Delhi High Court

Subhash Aggarwal & Others vs State Govt Nct Of Delhi on 23 July, 2010

Author: Sanjiv Khanna

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

       (1) BAIL APPLN. No. 2205/2009 & CRL.B.A. No. 863/2010
           & CRL.M.A. No. 7928/2010
       (2) BAIL APPLN. No. 2371/2009
       (3) BAIL APPLN. No. 2454/2009 & CRL.B.A. No. 864/2010 &
           CRL.M.A. No. 7929/2010

                                              Reserved On: 19th July, 2010
%                                             Date of decision: 23rd July, 2010

       SMT.SNEH AGGARWAL.. Petitioner in Bail Appln. No. 2205/2009
       VIJAY DESHWAL       ... Petitioner in Bail Appln. No. 2371/2009
       SUBHASH AGGARWAL&ORS..Petitioners in Bail Appln.No.
                                     2454/2009
                    Through Mr. K.K. Sud, Sr. Advocate with Mr.
                    Jayant Sud, Mr. Kunal Malhotra and Ms. Nandita
                    Abrol, Advocates.

                       Versus

       STATE GOVT. NCT OF DELHI               ..... Respondent

Through Mr.Arvind Kumar Gupta, APP for the State.

CORAM:

HON'BLE MR. JUSTICE SANJIV KHANNA

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

2. To be referred to the Reporter or not ?

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

SANJIV KHANNA, J.:

1. These applications under Section 439 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as Cr.P.C., for short) have been

filed by Mr. Subhash Aggarwal, Ms. Sneh Aggarwal, Mr. Naresh Lakra and

Mr. Vijay Deswal. The said applicants have been arrested in FIR No.

104/2009 under Section 406/420/120B of the Indian Penal Code (hereinafter

BAIL APPLN. Nos. 2205/2009, 2371/2009 & 2454/2009 Page 1 referred to as IPC, for short) which has been registered and investigated by

Economic Offences Wing of the Delhi Police.

2. Learned counsel for the applicants have submitted that the accused

have already been in police custody/judicial custody since June, 2009 and

no useful purpose will be served by further detaining them. It is pointed out

that the maximum sentence for an offence under Section 406, IPC is three

years. My attention is also drawn to the fact that the applicants have made

payments to several persons/creditors. It has been submitted that they have

already made payment to 82 persons and settled with them. The total

amount due and payable to these 82 persons was Rs.4,60,79,000/-. It is

submitted that Mr. Subhash Aggarwal and his wife, Mrs. Sneh Aggarwal

had purchased some properties in the period 2007-2008 and these properties

can be sold for making payment of dues to the remaining creditors.

Reliance is placed on decisions of the Supreme Court in Ashok Dhingra

versus GNCT of Delhi 2000 (9) SCC 533, C.R. Patil versus State of

Gujarat and others 2005 (11) SCC 119 and Order dated 11th August, 2003

passed in Crl.M.M. No.1464/2003, Dileep Sudhakar Pendse versus State,

NCT of Delhi.

3. The allegations and charge against the applicants are that they have

duped and cheated a large number of persons from the middle and lower

middle class, who were tempted by the false promises made and being

gullible were made to part with their money. The total amount payable to

these persons as per the complaints made by 325 persons to the police to whom

payments have not been made is about Rs. 15 Crores and 12 lacs. As per the

BAIL APPLN. Nos. 2205/2009, 2371/2009 & 2454/2009 Page 2 investigation made by the police, these persons had made

investments/deposits in VGS Investment Services Pvt. Ltd. of which

Mr.Subhash Aggarwal was/is one of the Directors and in StopLoss

Commodity Solutions Pvt. Ltd., of which Mr. Subhash Aggarwal, Ms.Sneh

Aggarwal, Mr. Naresh Lakra and Mr.Vijay Deswal were/are Directors. With

regard to the 82 affidavits filed by the applicants in support of their

contention that the applicants have made payment to the depositors, it is

noticed that the affidavits do not specify the amount paid to the said

depositors/deponents. The affidavits have been cleverly drafted and only

state that the matter has been settled/compromised and the

depositors/deponents had received the amount. When the police tried to

verify the amount paid to the said depositors, the said 82 depositors did not

state or mention the amount paid to them.

4. In the status report filed in the case of Mr.Vijay Deswal, it is pointed

out that he had made payment to 17 persons out of which six persons are

residents of Haryana and known to Mr.Vijay Deswal. One person, Mrs.

Bimla Deswal is mother of Mr. Vijay Deswal. It may be stated here that Mr.

Vijay Deswal has stated that he had paid Rs.82 lacs out of his personal

account to the depositors. However, it transpires that both Mr.Vijay Deswal

and Mr.Subhash Aggarwal have included/mentioned the said amount of

Rs.82 lacs in their bail applications, as the amount paid by them towards

settlement.

5. Thus, even if one has to believe and accept the case of the applicants,

it is apparent that they have made or settled their claims viz. 82 creditors to

BAIL APPLN. Nos. 2205/2009, 2371/2009 & 2454/2009 Page 3 whom Rs.4,60,79,000/- was payable and are yet to settle the matter with

another 325 creditors who have claims of more than Rs.15 crores.

6. Mr. Vijay Deshwal in his written submissions has stated that he has

made payments to creditors from his personal accounts and is only

responsible to make payment to creditors for cheques which bear his

signatures. The contention is not acceptable as his liability cannot be

restricted upto the amount specified in the cheques signed by Mr. Vijay

Deshwal. Allegations have been made against Mr. Vijay Deshwal by the

complainants regarding inducement and assurances. As per the prosecution,

a major chunk of investment was made by the investors in M/s Stoploss

Commodity Solutions Private Limited and the figure of Rs.5.21 crores as

alleged in the written submission filed by Mr. Vijay Deshwal as the total

investment by investors in the said company is a gross understatement and

false. It is pointed out that there is no basis for the said statement especially

when a chart has been prepared on the basis of complaints made by

investors. The chart gives names, addresses as well as the amount deposited

by the unpaid 325 investors in the two companies. The total amount is more

than Rs.15 Crores and 12 Lacs.

7. In the case of Mr. Vijay Deshwal, it is submitted that his elder

brother is a patient of Thalassemia major and his father is a psychiatric

patient. Mother of Mr. Vijay Deshwal is residing in the same premises and

he also has a brother Mr. Rakesh Deshwal. The said applicant has also not

placed on record details of ailment and the nature/type of psychiatric

treatment his father is taking.

BAIL APPLN. Nos. 2205/2009, 2371/2009 & 2454/2009 Page 4

8. The contention of the applicants that if they are granted bail, they will

be able to sell off and dispose of their properties or help the Court to sell

and dispose of their immovable properties and pay off the creditors appears

attractive and reasonable, but on consideration merits rejection. The details

of the properties of the applicants are as under:-

"(i) B-64/3, Satya Enclave, Prem Nagar-III, New Delhi in the name of Subhash Aggarwal.

(ii) B-64/1, Satya Enclave, Prem Nagar-III, New Delhi in the name of Vineet Aggarwal s/o. Subhash Aggarwal.

(iii) A-16, Pandey Enclave, Prem Nagar-III, New Delhi in the name of Sumit Aggarwal s/o Subhash Aggarwal.

(iv) B-59, Satya Enclave, Prem Nagar-III, New Delhi in the name of Subhash Aggarwal."

9. During the course of argument, it was accepted that these properties

are located in an unauthorized colony and the total market value of these

properties would be Rs. 75-90 lacs (approx.). Thus the total market value of

the properties is not even 10% of the amount due to the balance 325

creditors.

10. Ms. Sneh Aggarwal had remained on interim bail from 15th October,

2009 to 18th April, 2010. Thereafter, Mr. Subhash Aggarwal and Mr.

Naresh Lakra were granted interim bail and remained on interim bail for

more than 30 days from 16th March, 2010 to 18th April, 2010. Thus, the

applicants were granted interim bail to enable them to make payment to the

creditors. However, except for selling one property 1196, Sec. 9,

Bahadurgarh, Haryana in the name of Sneh Aggarwal w/o. Subhash

Aggarwal measuring 213 square yards vide sale deed dated 18th December,

BAIL APPLN. Nos. 2205/2009, 2371/2009 & 2454/2009 Page 5 2009 for Rs.25,70,000/-, no concrete steps were taken for payment to

creditors, 325 in number, to whom more than Rs.15 crores are payable. It is

also pointed out that the sale deed for the plot at Bahadurgarh was executed

at the circle rate prescribed for the said sector. As per the status report dated

22nd January, 2010, enquiries from local property dealers have revealed that

the market rate in the Sector 9 was around Rs.15,000/- to Rs.18,000/- per

square yards, depending upon the location of the plot and, therefore, the

market value of the plot was between Rs.35 lacs to Rs.38 lacs. It may be

also noted that the so-called payment to the creditors was made directly by

the applicants. There are allegations of selective payment and force/pressure

in case a creditor wanted any payment.

11. Keeping in view the conduct of the applicants, I do not think the

decisions in Ashok Dhingra (supra), C.R. Patil (supra) and Dileep

Sudhakar Pendse (supra) are applicable to the facts of the present case.

Mere oral statements that the applicants are desirous of making payments

are not sufficient. In the present case, as per the allegation against the

applicants, they have duped and cheated a large number of persons from the

public. Most of these persons are not well off and were made to believe the

false statements/promises made to them by the applicants. The misery and

suffering of these persons who have been cheated or deprived of their

money, as per the allegations cannot be ignored. Investigation in this case

has taken time because of lack of experience, time required for scrutiny and

verification of records. Invariably the accused get the benefit of the said

delay. Accused take advantage of the fact that public memory often

BAIL APPLN. Nos. 2205/2009, 2371/2009 & 2454/2009 Page 6 fades and depositors do not follow up when the matters get delayed and

there is no scope for payment. A single Judge of this Court in Mukesh Jain

versus CBI, 2010 (1) JCC 417 has held that economic offences, which

affect and cause losses to public at large and specially those belonging to

middle or lower middle classes, have to be viewed seriously and do not

deserve any indulgence or sympathy. These offences are calculated with the

eye on personal gain and many of them even do not come to the surface.

12. As per the allegations made by the police, the money has been

siphoned away or transferred and no clues are presently available as to

where the money has gone. Some allegations have also been made that the

money was used in speculative transactions in commodity trading. It is

stated that examination of bank statements during the period 1 st April, 2008

to 31st March, 2009 have revealed the following payments/withdrawals from

the banks:

PARTY NAME                    RELATION              WITH AMOUNT
                              COMPANY
SHUBHASH                      DIRECTOR                   15072166
AGGARWAL
SNEH AGGARWAL                 DIRECTOR                    4750700

VIJAY DESWAL                  DIRECTOR                     795000

NARESH LAKRA                  DIRECTOR                   2912250

VINEET AGGARWAL SON OF SHUBHASH                          2707580
                AGG.
SUMIT AGGARWAL SON OF SHUBHASH                           1381500
                AGG.
AJAY DESWAL     BROTHER OF VIJAY                            37000
                DESWAL
RAKESH DESWAL   COUSIN  OF VIJAY                         1724150
                DESWAL
BIMLA           MOTHER OF VIJAY                            330600
                DESWAL

BAIL APPLN. Nos. 2205/2009, 2371/2009 & 2454/2009                      Page 7
 SHANKAR                       CASHIER OF STOPLOSS 2518410
AGGARWAL                      COMM.
SELF                          ALL DIRECTORS OF 44169500
WITHDRAWALS                   THE CO.
                              TOTAL               76398856

13. It is stated that a Chartered Accountant has been appointed to prepare

a proper cash flow statement, track transfer of money and identify how

funds were siphoned away and withdrawn and why the money is not

available today to be paid to the creditors.

14. It may be noticed that in the written submissions filed on behalf of

Mr. Vijay Deshwal he has alleged that Mr. Subhash Aggarwal and others

were indulging in commodity tradings and were earlier shareholders in M/s

Bonanza Commodity Brokers Private Limited and M/s VGS Investment

Services Private Limited was made a sub-broker. This is an aspect for the

police to investigate and examine.

15. In these circumstances, I do not find any merit in the present

applications for bail and the same are dismissed. All pending applications