Kishanpal Singh vs State Of U.P.
2022 Latest Caselaw 2473 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment reserved on : 22.04.2022
 
Judgment delivered on: 11.05.2022
 
In Chamber
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53202 of 2021
 

 
Applicant :- Kishanpal Singh
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sushil Shukla,Aditya Prakash Singh,Romeshwari Prasad
 
Counsel for Opposite Party :- G.A.,Ashish Mishra,Pradeep Kumar Mishra
 

 
Hon'ble Ashutosh Srivastava,J.

This is a bail application on behalf of Krishanpal Singh son of Rajpal Singh seeking enlargement on bail in Case Crime No. 316 of 2021, under Sections 420, 406, 467, 468, 471, 506, 120-B IPC and Section 25 of the U.P. Apartment Act, 2010, Police Station Indrapuram, District Ghaziabad.

Heard Shri Anoop Trivedi, learned Senior Advocate assisted by Shri Romeshwari Prasad, learned counsel for the applicant, Shri Vinay Saran, learned Senior Advocate assisted by Shri Pradeep Kumar Mishra, learned counsel for the informant and Shri Shoeb Khan, learned AGA for the State.

An FIR giving rise to the aforesaid case crime number was instituted by the first informant Sanjai Vishwas, President Rajhans Kutumb Apartment Owner Association (in short "AOA") resident of Plot No. 4/4, Ahinsa Khand-I, Indrapuram, Ghaziabad against four named persons and others including the applicant Kishanpal Singh alleging that the accused persons are the Directors and employees of M/s Rajhans Towers Private Limited M-33 , Second Floor, Greater Kailash-1, New Delhi-110048. The company is a builder/promoter and has developed an apartment in the name and style of Rajhans Apartment, Plot No. 4/4, Ahinsa Khand-I, Indrapuram, Ghaziabad. The directors and employees of the aforesaid promoter company by violating various provisions of the U. P. Apartment Act, 2010 have got constructions made in the apartment. They have not handed over Tower-A and other common area to the AOA and have misappropriated crores of the sinking fund collected from the unit holders/purchasers. The accused persons have set up an illegal and unauthorized association in the name of Rajhans Market Welfare Association and are operating the same by illegally collecting funds from the owners of Tower-A and also advance life threats to the office bearers and members of the Rajhans Kutumb AOA. The applicant Kishanpal is stated to be an employee of the illegally set up association.

It is contended by the learned counsel for the applicant that the applicant is not the employee of the builder company. The applicant was associated with the builder company till 2014 and thereafter, he left the job and formed his own society in the name and style of Rajhans Market Welfare Association. The applicant's society was handed over Tower-A when Shri Sanat Jha, President of Rajhans Kutumb Apartment Owner Association refused to take over the management of Tower-A vide letter dated 22.2.2014 due to security reasons and himself expressed the desire that the maintenance of Tower-A may be handed over to someone else.

Learned Senior Counsel basing his arguments on the above factual position contends that basically the dispute is a dispute between two societies which is pending in appeal before the Commissioner, Moradabad Division, Moradabad. The allegations made in the FIR regarding the misappropriation of the sinking fund is essentially a dispute between the promoter company who has developed the unit and the flat owners and the applicant cannot be fastened with the liability of misappropriation of the sinking funds. He, accordingly, prays that the applicant who is languishing in jail since 12.11.2021 is liable to be released on bail.

Per contra, learned counsel for the informant submits that the FIR has been lodged after obtaining permission from the appropriate authority under Section 25 of the U.P. Apartment Act, 2010. The applicant in conspiracy with the Directors of the Builder has formed a sham society in which five out of seven members of the society were close relatives of the accused applicant. The accused persons including the applicant has siphoned off several crores of the sinking fund collected from the members of the Rajhans Kutumb AOA and have misappropriated it. Besides, they have also illegally taken over a Tower-A and common place of the society by constructing shops in the parking place and have committed several other illegalities being the resident of the apartment.

Learned AGA, in opposition, to the bail application contends that the applicant is a member of an organized gang involved in organized crime. The applicant with criminal intent prepared forged and fabricated documents and usurped crores of rupees of the sinking fund and has also got constructed illegal shops by occupying the common area of Tower-A and sold the shops and on raising a voice the applicant along with other accused persons threatened the first informant and other members of the society with dire consequences. Learned AGA further submits that during the course of investigation the Investigating Officer has collected credible and cogent evidence and has submitted charge sheet on 191.2022, under Sections 420, 406, 467, 468, 471, 506, 120-B IPC and under Section 25 of the Apartment Act, 2010. The applicant has a criminal history and if released on bail, he is likely to abscond and tamper with the prosecution witnesses and hamper the fair and impartial trial. He, accordingly, prays that the bail application of the applicant is liable to be rejected.

Having heard the learned counsels for the parties and on perusing the record, I find that the builder company i.e. M/s Rajhans Towers Private Limited has got constructed the Rajhans Premier Apartment consisting of five towers, namely, Towers A, B, C, D & E. The construction of the project was completed in the year 2008. The residents of the towers have formed a resident welfare society in the year 2009 in the name and style of Rajhans Kutumb AOA with object as "to be and to act as the Association of Apartment Owners of the building called Rajhans Premier Apartment, 4/4 Block A, B, C, D and E, Ahinsa Khan-I, Indrapuram, Ghaziabad". The builder handed over the maintenance of four towers, namely, Tower No. B, C, D & E, but did not hand over Tower-A. Later on, it appears that the applicant though not being the resident of the apartment has formed a society in the name and style of Rajhans Market Welfare Association with address at Plot No. 4/4 Ahinsa Khand-I, Indrapuram, Ghaziabad. The applicant is stated to be functioning as the Secretary of the society. The maintenance of the Tower-A is stated to have been handed over to the applicant's society vide agreement dated 2.7.2014 though the applicant's society and its members are not residents of the apartments and could not have formed the Rajhans Market Welfare Association. Later on, a challenge was made to the society as formed by the applicant and the registration of the said society was cancelled by the Deputy Registrar, Firms, Societies and Chits vide order dated 22.9.2021.

The records further reveals that the first informant is the President of Rajhans Kutumb AOA and the Rajhans Premier Apartment has been developed by the builder/promoter M/s Rajhans Towers Pvt. Ltd. The Directors and employees of the builder company in violation of the U.P. Apartment Act, 2010 got constructed several illegal constructions and shops. The said illegally constructed shops have been transferred to several persons by the applicant / accused as the authorized signatory of the company and due to ill-intentions the applicant has formed an illegal society, namely, Rajhans Market Welfare Association and has illegally extorted money from the residents of the Tower-A. It has come out during the course of investigation that the directors of Rajhans Towers Pvt. Ltd., R. C. Goyal, S. K. Gupta and their employees Kishan Pal Singh (applicant), Manoj Negi and other employees hatched a conspiracy and by cheating have usurped crores of the sinking fund collected from the residents of Tower-A. During investigations, it has come to light that the maintenance money of Tower-A was being siphoned into the accounts maintained in the name of the illegal association Rajhans Market Welfare Association and the applicant is the authorized signatory / secretary of the illegal association and is involved in the illegal extortion. The registration of the said society has been cancelled by the Deputy Registrar Firms Societies and Chits, Meerut.

Keeping in view the above facts and circumstances and considering the gravity of the offence, I do not find the case of the applicant to be a fit case to enlarge him on bail.

The bail application is hereby dismissed.

It is clarified that any observations made in this order is limited to the purpose of determination of this bail application and in no way will be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led before it.

Order Date :- 11.05.2022

Ravi Prakash 

(Ashutosh Srivastava, J.)