9911796707
TMI Blog2023 (8) TMI 1433X X X X Extracts X X X X X X X X Extracts X X X X ..... nted is not limited to merely protecting the arrest of the petitioners but is on other counts too. Since this Court has come to a conclusion that it is a fit case for grant of interim protection, the same is granted. The present case is a fit case for grant of interim protection in terms of the order passed by another Division Bench of this Court in Niraj Tyagi - List this petition before the Division Bench on the date fixed therein for appropriate orders. - HON'BLE SAMIT GOPAL, J. For the Petitioner : Raghav Dwivedi For the Respondent : G.A., Syed Imran Ibrahim ORDER 1. Heard Sri Rakesh Dwivedi, learned Senior Advocate assisted by Sri Raghav Dwivedi, learned counsel for the petitioners, Sri Siddharth Dave, learned Senior Advocate assisted by Sri Syed Imran Ibrahim, learned counsel for the respondent no. 3 / first informant and Sri P.K. Giri, learned Additional Advocate General alongwith Sri Ajay Singh, learned Additional Government Advocate for the State of U.P. / respondent no. 1 and the S.H.O. concerned / respondent no. 2 and perused the records. 2. The present petition under Article 226 of the Constitution of India has been filed with the follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te assisted by Sri Raghav Dwivedi, learned counsel for the petitioners, Sri Manish Tiwari, learned Senior Advocate assisted by Sri Sayed Imran Ibrahim, learned counsel appearing for respondent no. 3 and Sri Ratan Singh, learned AGA for the State. 6. This writ petition has been filed praying to quash the first information report dated 22.07.2023, registered as Case Crime No.611 of 2023, under sections 420 and 120-B I.P.C. and Section 82 of Registration Act, 1908, Police Station : Kavi Nagar, District : Ghaziabad. 7. Arguments were advanced by both the sides by drawing attention to various aspects on merits of loaning; default in payment; auction; and possession of the property; various first information reports and various orders of different Courts including this Court and the Hon'ble Apex Court as well as the orders passed under the provisions of the SARFAESI Act. 8. Sri Rakesh Dwivedi, learned Senior Counsel for the petitioners further submitted that it is, therefore, clear that the proceedings are arising out of same loan transaction in respect whereof different properties were mortgaged but in respect of every property a different first information report is being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers till final disposal of such petitions by the High Court, and it would be open for the petitioners to seek stay of proceedings which would be considered by the High Court on its own merits. It is clarified that this interim protection would only be applicable to the petitioner financial institution and its officers, representatives and managers, and not to any other person. 19. In view of the above, we are of the opinion that the petitioners have made out a case for grant of the interim as relief prayed for. Accordingly, in furtherance of the protection granted by the Apex Court to the petitioners by the order dated 4th July, 2023, while disposing of the Contempt Petition (Civil) No. 774 of 2023, it is provided that further proceedings, including summoning of the officers, consequent to the F.I.R. No. 197 of 2023 dated 15.4.2023 under Sections 420, 467, 468, 471 and 120-B IPC, Police Station Beta-2, Greater Noida, Gautam Budh Nagar, registered by Respondent No.2 and consequent ECIR No. ECIR/ HIU-I/06/2023 registered by Respondent No. 4, shall remain stayed so far as it confines to the petitioners only and no coercive action shall be taken against them. 20. The parties are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nformation report is being filed. It is further contended that from the perusal of F.I.R. no offence under the alleged sections is made out and material facts have not been disclosed, thus it is a matter of concealment of facts. 5. Per contra, Sri Manish Tiwari, learned Senior Advocate for informant submits that due to the fact that this petition has been taken up out of turn on the ground of urgency mentioned before the Bench of Hon'ble The Chief Justice and has been placed before this Court today itself, he wants some time to seek proper instructions. However, he submits that individual offence would attract individual first information report and has to be proceeded individually, therefore, the present matter stands on a different footing. It is further contended that perusal of F.I.R. constitutes a cognizable offence, thus, no interim order can be granted in favour of the petitioners without giving any opportunity of hearing to the informant at length and in the event, he is granted some short time, he will be in position to address / assist the Court in detail. It is further submitted that some petitions which are shown to be pending in the various Courts are related to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2023, it is provided that further proceedings, including summoning of the officers, consequent to the F.I.R. No. 197 of 2023 dated 15.4.2023 under Sections 420, 467, 468, 471 and 120-B IPC, Police Station Beta-2, Greater Noida, Gautam Budh Nagar, registered by Respondent No.2 and consequent ECIR No. ECIR/ HIU-I/06/2023 registered by Respondent No. 4, shall remain stayed so far as it confines to the petitioners only and no coercive action shall be taken against them. 20. The parties are granted six weeks' time to exchange pleadings. 21. List the case in the week commencing 28 August, 2023. (emphasis supplied) 8. Further submission of learned Senior Counsel for petitioners is that in event, case is fixed for hearing to enable AGA to seek instruction in the matter, interim protection restraining police authority to arrest the petitioners till next date of listing be issued. I am not fully convinced with the submission made by learned Senior Counsel for petitioners as offecne under the alleged section is punishable up to 7 years and in each case arrest of the accused is not essential by the police. I would like to add here that special provision of Section 41-A Cr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as granted in the said writ petition till the next date of listing and the matter was directed to be posted as fresh on 11.08.2023. 9. The other Hon ble member observed that in so far as the interim protection is concerned, offence under the alleged sections is punishable up to 7 years and in each case arrest of the accused is not essential by the police in view of the special provision of Section 41-A Cr.P.C. and thus observed that he is not inclined to issue interim protection that too without giving time to A.G.A. to seek instructions. The next reasoning given was that the normal practice of the Bench is that without instructions to A.G.A., the Bench is not inclined to hear the matter and since A.G.A. seeks time to have instructions from the police station concerned, the proper way is to give time to A.G.A. to seek instructions and later on pass effective orders causing damage to other side. It was thus concluded that in his view, no prima facie case for issuing interim protection, at this stage, is made out and it is not proper to issue any interim protection in favour of petitioners without having response from informant as well State. It was thus observed that it woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hundreds of crores illegally whereas previously they had no source of finance. In the gang of Sumit Kumar Narwar a person named Amit Nain is also working effectively. A high level agency be entrusted to investigate the matter impartially relating to Sumit Kumar Narwar and his companies as he previously was an ordinary citizen and was an employee but since some time by adopting shortcut methods he has become a rich persons which also needs to be investigated. He had given an application at Police Station Kavi Nagar but no action has been taken and as such is moving the present application. He prays that the abovementioned accused persons who are working as bhumafia, legal action be taken against them and his land which has been illegally taken be returned to him. 11. The crux of the first information report is that the matter relates to property, it being pledged in a loan and then being sold after being undervalued. The petitioner no. 1 Reena Bagga is an employee of the petitioner no. 2 India Bulls Housing Finance Ltd. She was nominated as an authorised signatory for signing sale certificate of the property in question. The proceedings relate to financial transactions in the nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f U.P. , (2015) 6 SCC 287, this Court had noticed that taking recourse to criminal law by bypassing statutory remedies to bring the financial institutions on theirknees, has the inherent potentiality to affect the marrows of economic health of the nation. Further, in Vijay Kumar Ghai Anr. Vs. State of W.B. Ors. (2022) 7 SCC 124, this Court quashed the criminal proceedings being abuse of law in a purely civil financial dispute and being a case of forum shopping. Despite these judgments, continuation of such trend appears extremely disturbing. 4. Vide order dated 28.04.2023 passed in W.P. (Crl.) No. 166/2023, criminal proceedings in three such FIRs instituted by borrowers in different States, namely FIR No. 646/2022 dated 26.10.2022 registered at P.S. Titagarh, FIR No. 427/2023 dated 09.04.2023 registered at P.S. Indirapuram and FIR No. 25/2021 dated 27.01.2021 registered at P.S. EOW, Delhi were stayed. 5. Further FIR No. 197/2023 dated 15.04.2023 was filed by YEIDA at PS Beta- 2, Greater Noida, UP, which also refers to the aforesaid FIR No. 427/2023 dated 09.04.2023 registered at P.S. Indirapuram with some overlapping facts. It is stated that on the basis of these two co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it petition. It is argued that the criminal proceedings as initiated are totally illegal and as of now the petitioners deserve to be granted an interim protection. Learned counsel for the petitioners has relied upon the following judgements of the Apex Court: 1. K. Virupaksha and another Vs. State of Karnataka and another, (2020) 4 SCC 440, 2. Krishna Lal Chawla and others Vs. State of Uttar Pradesh, (2021) 5 SCC 435. 16. Learned counsel for the respondent no. 3 / informant vehemently opposed the petition and arguments of learned counsel for the petitioners and argued that one Hon ble Judge has rightly refused to grant interim protection to the petitioners at this stage. It is argued that the reason for disagreement as noted in the order refusing grant of protection are cogent and well substantiated reasons. It is argued that paragraph 10 of the said order specifically states that at this stage no case for interim protection is made out without having response from the informant as well as the State. It is argued that even it was mentioned that since offences are punishable up to 7 years, the arrest of the accused is not essential by the police and as such the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of interim protection to the petitioners. The argument of learned Additional Advocate General that the petitioners will not arrested and the proceedings, if any, will be taken up as per the directions of the Apex Court in the judgments relied by him is concerned, the interim order as granted is not limited to merely protecting the arrest of the petitioners but is on other counts too. Since this Court has come to a conclusion that it is a fit case for grant of interim protection, the same is granted in terms of paragraph 18 19 of the order dated 13.07.2023 passed in Criminal Misc. Writ Petition No. 10893 of 2023 (Neeraj Tyagi and another vs. State of U.P. and 3 others). The said order is extracted herein below:- 1. Heard Sri Rakesh Dwivedi, learned Senior Counsel assisted by a team of Advocates namely, Sri Sankalp Narain, Sri Ashish Batra, Sri Ankit Banati, Sri Raghav Dwivedi and Sri Eklavya Dwivedi, for the Writ Petitioners, learned Standing Counsel for State-Respondent Nos.1 2, Sri Aditya Bhushan Singhal, learned Counsel for Respondent No.3 and Sri Sikandar Bharat Kochar, learned counsel appearing for Respondent No.4, Directorate of Enforcement. 2. The writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L) being a non banking financial institution incorporated under the provisions of the Companies Act, 1956 between 2017-2020 sanctioned 16 loan facilities to the tune of Rs.2801.00 Crores to Shipra Group/Borrowers comprising of Shipra Hotels Ltd., Shipra Estate Ltd. and Shipra Leasing Pvt. Ltd. for the purposes of construction and/or development of housing/residential projects. Against the said sanction, a sum of approximately 1995.37 Crores was disbursed. The financial assistance was secured by executing 22 pledge agreements whereby shares of various companies were pledged in favour of Petitioner No.2. 7. Meanwhile, one M/s Kadam Developers Pvt. Ltd. which had a sub-lease of a parcel of land ad-measuring 73 acres allotted by the YEIDA/Respondent No.3 was granted permission to mortgage the land under its sub-lease with Petitioner No.2, Indiabulls Housing Finance Ltd., vide permission dated 11.07.2019. A pledge agreement was also entered by the Shipra Groups and M/ s Kadam Developers Pvt. Ltd. with Petitioner No.2, Indiabulls Housing Finance Ltd., regarding pledging of 100% equity shares (demated) of M/s Kadam Developers to secure the loan. The Shipra Group committed default and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their Mangers, Officers or Representatives are concerned. The cognizable offences have been invoked to subject the petitioners financial institution to multiple criminal proceedings to bring them to their knees. The consequential proceeding vide E.C.I.R. are unwarranted. iii) the dispute is at most a civil dispute and resort to criminal proceedings is tainted with mala fides. In the absence of any criminality in the action taken by the petitioners, the continuation of criminal proceedings would be a travesty of justice and abuse of the process of law. iv) the first charge of YEIDA is still perversed. The sub-lease holder of the subject property is still Kadam Developers and all obligations and concessions under the sub-lease are very much in force. M/s Kadam Developers duly informed YEIDA on 29.07.2021 regarding sale of shares with no objections forthcoming from YEIDA against the sale. There has been no violation of the mortgage permission. The notice dated 11.4.2023 has been withdrawn by YEIDA and no demand has been raised on any party. v) F.I.R. No. 427 of 2023 dated 9.4.2023 registered at Police Station Indirapuram, which has a reference in the impugned F.I.R. No.197 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the case, prima facie, we find that ex-facie the dispute is of civil in nature and has been given a colour of criminal nature. We also find that Respondent No. 3, YEIDA has not made any attempt to institute civil proceedings against Petitioner No.2, except by lodging the present F.I.R. This action appears to be mala fide and unsustainable. 15. The Apex Court in Indian Oil Corporation Ltd. versus NEPC (India) Ltd., reported in 2006 (6) SCC 736 observed as under:- 13. .....Any effort to settle civil disputes and claims, which do not involve any criminal offence, by applying pressure though criminal prosecution should be deprecated and discouraged 16. The Apex Court further noticing a growing trend in business circles to convert purely civil dispute into criminal cases while disposing of the Contempt Petition (Civil) No. 774 of 2023 (supra) observed:- 3. In Priyanka Srivastava Vs. State of U.P. , (2015) 6 SCC 287, this Court had noticed that taking recourse to criminal law by bypassing statutory remedies to bring the financial institutions on their knees, has the inherent potentiality to affect the marrows of economic health of the nation. Further, in Vijay Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court, and it would be open for the petitioners to seek stay of proceedings which would be considered by the High Court on its own merits. It is clarified that this interim protection would only be applicable to the petitioner financial institution and its officers, representatives and managers, and not to any other person. 19. In view of the above, we are of the opinion that the petitioners have made out a case for grant of the interim as relief prayed for. Accordingly, in furtherance of the protection granted by the Apex Court to the petitioners by the order dated 4th July, 2023, while disposing of the Contempt Petition (Civil) No. 774 of 2023, it is provided that further proceedings, including summoning of the officers, consequent to the F.I.R. No. 197 of 2023 dated 15.4.2023 under Sections 420, 467, 468, 471 and 120-B IPC, Police Station Beta-2, Greater Noida, Gautam Budh Nagar, registered by Respondent No.2 and consequent ECIR No. ECIR/HIU-I/06/2023 registered by Respondent No. 4, shall remain stayed so far as it confines to the petitioners only and no coercive action shall be taken against them. 20. The parties are granted six weeks' time to exchange plea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
