but he
did not come back and asked her to take 4 pills out of the „72 pill‟
which he had given her which she consumed and from that time her
bleeding did not stop and he told her that he would come on the 31st of
May and would get engaged to her but did not come and that she met

Bail Appln. No. 2529/17 Page 39 of 47
Mr. Alok Vats and told him about everything including the pregnancy
and that Mr. Alok Vats told her that Bhushan, i.e., the petitioner herein
was a bad man and that he had done the same with several girls and
had taken his money as well amounting to Rs. 4 ½ lakhs and he made
her talk to Bhushan, i.e., the petitioner on his phone and that the
petitioner told her that he would come and that she should get ready
for engagement and that Alok Vats took her to a lawyer and that the
lawyer gave her a cheque of Rs.4 lakhs and a paper which was in
English and she was made to sign on the same and the lawyer told her
that it was mentioned in the said document that till the time the
petitioner came, she should not get an FIR registered and that she
would also return all his articles and that both petitioner and she
would give time to each other. As per the statement under Section 164
of the Cr.P.C., 1973, there were some articles of the petitioner in her
room and she stated further that when the petitioner learnt of her
miscarriage, he refused to come and told her that he was telling her
lies and on learning of her miscarriage, he also got the payment of 2 to
3 cheques stopped and also refused to marry her and that Mr. Alok
Vats SMSsed her and compelled her to return the articles of the
petitioner and that the petitioner also threatened to kill her if she made
any complaint and Alok Vats continued to pressurize her that she
should not make any complaint and she thus stated that both the
petitioner and Alok Vats had conspired in the commission of the
offences with her. She further stated that one day, the petitioner had
also beaten her a lot on putting sugar because of which her shoulder
was still paining and that she apprehended danger to her life as Alok

Bail Appln. No. 2529/17 Page 40 of 47
Vats had telephoned her even one day prior to the date 09.06.2017 not
to make a complaint and that the petitioner had also told her that if she
made a complaint, he could purchase the police, lawyer and the Judge.

49. Through the statement under Section 164 of the Cr.P.C.,
1973 also, it is indicated that for the period 04.03.2017 till the end
of May, 2017, the petitioner and the prosecutrix have lived
together at the room of the prosecutrix and have indulged in
physical relations and these physical relations were entered into
between the petitioner and the prosecutrix after the petitioner
inter alia consumed pills as allegedly given to her by the petitioner.
The prosecutrix contends that she entered into the said physical
relations with the petitioner because of his inducement that he
would marry her which he did not do and after he learnt of the
miscarriage, he stopped meeting her and threatened her not to
lodge a complaint as well with the police. There are photographs
placed on the record which have been filed by the prosecutrix
herself alongwith documents filed on 13.03.2018 showing the
prosecutrix and the petitioner with a bouquet and showing the
prosecutrix and the petitioner close together in a wedding. Placed
on record are also the transcripts of conversations on WhatsApp
between the petitioner and the prosecutrix which indicate the
development of a relationship between the petitioner and the
prosecutrix and their concerns for each other. It is also essential
to observe that even prior to the registration of the FIR in the
instant case on 21.05.2017, the petitioner had also made a

Bail Appln. No. 2529/17 Page 41 of 47
complaint on 18.05.2017 to the SHO, PS Sector-20 Gautam Budh
Nagar against he prosecutrix and had also filed an application
under Section 156(3) of the Cr.P.C., 1973 against the prosecutrix
and her associates for the registration of the FIR in the Court of
CJM, Gautam Budh Nagar in relation to which Crime Case No.
0762 dated 06.07.2017 under Sections
388/420/406/467/468/471/120-B of the Indian Penal Code, 1860, PS
Sector-20 Noida is indicated to have been registered.

50. Taking all these aspects into account and the age of the
prosecutrix being 25 years and as the prosecutrix apparently
appears to be educated, the aspect as to whether the physical
relations between the petitioner and the prosecutrix which
continued from the date 04.03.2017 till the end of April, 2017 were
due to any inducement for marriage given by the petitioner or not,
are matters which can only be determined on trial. The factum
that the prosecutrix chose to get the cheque bearing no. 000010 of
Rs.4 lakhs encashed and also signed the settlement agreement
dated 23.05.2017 between herself and the petitioner (which of
course the petitioner has claimed that she has not signed the same,
though the status report submitted by the police also states to the
effect that as per the witnesses who signed the settlement
agreement, the complainant had signed on the same) all bring
forth prima facie that the contentions of the petitioner, that the
relations between the petitioner and the prosecutrix were
consensual can only be ascertained through trial, inasmuch as per

Bail Appln. No. 2529/17 Page 42 of 47
the FIR, the petitioner has informed the prosecutrix on 14.02.2017
that he was a divorcee as was also stated by the prosecutrix
through her statement under Section 164 Cr.P.C., 1973, though, in
this statement apparently the information of the divorce was
known to the prosecutrix much prior to the date 14.02.2017, i.e.,
on 07.02.2017 when the petitioner also allegedly stated to the
prosecutrix that he was a divorcee and was searching for a friend.
Significantly, the FIR has also stated that on 13.02.2017, the
petitioner had asked the prosecutrix to accompany him for a
movie and she had accompanied the petitioner after having
repeated WhatsApp chats and calls from the night of 07.02.2017
onwards and it is indicated through the FIR that the prosecutrix
went to see the movie with the petitioner apparently voluntarily
and as per the FIR during the course of the movie the petitioner
caught hold of her hand which the prosecutrix did not approve of
and thus pushed his hand away which is not stated through the
statement of the prosecutrix under Section 164 Cr.P.C., 1973, but
despite this act of the petitioner allegedly made on 13.02.2017, the
prosecutrix nevertheless continued with her relations with the
petitioner even on 14.02.2017 and repeatedly thereafter to the
extent of indulging into sexual intercourse with the petitioner and
also consuming abortion pills which she however claims were
given to her by the petitioner.

51. It is essential to observe that the prosecutrix is aged 25 years
and does not appear to be a gullible woman and states that at the

Bail Appln. No. 2529/17 Page 43 of 47
time when the petitioner lived at her residence from 04.03.2017 till
the end of April, 2017, the petitioner and the prosecutrix virtually
had regular physical intercourse and the prosecutrix also states in
her statement under Section 164 Cr.P.C., 1973 that at that time
when the petitioner stayed with her in her home, her sister had
gone to her house. The petitioner as per the status report dated
07.03.2017 is a US citizen. The specimen signatures and admitted
signatures of the petitioner and of the complainant and of the
witness Alok Vats and the witness Yusuf whose signatures are
stated to be on the settlement agreement dated 23.05.2017 attested
on 24.05.2017 between the petitioner and the prosecutrix, as per
the said status report dated 07.03.2017 have been taken and have
been sent to the FSL, Rohini for comparison. The status report
dated 07.03.2017, indicates that the petitioner holds a USA
passport bearing No.529312815 with corresponding OCI card
No.A2460851 which was updated on 27.10.2016 by Consulate
General of India Atlanta, UK. The status report dated 07.03.2017
under signatures of Inspector Jeewat Ram Parmar, DIU, East also
states that the photocopy of the mobile phone chat between the
petitioner and the prosecutrix has been made available to the
investigation agency and that the mobile instrument of the
petitioner has also been seized by Inspector Ram Bir Singh on
18.01.2018.

52. The status report dated 07.03.2017 states that the custodial
interrogation of the petitioner was required to find out the facts of the

Bail Appln. No. 2529/17 Page 44 of 47
case and that if anticipatory bail/ travel permission was granted to the
petitioner, he may not come back to India and he can win over the
witnesses by way of threatening or pressurizing them. The status
report dated 16.03.2018 under the signatures of Inspector Jeewat Ram
Parmar, DIU East stated that the admitted signatures of the
complainant obtained from State Bank of India, Branch Noida UP and
admitted signatures of Alok Vats obtained from HDFC Bank, Noida,
UP have been taken and that the original settlement document dated
23.05.2017 has been sent to the Director, FSL, Rohini and that this
mobile phone instrument of the prosecutrix with the SIM has already
been seized on 10.03.2018 and has also been sent to the Director, FSL,
Rohini for examination and that the stamp papers seller Shri Sanjay
Upadhyaye has also been examined on 10.03.2018 and copy of stamp
papers sale register has been obtained and that the CDR and CAF were
in the process being obtained from the service provider of the mobile
phone.

53. Reliance placed on behalf of the prosecutrix on the verdicts in:

“Yedla Srinivasa Rao Vs. State of Andhra Pradesh” in Appeal
(Crl.) No.1369/2004 decided on 29.09.2006 (supra),

on verdict of the Hon‟ble Supreme Court “Gaurav Shukla Vs.
State (Delhi High Court)- 15/10/2015 in Bail Appln. No.1755/2015,

“Karan Girotra Vs. State and Anr (Delhi High Court)-
08/05/2012 in Bail Appln. No.977/2011

Bail Appln. No. 2529/17 Page 45 of 47
“Nikhil Parasar Vs. State Govt. of NCT of Delhi” (Delhi
High Court)-01/02/2010 in Bail Appln. No.1745/2009,

– are on the basis of the facts and circumstances of the said cases and
it cannot be overlooked that in the case “Yedla Srinivasa Rao Vs.
State of Andhra Pradesh”- 29/09/2006 (Supreme Court of India), the
prosecutrix was 16 years of age and a rustic whereas in the instant
case, the prosecutrix is 25 years of age and from the photographs
placed by the prosecutrix herself with the petitioner and the
conversations between her and the petitioner, – does not appear prima
facie to be naive or gullible.

54. The contention raised on behalf of the prosecutrix and the State
is to the effect that the physical relations between the petitioner and
the prosecutrix were due to the false communication made by the
petitioner to the prosecutrix that he would marry her and which he has
not chosen to do so and that the petitioner is not entitled to
anticipatory bail, it having been submitted that there was no intent to
marry the prosecutrix at all by the petitioner as his family lives abroad
and he is a citizen of USA. The prosecutrix has sought to contend that
after the petitioner learnt of her miscarriage, he stopped contact with
her virtually. The WhatsApp conversations between the petitioner and
the prosecutrix placed on record by the prosecutrix herself extend to
the date 18.05.2017 and such conversations placed on record by the
petitioner extend to the date 04.07.2017.

55. Taking the totality of the circumstances of the case into account,
as observed hereinabove the aspect of the physical relations between

Bail Appln. No. 2529/17 Page 46 of 47
the petitioner and the prosecutrix being consensual or otherwise being
a matter of trial and the aspect as to whether the prosecutrix was aware
that the petitioner was a married man or not and that the prosecutrix
has also chosen to get a cheque of Rs.4 lakhs encashed, inasmuch as
the record indicates that the petitioner is a US citizen with his family
and business, this Court is of the considered view that in the
circumstances of the case, it is considered appropriate to release the
petitioner on anticipatory bail.

56. The petitioner thus, in the event of arrest is allowed to be
released on anticipatory bail on his filing a bail bond in the sum of
Rs.5 lakhs with two sureties of the like amount to the satisfaction of
the learned CMM, (Central) subject to the further conditions that the
petitioner shall not tamper with the evidence in any manner, shall not
threaten the witnesses neither himself nor through any associate or any
other person and shall not leave the city nor the country till the
completion of the investigation and submission of the charge-sheet,
whereafter travel of the petitioner, if any, an NRI both in India and
abroad, if any moved shall subject to the applicant seeking requisite
permission before the learned Trial Court where the charge-sheet, i.e.
the police report under Section 173 of the Cr.P.C., 1973 is filed.

57. The application is disposed of accordingly.

ANU MALHOTRA, J
JULY 11, 2018/sv/NC

Bail Appln. No. 2529/17 Page 47 of 47

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