Full Text
HIGH COURT OF DELHI
Date of Decision: 07th August, 2024
RAJEEV ANAND .....Petitioner
Through: Mr. Rajat Bhardwaj, Ms. Ankita M.
Bhardwaj, Mr. Kaustubh Khanna & Mr. Saurav Kakroda, Advocates.
Through: Ms. Richa Dhawan, APP for State.
Mr. Hashmat Nabi & Mr. Toshif Ahmed, Advocates for Secured
Creditor PNB.
SANDEEP ANAND .....Petitioner
SANJEEV ANAND .....Petitioner Digitally
JUDGMENT
1. The present Petitions under Section 439 of the Code of Criminal Procedure, 1973 have been filed on behalf of the petitioners, Sanjeev Anand Sandeep Anand and Rajeev Anand respectively, seeking regular bail in FIR No. 130/2015 registered under Sections 420/406/467/471/477A/421/423/120B of the Indian Penal Code, 1860 at Police Station Economic Offences Wing, Delhi.
2. Briefly stated, Wianxx Impex Private Limited (hereinafter referred to as the “Company”) having three Directors, namely, the three petitioners herein, after obtaining necessary approvals and sanctions from the Competent Authority in the year 2004, started construction/building of a Mall as a Joint Venture Project with Aerens Pvt. Ltd. However, the Joint Venture partners failed to execute the work in proper manner due to lack of experience. In order to protect the interest of the investors, the petitioners decided to complete the construction and made sincere efforts for the completion of the same. Despite all odds, the Company of the petitioners was able to complete the construction of commercial complex of international standards with an area of approximately 10,00,000 sq. Feet.
3. The Completion Certificate dated 15.06.2012 from the Uttar Pradesh Digitally State Industrial Development Corporation (hereinafter referred to as “UPSIDC”) was obtained.
4. Thereafter, the possession of the property was offered in the year 2012 to some of the investors, but they failed to come forward owing to the financial slow down of the market; instead they sought the return of the money. The petitioners, being bona fide in their approach, did not force the possession but incurred further loss and took burden upon themselves for providing the returns to the defaulting investors.
5. The Mall was made functional and operational in the year 2013, wherein various branches of International repute, three screen Multiplex, Food Court, Shops, Kids Play Area were made fully operational. However, since no one was coming forth for the management of the affairs, there was no alternative left but to close the operation of the Mall in September, 2016 after running the same successfully for 2.[5] years.
6. The petitioners have submitted that the Company for almost 3-3.[5] years paid the interest on the investments made by the investors who had defaulted. Thereafter, as the Company defaulted in paying the interest to the investors, because of the financial crunch on account of piling up of continuing overheads for upkeep, security, day-to-day repair, maintenance and cost for running the Mall, etc. A complaint was lodged in the Economic Offences Wing of Delhi Police.
7. The petitioners have claimed that they can secure the interest of the complainants and other investor/secured investors if they are released, to make the commercial project operational. Furthermore, the valuation of the commercial project reflects its value at Rs. 918.45 crores, while the Digitally outstanding commitments are much lesser. In order to reflect its bona fide, they had executed a settlement with some of the investors, including the complainant Ram Narain Goel in the Mediation Centre Saket, Delhi
8. It is further submitted that in case the Company goes into winding up/liquidation, the investors would not only be left with long-drawn litigation but also without any hope of securing their investments.
9. Therefore, the regular bail has been sought on the ground that essentially the disputes are purely civil in nature and are squarely covered by the terms of MoU, for which the petitioner has placed reliance on the decisions in Indian Oil Corporation vs. NEPC India Ltd. & Ors., ((2006) 6 SCC 736) and Rajib Ranjan & Ors. vs. R. Vijay Kumar, ((2015) 1 SCC 513), wherein it has been held that the growing tendency in business circles to convert purely civil disputes into criminal cases only to put pressure, should be deprecated and discouraged.
10. The petitioner has further placed reliance on the decision in V.Y. Jose and Another vs. State of Gujarat & Another, (2009 (3) SCC 78). Reliance has also been placed on the decision in State of Karnataka vs. L. Muniswamy & Others, ((1977) 2 SCC 699), wherein the Apex Court has observed that the wholesome power under Section 482 of Cr.P.C., 1973 entitles the High Court to quash the proceedings if it comes to the conclusion that its continuation would be an abuse of process of the Court; the ends of justice require the proceedings to be quashed. A Court proceeding ought not to be permitted to degenerate into a weapon of harassment or prosecution.
11. Similar observations have been made by the Apex Court in the case of S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla and Anr., (2007 (3) SCALE Digitally 245), M/s Thermax Ltd. & Ors. vs. K.M. Johny & Ors. (2011 AIR SCW
5952) and Maksud Saiyed vs. State of Gujarat & Ors.(AIRONLINE 2007 SC 332).
12. In the end, it is submitted that the incarceration of the petitioners in the jail is not imperative and necessary as the investigations stand completed and the petitioners have always come forward to join the investigations and provide all the requisite assistance to the Investigation Officer. Further, incarceration would have grave prejudicial implications as it would have punitive overtones without there being any trial.
13. It is, therefore, submitted that the petitioners be granted regular bail.
14. The present petitions seeking regular bail have been supplemented with the Written Submissions filed on behalf of the petitioners, wherein it is submitted that the petitioners were arrested on 12.07.2016 and have undergone remand in custody for approximately 2.[5] years when the Chargesheet was presented in the Court on 05.10.2016. The allegations made against the petitioners are completely false and concocted and they are entitled to a presumption of innocence till the trial is concluded and to secure their liberty is one of such manifestations of the said presumption.
15. It is further submitted that while the efforts were being made in the Mediation Centre, Saket for settlement of disputes with multiple parties and before a formal Agreement could be executed, the Corporate Insolvency Resolution Process (hereinafter referred to as “CIRP”) proceedings got initiated vide Order dated 23.08.2019 passed by the National Company Law Tribunal (NCLT) on the Application of SERI Infrastructure Finance Digitally Limited.
16. Thereafter, insolvency proceedings were initiated against the Company of the petitioners under Section 7 of the Insolvency and Bankruptcy Code, 2016 by the National Company Law Tribunal and all the powers of three petitioners/Directors were suspended vide Order dated 23.08.2019. The entire records of the said Company are in the possession of the Resolution Professionals.
17. After initiation of CIRP, the claimants filed their claims with Resolution Professional, which stand admitted. The claimants are all part of the CoC and are taking CIRP proceedings forward by voting on the agenda placed in the meetings of the CoC. The petitioners have been providing all the requisite information in the CIRP proceedings. The claimants are either getting the area or the refund amount, as per the claims raised by them. Since the value of the assets is much more than the claims, the grievances of all the complainants shall stand settled.
18. It is, therefore, submitted that the petitioners satisfy the requirement of triple test for grant of bail. There is no likelihood of tampering with the documents and evidence, influencing witnesses or the petitioners being a flight risk. It is, therefore, stated that the petitioners are entitled to regular bail.
19. The Status Reports have been filed on behalf of the State, wherein it is claimed that the land and Project have already been mortgaged to UPSIDC with first charge to Punjab National Bank (PNB) from whom the Company had obtained the Project loan. However, on the basis of the complaint letters, it can be concluded that there have been instances where Digitally the said Company has arranged the loans from the general public by giving shops/commercial space as collateral security. Against these loans, the Company had agreed the Monthly Assured Return (MAR) till the possession of the shops/commercial spaces was handed over. On the basis of the complaint letters, it has been observed that after servicing regular MAR to the customers for a certain period, the said Company suddenly stopped to serve MAR and the instalment cheques started getting dishonoured on regular intervals. The fact that the loan is secured against the shop/commercial space, could not be verified from the books of accounts.
20. In the first Status Report, it has been explained that the petitioners’ Company in the early 2011, had induced the complainants to make short term investment in their project with the buy-back arrangement along with Minimum Assured Appreciation on the allotted property @ 2.5% per month, out of which, 1% per cent per month was to be paid as guaranteed monthly return on our investments and the balance return of 1.5% per month was offered by way of assured appreciation on the provisionally allotted space with a buy-back arrangement which was to be paid at the time of final redemption of the investments.
21. The complainant and his family members made an investment of Rs. 1,28,00,000/- in April, 2011 for two months, repayable in April 2012, on the aforesaid terms, the accused persons issued provisional Allotment Letters in respect of Commercial Shop No. GE 25 A (area 1072 sq. feet) @ Rs. 12,000/- per sq. feet Europark Project to the complainants and MoUs duly signed by Mr. Sandeep Anand, were executed.
22. In October, 2011, the accused persons again approached the Digitally complainants and lured them to make further short term investments for six months at a lucrative return @ 2.5%.
23. The complainant and his family members made an investment of approximately Rs. 5,04,00,000/- during the period from 2011 to April, 2013. However, the petitioners failed to honour their commitments which resulted in registration of FIR.
24. On scrutiny of audited balance sheet of the said Company, the name of the complainant and his family members was not found either in the list of secured loans or any other type of loan provider and some shops/spaces were found to be allotted to multiple investors. It was also found that the said Company had taken unsecured loans from several parties and banks and taken secured loan of Rs. 31,10,69,356/- from PNB by mortgaging the lease hold land and the superstructure. The second charge after UPSIDC over 75% of the property was of Europark being Hotel-cum-Shopping Mall.
25. It has been asserted that there was sufficient evidence against the accused persons which led to their arrest on 12.07.2016. The Chargesheet stands filed on 05.10.2016. Thereafter, over hundred investors have come forth with fresh complaints involving over Rs. 90,00,00,000/- and investigations are in progress.
26. It is claimed that the activities of the accused persons show their active connivance with one another, for duping the innocent people. The bail applications of the accused petitioners have been dismissed by the learned Chief Metropolitan Magistrate, South East, Delhi as well as by the Court of Sessions several times.
27. It is submitted that numerous efforts have been made to get the bail by Digitally trying to misguide the Court that the matter stands compromised with a substantial number of victims. However, it is found that the matter was resolved only with the complainant and his family members at whose instance the FIR was registered.
28. Therefore, the present petitions have been opposed.
29. During the course of the arguments, it was further submitted that after a period of eight years of investigations, the Supplementary Chargesheet has also been filed on 27.10.2023 and the learned Chief Metropolitan Magistrate directed the Investigating Officer to supply a copy of the Supplementary Chargesheet to the petitioners as per Order dated 18.04.2024.
30. Submissions heard.
31. Admittedly, the petitioners as Directors of the Company had floated a project for construction of a Mall, wherein different schemes for investments modes at different rate of interest were proposed from time to time. Multiple investors came forth and made investments. Eventually, there were defaults on the part of the Company in making payments and the assured returns were not made to the investors. However, it is not in dispute that the Project has got completed.
32. The accused petitioners were arrested on 12.07.2016 and since then they have been in the custody for a total period of 3.[5] years. This Court vide Order dated 22.10.2018 noted and appointed a Committee comprising of two secured creditors i.e., Punjab National Bank and SREI Infrastructure Finance Limited to audit, evaluate and examine the assets of the petitioners to determine their encumbrance status and their approximate net worth and Digitally for this purpose of audit, the assets were referred to by the petitioners.
33. The said Committee gave its Report dated 31.10.2018 to this Court on 01.11.2018, wherein it was stated that the value of the assets as in 2016 was approximately Rs. 730 crores and the Distress/Realisable Value of approximately was Rs. 600 crores. The total of the value of the claims of the claimants, including the secured creditors as per the investigation was Rs. 347 crores. Since the value of the assets was found to be much more than value claimed by the investors, the petitioners being bona fide in their project were admitted to interim bail with the condition to facilitate the procedure of settlement and were referred to Delhi High Court Mediation for mediation vide Order dated 01.11.2018.
34. While the process of settlement was ongoing, the National Company Law Tribunal started the CIRP proceedings, whereby all the assets of the Company had been taken over by the Resolution Professional before whom all the claims had been submitted by the creditors and the investments are being settled accordingly.
35. In view of the facts as narrated above in detail, it emerges that essentially it was a commercial Project undertaken by the petitioners which came under distress leading to the investments of the investors getting stuck. The Resolution Professional are now in the possession of all the assets of the said Company who is taking care of the claims of the investors. Moreover, the Committee Report also reflects that there are sufficient assets to settle the Claims of all the investors.
36. Further, the petitioners have already been in custody for a total period of 3.[5] years, during which the efforts have been made to settled the claims Digitally of the investors. Moreover, the petitioners have throughout been cooperating in the investigations and have supplied all the documents as were requisitioned by the Investigating Agency. The Chargesheet dated 5.10.2016 and the Supplementary Chargesheet dated 27.10.2023 have been filed before the learned Trial Court in which the trial is pending and the charges are yet to be framed.
37. Considering the totality of the circumstances as narrated above and also considering that the present bail petitions of the petitioners are pending since 2017 in which interim bails have been granted from time to time which have not been abused by the petitioners in any manner, the present petitions are allowed and the petitioners are admitted to regular bail in 130/2015 registered 420/406/467/471/477A/421/423/120B of the IPC, 1860 at Police Station Economic Offences Wing, Delhi, upon their furnishing a personal bond in the sum of Rs. 1,00,000/- each and one surety of the like amount each to the satisfaction of the learned Trial Court, and further subject to the following conditions: a) Petitioners shall not leave Delhi/NCR without prior permission of the Court; b) Petitioners shall appear before the Court as and when the matter is taken up for hearing; c) Petitioners shall provide their mobile number and also the mobile number of their wife/surety to the IO concerned, both of which shall be kept in working condition at all times and they shall not change the mobile numbers without prior intimation to the Investigating Officer concerned; Digitally d) Petitioner shall inform the IO and the Jail Superintendent the address where they shall be available in Delhi; e) Petitioners shall remain 100 meters away from the complainant; f) Petitioners shall not leave the country without prior permission of the learned Trial Court and shall surrender their passport, if any, before the learned Trial Court; g) Petitioners shall not try to contact, threaten or influence any of the witnesses of this case; and h) Petitioners shall not indulge in any criminal activity and shall not communicate with or come in contact with the witnesses.
38. The Registry is further directed to communicate this Order to the learned Trial Court and as well as to the concerned Jail Superintendent.
39. Accordingly, the present petitions are disposed of.
JUDGE AUGUST 7, 2024 S.Sharma Digitally