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TMI Blog2021 (11) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... or the reason that there is encumbrance on the properties, therefore, once the complainant came to know that the properties cannot be transferred in pursuance to agreements to sell, as there was charge/encumbrance over the same, it cannot be termed that the dispute is purely of civil nature. It is case of the complainant that the petitioners have concealed about status of the properties, which were to be transferred in pursuance to the agreements to sell, therefore, on the face of it, the criminal prosecution is maintainable, independent of the fact that some proceedings before the NCLT, New Delhi are pending. The petitioners could not dispute the fact that properties i.e. Votive Propbuild Pvt. Ltd., Hacienda Infosoftech Pvt. Ltd. and Challengerz Websolutions Pvt. Ltd., sought to be sold by way of agreements to sell are not clear, as even efforts were made to sell the same to another company namely Max Estates Pvt. Ltd. to raise the funds, therefore, it cannot be said that on the face of it, no offence is made out, to quash the FIR. Petition dismissed. - CRM-M-12681-2021 (O&M), CRM-M-12680-2021 (O&M), CRM-M-12818-2021 (O&M),CRM-M-12708-2021 (O&M), - - - Dated:- 4-10-2021 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant will be given full control and ownership of the companies, which owned the plots/properties, to which the complainant agreed to invest and in that process, the accused will not only transfer 100% equity shareholdings of those group of companies and will grant liberty/permission to the complainant to appoint Directors of his own choice, which will have majority in the Board of Directors of these group of companies. It was also verbally agreed that the amount of unsecured interest free loan from the various group companies, which is outstanding in these group companies will be returned by the complainant and his associates in a phased manner, after they started getting revenue from the floor area or built-up and developed areas by the accused on these plots/properties, in collaboration with Three C Group of Companies. The accused had shown the complainant several plots/properties, which Three C Group of Companies was keen to construct and develop and to be marketed individually by the complainant or jointly with the accused. It is further stated that six properties were shortlisted, which were owned by six different group of companies, namely Acreage Properties Pvt. Ltd., Voti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainant will deposit 2% of the total verbally agreed sale consideration of each plots owned by each of these three group companies and proportionately, 2% of the equity share of these companies will be transferred in the name of the complainant. Later on, the amount was deposited in the newly opened bank accounts and documents were prepared for transfer of 2% share of 200 equity shares. Thereafter, the accused started delaying execution of the securities of Transfer Forms SH-4, in a pre-meditated conspiracy and did not transfer agreed 2% equity shares of each of three companies and even management of Acreage Properties Pvt. Ltd. had noticed lots of illegalities done intentionally and dishonestly by the promoters of Three C Group of companies. When accused Nirmal Singh and his co-promoters were asked to clarify their stand, they kept on putting excuses one after another. Thereafter, sensing the dishonest and fraudulent intention of the promoters of Three C Group, the complainant started gathering information and came to know about illegal siphoning off and diversion of thousands of crores of rupees in their Sports City Project in Sector-79, NOIDA from other housing projects. Later ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and not by the shareholders. Some details have been given in the FIR to show that in fact, the alleged EGMs dated 01.09.2018 were never held and the letters dated 17.10.2018 and emails dated 24.10.2019 and 25.10.2019 signed/sent by Ravi Bhargav and others are in fact a fraudulent act as a part of preplanned criminal conspiracy of the accused persons with their employees. Some details of other communications between the parties are also referred to in the later part of the FIR, which are not reproduced here for the sake of brevity. It is concluded in the FIR that all the accused persons named in the FIR, since the beginning, with common intention, dishonestly, fraudulently, to cheat the complainant, have collectively fabricated and forged the various documents and misused the same to misrepresent the complainant, in achieving their illegal target, therefore, it was prayed that FIR be registered against them. Since the fact are identical in all cases, therefore, the arguments of all learned senior counsels for the petitioners are recorded jointly. Learned senior counsels for the petitioners have argued that in fact, it is primary a dispute of civil nature, as there was an agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned senior counsels have next argued that registration of FIR at Khanna in Punjab is a deliberate tool of harassment, as Khanna Police has no territorial jurisdiction to register the FIR. It is further submitted that no cause of action accrued regarding commission of alleged offence at Khanna, as the place of occurrence for the alleged offence, even if the FIR is taken to be correct on the face of it, would be Delhi or NCR. It is also submitted that a perusal of the FIR would show that all the six companies referred to in the FIR have its registered offices in Delhi and the accused persons are also resident of Delhi or working in Delhi/NCR. It is further submitted that three agreements dated 08.10.2018 also reflect that stamp duty is to be paid in Delhi and Extraordinary General Meetings (EGMs) and Annual General Meetings (AGMs) were also held at the registered offices of the companies in New Delhi. Even the properties are situated in Delhi NCR. Learned senior counsels have next argued that the matter on civil side is sub-judice before the National Company Law Tribunal, New Delhi in three Company Petitions bearing CP No.57/241-242/(PB)/2019, CP No.56/241-242/(PB)/2019 and CP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R, the police served notices under Section 41 Cr.P.C. to all the accused persons on 23.07.2019, 07.08.2019, 12.08.2019 and 17.08.2019 for associating them in the inquiry and again, on four subsequent dates, as mentioned in the affidavit, but none of them appeared before the Inquiry Officer, however, the complainant appeared and recorded his statement before the Superintendent of Police (Investigation), Khanna. It is further submitted that since the case is at the stage of investigation, the petitioners have neither applied for anticipatory bail nor have applied for regular bail, therefore, these petitions filed under Section 482 Cr.P.C. are not maintainable. A reference is made to judgment of the Hon ble Supreme Court in K. Jagdish Vs. Uday Kumar, 2014 (14) SCC 552, wherein it is held that even if a civil remedy is available, a person is not precluded from setting in motion the proceedings in criminal law or continue with criminal proceedings, if already initiated, as the matter is to be determined on the facts of each case. It is further held by the Hon ble Supreme Court that civil and criminal proceedings are maintainable in respect of same set of facts, when the offence is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Dinesh Kumar Pahwa Balbir Singh Nagpal 2. 72 dated 19.03.2018, P.S. EOW, District EOW Delhi, under Sections 420, 406, 409, 120-B IPC 1. Ravi Bhargav 2. Three C Homes Pvt. Ltd. 3. Many others Ankur Khurana 3. 117 dated 23.05.2018, P.S. EOW, District EOW Delhi, under Sections 420, 409, 120-B IPC 1. Vidur Bhardwaj 2. Nirmal Singh 3. Ravi Bhargav 4. M/s Granite Gate Properties Pvt. Ltd. Tarun Grover 4. 6 dated 12.01.2018, P.S. Express way, District Gautam Budh Nagar, UP, under Sections 420, 406, 120-B IPC 1. Vidur Bhardwaj 2. Nirmal Singh 3. Surjit Singh Suri Vijay Tehlani 5. 137 dated 24.08.2017, P.S. EOW, District EOW Delhi, under Sections 420, 406, 467, 468, 471, 120-B IPC 1. Vidur Bhardwaj 2. Nirmal Singh 3. Vijay Gupta 4. Amit Gupta 5. Supreet Singh Suri 6. Orris Infra Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that the petitioners have dishonestly and wrongly claimed that they have received no money in lieu of three Agreements to Sell dated 08.10.2018. The truth is explicitly recorded in Clause 1 of each of the respective Agreement to Sell dated 08.10.2018, which is duly acknowledged by both promoters Nirmal Singh and Vidur Bhardwaj, by signing each of these three Agreements to Sell. The complainant was allured to purchase properties of these three companies and paid part payments on 11.09.2018. The accused persons convinced the complainant that instead of executing sale deeds of plots, it would be beneficial to take over these three companies by purchasing their entire equity shareholdings (easily doable, because each company owned just one plot each). Accordingly, about a month later, on 08.10.2018, said three Agreement(s) to Sell were executed and as per Clause 1, the above part payments were duly recorded as part payment of the plot out of total consideration and it was also duly acknowledged by the accused. It is further argued that the case set up by the accused that money is not paid to share owner of the Company, but to the company itself, is false and an afterthought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is further argued that the fraud, cheating and criminal conspiracy committed by the accused persons is also evident from the fact that they dishonestly made one of their Three C Group company, Three C Builders Pvt. Ltd. and wrote a totally fraudulent letter dated 25.10.2018 to the Collector, Gautam Budh Nagar mischievously claiming that there are sale considerations to be received from the complainant by them for the sales of plots of Votive Propbuild Pvt. Ltd. and Hacienda Infosoftech Pvt. Ltd. and got these plots attached through fraudulent misrepresentations. The complainant and these two companies, Votive Propbuild and Hacienda Infosoftech had to file Writ Petitions in Allahabad High Court, in which Collector, Gautam Budh Nagar was directed to personally appear on 30.01.2019 and vide its order dated 31.01.2019, the Hon ble Allahabad High Court directed the Collector to pass detailed and reasoned order, strictly as per law, on the representations of the complainant and these two companies. The matter is still pending before the Collector and resultantly, two plots owned by these two companies continue to be encumbered till date. Moreover, before this Court, the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that not only the accused persons intentionally forged and backdated the documents attached to the email dated 14.01.2019, sent by Sh. Gopal Krishanan Ramachandran of MAX Estates Limited to the complainant, but the accused persons, in conspiracy with others, made further serious efforts to execute criminal conspiracy to defraud the complainant, out of the valuable commercial property, Floor 13, Tower H, Delhi, One Project, Sector 16B, Noida, owned by him through Acreage Properties Pvt. Ltd. The WhatsApp chats between accused Vidur Bhardwaj, the officers of MAX Estates Limited and others, from 02.11.2018 to 08.09.2019, confirm beyond an iota of doubt, an unequivocal admission by the accused persons that till this time, no No Objection Certificate had ever been issued by Acreage Properties Pvt. Ltd. regarding surrendering of its said property Floor 13, Tower-H, Delhi One Project. This fact proves that all so called Agreements for surrender dated 21.05.2018; No Objection Certificate dated 21.05.2018 of Acreage Properties Pvt. Ltd. and the various other Board Resolutions etc. of May 2018, were intentionally and dishonestly forged by the accused, with the common dishonest int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 01.09.2018 of Votive Propbuild, Hacienda Infosoftech and Challengerz Websolutions, referred to in the fraudulent letters dated 17.10.2018, written by the accused persons to the Branch Manager, Bank of India, Phase-9, Mohali, for getting the Bank accounts, opened on 11.09.2018, frozen. iv) The following documents attached with the email dated 14.01.2019 of MAX Estates Limited to the complainant:- a) The so called Agreement for surrender of Area, dated 21.05.2018 by Acreage Properties Pvt. Ltd. and others; b) The so called No Objection Certificate, dated 21.05.2018, signed on behalf of Acreage Properties Pvt. Ltd. and others; c) The so called true copy of the Board Resolution, dated 15.05.2018 of Acreage Properties Pvt. Ltd.; d) The so called true copy of the Board Resolution, dated 19.05.2018 of Acreage Properties Pvt. Ltd.; e) The so called true copy of the Board Resolution, dated 12.05.2018 of Devika Promoters and Builders Pvt. Ltd.; f) The so called true copy of the Board Resolution, dated 11.05.2018 of Boulevard Projects Pvt. Ltd.; g) The so called true copy of the Board Resolution, dated 15.05.2018 of Boulevard Projects Pvt. Ltd.; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above of the process by Section 482 Cr.P.C. ix) The functions of the judiciary and the police are complementary, not overlapping; x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences; xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice; xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC Online SC 580 , wherein the order quashing the FIR passed by the High Court, at the stage of investigation, exercising the powers under Section 482 Cr.P.C., was set aside. Learned senior counsel has next relied upon State of Madhya Pradesh Vs. Yogendra Singh Jadon and another, Law Finder Doc Id# 1676624 , wherein the Hon ble Supreme Court held that the powers under Section 482 Cr.P.C. cannot be exercised, when the allegations are required to be proved in the Court of law. It is thus argued that the petitioners have approached this Court at the very initial stage, when the matter is under investigation by an SIT constituted by the State of Punjab and therefore, this Court should not quash the FIR. In reply, learned senior counsel for the petitioner in CRM-M-12680-2021 has argued that the dispute is subject matter before the NCLT, New Delhi, therefore, the FIR, which is registered subsequently, is not sustainable. It is also submitted that in pursuance of the order of NCLT, a Resolution Professional has already been appointed and the claim is pending there. Learned senior counsel has referred to the reply filed before the NCLT, to submit that complainant admitted that jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to seek specific performance of agreement(s) to sell, on the face of it, is liable to be rejected, for the reason that there is encumbrance on the properties, therefore, once the complainant came to know that the properties cannot be transferred in pursuance to agreements to sell, as there was charge/encumbrance over the same, it cannot be termed that the dispute is purely of civil nature. It is case of the complainant that the petitioners have concealed about status of the properties, which were to be transferred in pursuance to the agreements to sell, therefore, on the face of it, the criminal prosecution is maintainable, independent of the fact that some proceedings before the NCLT, New Delhi are pending. Even otherwise, the proceedings before the NCLT are altogether on different footings, as the allegations in the FIR are that all the petitioners, in conspiracy with each other, dishonestly induced the complainant to part away with his valuable property i.e. sale consideration, therefore, arguments of the petitioners that the complainant has given criminal cover to the litigation, is devoid of merit, in view of judgment in K. Jagdish s case (supra). (d) The arguments on b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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