TaxTMI 
TaxTMI 
2016 (10) TMI 1272
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....420/ 467/ 471/120B IPC /2016 /2014 PS-EOW, Mandir Marg, New Delhi / 420/ 467/ 471/ 120B IPC 2. It is the complainants' case that they have invested monies into the projects of the applicant accused to the tune of around 600 crores which have been siphoned off by the accused by colluding, conspiring, ganging up with his family members and illegally benefitting from the complainants' money on the false pretext of providing lucrative returns. The Applicant had invited applications for investment in two projects for construction of IT parks, one in Gurgaon and the other in Manesar. The complainants have filed applications in each of the aforesaid Bail Applications, seeking permission to intervene e in the matter on behalf of the "Investors Sanghars Samiti", with a view to oppose the grant of bail to the applicant/ accused. These applications are: (i) Crl. M.A. No. 10390/2016 in Bail Appln. No. 1212/2016; (ii) Crl. M.A. No. 10392/2016 in Bail Appln. No. 1221/2016; and, (iii) Crl. M.A. No. 10388/2016 in Bail Appln. No. 1222/2016. 3. Charge-sheets in the subject FIRS have been filed on 29.12.2014. Supplementary charge-she....
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....ates that the said projects were funded by Punjab National Bank (PNB) by showing interest to invest, vide a comfort letter dated 28.09.2007. 8. The investment options available under various schemes were down payment, barter agreement, construction linked program, and advance full payment by investors. The investors invested, inter alia, through the barter scheme or through advancing full payment. The barter scheme was in the nature of exchange of immovable property with a unit (s) /space in the projects of the applicant. The Applicant executed two kinds of agreements with the investors, namely, the Developer-Anchor-Unit Agreement and the Developer Anchor Option Agreement-Assured Return Plan. These agreements were entered into somewhere between the years 2006-2008. All these agreements were executed by the applicant on behalf of the aforesaid companies. 9. The Developer assured the investors that the construction will be completed within a period of sixty months from the date of the agreement and after receipt of the completion certificate from government authority. The investors were also guaranteed assured return at the rate of 9% to 12% per month. As per the agreements, on....
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....No. 2 has still not seen daylight and only a ditch exists there. It is the case of the complainants that the accused have stashed the money in their individual accounts or accounts of persons, firms, companies owned and/or controlled by them. 13. It is further alleged that the assured returns which the applicant had assured to pay haven't been given since February 2014, despite demands. At times, it is alleged, the complainants have been shunted out by the bouncers of the accused with threat of dire consequences. It is alleged that the accused had delivered some post dated cheques of July 2014 - March 2015 to the complainants to pay the pending assured returns, which have also started getting dishonored. 14. The Complainants allege that the accused has illegally collected service tax and land enhancement cost from the complainants on the undertaking of paying the assured return. This was done with an intention to make the complainants part with more money to pay off their dues to the Service Tax Department. It is also their case that the persons who have paid the amount prior to 01.07.2010 were not even liable to pay the service tax under law. The accuse applicant has not....
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....ores. Approximately 560 complainants have been received at the office of the EOW and total cheated amount has already gone upto 230 crores. Project-1 @ IMT Manesar 19. With respect to this project it has been ascertained that the project was launched in the year 2005-2006 and allotment was made by HSIIDC to Vigneshwara Developers Pvt. Ltd. on 10.05.2006 and an agreement was executed on 17.05.2006. It has been informed by HSIIDC that basic cost was deposited by the applicant's company, however, when enhanced compensation was demanded, the company deposited only part payment of Rs. 1 crore and thereafter moved the Punjab and Haryana High Court and Supreme Court against the demand notice. It has been further revealed that M/s. Vigneshwara Developers Pvt. Ltd. was not permitted to lease or sell the property in question. The analysis of the bank accounts reveal that the directors received Rs. 9,98,10,952/- from the investors before 17.05.2006, which is before the date of agreement between HSIIDC and the applicant. As per the agreement, it was agreed between the corporation and the accused that the breakup of the project implementation shall be as follows: Time-period Per....
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....nt that it was the present accused Sunil Dahiya along with his father, Daryao Singh and brother, Sanjay Dahiya who were carrying out day to day affairs of the company as well as planning the long term policies". Applicant's Submissions: 24. The Applicant submits that the present is a case of non-completion of the project and non-payment of assured returns, which is purely civil in nature. It is, at best, a case of breach of the agreements entered into by the accused company with the investors. The contents of the FIR at best demonstrate an alleged breach of contract and cannot be termed as cheating. He submits that the contract between the investors and the applicant provides recourse to arbitration in case of any dispute arising from the contract. The applicant also relies upon the bail orders in FIR Nos. 28/10, 29/10, and 65/10, wherein the accused has been granted bail and the Ld. ASJs have enlarged the applicant on bail on the ground that the dispute is of civil nature. 25. The Applicant further submits that the accused company has diligently paid the assured return since inception. To evidence the same, the Applicant has relied upon a verification report of Dun an....
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....ffered their investors additional space in place of the assured returns for the months of April 2014- December 2015 and assured to continue to pay the assured returns from January 2016 onwards. The Applicant also submits that the Police Authorities got all the bank accounts of all VGC attached which left the Applicant paralyzed and brought the functioning of its company to a standstill. This action of the Police Authorities affected the payment of assured returns and caused dishonour of cheques issued by the Applicant. 29. Ld. Senior further submits that the charge-sheet in the case has already been filed, and around eleven months have passed since the order rejecting bail under Section 439 passed by the learned Additional Sessions Judge. The applicant has been in judicial custody for over twenty one months now. Thus, no purpose will be achieved in unnecessarily keeping the applicant in jail during pendency of the trial. Ld. Senior furthermore states that the trial is likely to take considerable time since there are around 400 complainants. The taking on record of statements of the prosecution witnesses and the documents relied by the prosecution is bound to take long. It is hig....
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....lready been appointed who is in possession of all the records. Thus, the apprehension that the applicant, if let out on bail, will tamper with the evidence is negated. 32. Mr. Nigam submits that complainants have no right to intervene and be heard in the bail applications. It is the State which is prosecuting the case, and the Public Prosecutor is the sole incharge of the prosecution. Section 301 CrPC entitles the Public Prosecutor or Addl. Public Prosecutor to appear and plead in a case undergoing inquiry, trial or appeal, and no private pleader can intervene. At the most, he can assist the Public Prosecutor and act under his directions. A private pleader is permitted to submit written arguments after the evidence is closed in a case, provided prior permission of the Court is obtained. In this regard, reliance is placed on the following cases: 1. Sundeep Kumar Bafna v. State of Maharashtra, 2014 (16) SCC 623 2. Praveen Malhotra v. State, 1990 (18) DRJ 192 3. Kuldeep Singh v. State of Haryana 1980 Cri LJ 1159 4. P.S. Saravanbhavanandam and Ors. v. S. Murugaiyyan & Ors. 1986 Cri LJ 1540 5. Shiv Kumar v. Hukum Chand (1999) 7 SCC 467 ....
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....e complainants by incorporating 15 other companies. It is submitted that the management of all these 15 companies has remained common and run from the same address. The object and nature of business being carried out by the companies is also the same. All the three directors are sitting under one roof i.e. at Orchid Centre, Gurgaon, managing the affairs of these companies. The applicant herein, as mentioned above, is the managing director in all these 15 companies. Ld. APP submits that an Auditors Report, referred to in the charge-sheet, establishes that huge amounts were transferred and rotated from the accused companies, i.e. Vigneshwara Developers Pvt. Ltd. and Vigneshwara Developwell Pvt. Ltd. to its other group companies, and also to accounts of other directors with the aim and object of siphoning the money. 37. Ld. APP has relied upon Sunil Grover v. State, which distinguished Sanjay Chandra (supra). She submits that in the present case general members of the public have been directly put to loss by floating of advertisements and invitation of offers from the public to invest money into the projects of the applicant by promising them assured lucrative returns. This is unli....
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.... 2. Col. P.K. Uberoi (Retd.) & Anr. v. Vigneshwara Developers Pvt. Ltd. Co. Pet. 885/2015, wherein the applicant/ director had been directed by this court to disclose the details of the properties purchased in his name on affidavit, but inspite of sufficient opportunity, no effective response has been received from the applicant. This court has thus, vide order dated 22.07.2016 in the aforesaid petitions, admitted the petitions for winding up and appointed an Official Liquidator in the respective petitions. Discussion and Decision 42. I have considered the rival submissions advanced by learned counsels. 43. The Supreme Court in Dipak Subhashchandra Mehta v. Central Bureau of Investigation, (2012) 4 SCC 134, laid down the factors that a court granting bail should consider. The court observed as follows: "18. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being g....
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....nesar and Gurgaon. This has been solely achieved by painting a rosy picture before the investors of them getting lucrative returns on the investments made. The applicant while presenting various schemes, have depicted association with, and sponsorship from nationalized banks, the veracity of which remains questionable. It further raises suspicion on the conduct of the accused/ applicant, as to why they reduced the sale price consideration in the sale agreements executed between the accused company and the investors. The accused deducted TDS on the assured returns promised, but apparently the same has not been deposited with the Income Tax Department, thus, prima facie, raising a possibility of misappropriation. The assured returns have also been stopped after few years. Post dated cheques issued in that regard have been dishonoured. The construction of the units, which was assured within a time span of 5 years from the date of agreement has, even after a period of more than eight years, not been completed. There are allegations that the applicant/ accused has also deducted service tax from the investors, including during a period when it wasn't required to be deducted under law....
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....re hardly legible ........ As per the terms and conditions of agreement dated 17/05/2006 between M/s. Vigneshwara Developers Pvt. Ltd. and HSIIDC, accused got permission for freedom of leasing and renting the land and building within the campus for the uses permissible as per the industrial policy 2005 and notified for inviting applications which form part of the zoning plan and no other purposes whatsoever was given. However allottee has to obtain permission from HSIIDC on the prescribed format. In our opinion as per the terms and conditions of the above said agreement the accused was authorized to book the IT units only on or after 17/05/2006 subject to obtain permission from HSIIDC on prescribed format. On scrutinizing the bank account, we found that they had received the funds from the investors before 17/05/2006 for booking units under the said project ...... ... ..... ........ ... They had received Rs. 9,98,10,952/- from the investors before 17/05/2006. The accused had withdrawn a sum of Rs. 5,40,00,000/- (Rs five crore forty lacs only). They had withdrawn material amount from the funds received from the investors it (sic) shows manipulation/misappr....
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....and dupe more than 1000 investors to invest in his projects, he may as well be able to influence these investors, other witnesses and the evidence to save his own skin. The Applicant herein has been accused of economic offences involving cheating and misappropriation of huge amounts of public funds, and such offences - as observed by the Apex Court, have to be viewed seriously. In Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation, (2013) 7 SCC 439, the Court in Para 34 observed: "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country." 50. Further, in State of Gujarat vs. Mohanlal Jitamalji Porwal and Anr., (1987) 2 SCC 364, the Court in Para 5 observed: "5. The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of mome....
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....ncur with the view as held in Sunil Grover (supra). The court observed: "12. So far as the judgments of the Apex Court in Sanjay Chandra's case and Suresh Kalmadi's case (supra) are concerned, no doubt, these reinforce and revisit the basic principles of law with regard to the grant of bail. The 'bail is the rule' and the 'jail is an exception' and further that while granting the bail to the accused person, not only the gravity of the offences is to be seen, but also the fact as to whether accused would be available to face the trial or flee away from the processes of law. He should not have propensity to win over the witnesses or tamper with the evidence. I am also cognizant of the fact that in both these cases cited by the learned counsel for the petitioner, the quantum of money allegedly involved was much higher than the amount of money involved in the instant case, but there is a fundamental difference between these two sets of cases which have been cited by the learned counsel for the petitioner and the present case. In the cases, which have been cited by the learned counsel for the petitioner, no member of the general public was affected direc....
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....en made in Court. Therefore, this was only a ploy to come out on bail. I feel that merely because he has been in custody for 20 months or merely because the bail was granted in Sanjay Chandra (supra) and Suresh Kalmadi's case (supra), it does not ipso facto result in the grant of a bail to a person who is also facing the allegations of cheating. The grant of bail in a nonbailable offence remains essentially a matter of discretion which is to be exercised by the Court, keeping the judicial principles in mind, namely, gravity of the offence and the implications thereof. 13. In my view, the gravity and the implication of the offence, in the instant case, has a far-reaching effect on a definite number of members of the public, who are around 1500 in number, as on date and more are adding by the day." (emphasis supplied) 53. The Supreme Court, in Neeru Yadav v. State of U.P, (2014) 16 SCC 508 - which was also a case of regular bail under Section 439, observed as follows: "16. xxx We are not oblivious of the fact that the liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human ri....