Rohtas Mal Gupta vs State & Anr
2011 Latest Caselaw 3132 Del

     *IN THE HIGH COURT OF DELHI AT NEW DELHI

     +        Crl.M.C.511/2011 & Crl.M.A. No.1946/2011

     %                          Judgment delivered on:5th July, 2011

         ROHTAS MAL GUPTA                       ..... Petitioner
                      Through Mr. Prashant Mendiratta with Mr. Rahul
                      Mittal and Mr. Varun Tyagi, Advs.

                          versus

         STATE & ANR                                ..... Respondents
                          Through Mr. M.P. Singh, APP with SI Kumar
                          Kundan, I.O. PS EOW, New Delhi.
                          Mr. Digvijay Rai, counsel for Respondent no.2.
     CORAM:
     HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?    YES
     2. To be referred to Reporter or not?        YES
     3. Whether the judgment should be reported
       in the Digest?    YES

     SURESH KAIT, J. (ORAL)

1. The petitioner herein made complaint, on which an FIR No. 28/2010

dated 19.2.2010 registered under Section 406/409/420/120-B IPC with PS

Economic Offences Wing, Crime Branch, New Delhi against Respondent

no.2 and Directors of M/s Vigneshwara Developers Pvt. Ltd for cheating,

forgery and criminal breach of trust. Subsequently, the bank accounts of

M/s Vigneshwara Developers Pvt. Ltd. bearing A/c No. 90631010001161

with the Syndicate Bank, Vayu Bhawan, Air Force Headquarters, New

Delhi and A/c No. 039905000577 with the ICICI Bank Ltd., Vipul Orchid

Plaza, Suncity Sector 54, Gurgaon were frozen in order to safeguard the

interests of the petitioner and other complainants.

2. Respondent no.2 herein moved an application seeking de-freezing of

the aforesaid two bank accounts wherein the Respondent no.2 had stated

that the said bank accounts be de-freezed subject to the depositing of a

sum of ì 1.16 crores in the court concerned (which sum was alleged by the

Respondent no.2 to be the only sum received from the complainants

concerned which was obviously patently false).

3. Subsequently on completion of pre-summoning evidence in another

complaint case against Respondent no.2 by IMS Mercantile Pvt. Ltd. and

upon the orders of summoning being issued against Respondent no.2, the

Respondent no.2 entered into settlement talks with the petitioner on

assurances that Respondent no.2 was eager to settle the matter with all

the complainants. Accordingly, the petitioner and Respondent no.2

entered into the settlement.

4. The matter was taken up by the ACMM on 28.06.2010. Status

report was filed by ACP Mr.T.R. Mongia. Written submission thereto were

also filed by Sh. Phoolka, Sr. Advocate in his application for de-freezing the

bank accounts. As per the status report, another complaint of similar

nature from one Mr.Surender Kumar involving ì 21 lacs has been received

in Crime Branch, EOW. In the application filed by the applicant, it was

mentioned that around 550 applications were received by the company.

The investments were made by different persons on a project proposed to

be developed by accused at Manesar, Gurgaon. The report of the

authorities reflects that they did not have the permission to publish an

advertisement or to receive booking for the property.

5. The learned ACMM has passed the order on 28.06.2010 by saying

that it would be proper that the total amount in the transaction be verified

so that no public person(s) is/are later on left without any remedy. Rest of

the amount may be de-freezed. Further the Investigation Officer was

directed to ascertain the total amount deposited by 550 applicants involved

in the transaction related to allotment of IT Units at Manesar, Gurgaon by

the accused persons so that the remaining amount may be released and

the matter was posted for 03.07.2010.

6. I note that the copy of this order was supplied to learned counsel for

both the parties. Thereafter, the matter was again taken up on 14.01.2011

by the successor ACMM at Saket. On hearing the arguments on

application for direction to allow debits/withdrawals from bank account of

applicant, it was submitted that the I.O had freezed the debit/withdrawal

entries in the two accounts, namely, Syndicate Bank and ICICI Bank Ltd.

(A/c nos. as mentioned above). It was further submitted before the learned

ACMM that on account of latest development, parties have entered into

agreement and cheques were issued from the above mentioned accounts,

and due to that reason, the accounts be de-freezed.

7. This application was strongly opposed by the petitioner on the

ground that the High Court had already directed that the money to the

applicants/complainants/alleged allottees was to be paid from different

accounts. It was further submitted that no proper compromise is acted

upon by the accused persons, so no good ground for de-freezing these

accounts.

8. The learned ACMM while considering the arguments of the parties

observed that, the major stress of the argument made on behalf of accused

person/applicant was that one Mr. Ajay Aggarwal wants to kill the

compromise affected with allottees. For this, he has shown an agreement

dated 17.12.2010 entered between M/s Vigneshwara Developers Pvt. Ltd.

and Mr. Rohtas Mal Gupta, petitioner herein. As per this agreement, the

alleged cheques of these banks were given which were freezed with the

court. It was agreed that by joint applications and pray the account be

opened. However, this was not done and the instant petition was filed by

the petitioner herein.

9. As argued before the learned ACMM that due to freezing of this

account, the applicant was not able to honour the cheques and this

incapacity of applicant will be used as a weapon by opposite parties in this

Court. The learned ACMM further observed that as far as this Court is

concerned and applying the Maxim that "act of court should not harm any

person", he directed that any cheque (on account of compromise between

M/s Vigneshwara Developers and said person) issued to those who have

allotted/applied for space for project "Darsens and Kission Valley,

Technology Park Manesar, Gurgaon Haryana with M/s Vigneshwara

Developers" shall be honoured from the said two bank accounts

mentioned above.

10. Learned counsel for the petitioner has pointed out that one ACMM

has passed the order dated 28.06.2010 and subsequently, passed by the

successor ACMM on 14.01.2011. He has argued that under the provisions

of Cr.P.C, there is no power to the Magistrate/ACMM to pass such an

order.

11. On the other hand, it is submitted by learned counsel for the

Respondents that out of total 550 applicants only 11 applicants filed the

complaint case. One has already withdrawn the case and another

complaint case was quashed by this Court dated 21.12.2010 in Crl.M.C.

No. 3946/2010. He further submits that the Respondent has already

issued the cheque to the petitioner but the petitioner has not deposited the

same in his account, therefore, the money is not credited into this account.

12. I note that the order dated 28.06.2010 was halfway considered and

the Investigating Officer was directed to ascertain the total amount

deposited by the 550 applicants involved in the transaction relating to

allotment of IT Units at Manesar, Gurgaon by the accused persons so that

the remaining amount may be released. Therefore, the matter was again

posted for further orders. The impugned order dated 14.01.2011 is in

furtherance of the order dated 28.06.2010 and on joint applications and on

the basis of settlement arrived at between the parties.

13. However, it is pertinent to mention that the order of the learned

ACMM does not harm any of the complainants including the petitioner

herein, as also affect the investigation which is going on. If the petitioner

does not want to encash the cheque issued, it is his wish and one cannot

compel him to encash the same and the investigation under the present

case shall proceed.

14. In my opinion, the learned ACMM has rightly allowed the honouring

of debts/withdrawals from the two above mentioned bank accounts of

Respondent No.2 in this case. I find no infirmity in the impugned order

passed by the learned ACMM dated 14.01.2011, therefore, I am not

inclined to interfere with the order.

15. In view of the above, the petition stands dismissed along with

pending Crl.M.A. No. 1946/2011.

No order as to costs.

SURESH KAIT, J

JULY 05, 2011 KA/RS