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TMI Blog2016 (10) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... w Delhi / 420/ 467/ 471/ 120B IPC 2. It is the complainants' case that they have invested monies into the projects of the applicant accused to the tune of around 600 crores which have been siphoned off by the accused by colluding, conspiring, ganging up with his family members and illegally benefitting from the complainants' money on the false pretext of providing lucrative returns. The Applicant had invited applications for investment in two projects for construction of IT parks, one in Gurgaon and the other in Manesar. The complainants have filed applications in each of the aforesaid Bail Applications, seeking permission to intervene e in the matter on behalf of the "Investors Sanghars Samiti", with a view to oppose the grant of bail to the applicant/ accused. These applications are: (i) Crl. M.A. No. 10390/2016 in Bail Appln. No. 1212/2016; (ii) Crl. M.A. No. 10392/2016 in Bail Appln. No. 1221/2016; and, (iii) Crl. M.A. No. 10388/2016 in Bail Appln. No. 1222/2016. 3. Charge-sheets in the subject FIRS have been filed on 29.12.2014. Supplementary charge-sheets have also been filed, adding Mr. Sanjay Dahiya, brother of the applicant and Mr. Daryao Singh, fath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2007. 8. The investment options available under various schemes were down payment, barter agreement, construction linked program, and advance full payment by investors. The investors invested, inter alia, through the barter scheme or through advancing full payment. The barter scheme was in the nature of exchange of immovable property with a unit (s) /space in the projects of the applicant. The Applicant executed two kinds of agreements with the investors, namely, the Developer-Anchor-Unit Agreement and the Developer Anchor Option Agreement-Assured Return Plan. These agreements were entered into somewhere between the years 2006-2008. All these agreements were executed by the applicant on behalf of the aforesaid companies. 9. The Developer assured the investors that the construction will be completed within a period of sixty months from the date of the agreement and after receipt of the completion certificate from government authority. The investors were also guaranteed assured return at the rate of 9% to 12% per month. As per the agreements, on the expiry of the period, the Developers were to hand over the booked units to the investors and the units, post construction, were to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir individual accounts or accounts of persons, firms, companies owned and/or controlled by them. 13. It is further alleged that the assured returns which the applicant had assured to pay haven't been given since February 2014, despite demands. At times, it is alleged, the complainants have been shunted out by the bouncers of the accused with threat of dire consequences. It is alleged that the accused had delivered some post dated cheques of July 2014 - March 2015 to the complainants to pay the pending assured returns, which have also started getting dishonored. 14. The Complainants allege that the accused has illegally collected service tax and land enhancement cost from the complainants on the undertaking of paying the assured return. This was done with an intention to make the complainants part with more money to pay off their dues to the Service Tax Department. It is also their case that the persons who have paid the amount prior to 01.07.2010 were not even liable to pay the service tax under law. The accuse applicant has not deposited TDS deducted from the amount of assured return paid to the complainants in the previous years. 15. The Complainants have further alleged t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... project was launched in the year 2005-2006 and allotment was made by HSIIDC to Vigneshwara Developers Pvt. Ltd. on 10.05.2006 and an agreement was executed on 17.05.2006. It has been informed by HSIIDC that basic cost was deposited by the applicant's company, however, when enhanced compensation was demanded, the company deposited only part payment of Rs. 1 crore and thereafter moved the Punjab and Haryana High Court and Supreme Court against the demand notice. It has been further revealed that M/s. Vigneshwara Developers Pvt. Ltd. was not permitted to lease or sell the property in question. The analysis of the bank accounts reveal that the directors received Rs. 9,98,10,952/- from the investors before 17.05.2006, which is before the date of agreement between HSIIDC and the applicant. As per the agreement, it was agreed between the corporation and the accused that the breakup of the project implementation shall be as follows: Time-period Percentage Two years 30% Three years 50% Five yearss 75% Extension of 2 year 100% 20. It is stated that more than eight years have lapsed, and project is just 40-50% complete and for the last several months is in an abandoned conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that the present is a case of non-completion of the project and non-payment of assured returns, which is purely civil in nature. It is, at best, a case of breach of the agreements entered into by the accused company with the investors. The contents of the FIR at best demonstrate an alleged breach of contract and cannot be termed as cheating. He submits that the contract between the investors and the applicant provides recourse to arbitration in case of any dispute arising from the contract. The applicant also relies upon the bail orders in FIR Nos. 28/10, 29/10, and 65/10, wherein the accused has been granted bail and the Ld. ASJs have enlarged the applicant on bail on the ground that the dispute is of civil nature. 25. The Applicant further submits that the accused company has diligently paid the assured return since inception. To evidence the same, the Applicant has relied upon a verification report of Dun and Bradstreet verifying the performance of all projects. The Applicant submits that since the assured returns were diligently paid from inception, there is no intention to cheat and mens rea to constitute criminal offence is absent in the present case. 26. Mr. Nigam, lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all VGC attached which left the Applicant paralyzed and brought the functioning of its company to a standstill. This action of the Police Authorities affected the payment of assured returns and caused dishonour of cheques issued by the Applicant. 29. Ld. Senior further submits that the charge-sheet in the case has already been filed, and around eleven months have passed since the order rejecting bail under Section 439 passed by the learned Additional Sessions Judge. The applicant has been in judicial custody for over twenty one months now. Thus, no purpose will be achieved in unnecessarily keeping the applicant in jail during pendency of the trial. Ld. Senior furthermore states that the trial is likely to take considerable time since there are around 400 complainants. The taking on record of statements of the prosecution witnesses and the documents relied by the prosecution is bound to take long. It is highly improbable that the trial will get completed within the limitation of sixty days from the first date fixed for taking evidence as provided under sub section (6) of Section 437 of CrPC. He submits that the right to automatic bail under the said provision stems from the fundame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prosecuting the case, and the Public Prosecutor is the sole incharge of the prosecution. Section 301 CrPC entitles the Public Prosecutor or Addl. Public Prosecutor to appear and plead in a case undergoing inquiry, trial or appeal, and no private pleader can intervene. At the most, he can assist the Public Prosecutor and act under his directions. A private pleader is permitted to submit written arguments after the evidence is closed in a case, provided prior permission of the Court is obtained. In this regard, reliance is placed on the following cases: 1. Sundeep Kumar Bafna v. State of Maharashtra, 2014 (16) SCC 623 2. Praveen Malhotra v. State, 1990 (18) DRJ 192 3. Kuldeep Singh v. State of Haryana 1980 Cri LJ 1159 4. P.S. Saravanbhavanandam and Ors. v. S. Murugaiyyan & Ors. 1986 Cri LJ 1540 5. Shiv Kumar v. Hukum Chand (1999) 7 SCC 467 33. The Bail Applications are opposed by the learned APP. She submits that in respect of the project at Manesar, only one out of the six towers has been constructed. She relies upon the charge-sheet which reveals that "During the inspection of the project site, it has been found that the project at Manesar is partly constructed and at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the affairs of these companies. The applicant herein, as mentioned above, is the managing director in all these 15 companies. Ld. APP submits that an Auditors Report, referred to in the charge-sheet, establishes that huge amounts were transferred and rotated from the accused companies, i.e. Vigneshwara Developers Pvt. Ltd. and Vigneshwara Developwell Pvt. Ltd. to its other group companies, and also to accounts of other directors with the aim and object of siphoning the money. 37. Ld. APP has relied upon Sunil Grover v. State, which distinguished Sanjay Chandra (supra). She submits that in the present case general members of the public have been directly put to loss by floating of advertisements and invitation of offers from the public to invest money into the projects of the applicant by promising them assured lucrative returns. This is unlike Sanjay Chandra (supra) wherein it was the public-exchequer that was put to loss by not holding auction of government resources. 38. Mr. Singla has also advanced his submissions with the permission of the Court. Looking to the very large body of investors involved and concerned in the matter, I have permitted him to do so. He supports Ld. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 22.07.2016 in the aforesaid petitions, admitted the petitions for winding up and appointed an Official Liquidator in the respective petitions. Discussion and Decision 42. I have considered the rival submissions advanced by learned counsels. 43. The Supreme Court in Dipak Subhashchandra Mehta v. Central Bureau of Investigation, (2012) 4 SCC 134, laid down the factors that a court granting bail should consider. The court observed as follows: "18. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The Court granting bail has to consider, among other circumstances, the factors such as a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; b) reasonable apprehension of tampering with the witness or apprehension of threat to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why they reduced the sale price consideration in the sale agreements executed between the accused company and the investors. The accused deducted TDS on the assured returns promised, but apparently the same has not been deposited with the Income Tax Department, thus, prima facie, raising a possibility of misappropriation. The assured returns have also been stopped after few years. Post dated cheques issued in that regard have been dishonoured. The construction of the units, which was assured within a time span of 5 years from the date of agreement has, even after a period of more than eight years, not been completed. There are allegations that the applicant/ accused has also deducted service tax from the investors, including during a period when it wasn't required to be deducted under law. The same does not appear to have been deposited with the authorities and may have been misappropriated. Vast amounts collected by the applicant/ accused from the investors appear to have been splurged for personal comforts and pleasures, apparently without any concern for the fact that the people had invested their lifelong savings in the hope of getting their promised properties and returns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oever was given. However allottee has to obtain permission from HSIIDC on the prescribed format. In our opinion as per the terms and conditions of the above said agreement the accused was authorized to book the IT units only on or after 17/05/2006 subject to obtain permission from HSIIDC on prescribed format. On scrutinizing the bank account, we found that they had received the funds from the investors before 17/05/2006 for booking units under the said project ...... ... ..... ........ ... They had received Rs. 9,98,10,952/- from the investors before 17/05/2006. The accused had withdrawn a sum of Rs. 5,40,00,000/- (Rs five crore forty lacs only). They had withdrawn material amount from the funds received from the investors it (sic) shows manipulation/misappropriation of funds. ........................................ The authorized and paid up capital of the company is Rs. 1,00,000/- only, they have received the share application money in such a huge amount without increasing their authorized capital. During the year 2009-2010 company has received share application money of Rs. 21,14,70,980/-. The company had shown the share application money lying pending for allotment sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9, the Court in Para 34 observed: "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country." 50. Further, in State of Gujarat vs. Mohanlal Jitamalji Porwal and Anr., (1987) 2 SCC 364, the Court in Para 5 observed: "5. The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community. A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner without fear of criticism from the quarters which view white collar crimes with a permissive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be seen, but also the fact as to whether accused would be available to face the trial or flee away from the processes of law. He should not have propensity to win over the witnesses or tamper with the evidence. I am also cognizant of the fact that in both these cases cited by the learned counsel for the petitioner, the quantum of money allegedly involved was much higher than the amount of money involved in the instant case, but there is a fundamental difference between these two sets of cases which have been cited by the learned counsel for the petitioner and the present case. In the cases, which have been cited by the learned counsel for the petitioner, no member of the general public was affected directly, rather it was the public ex-chequer which was put to loss by not holding auction of government resources or by over invoicing lenders. This is totally different from the facts of the present case where the petitioner floats advertisements and invites the offers from the members of the public to invest money in their schemes by promising them lucrative returns at regular intervals. He is able to gain their confidence and cheat them of their hard-earned money which ranges from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judicial principles in mind, namely, gravity of the offence and the implications thereof. 13. In my view, the gravity and the implication of the offence, in the instant case, has a far-reaching effect on a definite number of members of the public, who are around 1500 in number, as on date and more are adding by the day." (emphasis supplied) 53. The Supreme Court, in Neeru Yadav v. State of U.P, (2014) 16 SCC 508 - which was also a case of regular bail under Section 439, observed as follows: "16. xxx We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. It is basically a natural right. In fact, some regard it as the grammar of life. No one would like to lose his liberty or barter it for all the wealth of the world. People from centuries have fought for liberty, for absence of liberty causes sense of emptiness. The sanctity of liberty is the fulcrum of any civilized society. It is a cardinal value on which the civilisation rests. It cannot be allowed to be paralysed and immobilized. Deprivation of liberty of a person has enormous ..... X X X X Extracts X X X X X X X X Extracts X X X X
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