ANIL KUMAR SHARMA vs STATE (NCT OF DELHI)

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* IN  THE  HIGH  COURT  OF  DELHI  AT  NEW  DELHI
% Judgment delivered on: 25.01.2024
+ BAIL APPLN. 1642/2022
ANIL KUMAR SHARMA ….. Petitioner
Through: Mr Manoj Singh and Mr Abhay Singh, Advocates. 
versus
STATE OF NCT OF DELHI ….. Respondent
Through: Mr Aashneet Singh, APP for the State with Insp. Abhishek, PS EOW.
CORAM:
HON’BLE MR. JUSTICE VIKAS MAHAJAN
JUDGMENT
VIKAS MAHAJAN, J.
1. The present petition has been filed under Section 439 read with Section 482 of the Code of Criminal Procedure, 1973 seeking regular bail in connection with FIR No 139/2019 under Sections 420/406/409/120B IPC registered at PS EOW.
2. Vide order dated 01.06.2022, notice was issued in the bail petition of the petitioner and the State was directed to file a Status Report. The State has filed the status report, which forms part of the record.
3. The case of the prosecution as borne out from the status report is that the present FIR came to registered on the basis of the complainant namely, Naresh Kumar Bhalla (hereinafter referred to as the complainant) and thereafter 17 more complaints were received. The complainant levelled allegations against M/s. Amrapali Silicon City Pvt. Ltd. (hereinafter referred to as the accused-company) and its directors namely, Anil Kumar Sharma (the present petitioner), Shiv Priya, Ajay Kumar and others.
4. The complainant alleged that the accused company launched “Amrapali Adarsh Awas Yojana” in 2016 for serving and retired government employees. The said project was exclusively marketed by M/s. Investor Clinic Infratech Pvt. Ltd. and famous celebrities were the brand ambassadors of the Amrapali Group. It was also represented by the accused company that the project was approved and loan was available from all Nationalized Banks.
5. Based on the above assurances, the complainant namely, Naresh Kumar Bhalla booked a flat bearing no. AT4-3404 on the 34th floor of Tower AT4 of the aforesaid project and a sum of Rs. 4,50,000/- was paid towards the booking amount on 09.03.2016. Thereafter, a sum of Rs. 8,32,670/- was paid on 10.05.2016 and upon payment of the above amounts, an allotment cum flat buyer agreement dated 24.05.2016 was executed. In the builder buyer agreement executed between the parties, it was mentioned that “a clusters of distinct group housing towers within the group housing complex known as M/s. Amrapali Silicon City Pvt. Ltd. at Plot No. GH-01/A, Sector-76, Noida, UP is marketed and developed in the name of Amrapali Adarsh Awas Yojana, NOIDA.” (a unit of Amrapali Silicon City Pvt. Ltd.). It is alleged that under the said agreement, the company represented that it would build the project in accordance with the sanctioned building plans, however, it was later learnt that the approved building plans as approved by the appropriate authorities were different from the one which was shown to the complainants at the time of booking.
6. Further, it was found that Amrapali Adarsh Awas Yojana, NOIDA was not registered with UPRERA and that the complainants have been sold a flat in an unapproved housing project. It is also the case of the prosecution that the builder has also failed to deliver the project within 54 months (including 6 months of grace period) from 2016. It is alleged that no construction has been undertaken at the site and it was learnt that the buyers of the project were shifted to other two towers after joint inspection for which they never consented.
7. During investigation, it further transpired that the site project was sanctioned only uptil the 29th floor, whereas the brochure published by Amrapali mentioned 39 floors in 5 towers proposed under Amrapali Adarsh Awas Yojana, NOIDA. It is a specific case of the prosecution that 17 complaints of the complainants were received in which many of them were allotted flats above 29th floor.
8. On the aforesaid allegations, the present FIR came to be registered and the petitioner was formally arrested in the present case on 31.03.2022 as he was in custody since 28.08.2019 in another matter.
9. Mr. Pramod Kumar Dubey, learned senior counsel appearing on behalf of the petitioner at the outset submits that the petitioner has not violated the terms of the interim bail which was granted to the petitioner. Further, it is the pleaded case of the petitioner in the bail petition that the petitioner has already been admitted on regular bail in 4 cases, 3 FIRs have been compounded and in 10 cases charge-sheet was filed without arrest. The details of the same have been given in Annexure P-8 of the bail petition.
10. On merits of the case, he submits that the grievances of the complainants stood resolved long before the FIR came to be registered as the complainants have agreed for swapping/shifting of their units to tower T8 and T9 of Amrapali Silicon City Phase – II (Crystal Homes), which is approved and substantially constructed project, thus, the complainants are no longer home buyers in Amrapali Adarsh Awas Yojana pursuant to ‘Memorandum of Inspection Report’ submitted before the Hon’ble Supreme Court of India in compliance of orders dated 15.03.2018 and 17.05.2018.
11. He submits that post registration of the present FIR, the Supreme Court vide order dated 15.03.2018 directed homebuyers and all other stake holders viz. Developer, Home Buyer’s Association/Home Buyers, Home Buyer’s counsel to conduct a ‘Joint Inspection’ of all projects to ascertain the extent of constructions and deficiencies including the subject project. In pursuance thereof, it was learnt that the construction of the subject project could not be carried out on account of a stay order obtained by the local farmers, who are in possession of a piece of land in project Amrapali Silicon City earmarked for the subject project. Thus, the complainants agreed to shift their flat to another tower on 21.03.2018. He further contends that as the grievance of the complainants stands redressed, the necessary ingredients of Section 420 IPC are not made out.
12. He further submits that the petitioner is accused of committing an offence under Sections 409/406/420/120B IPC which provides a maximum sentence of life imprisonment, however, as the present case is being tried by the learned Metropolitan Magistrate, therefore, the maximum punishment which can be imposed upon the petitioner is seven years in terms of Section 29(1) and 325 of the Code of Criminal Procedure, 1973. The attention of the Court is drawn to the nominal roll dated 27.07.2023 to contend that the petitioner has been incarcerated in the present case for a period of 9 months and 3 days.
13. He contends that the charge-sheet in the present case has been filed and the investigation is complete, therefore, no useful purpose would be served in keeping the petitioner behind bars. He further submits that the charge-sheet was filed on 24.06.2022 and the conclusion of trial is likely to take a long time.
14. Lastly, Mr. Dubey submits that the petitioner has deep roots in the society and there is no likelihood of him fleeing from administration of justice.
15. In the backdrop of the aforesaid facts and circumstances, it has been urged by Mr. Dubey that the petitioner be enlarged on bail.
16. Per contra, the learned APP appearing on behalf of the State has argued on the lines of the status report. He submits that the present petitioner has been accused of a grave and serious offence, therefore he may not be enlarged on bail.
17. The learned APP submits that the petitioner is a director of the accused company and was actively involved in the day to day affairs of the accused company. He contends that the intention of the petitioner was dishonest since the very inception as the accused company had collected money from prospective homebuyers even before the building plans were sanctioned by the competent authority.
18. It was contended by the learned APP that the process of resolution under the supervision of the Court appointed Receiver which has been initiated by the Hon’ble Supreme Court cannot enure to the benefit of the petitioner as the same was done to bring respite to the homebuyers but the same does not wipe out the criminality on part of the petitioner and other co-accused.
19. The learned APP submits that the petitioner is the authorized signatory in the bank accounts of the accused company. He further submits that the petitioner is accused of cheating several other persons by adopting the same modus operandi in respect of which different FIRs have been registered.
20. I have heard the learned senior counsel for the petitioner, as well as, the learned APP for the State and have perused the record.
21. Before adverting to the merits of the matter, relevant would it be to note the factors which are to be taken into consideration while deciding a bail application. Profitable would it be to refer to the decision of the Supreme Court in Virupakshappa Gouda v. State of Karnataka, (2017) 5 SCC 406, the relevant paragraph of which reads as under:-
“15. The court has to keep in mind what has been stated in Chaman Lal v. State of U.P. [Chaman Lal v. State of U.P., (2004) 7 SCC 525 : 2004 SCC (Cri) 1974] The requisite factors are : (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge. In Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765] , it has been opined that while exercising the power for grant of bail, the court has to keep in mind certain circumstances and factors. We may usefully reproduce the said passage : (SCC p. 499, para 9)
“9. … among other circumstances, the factors which are to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.”
(Emphasis supplied)
22. Earlier, the Supreme Court in the case of Satish Jaggi v. State of Chhattisgarh, (2007) 11 SCC 195 had held as under:-
“5. It is settled law that in granting or non-granting of bail in non-bailable offence, the primary consideration is the nature and gravity of the offence. In the present case Respondent 3 is accused of murdering a rival political leader while campaigning in the election.”
(Emphasis supplied)
23. The gravamen of allegations against the present petitioner is that he has been a director of M/s Amrapali Silicon Pvt. Ltd. (accused company) from 20.02.2010 and has accepted money from the complainant to the tune of Rs. 12.82 lacs against booking of a flat on the 34th floor in housing scheme titled as Adarsh Awas Yojna, however, the possession of which was never handed over to the complainant. It is the specific case of the prosecution that the petitioner was involved in the day to day affairs of the company and during investigation it transpired that neither the accused company had the permission to build upto the 39th floor (as advertised), in as much as, the building plan was only sanctioned uptil the 29th floor nor the housing scheme was registered with the UPRERA.
24. The allegations against the petitioner disclose commission of a serious offence by the petitioner. The petitioner being responsible for the day to day affairs of the company, after showing rosy pictures to complainants, has given them the hopes about owning their own house and thus, allegedly duped them of their hard earned money.
25. It also prima facie appears that the intention of the petitioner was dishonest since the very inception and the same is apparent from the fact that the accused company has accepted money from the complainants without registering the housing scheme with UPRERA. In essence the complainants have been sold flats by the accused company in an unregistered project contrary to the mandate of Section 3(1) of the Real Estate (Regulation and Development) Act, 2016, which provides that no promoter shall advertise, market, book, sell or offer for sale, or invite persons to purchase in any manner any plot, apartment or building in either a new or ongoing project without registering the same with the Real Estate Regulatory Authority.
26. This act committed by the accused company with the petitioner being at its helm has caused wrongful loss to the complainants and wrongful gain to the petitioner.
27. It is noticed from the status report that the petitioner including other directors had sold flats by making false representations to the public at large, in as much as, the petitioner had allotted flats to the complainants above the 29th floor without having the requisite permissions to build beyond 29th floor.
28. The case of the petitioner is that the possession of the flats could not be handed over to the complainants as the construction of the project was stalled by a stay order that was granted in favour of the local farmers who were in possession of the piece of land in the project Amrapali Silicon City. This justification offered by the petitioner does not stand to reason on two counts. Firstly, the alleged stay order has not been placed on record of this Court nor any details of the said order have been furnished. Secondly, it cannot be comprehended as to how the complainants would be allotted a flat on the 34th floor, when the building plans had been sanctioned only uptil the 29th floor.
29. There is also no force in submission of the learned senior counsel that the grievances of the complainants stood redressed as they have been shifted to another housing project. It is imperative to note that the exercise being undertaken by the court receiver under the orders of the Hon’ble Supreme Court has not been initiated at the behest of the petitioner but the same has been resorted to for bringing respite to the complainants/home buyers and does not absolve the petitioner of his various acts of omission and commission committed by him.
30. Considering the serious allegations against the petitioner, as well as, the circumstances leading to the registration of the present FIR, no ground for granting regular bail to the petitioner is made out at this stage. Accordingly, the present petition, along with pending applications, if any, is dismissed.
31. The petition stands disposed of.
32. It is made clear that the observations made herein are only for the purpose of considering the bail application and the same shall not be deemed to be an expression of opinion on the merits of the case.
33. Order dasti under the signatures of the Court Master.
34. Order be uploaded on the website of this Court.

VIKAS MAHAJAN, J.
JANUARY 25, 2024/MK

BAIL APPLN. 1642/2022 Page 1 of 9