Vikash Singh And 2 Others vs State Of U P And 2 Others
2022 Latest Caselaw 3409 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 44
 

 
Case :- CRIMINAL MISC. WRIT PETITION No. - 5821 of 2022
 

 
Petitioner :- Vikash Singh And 2 Others
 
Respondent :- State Of U P And 2 Others
 
Counsel for Petitioner :- Anjul Dwivedi,Sai Girdhar,Sr. Advocate
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Rajnish Kumar,J.

Petitioners' claim to be the Chief Managing Director, Managing Director and Director of a Company named Neelgiri Infracity Pvt. Ltd., registered with the Registrar of Companies, Uttar Pradesh. The Company has its Corporate Office at Varanasi and is engaged in real estate business.

A project was launched by the Company in 2015 for providing residential accommodation. Deposits were invited from members of public. It is stated that the project was progressing well but on account of various circumstances, including Covid-19, the business activity suffered. The Company accordingly defaulted in honouring its obligation and also repaying the amounts which were due to the depositors. As a consequence ninety First Information Reports have been lodged by different depositors. The allegation in these FIRs are that the Company has, with a criminal intent siphoned off funds of public and failed to provide plots/houses or even return the money accepted for the purpose.

It is admitted that petitioners are in jail pursuant to some of the FIRs which have been referred to in para 17 of the writ petition. It is also stated that the second petitioner was in advance stage of pregnancy and she has delivered a child who is also languishing in jail. In the aforesaid circumstances, Sri Manan Kumar Mishra, learned Senior Counsel for the petitioners impresses upon this Court to consider grant of following reliefs to the petitioners :-

"(I) Issue an appropriate writ/order/direction to learned District and Sessions Judge, Varanasi AND/OR the concerned Magistrate to release the competitors on bail in all cases in which they have not yet been granted bail (which are mentioned in Para-17 of this Petition).

(II) Issue a writ of certificate quashing all the 90 FIRS and the entire criminal proceedings arising out of the same.

AND/OR

(III) To pass an order directing the learned District & Sessions Judge, Varanasi to club all 90 cases in which bail application of the petitioners are pending disposal and decide the same together strictly in accordance with law;

(IV) To pass an order direction the learned District & Session Judge, Varanasi to club all the trials going on against the petitioners in different courts arising out of first information reports, as detailed in paragraph no.17 of writ petition (contained in Annexure No.1 to this writ petition) and decide the same together after providing full opportunity of hearing to the petitioners;

(V) issue any other writ, order or direction as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.

(VI) award the cost of writ petition."

Reliance is placed upon the judgment of the Supreme Court in Arnab Manoranjan Goswami Vs. State of Maharashtra and Others (2021) 2 SCC 427 to submit that in the facts of the case the petitioners are entitled to be released on interim bail so that the petitioners are able to contest the proceedings. It is also stated that out of ninety FIRs lodged against the petitioners the petitioners have in fact repaid eighteen depositors in full and in various cases closure report are also submitted in the matter. Submission is that there is no intention on part of the petitioners to cheat and various refunds have been made in respect of several persons. Submission is that if a reasonable opportunity is given the petitioners shall clear all the financial dues of the depositors.

It is also urged it would be difficult for the petitioners to apply for bail separately in all ninety cases and it would only result in multiplicity of proceedings and, therefore, a direction be issued to club these matters and to provide interim bail in the meantime to the petitioners.

Reliance is also placed upon judgment of the Supreme Court in Anand Kumar Mohatta Vs. State (2019) 11 SCC 706 in order to submit that the allegations since are with regard to civil dispute which have been converted into criminal cases, with an intent to harass the petitioners, therefore, necessary ingredients to attract offences under Sections 405 and 406 are not made out and such proceedings are consequently liable to be quashed.

Per contra learned AGA states that the allegations made in the ninety First Information Reports though arise out of the inability of the Company to honour its commitment, yet the allegations are separate and distinct and would require investigation into facts which ought not to be resorted to by this Court at the first instance. It is submitted that factual issues would have to be dealt with by the investigating agency, at the first instance, in accordance with the procedure established in law and the intervention by this Court at this stage would not be required. On behalf of the State it is further urged that though various pleas are urged on facts yet there is nothing on record to show that petitioners have applied for bail in these ninety matters or there is any unusual delay in consideration of such applications and, therefore, the writ petition has been filed wholly on imaginary and non existent facts.

We have heard, Sri Manan Kumar Mishra, learned Senior Counsel for the petitioners and learned AGA for the State and have examined the materials placed on record. We may notice at the outset that except for the fact that petitioners are the persons accused in all ninety FIRs the allegations in each of the FIR varies with regard to deposit of amounts and the allegation of criminal breach of trust etc., on part of the accused persons.

The first FIR is Case Crime No.293 of 2018 in which the Company Neelgiri Infracity Pvt. Ltd. through its Chief Managing Director, Vikas Singh is shown as the accused. The allegation made against the company is of accepting deposit of more than 10 lacs with assurance to provide a flat by December 2018, but neither the flats have been constructed nor the amount has been returned to the informant. A legal notice has also been sent and the allegation is that the company is neither responding nor there is anybody available to ensure the return of the amount.

The aforesaid FIR is of a period prior to Covid-19. Although it is orally suggested that a closure report has been filed in the matter but there is nothing on record to substantiate such a plea. There are eighty nine other FIRs lodged by different informants none of whom is a party in the present proceedings. The rights of the informant cannot be brushed aside in the manner as is attempted to be done in the present petition.

So far as plea of petitioners for grant of interim bail is concerned, we are of the view that the Code of Criminal Procedure adequately protects the interests of the petitioners and in the event bail applications are filed by the petitioners, and are pending before this Court, it can always be pressed by the petitioners.

Our attention has also been invited to Annexure-4, which is a chart in which all ninety cases have been referred to. In column 8 the district case status is shown. A perusal of this column would go to show that term 'rejected' is mentioned against all ninety cases. We are informed that this shows that the bail applications have been rejected by the District Court in all cases.

The next column shows the status of proceedings before the High Court. In certain cases bail is shown to have been granted and in others the bail applications are stated to be pending before this Court. In large number of cases this column is left blank and it is not clear as to what is the status of the bail application and whether they are pending before this Court or have not been filed at all.

Once the bail applications have already been rejected by the District Court in all the cases we find that the petitioners' prayer for clubbing of all bail applications before the District Judge is wholly misconceived. The orders passed by the District Court rejecting the bail applications are otherwise not annexed.

Since the bail applications are pending before this Court, no direction can be issued by us in that regard, in a writ petition. Fortunately such a prayer otherwise has not been made in the writ petition.

In the facts of the case remedy of the petitioners would be to press the bail applications which are either pending before this Court and in cases where such applications have not been filed then such applications can be moved for its due consideration in accordance with law. The prayer clause 3 in such circumstances is rejected.

So far as prayer for consolidating the trail in all ninety matters are concerned, it is always open for the petitioners to make an appropriate application in accordance with the applicable law after the trials are committed to the concerned Court. Since specific procedure under the Code exists, and such remedy has not been availed, we are not required to examine such issues. Prayer made to quash the FIRs also cannot be considered in the manner suggested particularly in the absence of informants when prima facie allegations are disclosed with regard to commissioning of cognizable offence in the matter.

In light of the deliberations made above and for the reasons disclosed in this order no direction is required to be issued, as is prayed for in the present writ petition, which is accordingly consigned to records.

Order Date :- 19.5.2022

Md Faisal