TMI Blog2022 (5) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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granted to the applicant vide order dated 24.11.2020 and extended till date vide order dated 01.03.2021 is thus, withdrawn - Application is disposed off. - BAIL APPLN. 3682/2020 & CRL.M.A. 16235/2020 - - - Dated:- 24-5-2022 - HON'BLE MS. JUSTICE ANU MALHOTRA Applicant Through: Mr. Jasbir Singh Malik, Advocate. Respondent Through: Mr. Kamal Kumar Ghei, APP for State with SI Kamal Kohli, PS EOW. Mr. Ramesh Gupta, Sr. Advocate with Mr. Sunil Dalal, Mr. Rajesh Baweja Mr. Sandeep Chaudhary, Advocates for complainant. JUDGMENT ANU MALHOTRA, J. 1. The applicant, vide the present application seeks the grant of anticipatory bail in relation to FIR No. 59/2019, dated 4.4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceedings before the NCLT and that the entire record is in the custody of the Interim Resolution Professional (IRP) appointed by the NCLT vide order dated 13.06.2018. 5. The FIR was lodged on the complaint of the complainant Suman Solanki. It was averred therein that the complainant paid Rs. 59,93,189/- to the builder/real estate company M/s Prabhu Shanti Real Estate Pvt. Ltd.(i.e. the company ) who had promised in the year 2012 to provide a flat to her within two and a half years but had failed to do so and had rather cheated her and duped her of her hard earned money which those persons were not returning to her with interest nor providing her a flat but had threatened her and other home buyers with dire consequences qua their lives and that of their family members apart from suffering an irreparable loss if they dared to ask for the return of the money or a flat. 6. It has been averred in the FIR that in the year 2008, the company announced a residential project P.D.M. Hi-Tech Homes consisting of more than 435 flats in more than 6 towers on the land admeasuring 8.976 acres in Sector-3A, Bahadurgarh, District Jhajjar, Haryana and to allure the home buyers, brochures and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce resigned and other directors also represented that the agreement of the home buyers with the company would be straight away done by and through one of the Directors through a company resolution and not through any other persons outside the Board of Directors which gave her and other home buyers present at the head office a great confidence in the company . The complainant further stated through the FIR that she had believed the representation given by them initially at their head office at Delhi, Pitampura, and thereafter at Bahadurgarh and thus, fell prey and parted with the money to book a flat at their Delhi office, which she paid in the year 2012 but that she had not been provided any roof till the registration of the FIR. 8. The complainant further submitted through the FIR that the company later on changed its head office from Pitampura to Rohini and when she and other home buyers inquired about the same, it was informed that the change of address was due to technical reasons. The complainant further submitted that the company had already printed formats containing contents contrary to the assurances and representations given by the company and on being confro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was submitted therein to the effect that during the course of investigation, the site of the questioned project i.e. PDM Hi-Tech Homes was visited and only two towers were found at the finishing stage whilst others were far from completion. Through the said status report, the State has put forth the contents of the FIR with it also having been submitted that it had been claimed by the company that they had absolute ownership of the entire land and that the land was free from all kinds of encumbrances and that the accused company had sufficient funds to complete the entire project within the stipulated time without the requirement of any loan. 12. As per the status report during the course of the investigation, it was found that AU Financiers (India) Private Limited had also sanctioned a loan of Rs. 5 Crores in favour of PD Memorial Religious and Educational Association, wherein the accused company i.e. M/s. Prabhu Shanti Real Estate Pvt. Ltd., i.e. the company in question was the guarantor to the said loan and had mortgaged the project in question, i.e., 'PDM Hi-Tech Home' and subsequently PD Memorial Religious and Educational Association could not repay this loan and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax) was made neither by the accused company nor by India Infoline Housing Finance Ltd. 15. The status report further states to the effect that during the course of investigation, home buyers were examined and their statements under Section 161 of the Cr.P.C., 1973 were recorded and as per the ROC records i.e. the records of the Registrar of Companies, it was indicated that the applicant herein i.e. Sajjan Singh Beniwal, the applicant of the present bail application was one of the Directors of M/s Prabhu Shanti Real Estate Pvt. Ltd., i.e. the company since 21.12.2009 and had received a salary of Rs. 6,12,000/- in FY 2013-2014 from the accused company. It is further stated through the status report that inter related parties transactions were done with Bhagwati Tiles, Bharti Techno Medical Enterprises, AMI Prabhu Developers Pvt. Ltd., PDM Religious and Educational Association, Sangam Infra Estates Pvt. Ltd. and HRHK Builders Pvt. Ltd. without any legal agreement for services rendered by them and that M/s Prabhu Shanti Real Estate Pvt. Ltd., the company in question also obtained two separate loans of Rs. 25 Crores each from Tamilnadu Mercantile Bank and M/s Muthoot Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es; shall drop a PIN on the google map to ensure that his location is available to the Investigating Officer, shall commit no offence whatsoever during the interregnum. Furthermore, it is directed specifically that the applicant shall not in any event leave the country and intimation to this effect be sent to the FRRO, Delhi. The copy of the passport of the applicant be placed on the record by the applicant during the course of the day with an advance copy thereof being supplied to the Investigating Agency. 19. Vide order dated 13.1.2021 in the petition for Special Leave to Appeal (Criminal) 5425/2020, the said SLP (Crl.) against order dated 6.12.2019 in Bail Appln. No. 3023/2019 in the case of Bijender Singh Lather was dismissed. 20. Through the reply of the complainants (apparently the home buyers) dated 1.12.2020 to the application under consideration it was stated that the complainant had lodged the complaint dated 12.9.2018 to the SHO Police Station K.N.Katju Marg, Sector-16, Rohini against the accused persons including the present applicant and that Sh.Ved Prakash Arora also made a complaint on 12.9.2018 and a joint complaint was made by many of the home ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons. 23. The complainants further submitted that out of 430 flats of the builder/accused, 50 flats were allotted to P.D.M Religious Education Association, a religious society of the accused/builder at a much lower price as compared to what was charged from the home buyers and the allotment was made at the basic sale price of Rs.2120/- per sq. ft as compared to the basic sale price of Rs.3100/-per sq. ft. that was offered to the home buyers. It was also stated through the reply of the complainant that an amount of Rs. 21,49,01,326/- was pending from P.D.M Religious Education Association which is approximately 80% of the total sale consideration of Rs. 26,97,40,426/- and that the accused builder in its reply to this finding of the IRP incongruously released P.D.M Religious Education Association of its liability by stating that the left over payments would be made on the delivery of flats, knowing that the flats were nowhere near to be offered for possession. 24. Inter alia, the complainant submits that the accused builder held a Board Meeting on 28.7.2014 by way of which it passed a resolution to sell part of the unused land to Mr. Joginder Singh Lather (one of the co- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State was directed to verify, pursuant to which the written synopsis of the applicant, the State and the verification report qua the ailment of the applicant were submitted. 29. As per the written synopsis dated 1.3.2021 submitted by the State, the medical documents of the applicant have been verified from the Action Cancer Hospital, Paschim Vihar, which indicate that the applicant had been diagnosed with prostate cancer (Stage-4) in March, 2019 and had been treated with chemotherapy and targeted therapy and had been admitted on 20.1.2021 for targeted therapy. 30. Inter alia, it was reiterated through the written submissions that the applicant herein after he joined the investigation remained non-cooperative, did not provide any specific information to help the investigation to get the trail of investments of the complainant/home buyers and tried to shift liabilities to other directors with it having been submitted that initially there was also a process under Section 82 of the of the Cr.P.C., 1973 that had been issued against the applicant and other accused persons named Joginder Singh Lather and Ram Niwas Lather which had been published in the newspapers. 31. The compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt herein to be a Director with DIN No. 02894389 of the said company. ANALYSIS 34. On a consideration of the submissions that have been made on behalf of either side, though, undoubtedly, the State has verified the factum of the applicant having undergone targeted Chemotherapy on 20.01.2021 with he having been diagnosed with Prostate Cancer, Stage-4 in March 2019, as per the synopsis filed on 26.02.2021 by the State and the applicant he has been taking medicines for the said Chemotherapy and undergoing Chemotherapy sessions since 2019. 35. The documents of the Action Cancer Hospital that the applicant has placed on record indicates that as on 20.01.2021, the applicant had been admitted for Chemotherapy and was scheduled for Chemotherapy on 21.01.2021. The said document annexed to the written submissions of the applicant dated 08.02.2021 also indicates that the applicant was being discharged in a stable condition. Though, the applicant has placed on record a copy of the verdict of the Hon ble High Court of Kerala in Joy Thomas @ Thomas Philip Vs. The State of Kerala 2017 SCC OnLine Ker 39256 submitting to the effect that in that case, the applicant therein was a 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and an IRP was appointed by the NCLT with it having been learnt through the Forensic Audit Report conducted by the IRP appointed by the NCLT that there were advances of Rs. 393 Lacs being 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 were raised during June 2016 to June 2018 from HRKH Builders Pvt. Ltd.; that the 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, whereas, the company reported a loss of Rs. 1,91,76,525.81/- in FY 2016-17 and further years; and that bogus and dubious cash payments of Rs. 169.16 Lacs during June 2016 to June 2018 were made as Labour Charges and Rs. 234 Lacs was shown against purchase of Rodi during June 2016 to June 2018; and that the accused company has defaulted to pay off government duty and taxes amounting to Rs. 73.90 Lacs, which are as follows: PF of Rs. 4,80,652/- has not paid since Oct 2016. ESIC of Rs. 1,01,729/- has not paid since Oct 2016. Balance TDS of Rs. 68,08,034/- has not paid since Apr 2017-18, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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