Ashok Kumar Kharya v. State of NCT of Delhi

2. In August/September a proposal was sent/distributed to some members of the society, wherein it was clearly mentioned that the land will be purchased directly from the farmer/existing owners and will be handed over to DDA but society entered into an MOU dated 13.10.2015 and engaged a consultant/dealer (alleged M/s Khushi Properties and Developers Pvt. Ltd.) to purchase the land for the society and released the funds of the society to the alleged company (M/s Khushi Properties and Developers Pvt. Ltd.).

3. The total project completion time was also mentioned in the Proposal as five years.

4. The payment was released to the alleged company for the period of more than 3 years (in 39 transactions) and no reconciliation of the payment was done by the then officepayment receipt proof was to be obtained by the society within a week.

5. No payment receipt was obtained from the alleged Company for 3 years despite clear mentioning of this fact that in the MOU (clause 14) dated 13.10.2015 that any such advance received by M/S Khushi Properties and Developers Pvt. Ltd. from EOWS shall be utilized for making the payment to the land owner/owners concerned with the land and proof of such payment to be submitted by M/S Khushi Properties and Developers Pvt. Ltd. to the EOWS within a week time from date of advance

6. MOU dated 13.10.2015 was executed and payment to purchase land was made to a dealer/consultant instead of making direct payment to the land owner/farmer as proposed in the proposal/pamphlets/brochure. This MOU was never shown/informed to members of the society. The contents of the MOU dated 13.10.2015 and that of the minutes of meeting dated 09.12.2015 are somewhat different. In the minutes of meeting nothing was disclosed that payment will be released to the alleged company.

7. As first General Body meeting was held on 23.04.2016 and in the minutes of meeting (23.04.2016) nothing regarding engagement of land facilitator/Khushi Properties and others is mentioned. This shows that nothing was disclosed to the members of the society.

8. The second GBM held on 04.12.2016 and as per minutes of meetings again nothing regarding engagement of land facilitator/Khushi Properties is mentioned. However, appointment of Auditor is mentioned.

9. The third GBM held on 06.01.2018 and as per minutes of meetings again nothing regarding engagement of land facilitator/Khushi Properties is mentioned. The appointment / renew appointment of the Auditor is mentioned. The society is paying remuneration (in thousands) to the auditors and the same is mentioned in the minutes of meetings but nothing about engagement of Khushi Property is mentioned despite the facts crores of rupees has been released to it. This somewhere shows that a release of funds of the society was intentionally not disclosed to the members.

10. As per the minutes of meeting of the 3rd AGM the land measuring 1.31 acre could not be completed because members did not make the payment in time in spite of repeated requests, while till 06.01.2018 the society had released Rs 6.32 Crores to M/s Khushi Properties and Developers Pvt. Ltd for purchase of 1.[3] acre land. Office bearers did not disclose this to members and continued to raise money from them and also continued to release money to the alleged company.

11. Summary of Audit Report for the financial year 2015-16 was incorporated in the minutes of meeting held on 04.12.2016, it was mentioned in the minutes of meeting that "purchaser second piece of land measuring 1.31 acre in also in advance stage and a major amount of land cost has already been paid" but they did not disclose that money was paid to M/s Khushi Properties and Developers Pvt. Ltd. They also didnt disclose that they had engaged M/s Khushi Properties as land facilitator.

12. The 4th AGBM was held on 12.01.2019. This is the first time that anything about M/s Khushi Properties is mentioned in the minutes of the meetings. Wrong/False information was conveyed to the members in General Body Meetings (Dt. 12.01.2019) that 5.04 acre land has been purchased through M/s Khushi Properties, while only 1.[9] acre land was purchased till date.

13. In the meeting dated 17.02.2019, [Page No. 3048] it was informed that due to technical issues related to earlier dispute, the land measuring 3.14 acre got first registered in the name of the Khushi properties on 04.01.2019 in accordance to clause at para 4 of the MOU Dt. 12.04.2018. The mutation of the land is under process and likely to be completed by the end of February,

2019. Thereafter, the land would be getting registered in the name of Society. But actually no land was purchased by Khushi Properties and clause at para 4 also does not suggests the same.

14. The Audit Reports/ Balance Sheet of the society for 31.03.2016, 31.03.2017, 31.03.2018 were also shared with the members over email. In the balance sheet advance payments is shown but nothing is mentioned to whom the payments was made. However, under receipts and payment account name of M/s Khushi Properties and Developers Pvt. Ltd. is mentioned in brackets but nothing is explicitly mentioned regarding the role of Khushi Properties. The MOU dated 12.04.2018 was executed with the alleged company, which was struck off in 2017. In the MOU dated 12.04.2018 nothing is mentioned regarding 1.[3] acre land which was claimed to be purchased. Further the company M/s Khushi Properties and Developers had been struck off and dissolved by ROC on 07.06.2017, despite this the then office bearers entered into the agreement with this company.

15. The entry of Rs 46 lacs in cash in the sale deed of 1.[9] acre of land was accepted by the then office bearers of the society while society has released the money to the alleged company through bank account only.

16. The payment details mentioned in the sale deed of 1.[9] acre land clearly reveals that some of the payment was made by the society and some of the payments were made by M/s Khushi Properties and Developers Pvt. Ltd., if society could have made direct payment to the land owner why the society release funds to the Khushi Properties. This clearly shows that Office bearers of the society deliberately released the funds of the society.

17. DDA has not issued any license or approval to any housing project including Utkarsh Vihar under land pooling policy in Dwarka or any other land pooling zone nor authorized any developer/builder/ society/ company including Eminent Officer Welfare Society to offer any flat/plot in the name of DDA under land pooling policy as on date, while on perusal of the pamphlets it is clear that society was alluring the people to become member in the society by offering flats.

18. Many of the members of the GB stated that their signatures were taken later on.

19. DDA clearly mentioned that any DE/consortium shall only be able to take booking from public for any housing project under land pooling policy after the issue of the licenses and layout/ building plan approvals issued by DA.

20. RERA clearly mentioned that Eminent Officers Welfare Society is not registered till date and not applied for registration in RERA Delhi.” (Emphasis supplied)

12. It is to be further noted that there are specific allegations against the petitioner herein and specific role has been attributed to him by the prosecution, the details of which are mentioned in the supplementary chargesheet, and the same read as under: “Role of Ashok Kumar Kharya

1. He was the President of the Eminent Officers Welfare Society. He let the Secretary and Treasurer of the society release payment to M/S Khushi Properties and Developers Pvt. Ltd from the funds of the society without any reconciliation.

2. He participated (headed) in the meeting of Governing body held on 9th December 2015, where M/S Khushi Properties and Developers Pvt. Ltd. was approved as the Property Dealer/Consultant and advance payment of Rs 50 lacs to M/s Khushi Properties and Developers Pvt. Ltd was also approved while in the proposal sent to the members it was clearly mentioned that the land will be directly purchased from the farmers/ existing owners.

3. He attended (chaired) the General Body meeting on 23.04.2016 and concealed that MOU dated 13.10.2015 had been executed with M/S Khushi Properties and Developers Pvt. Ltd. and payment will be made to M/S Khushi Properties and land will be purchased through this consultant/ property dealer.

4. As per him, he never read the MOU dated 13.10.2015 executed between the society and alleged M/S Khushi Properties and Developers Pvt. Ltd. which shows that he had fully supported the secretary in siphoning the funds of the society.

5. As per the (Balance Sheet) Receipt and Payment Account for the Period from 01.04.2015 to 31.03.2016 of the society, Advance for land was shown in the name of the M/s Khushi Property and Developers Pvt. Ltd and the report is signed by Ashok Kumar Kharya. It is evident from these documents that he was aware that the payment was not made to the land owners directly.

6. He participated in the meeting of Governing body held on 9th December 2015, where M/S Khushi Properties and Developers Put. Ltd. was approved as the Property Dealer/Consultant and advance payment of Rs 50 lacs to M/S Khushi Properties and Developers Pvt. Ltd. was also approved.

7. Summary of Audit Report for the financial year 2015-16 was incorporated in the minutes of meeting held on 04.12.2016, it was mentioned in the minutes of meeting that "purchaser second piece of land measuring 1.31 acre in also in advance stage and a major amount of land cost has already been paid "but he did not disclose that money was paid to M/s Khushi Properties and Developers Pvt. Ltd instead of land owner.

8. As per the (Balance Sheet) Receipt and Payment Account for the Period from 01.04.2017 to 31.03.2018, land cost (Rs 9.89 Crore) was shown in the name of the M/s Khushi Property and Developers Pvt. Ltd and the report is signed by him. However society had purchased only 1.[9] acre land for Rs 7.13 Crore. Now, it can be deduced that he did not reconcile the advance payments and further let the Secretary and Treasurer release the funds of the society.

9. He attended (chaired) the General Body meeting on 06.01.2018, where the then Secretary informed that 1.31 acre land could not be purchase due to non payment of members, while society had released Rs 6.32 Crore till that date for purchase of 1.31 acre land.

10. He attended (chaired) the General Body meeting on 12.01.2019, in which it was informed that total 5.04 acre of land had been purchased, while only 1.[9] acre land was purchased for the society.” (Emphasis supplied) iii. Examining the Material on Record

13. In the present case, the petitioner herein was the President of EOW Society which had been formed in July, 2015 and in September, 2015, it had finalized to develop a housing project namely „Utkarsh Vihar Housing Project‟ in the L-Zone of Delhi under Land Pooling Policy of DDA, and the Society, represented by its office bearers, had decided to buy approximately 5 acres of land for the purpose of construction of society, for which it had engaged the services of Khushi Properties. The allegations against the petitioner and other co-accused (officer bearers of the Society) are that they had induced the people at large on pretext of offering the units/flat in the Society and then had made them members and obtained money from them. It is the case of prosecution that the Society through its office bearers had represented to the victims that it would directly purchase land from farmers/land owners. It is also alleged that they had engaged the services of Khushi Properties to buy land of admeasuring 4.[4] acres at rate of about Rs.3.85 crore per acre, however, as on 13.10.2015, the account balance of the Society was Rs. 1.10 lacs only and thus, they had already pre-decided the manner in which they would drain the money out from the innocent members of the Society. It is further alleged that the petitioner being the President of the Society along with other officer bearers who have been chargesheeted, were the custodian of the money/funds which they had received from the members of the Society, however, they had released the funds without due precaution and had not bothered to reconcile the payment made to Khushi Properties. Further, they had continued to release funds in favour of Khushi Properties despite being aware of the fact that no land had been purchased except 1.[9] acre. It is also alleged that the said accused persons had falsely declared and misrepresented in one of the Annual General Meetings of the Society that 5 acre land had been purchased. They had also failed to adhere to the terms of the MOU dated 13.10.2015 as they were to obtain the receipt of payment from the dealer/consultant. It was also discovered during the investigation that DDA had not given authorization to anyone to raise funds in name of allotment of flats and further that the „EOW Society‟ had neither been registered with RERA nor any application in this regard was pending.

14. Thus, on the aforesaid allegations of releasing the money entrusted by the members to the office bearers of the Society without any reconciliation and rather misrepresenting to the members, and causing wrongful loss to the complainants and wrongful gain to Khushi Properties, and committing such acts in pre-designed manner to drain out the hard-earned money of the victims, the chargesheet was filed against these accused persons under Sections 406/409/420/120B of IPC.

15. In light of such allegations contained in the supplementary chargesheet against the petitioner herein and the material collected during investigation, this Court cannot come to a conclusion that no offence as alleged is prima facie made out against the petitioner. Neither are the allegations against the petitioner so improbable or absurd that such acts could have not taken place or that the petitioner, being the President of the Society, would have not been aware of the commission of acts as alleged by the prosecution. iv. Challenge to Filing of Supplementary Chargesheet

16. Learned counsel for petitioner vehemently argued that supplementary chargesheet could not have been filed by the prosecution without prior permission of the learned Trial Court.

17. To appreciate the contentions raised on behalf of petitioner, it shall be appropriate to consider the precedents of the Hon‟ble Apex Court in relation to filing of supplementary chargesheet. In Luckose Zachariah v. Joseph Joseph 2022 SCC OnLine SC 241, the Hon‟ble Apex Court had discussed the position of law qua filing of supplementary chargesheet, and the relevant observations are as under:

13. The decision in Vinay Tyagi (supra) was noticed together with other decisions of this Court in the judgment of a three- Judge Bench inVinubhai Haribhai Malaviya v. State of Gujarat. This Court held:

16. In view of the clear position of law which has been enunciated in the judgments of this Court, both in Vinay Tyagi (supra) and Vinubhai Haribhai Malaviya (supra), it is necessary for the Magistrate, to have due regard to both the reports, the initial report which was submitted under Section 173(2) as well as the supplementary report which was submitted after further investigation in terms of Section 173(8). It is thereafter that the Magistrate would have to take a considered view in accordance with law as to whether there is ground for presuming that the persons named as accused have committed an offence...”

18. In Vinubhai Haribhai Malaviya v. State of Gujarat (2019) 17 SCC 1, the Hon‟ble Apex had observed as under in relation to the scheme of Section 173 Cr.P.C: “15. The erstwhile Code of Criminal Procedure, 1898 did not contain a provision by which the police were empowered to conduct a further investigation in respect of an offence after a police report under Section 173 has been forwarded to the Magistrate. The Forty-First Law Commission Report (The Code of Criminal Procedure, 1898) forwarded to the Ministry of Law in September 1969 (hereinafter referred to as the “Law Commission Report”), therefore, recommended the addition of sub-section (7) to Section 173 as it stood under the Code of Criminal Procedure, 1898 for the following reasons: “23. A report under Section 173 is normally the end of the investigation. Sometimes, however, the police officer after submitting the report under Section 173 comes upon evidence bearing on the guilt or innocence of the accused. We should have thought that the police officer can collect that evidence and send it to the 17 magistrate concerned. It appears, however, that courts have sometimes taken the narrow view that once a final report under Section 173 has been sent, the police cannot touch the case again and cannot re-open the investigation. This view places a hindrance in the way of the investigating agency, which can be very unfair to the prosecution and, for that matter, even to the accused. It should be made clear in Section 173 that the competent police officer can examine such evidence and send a report to the magistrate. Copies concerning the fresh material must of course be furnished to the accused.”

16. What is interesting to note is that the narrow view of some of the High Courts had placed a hindrance in the way of the investigating agency, which can be very unfair to the prosecution as well as the accused.

17. Article 21 of the Constitution of India makes it clear that the procedure in criminal trials must, after the seminal decision in Mrs. Maneka Gandhi v. Union of India & Anr. (1978) 1 SCC 248, be “right, just and fair and not arbitrary, fanciful or oppressive” (see paragraph 7 therein). Equally, in Commissioner of Police, Delhi v. Registrar, Delhi High Court, New Delhi (1996) 6 SCC 323, it was stated that Article 21 enshrines and guarantees the precious right of life and personal liberty to a person which can only be deprived on following the 18 procedure established by law in a fair trial which assures the safety of the accused. The assurance of a fair trial is stated to be the first imperative of the dispensation of justice (see paragraph 16 therein).

18. It is clear that a fair trial must kick off only after an investigation is itself fair and just. The ultimate aim of all investigation and inquiry, whether by the police or by the Magistrate, is to ensure that those who have actually committed a crime are correctly booked, and those who have not are not arraigned to stand trial. That this is the minimal procedural requirement that is the fundamental requirement of Article 21 of the Constitution of India cannot be doubted. It is the hovering omnipresence of Article 21 over the CrPC that must needs inform the interpretation of all the provisions of the CrPC, so as to ensure that Article 21 is followed both in letter and in spirit. ***

31. Hasanbhai Valibhai Qureshi v. State of Gujarat and Ors. (2004) 5 SCC 347 is an important judgment which deals with the necessity for further investigation being balanced with the delaying of a criminal proceeding. If there is a necessity for further investigation when fresh facts come to light, then the interest of justice is paramount and trumps the need to avoid any delay being caused to the proceeding. The Court therefore held:

19. Having discussed the position of law, this Court notes that in the main chargesheet dated 13.11.2020 which was filed against coaccused persons Mukesh Kumar Singh and Neelam Singh, it was categorically mentioned that the role of other alleged persons was being investigated and after completion of investigation, a supplementary chargesheet would be filed. The relevant portion of main chargesheet dated 13.11.2020 reads as under: “Accused Mukesh Kumar Singh was arrested on 18.08.2020 and he is presently running in Judicial Custody. Accused Neelam Singh joined the investigation and cooperated with the investigation. No recovery is to be affected at her part; hence she was not arrested. Role of the other alleged persons is under probe. Supplementary final report u/s 173(8) Cr.P.C. will be submitted in the Hon'ble Court in due course of time.”

20. In the FIR itself, the complainants had specifically named (1) Vimal Kumar (Secretary, EOW Society), (2) Pradeep Kumar Thakur (Treasurer, EOW Society), (3) Mukesh Kumar Singh (Director, Khushi Properties), (4) Neelam Singh (Director, Khushi Properties), and (5) Other governing body members. While the initial chargesheet was filed only against Mukesh Kumar Singh and Neelam Singh, the investigating agency had informed the concerned Court that the role of other accused persons was being probed and a supplementary chargesheet qua them would be filed after completion of investigation in their respect.

21. Therefore, though the main chargesheet had only been filed against two directors of Khushi Properties, cognizance of which was taken by the learned Trial Court in the year 2020, the supplementary chargesheet was filed in this case only against other accused persons including the petitioner, who were the officer bearers of the EOW Society and the role of these persons had become clear after conducting further investigation. The specific role of each of the accused person has been mentioned in the supplementary chargesheet, which has already been discussed in the preceding paragraphs.

CONCLUSION

22. In view of the foregoing discussion, this Court is of the opinion that there are specific allegations against the petitioner herein that he being the President of EOW Society, alongwith co-accused (some other officer bearers) had formed the Society and allured the innocent victims to invest money on pretext of developing a housing project. There are further allegations that the accused persons including the petitioner had executed an MOU with Khushi Properties for purchasing land, however, despite receiving more than Rs.16 crores from the members of the Society, only 1.[9] acre of land was purchased and it was misrepresented to the victims that about 5 acre had been purchased. At the behest of accused persons chargesheeted in the supplementary chargesheet, the co-accused persons Mukesh Kumar Singh and Neelam Singh, both directors of Khushi Properties, had siphoned off approximately Rs. 12 crore. There are further allegations that neither any approval of DDA had been obtained for the housing project nor had the Society been registered with RERA.

23. Thus, this Court finds no reasons to quash either the supplementary chargesheet or the summoning order dated 03.03.2022 passed by the learned Trial Court against the present petitioner.

24. Accordingly, the present petition alongwith pending application stands dismissed.