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TMI Blog2022 (5) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... itted in the hospital for Chemotherapy on 20.1.2021 and thereafter chemotherapy was to be done on 17.02.2021 as per the written submissions that had been submitted on 8.2.2021. 2. Inter alia the applicant submits that he having joined the investigation and as he is not likely to abscond, custodial interrogation should be avoided in as much as great ignominy, humiliation and disgrace is attached to arrest. 3. The applicant submits that he is a non-executive Director in M/s Prabhu Shanti Real Estate Pvt. Ltd. and that the allegations levelled against this Real Estate Company (hereinafter referred to as 'the company') are to the effect that it had not delivered flats within the stipulated period of time and some part of the money got transferred into the accounts of its directors. The applicant submits that he has not been the beneficiary of any proceeds and has also not been involved in the day-to-day affairs of 'the company'. Inter alia, the applicant submits that neither the prosecution nor the complainant have produced any documents to show the involvement of the applicant in the day-to-day affairs of the said company. The applicant has further submitted that he is on the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na Lather and other persons of 'the company' who invited her to visit the project site at Bahadurgarh which she visited and found many home buyers there who were persuaded and allured by Ms.Bhavna Lather (who was the Managing Director as well as the share holder in 'the company' till JanuaryFebruary 2017 as per the record of the Ministry of Corporate Affairs) as well as other directors and the close staff of 'the company'. The complainant states through the FIR that she was shown a bunch of sale deeds by these persons claiming that the entire land belonged to them and that there was no lien on the same and that it was represented to her and other home buyers that 'the company' had sufficient funds to complete the entire project single handedly and that 'the company' did not require any loan from anywhere on this project. The complainant submits that she and other home buyers were given a representation that 'the company' was then selling its flats and that they wished that the amounts collected from the home buyers was utilized in completing the project and whatever small amount was required for the completion of the project would be invested by 'the company' from its own sufficien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the buyers may be ignored and also informed that even if the person other than the Directors of 'the company' were dealing with the home buyers, 'the company' nevertheless confirmed its own liability and responsibilities towards the home buyers on which the complainant had signed the Builder-Buyer Agreement. 9. Inter alia, the complainant submitted through the FIR that despite the period of six years the houses were not delivered and 'the company' through its Directors further informed that it was the sole discretion of 'the company' to give a flat or to return the money or to give nothing to the home buyer. The complainant further submitted that after an in-depth inquiry made by her and other home buyers it was learnt that the funds which were collected from her and other home buyers by 'the company' for approximately more than Rs.155 Crores, which amount had been siphoned off by 'the company', its directors individually, jointly, severally to their other projects and to their other accounts and thus 'the company' has committed a criminal breach of trust and that all Directors of 'the company', their staff who dealt with her and other home buyers were responsible jointly, sever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The status report of the State further brings forth that during the investigation, Sh. Abhishek Anand, IRP appointed by the NCLT Court, joined the investigation and provided the forensic audit report of the questioned project wherein the observations had been made to the effect:- * Advance of Rs. 393 Lacs is outstanding from Bhagwati Tiles against a total purchase of Rs. 259.92 Lacs during June 2016 to June 2018. * Bogus invoices amounting to Rs. 125.24 Lacs raised during June 2016 to June 2018 from HRKH Builders Pvt. Ltd. * Accused company used to pay Monthly Directors remuneration to the tune of Rs. 13.90 Lacs per month during FY 2016-17 and Rs. 8.51 Lacs per month during FY 2017-18, though the company reported loss of Rs. 1,91,76,525.81/- in FY 2016-17 and further years. * Bogus and dubious cash payments of Rs. 169.16 Lacs during June 2016 to June 2018 are there as Labour Charges and Rs. 234 Lacs against purchase of Rodi during June 2016 to June 2018. * Accused company defaulted to pay off government duty and taxes amounting to Rs. 73.90 Lacs, which are as follows: * PF of Rs. 4,80,652/- was not paid from Oct 2016. * ESIC of Rs. 1,01,729/- was not paid from Oct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion but remained non-cooperative and did not provide the requisite information for getting the trail of the investments of the complainants/homebuyers and tried to shift the liabilities to other Directors. The State further submitted to the effect that the present case was a multi-victim case, wherein, the complainants had booked flats in the residential project launched by the accused persons and the State opposed the prayer made by the applicant seeking the grant of anticipatory bail submitting to the effect that if he was so granted anticipatory bail, he was likely to influence witnesses. 17. The State through its status report had submitted that one of the accused Bijender Singh Lather had been initially granted protection by the Hon'ble Supreme Court vide order dated 02.11.2020 in SLP (Crl.) Diary No.20863/2020. 18. When the matter was first taken up before this Court on 24.11.2020, the said SLP was pending before the Hon'ble Supreme Court and thus, in view of directions therein dated 02.11.2020 to the effect:- "Pending further consideration, the petitioner shall not be arrested in connection with FIR No.0059, dated 04.04.2019, registered with P.S. Economic Offences Wing, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re case of accused persons or a builder company taking more than the required time to finish the project whilst leaving home buyers to suffer a financial loss but it is a case where the accused in collusion with banks, associate companies, auditors and chartered accountants have intentionally and in a planned and structured manner committed a number of cheatings, forgery and malpractices, even bookings without licence, charging monies under the construction linked plan even before the committed construction stage was reached, embezzlement of funds, fraud, cheating, breach of trust etc. 21. The complainants further submit that their pain and distress is further aggravated by the huge EMIs that they have to pay towards the money that they have availed as loan for the housing project. 22. The complainants further submit that the case filed before the NCLT vide IB/477/PB/2018 was stage managed between the lender and the accused persons and that it was P.D.M. Religious and Education Association (Society) which availed a loan of Rs.5 Crores on 9.9.2014 whereas the builder/accused was a co-borrower from A.U. Small Finance Bank Limited at a higher interest rate of 16% and this loan was s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... more than Rs.6,00,000/- regularly as so called salary for almost 10 years and regularly signed resolutions authorizing acts and deeds of usurping funds of 'the company' by all its Directors and that he is the brother-in-law of one of the co-accused Joginder Singh Lather. 26. The complainants submit that apart from receiving Rs.6,00,000/- per annum as salary as stated in the bail application, there are several other benefits received by the applicant not deserved by him and the transfer of Rs.6,00,000/- per annum as salary to the applicant as a sleeping director is a questionable transfer in as much as he signed many resolutions of 'the company' and was fully involved in usurping and siphoning of the funds received from the complainants and that he was involved in obtaining loans from banks and financial institutions. 27. Through the written synopsis dated 9.2.2021 the complainants reiterated the contents of their detailed reply dated 1.12.2020 adverted to hereinabove and submitted that whereas there are joint complaints of 55 home buyers there are 110 complainants and that only one FIR registered by the EOW cannot be an encyclopedia of all facts and proofs. 28. Vide order dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or arranging such loans. 32. The complainants submit that the accused persons involved in this case had collectively cheated groups of home buyers of middle and lower middle class by taking away their hard earned savings of approximately Rs.150 Crores and apart from the same Rs.85 Crores from Banks and had committed the cheating, forgery and criminal breach of trust in a planned and structured manner and that the Investigating Agency needs to unearth the hidden bank accounts/ hide outs of cash of accused persons to unearth the total usurped funds, the inventory records of material and goods, the stock register and details of employees, transfer of funds, detail of actual construction of material used, the details of other companies with the accused persons have any relations, originals of forged bills. The complainants further submit that the applicant herein being on the Board of Directors and co-conspirator was fully aware of all the criminality and trails of the usurped money. Inter alia, the complainants submit that the applicant has already recovered from his disease and had undergone a bilateral orchidectomy on 01.04.2019 and his chemotherapy was only to eliminate any residu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner had any role in the transaction between him and the other accused. It is also seen that the petitioner is not a person with criminal antecedents." 36. In the instant case, the allegations levelled against the applicant relate to his alleged involvement with other accused Directors of M/s Prabhu Shanti Real Estate Pvt. Ltd., i.e. 'the company' as being a signatory to resolutions of the said company resulting into the multivictim cheating and duping of innocent flat buyers. Furthermore, as has been observed hereinabove, the applicant was discharged from the Action Cancer Hospital in a stable condition. 37. Taking into account the factum that the applicant is a signatory to resolutions for taking of loans by M/s Prabhu Shanti Real Estate Pvt. Ltd., i.e. 'the company' of which the applicant is the Director for sums of Rs.25 Crores each from the Tamil Nadu Mercantile Bank and M/s Muthoot Fincorp Ltd. for completion of the project of PDM Hi-Tech Homes of which the complainants are stated to be the duped investors, and the factum that during the course of the investigation, it was found that AU Financiers (India) Private Limited sanctioned a loan of Rs.5 Crores in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he applicant that he was not in any manner involved in the process of duping innocent flat buyers investing their hard earned money into the project of PDM Hi-Tech Homes prima facie, cannot be accepted at this stage and it is apparent thus, that the applicant's association in custodial interrogation would essentially be required to unearth the conspiracy allegedly hatched between the accused persons and their associates and to recover the cheated amount and to trace the money trail and for seizure of material documents. CONCLUSION 38. In view thereof, the prayer made by the applicant seeking the grant of anticipatory bail in relation to FIR No.59/2019 dated 04.04.2019 Police Station, Economic Offences Wing, Mandir Marg, New Delhi under Sections 406,420 & 120B of Indian Penal Code, 1860, is thus declined and the interim protection granted to the applicant vide order dated 24.11.2020 and extended till date vide order dated 01.03.2021 is thus, withdrawn. 39. However, if the applicant is in custody, in the event of the applicant requiring any Chemotherapy sessions, the State shall ensure that the adequate Chemotherapy sessions are provided for the Prostate Cancer to the applicant in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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