Bijender Singh Lather vs Govt. Of Nct Of Delhi
2019 Latest Caselaw 6300 Del

$~59
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                  Date of decision: 06.12.2019

+      BAIL APPLN. 3023/2019
       BIJENDER SINGH LATHER                               ..... Petitioner
                          Through       Mr.Siddhartha Luthra, Sr. Adv. with
                                        Mr.Jasbir Malik, Mr.Shantanu
                                        Sharma & Mr.Neeraj Khapra, Advs.

                          versus

       GOVT. OF NCT OF DELHI                              ..... Respondent
                     Through            Mr. Hirein Sharma, APP for State.
                                        SI Kamal Kohli PS EOW.

       CORAM:
       HON'BLE MR. JUSTICE SURESH KUMAR KAIT

                          J U D G M E N T (ORAL)

Crl. M.A. 42063/2019

1. Allowed, subject to all just exceptions.

2. Application is disposed of.

Bail Appln.3023/2019 & Crl.M.A. 42062/2019

3. Vide the present petition, the petitioner seeks direction thereby to

grant anticipatory bail to the Petitioner in FIR No.59 of 2019 dated

04.04.2019 Police Station, Economic Offences Wing, Mandir Marg, New

Delhi under Sections 406, 420 & 120-B of IPC.

4. The brief facts leading to filing of the said petition are that Prabhu

Shanti Real Estate Pvt. Ltd. (hereinafter referred to as "Company"), a private

limited company incorporated under the Companies Act, 1956 in the year

2014, acted as a guarantor to a loan facility obtained by one of the sister

concern Society of the Company i.e. Prabhu Dayal Memorial Religious

Educational Association. The said Society defaulted in repayment of the

loan to the lending Bank in pursuance to which the lending bank filed an

application under section 7 of the Insolvency and Bankruptcy Code, 2016

before the National Company Law Tribunal. The said Tribunal vide order

dated 13.06.2018, initiated Corporate Insolvency Resolution Proceedings

against the Company and appointed an Interim Resolution Professional to

take over the management of the Company. However, the Petitioner made

all endeavours to deliver possession of the flats to the Home Buyers

including the complainant. The constructions of flats was completed up to

75-80% by June 2018, however, the Petitioner lost control of the company

vide insolvency admission order passed by the NCLT, Delhi on 13.06.2018

against the Company. Thereafter, the Company preferred an Appeal before

the National Company Law Appellate Tribunal (NCLAT) against the order

dated 13.06.2018 passed on the ground that the Company was willing to

settle the matter with the Lending Bank. But the Complainant, Smt.Suman

Solanki filed the Complaint against the Company after passing of the order

dated 13.06.2018 by the NCLT, i.e. when the Petitioner or any other

Director of the Company was not in control of the management of the

company. However, Petitioner though being a minority shareholder, took all

necessary and active steps to regain control of the company in order to

complete the construction of the real estate project and to deliver possession

to the Complainant. In an endeavour to regain control of the Company, the

Petitioner in his personal capacity, settled with the Lender Bank namely AU

Small Finance Pvt. Ltd. vide settlement agreement dated 24.07.2018 and

paid an amount of Rs. 2,32,00,000/- to the lending bank as part of the

settlement amount. The said settlement agreement executed between the

Petitioner and the lending bank was relied by the Petitioner before the

NCLAT. However, the said tribunal refused to withdraw the Insolvency

Proceedings against the Company, as there were other financial creditors

and a Committee of Creditors had also been constituted by the Interim

Resolution Professional. However, several homebuyers including the

Complainant filed a Writ Petition before the Hon'ble Supreme Court of India

bearing number W.P.(C) 914/2018 and vide its order dated 03.12.2018,

disposed of the said Writ Petition in view of an out of Court Settlement

being entered into between the petitioners therein and the Company. On

08.02.2019, the homebuyers filed an M.A.No.286 of 2019 in W.P.(C)

No.914 of 2018 and attempted to project as if there was not any settlement

but Supreme Court of India out rightly rejected the application for

modification of the order dated 03.12.2018.

5. Mr.Siddharth Luthra, learned senior counsel appearing on behalf of

the petitioner submits that FIR No. 59/2019 got registered against the

petitioner along-with other accused at the behest of a Complaint filed by the

Complainant, Smt.Suman Solanki with Police Station: EOW, Mandir Marg.

The Complainant is one of the home buyers who had purchased a flat in the

Project "PDM HI-TECH HOMES" of the Company. After filing of the

Complaint and during the pendency of investigation, the Complainant also

filed a Writ Petition before this court bearing W.P(Crl.) No. 349 of 2019, by

suppressing and concealing several relevant and material facts. The

Complainant had not made the Petitioner a party to the said Writ Petition

and the Petitioner did not get an opportunity to address this Court with

correct and true facts. When Petitioner got aware of the fact that a Writ

Petition has been filed by the complainant against the Company and the

Petitioner, the petitioner filed an impleadment application in the said Writ

Petition and the same was allowed vide order dated 12.04.2019. Since the

registration of FIR, the Petitioner appeared before the investigation

authorities i.e. Economic Offences Wing police station at Mandir Marg on

30.03.2019, 01.04.2019, 22.08.2019, 05.10.2019, 12.10.2019 and has co-

operated with the authorities at every stage including providing all

documentations as and when asked for by the authorities, to ensure a fair

and just investigation of the case.

6. He further submits that on 01.08.2019, the petitioner proposed the

settlement in terms of the proposal and the representative of the home buyer

in principle agreed to the same. The said Writ Petition was disposed of by

this Court vide Order dated 07.11.2019, thereby allowing the investigation

to take its own course. The Company through the Petitioner, submitted a

proposal for settlement and resolution before the fifth meeting of Committee

of Creditors of the Company held on 21.09.2019 constituted by the

Resolution Professional.

7. He also submits that if the anticipatory bail is granted to the

petitioner, he can pursue the proceedings pending before the various

authorities and courts and it would be in the interest of the buyers so that he

would be able to complete the project.

8. On the other hand, learned APP appearing on behalf of the State

submits that during the course of investigation, all the bank accounts of

accused company and other directors have been freezed to stop the further

movement of invested amount of the investors. Embargo proceedings have

been initiated upon the personal properties owned by the accused company

and its directors. In order to prevent the escape of the accused Directors,

necessary measures have been taken against all five Directors of the accused

company. During investigation, Sh. Abhishek Anand, IRP appointed by

NCLT Court, has joined the investigation and provided the 'Forensic Audit

Report' of the project in question wherein the following observations were

found:-

 Advance of Rs. 393 Lacs is outstanding from Bhagwati Tiles against

a total purchase of Rs. 259.92 Lacs during June 2016 to June 2018.

 Bogus invoices raised on the same date amounting to Rs. 125.24

Lacs during June 2016 to June 2018 from HRKH Builders Pvt. Ltd.

 Accused company used to pay Monthly Director remuneration to the

tune of Rs. 13.90 Lacs per month during FY 2016-17 and Rs. 8.51

Lacs per month during FY 2017-18. Whereas, company reported loss

of Rs. 1,91,76,525.81/- in FY 2016-17 and further years.

 Bogus and dubious cash payments of Rs. 169.16 Lacs during June

2016 to June 2018 as Labour Charges and Rs. 234 Lacs against

purchase of Rodi during June 2016 to June 2018.

 Accused company has defaulted to pay off government duty and

taxes amounting to Rs. 73.90 Lacs, which are as follows:

 PF of Rs. 4,80,662/- has not been paid since Oct 2016.

 ESIC of Rs. 1,01,729/- has not been paid since Oct 2016.

 Balance TDS of Rs. 68,08,034/- has not been paid since April

2017-18.

 Accused company does not maintain Stock register, resultantly the

actual position of stock and raw material regarding inward and

outward stock cannot be ascertained.

9. The petitioner/accused Bijender Singh is one of the key management

personnel and authorized signatory in this company. He has received an

amount of Rs. 66 Lac per annum as salary during FY 2015-16 and 2016-17,

as director, from the alleged company. Whereas, the company reported loss

of Rs. 1,91,76,525.81/- in FY 2016-17 and further years. Inter related parties

transactions were done with Bhagwati Tiles, Bharti Techno Medical

Enterprises, AMI Prabhu Developers Pvt. Ltd., PDM Religious and

Educational Association, Sangam Infra Estates Pvt. Ltd. and HRHK

Builders Pvt. Ltd. without any legal agreement for services rendered by

them. However, no legal agreement was found executed between accused

company and other parties for short term loans and advances of Rs.

11,71,96,308/- in FY 2015-16. As per reply from DTPC, Chandigarh, the

alleged company granted licence No. 179 of 2007 on 25.04.2007 for 8.97

Acres of land at Bahadurgarh, Haryana for total of 402 flats. The alleged

company further applied for revised building plans on 16.12.2015 for total

of 430 flats, which was approved by DTCP on 19.01.2016. Major changes in

Tower-6 and Tower-7, where 28 flats were added and in Tower-7, 9th and

10th floors consist of 8 flats which do not exist in previous plan approved by

DTCP on 25.04.2007 amended on 16.12.2015. Flat No. T-7/A-9 in Tower-7

at 9th floor was booked by homebuyer Sh. Balwant Singh on 28.02.2013 by

paying advance money of Rs. 4,00,000/- through Axis Bank Cheque No.

081605. Later, this flat was sold by builder to homebuyer Sh.Hawa Singh

Joon on 25.06.2014, who paid advance of Rs. 2,00,000/- through Canara

Bank cheque No. 632184. It shows that accused company, M/s Prabhu

Shanti Real Estate Pvt. Ltd. sold Flat No. T-7/A-9 in Tower-7 at 9th floor

before approval granted by DTCP.

10. Learned APP further submits that during the course of investigation,

some of the victims have been examined and their statement have been

recorded and notices under section 41A Cr.P.C. were issued to alleged

person namely Bijender Singh Lather, petitioner herein, including Joginder

Singh Lather, Ram Niwas, Sajjan Singh Beniwal and Bhawana Lather, to

which the petitioner joined the investigation but he has not provided any

specific information which may help the investigation to get the trail of the

investment of the complainant and tried to shift the liabilities to other

directors. Therefore, custodial interrogation of the petitioner/accused is

required for the following reasons:-

1. Investigation of the case is at initial stage.

2. Accused did not provide any relevant documents showing

utilisation of investment of complainant on proposed project.

3. To unearth the conspiracy hatched by the accused persons and his

associates.

4. To recover the cheated amount and to trace the money trail.

5. To decide the role of other persons/company, who are the

beneficiaries of the cheated amount as per bank account statement

of alleged company.

11. Keeping in view the serious allegations mentioned above against the

petitioner, who has played key role in the present case and due to the

material documents which are required to be seized from the petitioner, for

which custodial interrogation is required, therefore, I am not inclined to

grant anticipatory bail to the petitioner. The petition is dismissed.

12. Pending applications also stands disposed of.

(SURESH KUMAR KAIT) JUDGE DECEMBER 06, 2019 ab