Full Text
HIGH COURT OF DELHI
JUDGMENT
AJAY KUMAR ..... Petitioner
Through: Mr Rajesh Anand, Mr Anshuman Vashishta and Ms Harleen Kaur, Advs.
Through: Mr Aashneet Singh, APP for State ACP Santan Singh, EOW
1. This is an application seeking grant of bail in FIR No. 113/18, PS EOW, U/s 420/120B IPC.
2. The facts of the case are that FIR No. 113 of 2018, dated 21.05.2018, U/S 420/120B IPC, P.S. E.O.W. Delhi was registered on the complaint made by the residents of Amrapali Platinum, wherein the complainant Mr. Kovid Batra and 28 other residents had alleged that the Directors of M/s Ultra Home Construction Pvt. Ltd. Company of Amrapali Group (Builders) had cheated them by not completing the project in time and diverted &misappropriated the funds of this project.
3. The Complainant/ victims alleged the following allegation against the builders;i. The builder has not finished the project; two lifts still need to be installed in accordance with the approved plan. The buildings' exteriors are still under construction, and work is still being done on them. ii. The builders have already collected all of their payments, including the one-time lease charges that were to be paid to Noida Authority at the time of registration. The builder has not only delayed registration but has also not paid to Noida Authority, the money collected. iii. The builder failed to get NOC from the relevant authority (i.e., an occupancy certificate), which led to the non-registration of the flats to individual buyers who have been living there since
2011. iv. The builder departed from the authorised plan approved by the Noida Authority. Contrary to the approved plan, the builder failed to install two elevators totalling approximately Rs. 1 crore in two buildings. Builders built flats and stores in the common space, departing from the approved plan approved by Noida Authority, leading to a severe shortage in the common area.
ARORA v. The builder has sold off fire refuge areas by misrepresenting them as terrace to buyers. This affects safety of residents as he converted public spaces into private spaces.
4. After obtaining papers or replies from the complainant and Noida Authority, the State was able to substantiate the allegations that the Occupancy certificate had not been obtained. The police discovered through the investigation that despite the builders receiving all of the monies from the buyers, the builders had not paid the dues to the Noida Authority. As a result, the complainants had been cheated by the accused persons, including the applicant. Hence, the FIR was filed.
5. During the process of investigation and on receipt of documents/ replies from all the parties and it was revealed that:i) As per the replies of the Noida Authority it was revealed that the Plot GH-001, located at Sector 119, Noida, UP vide lease deed dated 01.05.07 was allotted to Amrapali Patel Platinum (Consortium), a partnership firm. On scrutiny of documents, it became clear that the total premium of the Plot in question was Rs. 98,64,50,000/-, out of which Rs. 39,21,83,560/- were paid and the balance Rs. 58,82,75,340/- was to be paid in 8 equal instalment upto 13.02.2011. But as per reply No. 499 dt. 09.07.19, the total present outstanding amount is Rs. 205.13 Crores. On 14.08.2017, the Occupancy Certificate was not issued and the request was rejected. Further the Noida Authority in respect of the Project Amrapali Patel Platinum ARORA submitted a report with the Supreme Court in respect of ten towers i.e., Tower A to J and Club. There is provision of three lifts in each Tower. According to the report of the Noida Authority in Tower A one is under maintenance and two are functioning. In Tower C out of three lifts, two are functioning one is not functioning. In Tower D, out of three, two are functioning and one is to be installed. In Tower E, two are functioning and one is not installed. In Tower F, two are functioning and one is defective, and in Club, out of three lifts, two are functioning one is not installed. ii) According to the ROC records Mr M. M. Sharma (2003— 2012), Mr Anil Kumar Sharma (2005—till date), Mr Ajay Kumar (2003—till date, the applicant herein), Mr Shiv Priya (2003—till date), Mr Suvash Chandra Kumar (30.11.15 to 30.11.15) and Mr Amresh Kumar (30.11.15 to 30.11.15) have been directors of M/s Ultra Homes Construction Pvt Ltd. The accused persons Mr. Ajay Kumar, Mr Anil Kumar Sharma and Mr Shiv Priya mentioned in column No. 11, against whom the complainant/victims have made allegations are also authorized signatories of the bank accounts of the accused company and controlled /managed the day-to-day affairs of the accused company. iii) It was also revealed that the accused persons in a well hatched conspiracy with officials fraudulently induced the complainants/ Victims to invest their money in their company. In respect of the investments received by the accused company ARORA M/s Ultra Home Construction Pvt. Ltd, the accused company through its authorized persons allotted flats in Amrapali Patel Platinum as security. iv) The scrutiny of the bank account statements of the accused company reflects receipt of moneys from the victims/ investors. v) The documents further revealed that Amrapali Patel Platinum is a Consortium, wherein, M/s Ultra Home Construction Pvt. Ltd., M/s Patel Engineering and M/s Advance Construction P Ltd are its partners and M/s Ultra Home Construction Pvt. Ltd. is the leading partner. The accused persons had approached the complainant/ victims representing that the Amrapali Patel Platinum (Consortium), a partnership firm had acquired right, title and interest in group housing lease hold plot in the name and style of Amrapali Platinum located at GH-001, Sector 119, Noida, UP vide lease deed dated 01.05.07. The project was mainly operated and constructed by M/s Ultra Home Construction Pvt Ltd. vi) Finally, it was revealed that the accused persons namely Mr. Ajay Kumar, Mr Anil Kumar Sharma and Mr Shiv Priya and M/s Ultra Home Construction Pvt. Ltd., had received the entire money from the home buyers but had not cleared the dues of Noida Authority due to which the Occupancy Certificate was not issued and the buyers could not get their flats registered.
6. During the course of investigation, the accused persons Mr. Ajay Kumar, Mr Anil Kumar Sharma and Mr Shiv Priya were arrested on 02.07.2019. After completion of investigation charge-sheet qua ARORA accused persons Mr. Ajay Kumar, Mr Anil Kumar Sharma and Mr Shiv Priya was filed in the court.
7. Mr Rajesh Anand, the Ld. Counsel for the Applicant submits that the applicant herein is neither named nor there is any allegation against him in the FIR.
8. It is also submitted that the applicant is one of the Directors of the holding company of Amrapali Group Companies i.e., M/s Ultra Home Construction Pvt. Ltd. with a meagre shareholding of 3.25% with no executive powers and was not part of the day-to-day management of the affairs of the company.
9. The Applicant had no role in the financial matters, policy making or the administration of the affairs of the company.
10. The applicant in this case was a member of the team in charge of the construction operations of the projects that he was supposed to manage. He did so successfully and completed a number of projects on schedule. Amrapali Village, Amrapali Greens, Amrapali Royale, Amrapali Empire, Amrapali Vaishali I Ghaziabad, Amrapali Castle in Greater Noida, Amrapali Zodiac, and Amrapali Cosmos in Noida are a few of the projects that were timely completed.
11. All subsequent projects—or all phases of later projects—undertaken by various Amrapali Group Companies could not be finished or delivered on time, including the current project for which the current FIR was registered. This was due to a number of difficulties and problems.
12. It is also submitted that any deficiency/grievances pertaining to the facility issues referred now stands resolved by the NBCC through ARORA Court receiver who is managing the affairs of the company in terms of the Hon‟ble Supreme Court Order dated 23.07.2019 passed in Writ Petition (c)No.940/2017 titled Bikram Chaterji V. UOI &Ors.
13. With regards to the non-issuance of the Completion Certificate, it is submitted that the inspection was conducted by the Noida authority. However, due to an order dated 28.10.2013 from Hon‟ble NGT, which directed to the Authorities not to issue completion certificate/occupancy certificate to any housing projects falling within 10 kms of Okhla bird sanctuary in case titled Amit Kumar vs UOI, Application no.158/2013.
14. It is also submitted that, since the Noida authority was unable to issue competition/ part completion certificate, the total payment to the authority was withheld.
15. It is finally submitted that farmers protest, NGT orders, order of Pollution control board for extraction of ground water for construction fed into the hampering of the completion of the project. The IBC proceedings initiated in 2016 by the Bank of Baroda, which resulted in management of the company becoming defunct, also crippled the payment.
16. It is submitted by Mr. Singh, Ld. counsel for the State that the accused persons induced and allured the complainants for complete payments, but despite taking all the payments including payment for one time lease charges that were to be paid to Noida Authority for registration, the accused/builder has not only delayed registration but has also not paid the dues of Noida Authority. Hence, prima facie it is apparent that the money was paid by the buyers for the specific purpose, ARORA however, the same has been diverted and siphoned off by and at the behest of the Accused persons.
17. It is also stated that the builder had not obtained NOC from concerned authority (i.e. Occupancy Certificate) and also did not complete the project as per approved plan.
18. The accused were unable to clarify the utilization of the cheated amount. The documents related to Plot No. GH-001,Sec.- 119, Noida, U.P., were obtained from Noida Authority, reveals that huge amount is still to be paid and the NOC i.e., Occupancy Certificate, was not obtained from concerned authority which resulted to the nonregistration of the flats to the individual buyers who are residing since
2011.
19. Furthermore, the modus of the whole fraud and systematic siphoning of the funds, committed by Amrapali Group and its officials has been dealt by the Hon‟ble Apex Court in the matter of „Bikram Chatterji & ors. V. Union of India’, Writ Petition no.940/2017 dated 23.07.2019.
20. The State also submitted the following qua the role of Applicant as under: i. The builder has not completed the project as per approved plan. ii. The builders has taken all the payments from the buyers but had not paid the dues of Noida Authority. iii. The builder had not obtained NOC from concerned authority (i.e., Occupancy Certificate). iv. There was diversion of the funds, prima facie it is apparent that when the money was paid by the buyers for the purpose of specific project but the same was diverted ARORA v. The flat buyers had complained that the accused induced and allured them for complete payments, but despite taking all payments including payment for one time lease charges that were to be paid to Noida Authority for registration. The accused builder has not only delayed registration but has also not paid to Noida Authority, the money collected, vi. The accused were unable to clarify the utilization of the cheated amount. The documents related to Plot No. GH-001, Sec.- 119, Noida, U.P., were obtained from Noida Authority, reveals that huge amount is still to be paid and the NOC i.e., Occupancy Certificate, was not obtained from concerned authority which results to the non-registration of the flats to the individual buyers who are residing since 2011. Analysis:
21. I have heard the Ld. Counsel and gone through the case record.
22. The principles governing the grant of bail have been stated time and again. At this stage, I deem it apposite to refer to some of the recent as well as long standing decisions of the Apex Court in this regard.
23. In Sanjay Chandra v. Central Bureau of Investigation reported as (2012) 1 SCC 40, it has been held as under:-
ARORA punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
24. In Jayant Kumar Jain v. State, 2020 SCC OnLine Del 2103, this court laid down the following factors:
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.”
25. First and foremost, in the present case, the applicant has been in custody since 02.07.2019. The State has in its status report opposed the bail application on the ground that total 56 cases are pending against the applicant. It has stated that in 29 cases charge-sheet has been filed and Applicant Ajay Kumar was arrested in 14 cases. 27 cases are still pending investigation in which Applicant Ajay Kumar's role cannot be ruled out.
26. It has been brought to my notice that it has been three years since the filing of the chargesheet and the charges are yet to be framed
27. This court has time and again reiterated that bail cannot be denied because the investigation is still ongoing. Right to speedy trial and access to justice has been recognized as a fundamental right. In the present case applicant, has already undergone more than half of the period, the offence with which the applicant is charged with is ARORA punishable with imprisonment upto 7 years. The applicant has already served more than half of his sentence. Section 436-A states that: “436A. Maximum period for which an undertrial prisoner can be detained.-- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to onehalf of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties: Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law. Explanation.--In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.].” ARORA
28. This court cannot let the applicant undergo long period of detention. If this court allows the continuing pre-trial incarceration, the same will amount to deprivation of personal liberty as well as travesty of justice as the same is equivalent to punishment without trial. Hence, the applicant is entitled to bail on this ground alone.
29. Without prejudice to the above, the applicant is also entitled to the bail with respect to the allegations against the applicant.
30. The applicant has submitted that owing to the order dated 28.10.2013 in “Amit Kumar Vs Union of India &Ors,” Application no.158/2013 of the NGT, the Noida authority was restrained to issue completion certificate/occupancy certificate. The applicant has also brought to my attention other reasons namely, farmers protest, NGT orders, order of Pollution control board for extraction of ground water for construction and the IBC proceedings initiated in 2016 by the Bank of Baroda, which resulted in management of the company becoming defunct, also crippled the payment. These reasons impeded the company from paying total amount the Noida authority. The same issues are still pending adjudication.
31. Whether the applicant was prevented by genuine reasons or there was actual diversion and misappropriation of funds are issues which can only be adjudicated when the applicant enters the witness box. In my opinion, the same cannot be the reason to keep the applicant behind bars.
32. The status report makes is clear that the Occupancy Certificate was declined on 14.08.2017. Hence it is not the case that the certificate was not applied. Be it as it may, the delivery of projects is now being undertaken by NBCC pursuant to the order of the hon‟ble Supreme Court passed in Writ Petition (c)No.940/2017 titled Bikram Chaterji
V. UOI &Ors. The project now stands delivered. The assets of the company including the directors and others are attached.
33. The applicant is one of the directors in M/s Ultra Home Construction Pvt. Ltd. and subsequently in other subsidiary company. He was the authorised signatory in M/s Ultra Home Construction Pvt. Ltd. and was bound by instructions given. However, there are no specific allegations against the applicant qua the financial or administrative decision or policy matters of the company.
34. The applicant has drawn my attention to the Report of the Forensic Auditor report, where in the role of the applicant has been shown in “construction and coordination.” “(2) Board Members Following is the list of board members in the Group: 1).. 2).. 3)..
4) Ajay Kumar: Whole Time Director, Construction and Coordination ARORA 5)……. ”
35. This also substantiates the fact that assertion that the role of the applicant was a limited one to construction and related activities and not to any of the alleged financial irregularities or alleged financial mismanagement in Amrapali Group of Companies.
36. The company is arraigned as the one of the accused. The role of the applicant can only be ascertained once the trial takes place. The applicant has only been in custody for almost three and half years.
37. In its order dated 23.07.2019, the Hon‟ble Supreme Court had recorded as under: “Ajay Kumar
1. Mr. Ajay Kumar received funds from Amrapali group of Companies which was used for acquiring personal properties, as stated hereunder: a. Property located at Plot no: A-014 Savanna Villas, Jaypee Greens Sector-128, Naida; the property was not disclosed in affidavit submitted on 3rd December, 2018 -(Housing loans was paid for this property out of amount received from Group companies) b. Property located at IRS colony, Abhay Khand, lndirapuram, Ghaziabad- Rs.1.38 crore. c. Property located at Plot No: A-014, Pelican Villa Jaypee Green Naida 201301- Rs.1.11 crore.
2. Mrs. Seema Kumari (Wife of Ajay Kumar) made investments in different mutual funds amounting to Rs.2.25 crore out of amounts received from Amrapali group of companies during August to September, 2018.
3. Mr. Ajay Kumar made investments in Life insurance Policies of Rs.2.59 crore out of amounts received from Amrapali group of companies.
4. Mr. Ajay Kumar made payment of Rs.1.25 crore to following third parties out of amounts received from Amrapali Group of Companies: a. Yogesh Chand Rs.25,00,000 b. Ozone GSP lnfratech Rs.50,00,000 c. Quality Synthetic Industries Ltd Rs.50,00,000
5. Mr. Ajay Kumar made investment of Rs. 1. 12 crore in Ultra Home Construction as Share Capital out of amounts received from Amrapali group of companies.
6. Mr. Ajay Kumar made payment of direct tax of Rs.0.11 crore out of amounts received from Amrapali group of companies.
7. Mrs Seema Kumari holds mutual funds with HDFC mutual funds Folio no 14756739/01, which have market value amounting to Rs.0.48 crore as on 28th February 2019.
8. Bank Statement of Anandi Singh of IndusInd Bank Account no.150019032006 A sum of Rs.1. 73 crore has been transferred from Seema Kumari on 09/08/2018. Further a sum Rs.2.25 crore has been invested in Mutual Funds….”. ARORA
38. On 05.03.2021, the ld. senior counsel appearing on behalf of the applicant had agreed to deposit an amount of Rs. 10 Crore within 2 weeks.
39. As the applicant failed to comply the direction on 05.04.2021 the Hon'ble Supreme Court was pleased to direct the sale of properties of the applicant, Mr. Ajay Kumar as detailed in the judgement dated 23.07.2019. The Hon'ble Supreme Court directed as under; "we direct the Receiver and the Forensic Auditors to take urgent steps in accordance with law to dispose of the assets of Mr. Ajay Kumar as recorded in the order dated 23.07.2019.".
40. It is submitted that from sale of the assets 8.36 crores has been recovered in terms of the order dated 05.04.2021, while Rs 10 lakhs were deposited with the registry of Supreme Court on 12.12.2018 by the applicant‟s family. Hence 8.46 crores seem to have been recovered.
41. As stated by the petitioner, out of the FIRs, it is clear that 6 are at the stage of charge since 2019, while in 7 FIRs, the applicant is already on anticipatory/regular bail, while in 25 the applicant has not been arraigned as an accused. In the other FIRs either the chargesheet has been filed without arrest of the applicant or closure reports has been filed.
42. The other issues of deviating from approved plan sanctioned by Noida authority and other related issues are subject matter of trial.
43. From the abovementioned facts, the issues raised against the applicant can only be adjudicated in trial. The applicant has already suffered incarceration for more than 50% of the maximum sentence imposed on him.
44. Having regard to the totality of the circumstances, in my opinion, the applicant should be released on bail. The application is, therefore, allowed in terms of the following conditions: (a) The applicant shall furnish a personal bond in the sum of Rs. 1,00,000/- (Rupees one lakhs Only) each with 01 surety in the like amount, to the satisfaction of the trial Court; (b) The applicant shall not leave the country and the applicant shall surrender his passport to the trial Court;
(c) The applicant shall furnish to the IO/SHO concerned his cellphone number on which the applicant may be contacted at any time and shall ensure that the number is kept active and switched-on at all times;
(d) The applicant shall drop a Google pin location from his mobile phone to the IO concerned which shall be kept operational throughout his bail; (e) The applicant shall not indulge in any act or omission that is unlawful, illegal or that would prejudice the proceedings in pending cases, if any; (f) The applicant shall join investigation as and when directed by the IO and will appear in court as and when required; ARORA
45. Nothing stated hereinabove shall tantamount to an expression of opinion on the merits of the case.
46. The application along with pending application(s), if any, are disposed of accordingly.