Full Text
IN THE HIGH
ANIL KUMAR SHARMA
STATE OF NCT OF DELHI
JUDGMENT
1. The present petition has 482 of the Code of Criminal Procedure, 1973 seeking regular bail in connection with FIR No 139/2019 under Sections 420/406/409/120B IPC registered at PS EOW.
2. Vide order dated 01.06.2022, notice was issued in t the petitioner and the State was directed to file a Status Report. The State has filed the status report, which forms part of the record.
3. The case of the prosecution as borne out from the status report is that the present FIR came to re Naresh Kumar Bhalla (hereinafter referred to as the complainant) and thereafter 17 more complaints were received allegations against M/s. Amrapali Silicon City Pvt. Ltd. to as the accused-company) present petitioner), Shiv Priya, Ajay Kumar and others. Page HIGH COURT OF DELHI AT
NEW DELHI Judgment delivered on: ANIL KUMAR SHARMA Through: Mr Manoj Singh Singh, Advocates.
VERSUS
STATE OF NCT OF DELHI..... Respondent Through: Mr Aashneet Singh, APP for the State with Insp. Abhishek, PS EOW. HON'BLE MR.
JUSTICE VIKAS MAHAJAN
JUDGMENT
The present petition has been filed under Section 439 read with Section registered at PS EOW. order dated 01.06.2022, notice was issued in the bail petition of filed the status report, which forms part of the record. The case of the prosecution as borne out from the status report is that the present FIR came to registered on the basis of the complainant namely, more complaints were received. The complainant levelled allegations against M/s. Amrapali Silicon City Pvt. Ltd. (hereinafter refe company) and its directors namely, Anil Kumar Sharma (the present petitioner), Shiv Priya, Ajay Kumar and others.
DELHI Judgment delivered on: 25.01.2024..... Petitioner and Mr Abhay..... Respondent Mr Aashneet Singh, APP for the State with Insp. Abhishek, PS been filed under Section 439 read with Section he bail petition of The case of the prosecution as borne out from the status report is that gistered on the basis of the complainant namely,. The complainant levelled (hereinafter referred and its directors namely, Anil Kumar Sharma (the
4. The complainant alleged that the accused company launched “ Adarsh Awas Yojana The said project was exclusively marketed by M/s. Investor Clinic Infratech Pvt. Ltd. and famous celebrities were the brand ambassadors of the Amrapali Group. It was also represented by the accused company that the p approved and loan was available from all Nationalized Banks.
5. Based on the ab Bhalla booked a flat bearing no. AT[4] the aforesaid project and a sum of Rs. booking amount on 09.03.2016. Thereafter, a sum of Rs. 8,32,670/ on 10.05.2016 and upon payment of the above amounts, an buyer agreement dated 24.05.2016 was executed. In the builder buyer agreement executed between the parties, it was mentioned that “ distinct group housing towers within the group housing complex known as M/s. Amrapali Silicon City Pvt. Ltd. at Plot No.
GH UP is marketed and developed in the n NOIDA.” (a unit of Amrapali Silicon City Pvt. Ltd.). It is alleged that under the said agreement, the company represented that it would build the project in accordance with the sanctioned building plans, however, it was that the approved building plans as approved by the appropriate authorities were different from the one which was shown to the complainants at the time of booking.
6. Further, it was found that Amrapali Adarsh Awas Yojana, NOIDA was not registered with UPRERA and that the complainants have been sold a flat in an unapproved housing project. It is also the case of the prosecution that the builder has also failed to deliver the project within 54 months (including 6 Page The complainant alleged that the accused company launched “ Adarsh Awas Yojana” in 2016 for serving and retired government employees. Group. It was also represented by the accused company that the p Based on the above assurances, the complainant namely, Naresh Kumar booked a flat bearing no. AT4-3404 on the 34th floor of Tower AT[4] of the aforesaid project and a sum of Rs. 4,50,000/- was paid towards the booking amount on 09.03.2016. Thereafter, a sum of Rs. 8,32,670/ on 10.05.2016 and upon payment of the above amounts, an allotment cum flat ent executed between the parties, it was mentioned that “ M/s. Amrapali Silicon City Pvt. Ltd. at Plot No. GH-01/A, Sector UP is marketed and developed in the name of Amrapali Adarsh Awas Yojana, ” (a unit of Amrapali Silicon City Pvt. Ltd.). It is alleged that under accordance with the sanctioned building plans, however, it was Further, it was found that Amrapali Adarsh Awas Yojana, NOIDA was d with UPRERA and that the complainants have been sold a flat The complainant alleged that the accused company launched “Amrapali rving and retired government employees. Group. It was also represented by the accused company that the project was ove assurances, the complainant namely, Naresh Kumar floor of Tower AT[4] of was paid towards the booking amount on 09.03.2016. Thereafter, a sum of Rs. 8,32,670/- was paid allotment cum flat ent executed between the parties, it was mentioned that “a clusters of 01/A, Sector-76, Noida, ame of Amrapali Adarsh Awas Yojana, ” (a unit of Amrapali Silicon City Pvt. Ltd.). It is alleged that under accordance with the sanctioned building plans, however, it was later learnt Further, it was found that Amrapali Adarsh Awas Yojana, NOIDA was d with UPRERA and that the complainants have been sold a flat months of grace period) from 2016. undertaken at the site and it was learnt that the buyers of the project were shifted to other two towers after joint inspection consented.
7. During investigation, it further sanctioned only uptil the 29 Amrapali mentioned 39 floors in 5 towers proposed under Awas Yojana, NOIDA complaints of the complai allotted flats above 29
8. On the aforesaid allegations, the present FIR came to be registered and the petitioner was formally arrested in the present case on 31.03.2022 as he was in custody since 28.08.
9. Mr. Pramod Kumar Dubey, learned senior counsel appearing on behalf of the petitioner at the outset submits that the petitioner has not violated the terms of the interim bail which was granted to the petitioner. Further, it is the pleaded case of the petitioner in the bail petition that the petitioner has already been admitted on regular bail in 4 cases, 3 FIRs have been compounded and in 10 cases charge-sheet was filed without arrest. The details of the same have been given in Annexu
10. On merits of the case, he submits that the grievances of the complainants stood resolved long before the FIR came to be registered as the complainants have agreed for swapping/shifting of their units to tower T[8] and T[9] of Amrapali Silicon City Phase and substantially constructed project, thus home buyers in Amrapali Page months of grace period) from 2016. It is alleged that no construction has been shifted to other two towers after joint inspection for which During investigation, it further transpired that the sanctioned only uptil the 29th floor, whereas the brochure published by Amrapali mentioned 39 floors in 5 towers proposed under Amrapali NOIDA. It is a specific case of the prosecution complaints of the complainants were received in which many of them were allotted flats above 29th floor. On the aforesaid allegations, the present FIR came to be registered and was in custody since 28.08.2019 in another matter. Mr. Pramod Kumar Dubey, learned senior counsel appearing on behalf terms of the interim bail which was granted to the petitioner. Further, it is the eaded case of the petitioner in the bail petition that the petitioner has already sheet was filed without arrest. The details of the same have Annexure P-8 of the bail petition. On merits of the case, he submits that the grievances of the ali Silicon City Phase – II (Crystal Homes), which is and substantially constructed project, thus, the complainants Amrapali Adarsh Awas Yojana pursuant to ‘Memorandum of It is alleged that no construction has been for which they never site project was floor, whereas the brochure published by Amrapali Adarsh prosecution that 17 nants were received in which many of them were On the aforesaid allegations, the present FIR came to be registered and Mr. Pramod Kumar Dubey, learned senior counsel appearing on behalf terms of the interim bail which was granted to the petitioner. Further, it is the eaded case of the petitioner in the bail petition that the petitioner has already sheet was filed without arrest. The details of the same have On merits of the case, he submits that the grievances of the, which is approved the complainants are no longer pursuant to ‘Memorandum of Inspection Report’ submitted before the Hon’ble compliance of orders
11. He submits that vide order dated 15.03.2018 directed homebuyers and all other stake holders viz. Developer, Home Buyer’ counsel to conduct a ‘Joint Inspection’ of all projects to ascertain the extent of constructions and deficiencies including the subject project. In pursuance thereof, it was learnt that the construction of the subjec carried out on account of a stay order obtained by in possession of a piece of land in project Amrapali Silicon City earmarked for the subject project. another tower on 21.03.2018. complainants stands are not made out.
12. He further submits that the petitioner is accused of committing an offence under Sections 409/406/420/120B IPC which provides a maximum sentence of life imprisonment, however, as the present case is being tried the learned Metropolitan Magistrate, which can be imposed upon the petitioner is seven years in terms of Section 29(1) and 325 of the Code of Criminal Procedure, 1973. Court is drawn to the nominal roll dated 27.07.2023 to contend that the petitioner has been incarcerated in the present case for a period of 9 months and 3 days.
13. He contends that the charge the investigation is complete, therefore, no useful purpose would be served in keeping the petitioner behind bars. He further submits that the charge Page Inspection Report’ submitted before the Hon’ble Supreme Court of India in s dated 15.03.2018 and 17.05.2018. that post registration of the present FIR, the Supreme Court Developer, Home Buyer’s Association/Home Buyers, Home Buyer’s counsel to conduct a ‘Joint Inspection’ of all projects to ascertain the extent of, it was learnt that the construction of the subject project could not be carried out on account of a stay order obtained by the local farmers piece of land in project Amrapali Silicon City earmarked for the subject project. Thus, the complainants agreed to shift their flat to nother tower on 21.03.2018. He further contends that as the grievance of the complainants stands redressed, the necessary ingredients of Section 420 IPC He further submits that the petitioner is accused of committing an sentence of life imprisonment, however, as the present case is being tried the learned Metropolitan Magistrate, therefore, the maximum punishment 29(1) and 325 of the Code of Criminal Procedure, 1973. The itioner has been incarcerated in the present case for a period of 9 months He contends that the charge-sheet in the present case has been filed and itioner behind bars. He further submits that the charge Supreme Court of India in post registration of the present FIR, the Supreme Court s Association/Home Buyers, Home Buyer’s counsel to conduct a ‘Joint Inspection’ of all projects to ascertain the extent of t project could not be local farmers, who are piece of land in project Amrapali Silicon City earmarked, the complainants agreed to shift their flat to as the grievance of the, the necessary ingredients of Section 420 IPC He further submits that the petitioner is accused of committing an sentence of life imprisonment, however, as the present case is being tried by the maximum punishment The attention of the itioner has been incarcerated in the present case for a period of 9 months sheet in the present case has been filed and itioner behind bars. He further submits that the charge-sheet was filed on 24.06.2022 and the conclusion of trial is likely to take a long time.
14. Lastly, Mr. Dubey submits that the petitioner has deep roots in the society and there is no likelihood of him f justice.
15. In the backdrop of the aforesaid facts and circumstances, it has been urged by Mr. Dubey that the petitioner be enlarged on bail.
16. Per contra, the learned APP appearing on behalf of the State has argued on the lines of has been accused of a grave and serious offence, therefore he may not be enlarged on bail.
17. The learned APP submits that the petitioner is a director of the accused company and was actively involve company. He contends that the intention of the petitioner was dishonest since the very inception as the accused company had collected money from prospective homebuyers even before the building plans were sanctione the competent authority.
18. It was contended by the learned APP that the process of resolution under the supervision of the Court appointed Receiver which has been initiated by the Hon’ble Supreme Court cannot enure to the benefit of the petitioner as the same was done to bring respite to the homebuyers but the same does not wipe out the criminality on part of the petitioner and other co accused.
19. The learned APP submits that the petitioner is the authorized signatory in the bank accounts of the accused c Page Lastly, Mr. Dubey submits that the petitioner has deep roots in the society and there is no likelihood of him fleeing from administration of In the backdrop of the aforesaid facts and circumstances, it has been urged by Mr. Dubey that the petitioner be enlarged on bail., the learned APP appearing on behalf of the State has argued on the lines of the status report. He submits that the present petitioner The learned APP submits that the petitioner is a director of the accused was actively involved in the day to day affairs of the accused prospective homebuyers even before the building plans were sanctione the competent authority. It was contended by the learned APP that the process of resolution he same was done to bring respite to the homebuyers but the same does not wipe out the criminality on part of the petitioner and other co The learned APP submits that the petitioner is the authorized signatory in the bank accounts of the accused company. He further submits that the Lastly, Mr. Dubey submits that the petitioner has deep roots in the leeing from administration of In the backdrop of the aforesaid facts and circumstances, it has been, the learned APP appearing on behalf of the State has the status report. He submits that the present petitioner The learned APP submits that the petitioner is a director of the accused d in the day to day affairs of the accused prospective homebuyers even before the building plans were sanctioned by It was contended by the learned APP that the process of resolution he same was done to bring respite to the homebuyers but the same does not wipe out the criminality on part of the petitioner and other co- The learned APP submits that the petitioner is the authorized signatory ompany. He further submits that the petitioner is accused of cheating several other persons by adopting the same modus operandi in respect of which different FIRs have been registered.
20. I have heard the learned senior counsel for the petitioner, as well as learned APP for the State and have perused the record.
21. Before adverting to the merits of the matter, relevant would it be to note the factors which are to be taken into consideration while deciding a bail application. Profitable would it be to refer Court in Virupakshappa Gouda v. State of Karnataka relevant paragraph of which reads as under:
It is settled law that in granting or non-granting of bail in bailable offence, the primary consideration is the nature and gravity of the offence. In the present case Respondent 3 is campaigning in the election.” (Emphasis supplied) The gravamen of allegations against the present petitioner is that he has
12.82 lacs against booking of a flat on the 34th floor in housing scheme titled Adarsh Awas Yojna, however, the possession of which was never petitioner was involved in the day to day affairs of the compa transpired that neither the accused company had the permission to build upto the 39th floor (as advertised), in as much as, the lding plan was only sanctioned uptil the 29th floor nor the housing scheme the UPRERA. The allegations against the petitioner disclose commission of a serious ) character, behaviour, means, position and standing of n of the witnesses being ) danger, of course, of justice being thwarted by mphasis supplied) Satish Jaggi v. State of granting of bail in bailable offence, the primary consideration is the nature In the present case Respondent 3 is mphasis supplied) The gravamen of allegations against the present petitioner is that he has t on the 34th floor in housing scheme titled which was never handed petitioner was involved in the day to day affairs of the company and during that neither the accused company had the floor (as advertised), in as much as, the the housing scheme The allegations against the petitioner disclose commission of a serious affairs of the company, them the hopes about of their hard earned money.
25. It also prima facie dishonest since the very inception and the same is apparent from the fact that the accused compan registering the housing scheme with UPRERA. In essence the complainants have been sold flats by the accused company in an unregistered project contrary to the mandate of Section 3(1) of the Real Estate (Re Development) Act, 2016, which provides that no market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building in either a new or ongoing project without registering the same with the Real Estate Regulatory Authority.
26. This act committed by the accused company with the petitioner being at its helm has caused wrongful loss to the complainants and w the petitioner.
27. It is noticed from the status report that directors had sold flats by making false representations to the public at large in as much as, the petitioner 29th floor without having the requisite permissions to build
28. The case of the petitioner is that the possession of the flats could not be handed over to the complainants as the construction by a stay order that was granted in favour of the possession of the piece of land in the project Amrapali Silicon City justification offered by the petitioner does not stand to Firstly, the alleged stay Page company, after showing rosy pictures to complainants s about owning their own house and thus, allegedly duped them of their hard earned money. prima facie appears that the intention of the petitioner was the accused company has accepted money from the complainants without contrary to the mandate of Section 3(1) of the Real Estate (Re Development) Act, 2016, which provides that no promoter shall advertise, he same with the Real Estate Regulatory Authority. This act committed by the accused company with the petitioner being at its helm has caused wrongful loss to the complainants and w from the status report that the petitioner including other directors had sold flats by making false representations to the public at large, the petitioner had allotted flats to the complainants above the floor without having the requisite permissions to build bey of the petitioner is that the possession of the flats could not be handed over to the complainants as the construction of the project that was granted in favour of the local farmers possession of the piece of land in the project Amrapali Silicon City justification offered by the petitioner does not stand to reason alleged stay order has not been placed on record of this Court after showing rosy pictures to complainants, has given allegedly duped them appears that the intention of the petitioner was y has accepted money from the complainants without contrary to the mandate of Section 3(1) of the Real Estate (Regulation and promoter shall advertise, he same with the Real Estate Regulatory Authority. This act committed by the accused company with the petitioner being at its helm has caused wrongful loss to the complainants and wrongful gain to the petitioner including other directors had sold flats by making false representations to the public at large, allotted flats to the complainants above the beyond 29th floor. of the petitioner is that the possession of the flats could not be the project was stalled local farmers who were in possession of the piece of land in the project Amrapali Silicon City. This reason on two counts. order has not been placed on record of this Court nor any details of the said order have been comprehended as to how the complainants would be allotted a flat on the 34 floor, when the building plans had been sanctioned only uptil the 29
29. There is also no force in the grievances of the complainants stood to another housing project. It is imperative to note that the exercise being undertaken by the court receiver under the orders of the Court has not been initiated at the behest of the petitioner been resorted to for bringing does not absolve the petitioner of commission committe
30. Considering the serious allegations against the petitioner, as well as, the circumstances leading to the registration of the present FIR, no ground for granting regular bail to the petitioner is made out at this stage. Accordingly, the present petition, along with pending applications, if any, is dismissed.
31. The petition stands disposed of.
32. It is made clear that the observations made herein are only for the purpose of considering the bail application and the same shall not be deemed to be an expression of opinion on the merits of the case.
33. Order dasti under the signatures of the Court Master
34. Order be uploaded on the website of this Court.
JANUARY 25, 2024 Page any details of the said order have been furnished. Secondly as to how the complainants would be allotted a flat on the 34 floor, when the building plans had been sanctioned only uptil the 29 There is also no force in submission of the learned senior counsel that the grievances of the complainants stood redressed as they have been shifted undertaken by the court receiver under the orders of the Hon’ble Supreme has not been initiated at the behest of the petitioner but the same has been resorted to for bringing respite to the complainants/home buyers and does not absolve the petitioner of his various acts of omission and commission committed by him. Considering the serious allegations against the petitioner, as well as, the tition, along with pending applications, if any, is dismissed. The petition stands disposed of. It is made clear that the observations made herein are only for the to be an expression of opinion on the merits of the case. under the signatures of the Court Master. Order be uploaded on the website of this Court. 4/MK Secondly, it cannot be as to how the complainants would be allotted a flat on the 34th floor, when the building plans had been sanctioned only uptil the 29th floor. submission of the learned senior counsel that as they have been shifted Hon’ble Supreme but the same has respite to the complainants/home buyers and various acts of omission and Considering the serious allegations against the petitioner, as well as, the tition, along with pending applications, if any, is dismissed. It is made clear that the observations made herein are only for the