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TMI Blog2021 (5) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... definite conclusion that affording the benefit of anticipatory bail will deny the investigating agency a fair right to investigate the case properly by effectively interrogating the accused and this denial will scuttle the investigation. Therefore, hold that the applicant/accused is not entitled for the benefit of anticipatory bail and his request for anticipatory bail deserves to be declined. Hence, the instant application for anticipatory bail is hereby dismissed. However, any observation recorded in this order shall not be treated as an expression of opinion on the merits of the case. File be consigned to the record room after due compliance. - Bail Application No. 43 of 2021 - - - Dated:- 8-4-2021 - SURYA PARTAP SINGH, SESSIONS JUDGE-CUM-SPECIAL JUDGE, GURUGRAM, Argued by: Shri Siddharth Aggarwal, Advocate for the applicant/accused Shri Nitesh Rana, Special Public Prosecutor for the respondent/ Directorate of Enforcement. ORDER: By invoking the provisions enshrined under section 438 of Cr.P.C., the applicant/accused has filed the instant application seeking benefit of anticipatory bail, in the event of his arrest with regard to a case registered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally of sizes of 125 square meters, 200 square meters, 225 square meters or otherwise approved) specifically in the layout plan by the Director and in the following manner: i) That the owner shall allot these plots to the applicants registered during the course of his business. In case the number of persons so registered exceeds the number of plots, the allotment shall be made by the draw of lottery for 75% plots. ii) That the owner shall allot remaining 25% of No Profit No Loss: plots to: (a) Non Residents Indians against Foreign Exchange. (b) The land owners whose land has been purchased by the owner for setting up a colony in lieu thereof under a written contractual obligation. (c) Plots falling small pockets which subsequently are acquired by the colonizers as part of an area already developed as Colony by the owner. (d) Such persons whom the owner may like at his discretion, provided that the allotment to such persons shall not exceed 5% of the total number of plots provided in sub-clauses (I) and (ii): (III) As per the office record, 249 nos. plots are reserved asNPNL but no information have been provided specifically for NPNL plots by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was revealed to the investigating agency that vide Licence No.190 of 2008, 212 plots under No Profit No Loss Scheme (hereinafter being referred in short as NPNL Scheme) were sanctioned by D.T.C.P. Chandigarh in the layout plan spanning in 149.093 acres. 5. It also came to the notice of investigating agency that three Companies had entered into a tripartite agreement for the development of above mentioned land. These Companies were M/s Sobha Developers Limited , M/s Chintels India Limited and M/s QVC Realty Company Limited . It was found by the investigating agency that out of 212 NPNL plots only 93 plots were allocated in the developed colony and even out of these 93 plots, 59 plots were allocated to M/s Sobha Developers Limited , 18 to M/s Chintels India Limited and 16 plots to M/s QVC Realty Company Limited . 6. During the course of investigation, it was also informed by the D.T.C.P. Chandigarh to the Investigating Officer, vide letter dated 22.3.2019, that with regard to above mentioned licence, i.e. Licence No.190 of 2008, no financial loss was caused to the Government of Haryana and that, in fact, the Companies by entering into Limited Liability Partnersh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of conditions of the licence. 9. The investigating agency also came to the conclusion that M/s Chintels India Limited as well as M/s Sobha Developers Limited had sold these plots with an objective to maximize profits to its subsidiary Companies/LLPs of M/s Sobha Developers Limited and by adopting above mentioned modus operandi they had not only booked huge profit in an illegal manner but also deprived the general public of their legal right to have a plot on No Profit No Loss basis. Therefore, the investigating observed that the above said Companies has violated the terms and conditions of bilateral agreement signed before the grant of licence with regard to NPNL plots. The investigating agency also found that all these activities were at the behest of M/s Sobha Developers Limited . It was further revealed that the entire exercise was conducted by M/s Sobha Developers Limited without obtaining necessary permission for the change of developer and in this exercise of the above named Company the objective of the State to provide residential plots to the common man on subsidize rate was circumvented by the colonizer and this way colonizer had committed fraud. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard to the merit of the case, are not entirely irrelevant because the order of the Hon ble High Court of Bengaluru has not been set-aside by the Hon ble Supreme Court of India. However, in my opinion, in view of above mentioned observations of Hon ble Supreme Court of India, wherein it has specifically been directed that this Court has to pass order without being influenced by the impugned order, I hold that the above mentioned argument of learned Special Public Prosecutor does not hold good and cannot be accepted. 15. The learned counsel for the applicant/accused while pressing for the benefit of anticipatory bail for the applicant/accused has come forward with a plea that in the instant case, initially the F.I.R. was lodged for the commission of offence punishable under section-10 of HDRUA Act as well as section-420 IPC and that during the course of investigation, even the complainant had reported that no financial loss was caused to the State Exchequer and, therefore, the offence punishable under section-420 IPC was dropped by the police and a charge-sheet for the commission of offence punishable under section-10 of HDRUA Act only was filed in the Court. 16. According to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the State. As per learned counsel for the applicant/accused in fact the development fee which could not be paid by the Company of applicant/accused, or its sister concern, pertains to Licence No.58 of 2013 only and it amounts to approximately 25 lacs only. According to learned₹ counsel for the applicant/accused the quantum of loss caused to the State Exchequer as well as the past conduct of the applicant/accused are relevant while dealing with an application for anticipatory bail and it is a relevant factor to be considered by this Court for arriving at a conclusion as to whether the applicant/accused is entitled for the benefit of anticipatory bail or not. 20. The learned counsel for the applicant/accused has also argued that in the instant case this fact should be taken into consideration by the Court that the applicant/accused, who is Managing Director of M/s Sobha Developers Limited is not a developer who is developing a piece of land or colony for the first time and that the applicant/accused had been developing various colonies in different parts of the country and the development work of the Company of the applicant had been appreciated by various authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on M/s Chintels India Limited , for any violation of such terms and conditions, the applicant/accused cannot be held responsible. 23. It has also been impressed upon by learned counsel for the applicant/accused that in the instant case, it is the stand of the prosecuting agency that for the allotment of plot under NPNL Scheme no advertisement was issued as is supposed to be issued for the allotment of plots under E.W.S. Scheme. With regard to this allegation, learned counsel for the applicant/accused has come forward with a plea that a bare perusal of the terms and conditions of the agreement dated 22.11.2008, executed between M/s Chintels India Limited and the representative of D.T.C.P. Haryana Chandigarh goes to show that there was no specific condition for inviting the application for the allotment of plots under NPNL Scheme through Press, from eligible members of the relevant section of the society and therefore, option was open for the developer to allot the above mentioned plot without publishing any public notice. 24. According to learned counsel for the applicant/accused by allotment of plots pertaining to NPNL Scheme without inviting applications through Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has booked huge profit and also defrauded the State by causing financial loss. 28. According to learned Special Public Prosecutor the act and conduct as well as the gravity of offence committed by the applicant/accused in collusion with his co-accused, is the relevant and material factor to be considered by this Court and not the quantum of loss caused to the State. The learned Special Public Prosecutor has argued that in the instant case at the initial stage of investigation no scheduled offence was found to have been committed by the applicant/accused as well as his co-accused, and, therefore, the provisions of the Prevention of Money Laundering Act were not invoked and the charge-sheet was filed accordingly. 29. As per learned Special Public Prosecutor subsequently, when it was found that the State Government has been defrauded by the applicant/accused by causing financial loss to it, by way of supplementary charge-sheet, the offence punishable under section-420 IPC was added. The learned Special Public Prosecutor has further argued that section-420 IPC is an offence falling within the category of scheduled offences under the Money Laundering Act and therefore, the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigating agency and besides that the source where the profit ultimately landed, also, has to be traced. According to learned Special Public Prosecuted the examination of the applicant/accused by the investigating agency is required in the instant case though it may not be a custodial interrogation in strict sense and that if accused are given the protection under section-438 of Cr.P.C., the applicant/accused is not likely to cooperate during the course of investigation. As per learned Special Public Prosecutor in various judicial pronouncements, the Hon ble Supreme Court of India has dealt with this situation and observed that in case of fraud of such a magnitude, the applicant/accused is not entitled for the benefit of anticipatory bail. 34. The learned Special Public Prosecutor has further argued that the investigating agency in the instant case has been conducting investigation in a fair and impartial manner and that bonafide of the investigating agency can be gauzed from the fact that the applicant/accused who joined investigation on several occasions was never harassed or arrested by the investigating agency. In support of his arguments, the learned Special Public Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section . The violation of agreement with regard to reservation of plots under NPNL Scheme is the cause of instant prosecution. It is also an admitted fact that initially, the charge sheet was filed for the commission of offence punishable under section-10 of HDRUA Act only and no scheduled offence, as prescribed under the Prevention of Money Laundering Act found mentioned in the charge-sheet. However, subsequently, by adding section-420 IPC through a supplementary charge-sheet, which is a scheduled offence, the provisions of Prevention of Money Laundering Act have been invoked. 38. Now the question arises as to whether in the above mentioned given facts and circumstances, the grounds for extending the benefit of anticipatory bail to the applicant/accused are made out or not? With regard to current situation it is pertinent to mention here that a similar issue cropped up before the Hon ble Supreme Court of India in the case of Union of India versus Hassan Ali Khan and others (supra). Hon ble Apex Court while returning its finding and denying the benefit of anticipatory bail, by cancelling the bail order of the Hon ble High Court, observed that having carefully considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment. Having regard to the nature of allegations and the stage of the investigation, in our view, the investigating agency has to be given sufficient freedom in the process of investigation. Though we do not endorse the approach of the learned Single Judge in extracting the note produced by the Enforcement Directorate, we do not find any ground warranting interference with the impugned order. Considering the facts and circumstances of the case, in our view, grant of anticipatory bail to the appellant will hamper the investigation and this is not a fit case for exercise discretion to grant anticipatory bail to the appellant. 40. As pointed out by learned Special Public Prosecutor, Hon ble Apex Court way back in the year 1987 itself was very conscious and sensitive towards economic offence i.e. the offence similar to the offence allegedly committed by the applicant/accused and that is why in the case of State of Gujarat Vs. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364 , it was observed by the Hon ble Supreme Court that offences having deep root conspiracy involving huge loss of public funds need to be viewed seriously and considered as grave offence affecting the economy of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being co-developer reserved lesser number of plots, than the prescribed plots under NPNL Scheme in itself shows a great extent of malafide on the part of developer. In addition to above by allotment of these plots to the developer is another act of malice. Thereafter the Company of the applicant/accused entered into an agreement for further development of the colony/plots with another Company and then sold the constructed Villas to genuine buyers by booking huge profits. This entire exercise was nothing but a smog screen created by the developer to defraud the regulating agency and circumvent the mandatory terms and conditions of the licence, given to it for the development of the colony. 44. Here it shall not be out of place to mention that the condition referred by learned counsel for the applicant/accused, as contained in letter No.13490 dated 13.12.2018 of the District Town Planner Gurugram, that for any violation of the terms conditions of the licence only M/s Chintels India Limited shall be responsible, is not good enough to provide an escape route to the applicant/accused or his Company from his criminal liability. The above mentioned condition at the most can save ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ege of the prearrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of Rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. 49. If in the entirety of the above mentioned facts and circumstances of the instant case is analysed, in my opinion the grant of anticipatory bail at this stage of investigation is likely to frustrate the right of investigating agency to interrogate the accused and collect the useful information as well as material which might have been concealed. In my opinion, success in such interrogation would elude if the accused knows that he is protected by th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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