R.K. Nanda vs The State
2009 Latest Caselaw 2707 Del

      IN THE HIGH COURT OF DELHI AT NEW DELHI


+           Bail Application No. 1174/2009


                     Judgment reserved on: 10th July, 2009

%                    Judgment delivered on: 20.07.2009



R.K. Nanda                    .....Petitioner
                     Through: Dr.Sarabjit Sharma, Adv.

                     versus

The State                       ..... Respondent

Through: Mr. Sanjay Lao, APP for the State.

Mr.Vijay Aggarwal and Mr. Rakesh Mukhija, Advocate for Respondent No. 2.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR,

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest?

KAILASH GAMBHIR, J.:

1. By way of this application moved under Section 439

Cr.P.C., the petitioner seeks grant of regular bail.

2. The case of the prosecution, in brief, is that in company

petition no. 238/2005, filed by one Ms. Manjit Kaur, against

M/s. Durga Builders Pvt. Ltd., directions were given by the

Company Court vide order dated 3.10.2008 to Crime Branch to

conduct investigation into the existence/address/whereabouts

of Ms.Manjit Kaur daughter of Shri Gyan Singh, R/o E-208,

Kavi Nagar Industrial Area, Ghaziabad (U.P). The court also

directed investigation from the aspect of conspiracy between

Ms.Manjit Kaur and Durga Builders Pvt. Ltd., as well as its Ex-

directors Mr. R.K. Nanda,the petitioner and Smt. Promila

Nanda, wife of petitioner. Pursuant to the said directions, the

Crime Branch, Delhi Police carried out the investigation and

found that Ms. Manjit Kaur does not reside at the given

address and M/s. Kumar security Syndicate of which Ms.

Manjit Kaur claimed to be the sole proprietor was also found to

be non-existent firm. It was also found by the Crime Branch

that all entries regarding supply of security guards to M/s.

Durga Builders Pvt. Ltd. seem to be merely paper entries, so

much so even the address of advocate namely Mr. Vishesh Jain

on whose letter head and signatures the said statutory notice

under section 434 of Company Act to M/s. Durga Builders Pvt.

Ltd. was sent prior to filing of the company petition, was also

found to be incorrect. The Crime Branch thus found that the

papers submitted by the parties, before the High court in the

company petition bearing no. 238/2005 do not seem to be

genuine and there appears to be a clear nexus between

advocates and Directors of M/s. Durga Builders Pvt. Ltd.

Based on these facts, the Crime Branch registered the said

FIR against the petitioner and Mr. Sharad Kumar Aggarwal,

Advocate

3. Dr. Sarabjit Sharma, counsel for the petitioner submitted

that the petitioner is an old man of about 70 years of age

suffering from various debilitating and life threatening

ailments and even during the past period of two months, the

petitioner was sent to the DDU Hospital and was thoroughly

examined by the Medical Board of RML Hospital, because of his

suffering from serious ailments and his heart is functional

only to the extent of 30-40%. Counsel thus submitted that the

life span of the petitioner is quite short.

4. Counsel for the petitioner further submitted that the

petitioner has not committed any offence either of cheating or

forgery and in fact became victim at the hands of his rival Mr.

Arun Mehra and advocate Mr. Sharad Kumar Aggarwal.

Counsel further submitted that the petitioner was never aware

of any winding up petition filed by Ms. Manjit Kaur against his

company M/s Durga Builders Pvt. Ltd. based on some of the

bills raised by her alleged proprietorship firm M/s. Kumar

Security Syndicate against the company of the petitioner for a

total sum of Rs. 9,35,800/-. Counsel further submitted that the

company of the petitioner suffered a major setback when the

petitioner failed to deliver possession of the developed plots to

various depositors/buyers on account of huge demand raised

by HUDA towards the regularization charges. The contention

of the counsel for the petitioner was that the petitioner had

purchased about 235 acres of the land in the name of the said

company and the petitioner deposited a sum of Rs. 35 crores

with the HUDA towards the EDC and other charges but since

huge amount towards regularization charges was demanded

by HUDA, due to which plot holders raised disputes against

the petitioner. Counsel stated that in the writ petition filed by

the plot holders against the petitioner before the Supreme

Court, Mr. Harish Salve, Senior Advocate was appointed as

Amicus Curiae to look into the entire matter from a broader

perspective to settle the dispute of the plot holders. Counsel

further submitted that at that crucial phase, Mr. Arun Mehra

who was working as a contractor for the internal development

of the said colony came forward to take over the assets and

liabilities of the company for which an agreement to sell was

entered into between the parties in the year 1997. Various

civil cases and criminal complaints were filed against the

petitioner and his wife Ms. Promila Nanda by the plot holders

and the petitioner R.K. Nanda kept on paying and refunding the

amounts of various plot holders and in fact an amount of Rs. 24-

25 crores already stood paid by the petitioner to various

claimants/plot holders. The contention of the counsel for the

petitioner was that all through this critical period, Mr. Arun

Mehra never came forward to settle the disputes and claims of

various plot holders, but in the year 2005, he filed a petition

before the Company Law Board claiming his right over the said

company of the petitioner based on the agreement to sell of

the year 1997. The said claim of Mr. Arun Mehra was

contested by the petitioner and vide order dated 2.2.2006, the

said petition filed by Mr. Arun Mehra was dismissed by the

Company Law Board. Against the said order of Company Law

Board, company appeal was preferred by Mr. Arun Mehra

before Delhi High court and the same was also dismissed by

the Company Judge against which, Mr. Arun Mehra preferred

SLP which is still pending adjudication but without there being

any stay of the order passed by company court or Company

Law Board. The contention of the counsel for the petitioner

was that the petitioner had been struggling hard for the

revival of his company and therefore, could never take any

steps for inviting a winding up order from the company court

by filing the said fictitious and collusive company petition.

Counsel thus submitted that the said fictitious case was got

filed by Mr. Sharad Aggarwal who entered into a conspiracy

with Mr. Arun Mehra to cause serious harm to the petitioner

so that the said company is ultimately wound up. Mr. Sharad

Aggarwal had also been taking various cheques in the name

of Ms. Manjit Kaur on the ground that she was his associate

and even two cheques in question for an amount of Rs. 1 lac

and Rs. 25 thousand were taken by him in the name of Ms.

Manjit Kaur, which were ultimately deposited by him in his

joint account with Ms. Manjit Kaur and then illegally

withdrawn from the said joint account being maintained at

UCO Branch of Delhi High Court, counsel contended. Counsel

further submitted that the petitioner had no knowledge that

Ms. Manjit Kaur was a proprietor of M/s. Kumar Security

Syndicate or any notice was got served by the said lady

through one Mr. Vishesh Jain, Advocate and pursuant thereto,

the filing of the said company petition by the said lady against

the company of the petitioner. The said Advocate also got

filed a civil suit titled Vishesh Jain Vs. Arun Mehra in the High

Court bearing CS (OS) No. 1136/2005 which was ultimately

dismissed due to non appearance of Mr. Vishesh Jain. Another

false suit was also filed by Mr. Sharad Aggarwal in Tis Hazari

Court bearing suit no.981/2006 in the name of Durga Builders

Pvt. Ltd. Vs. Vishesh Jain, which suit was ultimately settled

after alleged payment of Rs. 30,000/- by the company of the

petitioner. The contention of the counsel for the petitioner was

that Mr. Sharad Aggarwal had been either forging his

signatures on various pleadings and vakalatnama or his

signatures were scanned by him from power of attorney or

other documents. Counsel for the petitioner also invited

attention of this court to the complaint made by Mr. Atul Gupta,

an associate of Mr. Sharad Aggarwal, Advocate to the Crime

Branch in which he has highlighted many misdeeds of Mr.

Sharad Aggarwal. Counsel further submitted that the entire

game plan against the petitioner was hatched out by Mr Arun

Mehra in active connivance and collusion with Mr. Sharad

Aggarwal and he only became a victim at their hands facing

the present criminal prosecution.

5. Opposing the bail application of the present petitioner,

Mr. Sanjay Lao, APP for the State and Mr. Vijay Aggarwal,

counsel representing Mr. Arun Mehra submitted that the

present petitioner is well aware of the said company petition

filed by Ms. Manjit Kaur against his company M/s. Durga

Builders Pvt. Ltd. Counsel further submitted that the said

fictitious company petition was got filed by the petitioner with

the help of Mr. Sharad Kumar Aggarwal, Advocate so as to get

rid of various creditors of the said company who ultimately,

approached the company court after finding the publication in

newspapers concerning the provisional appointment of official

liquidator. Showing utter dishonesty on the part of the

petitioner, APP for the State submitted that even order of the

company court was challenged by the petitioner before the

Division Bench of this Court and the said appeal was filed by

the petitioner through none else but Mr. Sharad Aggarwal,

Advocate, and therefore, now the petitioner cannot plead

ignorance about filing of the said company petition by Ms.

Manjit Kaur. Mr. Lao further submitted that various

payments were being made by the petitioner in favour of Ms.

Manjit Kaur including those payments of Rs. 25 thousand and

Rs. 1 lac in the said company petition, and therefore, it is again

false on the part of the petitioner to state that he was not

aware about the pendency of the said false and frivolous

company petition. Even another civil suit filed by Mr. Vishesh

Jain against Mr. Arun Mehra in High Court is handiwork of the

petitioner who got the said fictitious suit filed to defeat the

rights of Mr. Arun Mehra in a petition filed by him before the

Company Law Board. The connivance and fraudulent nature

of the said suit was apparent from the fact that Mr. Sharad

Aggarwal representing the company of the petitioner had

accepted the court notice of the said suit on the very first date

in the court itself which clearly shows that the said suit was got

filed by the petitioner with the help of Mr. Sharad Aggarwal

through someone by the name of Mr. Vishesh Jain. Counsel for

the State thus submitted that the petitioner in active

connivance and collusion with Mr. Sharad Aggawal has abused

and misused the court process by filing the said fictitious case

based on fictitious claim, which act on the part of the

petitioner is a serious interference in the course of

administration of justice and therefore, he does not deserve

grant of regular bail.

6. I have heard learned counsel for the parties at

considerable length.

7. Without expressing any opinion on the merits of the above

submissions and taking a prima facie view of the matter, it

appears to me quite shocking that the petitioner has blatantly

abused and misused his position by seriously interfering with

the course of judicial proceedings.

8. The allegation of filing of fictitious case with fictitious

names, fictitious addresses, forged documents, misusing and

abusing the process of the court, no doubt constitutes very

serious acts and deserve strongest condemnation.

9. The contention of counsel for the petitioner that the

petitioner was totally ignorant about the misuse of his name

and that of his company by Mr. Sharad Kumar Aggarwal who as

per him had colluded with Mr. Arun Mehra, the alleged

purchaser of the share holding of the said company, prima facie

appear to be false and baseless. This Court is totally at a loss to

see the audacity and courage of people like the petitioner who

can play the alleged frauds by using the Court process to their

advantage.

10. The present petitioner thus appears to be no less sinner

than Mr. Sharad Kumar Aggarwal, if the allegations against

both of them are proved as correct. The petitioner although

deserves no leniency of this Court but considering the fact that

he is not required for any further interrogation and is in judicial

custody for about last two months and also the fact that this

Court is granting bail to other co-accused Mr. Sharad Kumar

Aggarwal, Advocate, the petitioner is granted bail subject to

his furnishing personal bond in the sum of Rs one lakh with

one surety in the like amount to the satisfaction of the trial

court. It is made clear that the petitioner shall not, in any way,

tamper with the evidence or intimidate any person who is

sought to be questioned by the respondent State. It is also

made clear that this concession of bail shall not come in the

way of the police to carry out any further investigation in the

other cases already under investigation or likely to be

registered against the police. The petitioner shall not leave the

country without prior permission of the Court and shall

surrender his passport, if any, which will be kept in the custody

of the respondent.

JULY 20,2009                          KAILASH GAMBHIR,J
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