IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment delivered on :12.03.2024

BAIL APPLN. 545/2024 & CRL.M.(BAIL) 272/2024

RAM SINGH ….. Applicant

versus

STATE ….. Respondent

Advocates who appeared in this case: For the Applicant
: Mr. Jayant K. Sud, Sr. Adv. with Mr. P. Jain, Ms. Rabiya Thakur, Mr. Kartik Jasra, Mr. Prannit Stefano, Mr. Shivam Nagpal & Mr. Saurabh Mishra , Advs.

For the Respondent
:Mr. Utkarsh, APP for the State with SI Mukesh Chauhan, PS EOW Mandir Marg. Mr. Sunil Agarwal, Adv. for complainant through V.C.

CORAM: HON’BLE MR JUSTICE AMIT MAHAJAN JUDGMENT

1.The present petition is filed under Section 439 of the Code of Criminal Procedure, 1973 (‘CrPC’) seeking grant of regular bail in FIR No. 99/2017, for offences under Sections 120B/420/409 of the
Indian Penal Code, 1860, registered at Police Station Economic Offences Wing.

2.The FIR was registered against M/s Alpine Realtech Private Limited (hereafter ‘the developer’) in a complaint made by Mr. Rajesh Kumar, who is stated to be an authorized representative of Ekdant Welfare Society– formed by the fifty-one aggrieved home buyers. The applicant is one of the directors of the developer and was arrested in the present FIR on 08.05.2018.

3.The members of Ekdant Welfare Society are stated to be the buyers in the group housing project namely ‘FNG Ekdant’ (hereafter ‘the project’). It is alleged that the developer had committed that the
project will be completed and the possession will be handed over by September, 2014. Further, the developer had also promised in case of failure to deliver the project by March, 2015, the developer shall pay every allotee at the rate of ₹5/ sq. ft. per month for the delay in handing over the possession.

4.It is alleged that despite passing of March, 2015, the developer failed to complete the project on time and had only constructed skeleton structures on the project site. It is further alleged that on being approached for payment of the penalty for the delay in handing over the projects, the developer started making various excuses and had not paid any money. The builder, it is alleged, is also demanding
more money for the completion of the project.

5.The chargesheet and the supplementary chargesheet in the present case has already been filed. During the course of investigation, from the statement of the accounts of the developer in which payments were collected, it was revealed that approximately ₹22,35,00,000/have been withdrawn by way of cash and huge sums of money were transferred to the bank accounts of the other group companies, that is, M/s Ekdant Buildtech Private Limited, M/s Ekdant Infrabuild Private Limited, M/s Ekdant India Limited and other firms and companies of the accused persons.

6.It was also revealed that the signatures of Sujeet Singh and Anuj Mittal whose names were also shown as authorized signatory were found to be forged.

7.The allegations against the present applicant is that he is one of the Directors of the developer company and is a signatory to the following bank accounts:

8.During the course of investigation, the bank account opening form of account no. 045301601000536 of the developer was obtained and it was found that the said bank account was opened under the
signatures of the erstwhile company directors namely, Sujeet Singh and Anuj Mittal. However, the authority to operate the said accounts was vested with Raveesh Vats and Raveen Vats who are stated to be the sons of the present applicant.

9.It is also alleged that the present applicant along with Dinesh Kumar Singhal entered into a criminal conspiracy to defraud the flat buyers. They collected money without obtaining requisite approval of
the building plans. The accused persons have misappropriated funds collected from the home buyers as well as term loan obtained by transferring the same to the other group companies and withdrawing
cash instead of developing the project.

10.It is alleged that the accused company had collected ₹100 crores from the home buyers and also took a term loan for ₹65 crores from Punjab and Sind Bank. As per the loan documents, the total estimated cost of the project was assessed at ₹154 crores.

11.On scrutiny of the bank accounts of the developer, it is alleged that the applicant and other accused persons have siphoned off major portions of money collected from the home buyers as cash
withdrawals or by transferring the same to their other group companies. Majority of the withdrawals/ fund transfers as stated in the charge sheet are reproduced below:

SUBMISSIONS

12. The learned senior counsel for the applicant submitted that the charge sheet in the present case has already been filed and the custody of the applicant is not required.

13.He submitted that there are multiple FIRs being registered against the applicant and the applicant is made an accused in as much as three cases – bearing FIR No.741/2017 registered at Police Station
Surajpur, Gautam Budh Nagar; RC No. BDI-12020/E0010/BSFB, New Delhi CBI pending trial before Ld. Special Judge, (CBl-13) Rouse Avenue District Court; and the present FIR being FIR No.
99/2017. He submitted that applicant cannot be prosecuted for the same offence based upon the same allegations.

14.He submitted that the applicant was never arrested in the FIR 741/2017, registered at Police Station Surajpur, Gautam Budh Nagar and the charge sheet in the said case has already been filed. He also
submitted that the proceedings in relation to FIR 741/2017, registered at Police Station Surajpur, Gautam Budh Nagar were stayed vide order dated 19.12.2018 by the Hon’ble High Court of Allahabad.
Subsequently, since the matter could not be heard for a period of six months, on an apprehension that since the stay granted was not confirmed by a speaking order, the applicant made an application for
surrender before the learned Trial Court and was thereafter granted regular bail. He submitted that the applicant was never arrested in RC No. BDI-12020/E0010/BSFB.

15.The applicant in the present FIR was arrested on 08.05.2018 and was thereafter granted regular bail on 13.08.2018 on the basis of a settlement dated 28.07.2018 arrived before the Mediation Centre,
Karkardooma Courts, Delhi. The said bail was cancelled by order dated 28.02.2019 by the learned Trial Court and subsequently, the said order was confirmed by this Court by order dated 18.07.2023 in Crl.
M.C. 1202/2019.

16.He submitted that the applicant has not committed any offence as alleged. The applicant had invested the funds as received from the home buyers and the construction of the project was going on and the fact can be verified from the letter dated 12.06.2014 issued by the Architect of the project.

17.He submitted that due to meltdown in the housing market economy, liquidity crunch, and increase in prices of raw materials, the construction could not be completed by the developer. The loan sanctioned to the developer by the bank for the above project was approximately Rs.65.00 crores, but the Bank did not disburse the entire loan amount and deducted their EMI interest which was somewhere around Rs.15.00 crores. He submitted that approximately 100 flats remained unsold and the existing homebuyer had only paid 20% of the amount and all this led to halt in the construction of the project.

18.He submitted that the applicant has not committed any wrong for his willful gain and constantly made efforts to start the project and the same can be verified from the settlement agreement dated
28.07.2018 with the home buyers. The applicant started making efforts for arranging the funds and to get the property de-sealed from the proceedings under the SARFESI Act.

19.He submitted that bona fide of the applicant can be seen from the fact that the applicant approached the Hon’ble DRT Lucknow, seeking direction for de-sealing of the project and has even deposited an amount of Rs. 50,00,000/- before this Court in Crl. M.C. 1202/2019.

20.He submitted that the applicant is a senior citizen aged about 78 years, suffering from HIV along with old age ailments including heart ailments, and suffers from low immunity. The same is also verified.

21.The learned Additional Public Prosecutor for the State has vehemently opposed the grant of present bail application. He submitted that the present applicant is one of the directors of the developer.

22.He submitted that during the course of investigation, the information/ documents with respect to the Plot No. HRA-12B, Surajpur Site-C (Extn.), Phase-II, Gautam Budh Nagar, Uttar Pradesh, were collected from UPSIDC and as per the reply and document provided by UPSIDC, it was found that on 26.11.2011, the plot HRA12 was initially allotted to M/s Alpine Township Private Limited and, thereafter, on 03.08.2012, an application was filed for sub-division of the plot, HRA-12 by M/s Alpine Township Private Limited. On 27.08.2012, the said plot (HRA-12), was divided into two equal parts, that is, Plot No. HRA-12A, HRA-12B and was allotted to M/s Oasis Buildmart (India) Private Limited and the developer respectively.

23.He submitted that the lease deed was executed on 07.09.2012 and the possession was taken by the developer on 11.09.2012. The lease deed was executed by the applicant, and as per the allotment
letter dated 26.11.2011, and lease deed dated 07.09.2012, the developer could have marketed the flats only after the lawful possession of the plot was taken over, that is, 11.09.2012.

24.He submitted that the building plans of the project were only approved on 23.05.2013, whereas the developer had already started collecting the money from the home buyers in the months of JulyAugust, 2012, without having lawful title of the plot, HRA-12B, with the intent to defraud the buyers.

25.He submitted that the developer had also assured to deliver the possession of the flats by September, 2014, with a grace period of six months that is, March, 2015 and further also assured the home buyers that in case of any delay he shall also be paying a compensation amount. He submitted that although the flats were to be handed over latest by March, 2015, the construction of the said flats had not been completed and only skeleton structures were built.

26.He submitted that during the investigation Form-32 of the Directors of the developer were collected from the Registrar of Companies and according to the record; the present applicant and Dinesh Kumar Singhal are stated to be Directors of the developer during the relevant time.

27.The bank account statements of the developer in which payments were collected from the home buyers are also collected and it was found that majority of the payments were collected in Corporation Bank account no. 045301601000536. The said account was opened under the signatures of Sujeet Singh and Anuj Mittal, erstwhile Directors of the developer. On further investigation, it was found that the signatures of Sujeet Singh and Anuj Mittal were found to be forged.

He submitted that the present applicant is also an authorised signatory in the said bank account.

28.He submitted that approximately a sum of ₹22,35,00,000/- has been withdrawn by way of cash and besides the said amount being withdrawn, huge amount of money has been transferred to the bank
accounts of the other group companies in which the present applicant is also an authorised signatory. He submitted that the developer had also taken a term loan of ₹65 crores from Punjab and Sind Bank for the purposes of developing the project. He submitted that the said term loan has been declared NPA and the Punjab and Sind Bank has taken possession of the project site. As per the loan documents, the
estimated cost of the project was ₹154 crores, however, the developer has not completed the construction of the project even after collecting a total amount of approximately ₹165 crores.

29.The learned counsel for the complainant supports the arguments advanced on behalf of the State.

Analysis

30.It is not disputed that another FIR being 741/2017 was registered at the instance of some of the home buyers at Surajpur, Police Station, Gautam Budh Nagar, Uttar Pradesh. The FIR was registered on same allegation alleging non delivery of flats and alleged siphoning of funds of home buyers. The accused persons have already been granted bail in the said case.

The Hon’ble High Court of Allahabad has also stayed further proceedings in relation to the FIR No. 741/2017. The Division Bench of this Court in State v. Khimji Bhai Jadeja: 2019:DHC:3239-DB in relation to the complaint being given by the multiple victims being cheated, had held that in case of inducement, allurement and cheating of large number of investors / depositors, each deposit by an investor constitutes a separate and individual transaction. It was held that all such transaction cannot be amalgamated and clubbed into a single FIR by showing one investor as a complainant and others as witnesses and it was imperative for the State to register a separate FIR if the complainant discloses
commission of cognizable offence.

31.It is significant to note that the State had taken a stand that in case of multiple investors being cheated in relation to the same set of allegations, registering a single FIR would suffice. The State has
challenged the judgment passed by the Division Bench in State v. Khimji Bhai Jadeja (supra) by filing a Special Leave to Appeal being Special Leave to Appeal (Crl.) No. 9198/2019 which is pending consideration before the Hon’ble Supreme Court.

The Hon’ble Supreme Court by order dated 25.11.2019 has stayed the operation of the judgement passed by the Division Bench Court in State v. Khimji Bhai Jadeja (supra). It is, thus, the stand of the State that the multiple FIRs ought not to be registered and only one FIR would suffice at the instance of an investor and rest of the investors ought to be made witnesses.

32.It is though true that the allegations in each complaint may at times require registration of separate FIR considering the peculiar facts of each case. However, when the allegations are common as in
the present case, that is, the developer has failed to deliver the possession of the flats after taking money from the home buyers, seeking bail in each FIR would become an onerous task and could at times become an impossibility. The registration of multiple FIRs based on same set of allegations would render the remedy of seeking bail illusionary.

33.In the present case, it is not disputed that proceedings under Section 7 of the Insolvency and Bankruptcy Code, 2016 (hereafter ‘IBC’) were initiated against the developer and was admitted by the
National Company Law Tribunal (hereafter ‘NCLT’) on 12.03.2019. A Resolution Plan has also been approved by the Punjab and Sindh Bank as well as home buyers being part of the committee of creditors.

34.It is pointed out that the Resolution Plan which has been approved, also takes into account the claim made by the allottees / home buyers. It is seen that the Resolution Plan also projects the
timelines for completion of the project and considers the profitability and viability of the plan. The company namely, SAVFAB Developers Private Limited, whose Resolution Plan has been approved, has
projected that the project would be completed within a period of thirty-six months from the effective date. It is noted that the semifinished structure is already in existence and there are approximately
100 flats which are still to be sold which would generate revenue for the company.

35.No objection at the instance of the flat buyers or on behalf of the applicant has been brought on record with respect to the Resolution Plan being approved. At this juncture, after the approval
of the Resolution Plan, the management of the project is not with the applicant or other co-accused persons. The new management has taken charge for completing the project in terms of the order passed by the NCLT.

36.It is also admitted that applicant could not have done anything after the developer was admitted into insolvency and the NCLT had taken over the charge of the project.

37.It is contended on behalf of the applicant that the money was transferred to the group companies for the purpose of buying the land and for carrying out the construction activities. It is also submitted
that the cash withdrawn was used for the purpose of construction. The allegations and defence in that regard would be subject matter of trial.

38.The allegation against the applicant is that he is the Director of the developer and is an authorised signatory in the bank accounts of the developer and the other group companies.

39.It is contended on behalf of the applicant that the money was collected by the developer for the purpose of construction of the flats. It is not denied that the construction was, in fact, carried out but the same was not completed. It is contended that the construction could not be completed for the various reasons such as economic meltdown, rise in cost of construction, etc. In such circumstances, whether there was any dishonest inducement on behalf of the applicant and other accused persons to deceive the complainants to deliver the monies would be subject matter of trial.

40.It is an admitted case that the subject property is now under the control of a company, namely, SAVFAB Developers Private Limited pursuant to the acceptance of the resolution plan by the NCLT. The
accused persons, therefore, have no control over the property where the complainants have invested the money. The complainants and the banks have, in fact, supported the resolution plan which also provide for the possession of the flats to the investors/ complainants in a period of thirty-six months from the date of passing of the resolution plan.

41.It is also significant to note that this Court, while passing the order dated 18.07.2023, in CRL. M.C. 1202/2019, had also noted that efforts were, in fact, made by the accused persons for execution of the
terms and conditions of the settlement. The same were, however, not found sufficient by this Court.

42.As noted above, the case, at this stage, is based on documentary evidence which are admittedly in possession of the prosecution. The allegations, as noted above, would be tested during the course of trial. It is not in dispute that the chargesheet and the supplementary chargesheet has already been filed and the investigation in the present case is complete.

43.Even though it is alleged that the applicant will influence the witnesses and tamper with the evidence if released on bail but the same is only a bald assertion. Moreover, the same can be taken care of by putting appropriate conditions.

44.Whether the transactions were purely commercial or was there any element of cheating, would be tested at the time of trial and cannot be presumed at this stage.

45.The undertrial prisoners cannot be detained in custody for an indefinite period. It is a settled principle of law that bail is the rule and jail is an exception. The right to speedy trial and justice has been
recognised as a Fundamental Right by the Hon’ble Supreme Court. In Sanjay Chandra v. CBI: 2012 1 SCC 40, it was held as under:

“21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a 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 un convicted 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.

46.The speedy trial in the present case does not seem a possibility.

Keeping the applicant in further incarceration would cause deprivation of his right to legal defence. The object of jail is to secure the appearance of the accused persons during the trial. The object is neither punitive nor preventive and the deprivation of liberty has been considered as a punishment. The applicant cannot be made to spend the entire period of trial in custody specially when the trial is likely to take considerable time.

47.It is also significant to note that the applicant is on bail in the other pending cases registered against him based on the same alleged offence. It is not alleged that the applicant when released on bail on
earlier occasion has threatened or attempted to influence any of the witnesses. Moreover, any apprehension of applicant not participating in the trial can be taken care by putting appropriate conditions.

48.It is not denied that the applicant is 78 years of age and is suffering from HIV and other age-related ailments. The applicant was arrested on 08.05.2018 and was granted bail on 13.08.2018. After the
cancellation of the bail, the applicant is again stated to be in custody since 28.07.2023 and has already spent more than 300 days in custody.

49.Without commenting further on the merits of the present case and keeping in mind the facts and circumstances of the case, I am satisfied that the applicant has made out a case for grant of regular
bail. The applicant is, therefore, directed to be released on bail on furnishing a personal bond for a sum of ₹1,00,000 with two sureties of the like amount to the satisfaction of the learned Trial Court/ Duty
Metropolitan Magistrate, subject to the following conditions:

a. He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case, in any manner whatsoever;

b. He shall under no circumstance leave the Country without the permission of the learned Trial Court;

c. He shall appear before the learned Trial Court as and when directed;

d. He shall, upon his release, provide the address where he would be residing after his release and shall not change the address without informing the Investigating Officer/ SHO concerned; and

e. He shall, upon his release, provide his mobile number to the Investigating Officer/ SHO concerned, and shall keep it switched on at all times.

50.In the event of there being any FIR/ DD entry/ complaint lodged against the applicant, it would be open to the State to seek redressal by way of filing an application seeking cancellation of bail.

51. It is clarified that any observations made in the present order are for the purpose of deciding the present bail application and should not influence the outcome of the Trial and not be taken as an expression of opinion on the merits of the case.

52. The bail application is allowed in the aforementioned terms.

AMIT MAHAJAN, J MARCH 12, 2024 SK/HK Signature Not Verified Digitally Signed By:SHIKHA SEHGAL
Signing Date:12.03.2024 22:25:31 BAIL APPLN. 3629/2023