Nahidco Housing P. Ltd. vs The State
1993 Latest Caselaw 29 Del

JUDGMENT

R.L. Gupta, J.

(1) This petition has been filed by M/s National Housing & Industrial Development Corporation P.Ltd. (NAHIDCO) through its Director Sh. Harvinder Kumar Gupta under Section 482 of the Code of Criminal Procedure, 1937 (Code for short) for quashing the impugned order dated 7.10.89 of learned Acmm and 11.1.1991 of learned Asj, New Delhi either further prayer to restore back to the Company three attached flats, namely, M-2, M-3 and M-4, Magnum House, Karam Pura Complex, Najafgarh Road, New Delhi with all its records lying there.

(2) I have beard arguments advanced by learned counsel for the parties. The circumstances in which these properties came to be attached are that one Sadhu Singh Gill addressed a letter to the Deputy Commissioner of Police (west) Rajouri Garden New Delhi resulting in the recording of Fir 241 dated 10.10.88 at Ps Moti Nagar, New Delhi. He stated that Nahidco having their office at 101, Magnum House, Najafgarh Road, New Delhi published an advertisement in Hindustan Times in March/ April, 1984 for providing dwelling units near D.L.F. Qutab Enclave and village Nathu Pura. In response to it, he applied for a Hat having a total area of 1250 sq. ft. with an estimated cost of Rs.55.600.00 . He made initial deposit of Rs. 9750.00 on 12.5.1984. Thereafter he deposited three more amounts totalling Rs.21.800.00 . As per terms and conditions of the Company, the second Installment was payable at the time of registration of land in the name of individuals concerned. But it was all fraud and cheating because Nahidco had neither land nor any license for constructing house. More than 384 persons bad been cheated in this manner by the Managing Director of Nahidco namely, M.R.Gupta alias M.R. Jyoti. As per further terms and conditions, if it failed to provide the dwelling units within' three years, it was bound to refund the entire amount along with 10% interest. He applied for refund of the amount after completion of three years on 17.9.1987 and requested Jyoti many. times to refund the same. Jyoti continued to make promises to refund in the last week of March, 1988 but had been absconding since February, 1988. Thus he requested appropriate action.

(3) During the course of investigation the prosecution attached the impugned properties because in spite of the fact that Jyoti bad been declared a proclaimed offender on 7.10.89, he did not surrender. His other three brothers, namely, Rakesh Gupta, Padam Raj Gupta and Harvinder Gupta, however, have been appearing during the course of proceedings.

(4) In this petition Harvinder Kumar Gupta claims to be one of its Directors and share holder of Nahidco and says that by attachment of the aforesaid properties, all the share holders. Directors and others interested in the affairs of the Company including him have been debarred from having access to the aforesaid properties and the business of the company which was being carried on from those flats. This action of the Investigating Agency bad resulted in enormous financial loss to him and others connected with the Company. Such action of the Investigating Agency also violated the principle of natural justice and his fundamental right guaranteed under Article 19 of the Constitution of India. It was sheer abuse of the process of the court. It is further contended that only the property presently belonging to the absconding accused could have been attached under Section 83 of the Code. The attached property, in fact, did not belong to the absconding accused and belongs to the Company. It is also alleged that Nahidco is neither an accused nor it ever received any money from the complainant or any other depositor.

(5) I have given my careful consideration to the submissions by Mr. Mehra and countered by learned counsel for the State. The order of learned Asj clearly indicates that during the course of investigation it was found that the absconding accused started Nahidco as his sole proprietary concern for collecting deposits and advances, on the promise of giving built up houses in Chandigarh. He later on extended the scheme to Delhi. The investigation further revealed that Jyoti collected almost R.S.80 lacs from about 300 subscribers with the co-operation of the present petitioner. Harvinder Kumar Gupta and his two other brothers. Deposit receipts were signed by Jyoti. Jyoti later on 9.1.85 converted the concern into a Private Ltd. Company. The present petitioner as well his two remaining brothers, all three of whom are also accused in this case were only promoters, share holders and Directors of the Company. The subscribed share capital of all these four brothers was only Rs. 10.000.00 contributed equally. Huge amount collected by Jyoti was then diverted to this Company and other sister concerns which sprouted later on. Therefore, basically it appears prima facie that the attached property i.e. the three flats were purchased from funds deposited by various subscribers in the sole proprietary concern of the absconding accused who has now made himself non-available by going underground, leaving in the front the petitioner and his other two brothers that they have been wronged very much. Even the purchase of these flats has been specifically found to be made from the funds collected from the subscribers.

(6) Therefore, I am of the view that the orders passed by the courts below in upholding the attachment of impugned flats are just, equitable and conscientious in the true spirit of the law. The property having been purchased from the funds collected from various subscribers including the complainant by absconding accused effectively belonged to him. It is rightly observed by learned Asj that in appropriate cases the court is entitled to lift the corporate veil of the Company to explore the troth. The courts below have not committed any jurisdictional error or impropriety. The powers under Section 482 of the Code are exercised to prevent abuse of the process of the Court or otherwise to secure the ends of justice. None of these conditions are in favor of the petitioner. The petitioner, therefore, stands dismissed.