Punjab-Haryana High Court
Rajiv Gambhir & Anr vs State Of Haryana on 21 May, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRM Nos.16890, 16891, 16887 & 16889 of 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. CRM No. M-16890 of 2013 (1st case)
Rajiv Gambhir & Anr. ...Petitioners
Versus
State of Haryana ...Respondent
2. CRM No. M-16891 of 2013 (2nd case)
Rajiv Gambhir & Anr. ...Petitioners
Versus
State of Haryana ...Respondent
3. CRM No. M-16887 of 2013 (3rd case)
Rajiv Gambhir & Anr. ...Petitioners
Versus
State of Haryana ...Respondent
4. CRM No. M-16889 of 2013 (4th case)
Rajiv Gambhir & Anr. ...Petitioners
Versus
State of Haryana ...Respondent
Date of Decision: 21.5.2013
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present: Mr.R.S.Cheema, Senior Advocate with
Mr.A.S.Cheema, Advocate for the petitioners.
Mehinder Singh Sullar, J. (Oral)
As identical questions of law and facts are involved, therefore, I propose to dispose of above indicated four petitions for anticipatory bail filed by the same petitioners, arising out of the similar cases/FIRs, by virtue of this common decision, in order to avoid the CRM Nos.16890, 16891, 16887 & 16889 of 2013 2 repetition. However, the epitome of facts extracted from (1) CRM No. M-16890 of 2013 titled as "Rajiv Gambhir & Anr. Vs. State of Haryana"
would be mentioned in subsequent part of this order for ready reference in this context.
2. The matrix of the facts and material, which needs a necessary mention for the limited purpose of deciding the instant petitions for anticipatory bail and emanating from the record, as claimed by the prosecution, is that, M/s D.D.Industries Private Limited, M/s D.D.Buildwell Limited & M/s D.D.Township Limited are sisters concern of M/s D.D.Group of Companies. Rajiv Gambhir (petitioner No.1) (accused No.6), his father Surender Kumar (petitioner No.2) (accused No.4), brother Sanjay Gambhir (accused No.9) were Directors of the Companies, whereas their other co-accused were stated to be their agents and directly associated with and responsible for day to day affairs/business, act and conduct of the companies at the relevant time. M/s DD Group Company was dealing and indulging in developing township, villas, flats, shopping malls and group housing societies/colonies. The prosecution claimed that although the petitioners and their other co-accused had neither land in their names or in the names of their companies nor had any permission of change of land use (for brevity "CLU") and licence to develop the colonies, still, they have hatched a criminal conspiracy with each other in the year 2005 and advertised in newspapers, broachers/pamphlets, catalogs and distributed fabricated plans to the general public through their agents (co-accused) for offering plots/flats in their proposed future project to be set up in CRM Nos.16890, 16891, 16887 & 16889 of 2013 3 Sector 77, Faridabad. They had allured the complainants as well as general public by offering them plots and residential flats in it. The accused assured that future projects will be completed in all respects at the earliest. What to talk of delivery of possession of the plots/flats to the complainants and other persons, they have not even started construction after lapse of period of seven years. From the very beginning, the intention of the petitioners and their other co-accused was stated to be mala fide to cheat the innocent people, in a very clever and deceitful manner.
3. Sequelly, the case of the prosecution, inter-alia, further proceeds as under (para 9 of FIR (Annexure P1) :-
"That the accused forged records like balance sheets etc. and used them as true to conduct their criminal conspiracy. The accused formed shell companies like D.D.Township Ltd. D.D.Housing Ltd. Pivotal Infrastructure P. LTD. DD Buildwell P. LTD. Lunar Developers P. LTD. Moonlight Buildmart P. LTD Delhi strong build infrastructure P. LTD. only to hide their liabilities towards the complainant and the general public money collected from the public was transferred to other group companies like Karan Engineers P. LTD. Daulat leasing and finance P. LTD. Forgings ltd. DD Auto P. LTD. Daulat Ram Dharam Bir Auto P. LTD. Chandra Auto Engineers P. LTD. Dextex Infrastructure P. LTD. DD Devtec LTD thru the shell companies to hide liabilities and amass assets. It is discovered that the accused had neither the requisite land or licence at the time of booking and collecting money from the public. Just to fetch and retain the money of the complainant, the accused persons have also used an altered registered logo of DD Township to mislead/Misguide the general public like complainant. The registered logo is annexed herewith as C-4, which does not match with the logo displayed in the Hindustan Times newspaper advertisement dated 25 September, 2009 attached as annexure C-3 the accused persons have played fraud with the complainant and have transferred the development CRM Nos.16890, 16891, 16887 & 16889 of 2013 4 and selling rights of the land in Sector 77, Faridabad & also sector 70 Faridabad and also for other projects started by them using money of the complainant and the public. It is discovered that to sell the assets built from money including the money of the complainant, the accused kept customers including the complainant out of the books of group companies actively involved in the real estate business. The liabilities of the complainant does not lie in the books of DD Township as a part of the criminal conspiracy. The balance sheet of the DD Township as on 31.03.2009 is attached herewith as annexure C-5. The accused have conspired to transfer assets to shell companies or divisions of their group companies without transferring the liability and also resorted to different methods of reporting within shell companies of the group including when the auditor was the same, to hide the existence of the liability towards the complainant and other people who booked plots."
4. Leveling a variety of allegations and narrating the sequence of events, in detail in the FIRs in all, the prosecution claimed that the petitioners and their other co-accused hatched a criminal conspiracy, committed breach of trust, cheated the innocent people, prepared forged documents for the purpose of cheating, used the same as genuine and misappropriated the crores of rupees of the public. Similar allegations were levelled against them (accused) in other connected cases. In the background of these allegations and in the wake of complaints of the complainants, the present cases were registered against the petitioners and their other co-accused, vide FIR Nos.185, 186 dated 13.10.2012, 132 & 134 dated 23.7.2011 (Annexures P1), on accusation of having committed the offences punishable u/ss 406, 420, 467, 468, 471 and 120- B read with section 34 IPC by the police of Police Station Sadar Ballabgarh, District Faridabad in the manner depicted here-in-above.
5. Having exercised their rights and remained unsuccessful CRM Nos.16890, 16891, 16887 & 16889 of 2013 5 before Additional Sessions Judge, now the petitioners-accused have preferred the instant petitions for anticipatory bail in the indicated criminal cases in this Court, invoking the provisions of section 438 Cr.PC.
6. Having heard the learned senior counsel for the petitioners, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in these petitions in this context.
7. Ex facie, the arguments of learned counsel that the dispute is purely of a civil nature and since the petitioners have been falsely implicated by the police in these cases, so, they are entitled to the concession of anticipatory bail, are not only devoid of merit but misplaced as well.
8. As is evident from the record that very serious and direct allegations are assigned that the petitioners and their other co-accused have hatched a criminal conspiracy, committed breach of trust, cheated the innocent persons, prepared forged documents for the purpose of cheating, used the same as genuine and misappropriated the crores of rupees of the complainants and other persons. They have proposed to develop a pre-launch scheme in the year 2005 and subsequently fabricated site plans and other documents of group housing. It is not a matter of dispute that they were neither the actual owners of the land nor obtained any permission of CLU and licence to develop a colony in Sector 77, Faridabad. Strange enough, still they have hatched a criminal conspiracy, allured innocent people with false promise that they will allot CRM Nos.16890, 16891, 16887 & 16889 of 2013 6 the plots to them in near future and collected crores of rupees from the innocent persons. The Additional Sessions Judge has noticed in his impugned order dated 1.5.2013 (Annexure P4 in 3rd case) that the accused have illegally collected Rs.118 crores from public and nine more criminal cases are pending against them.
9. Likewise, the mere facts that the Directors/partners of the pointed sisters concern have entered inter-se corporate disputes and subsequent resignation (Annexure P2) of Sanjay Gambhir accused from Directorship of M/s D.D.Township Limited, ipso facto, are not grounds, muchless cogent, to exonerate the petitioners from the commission of heinous offences. This internal sham arrangement and litigation between the Directors of the indicated companies, by diverting the funds of one company to another, appears to be their well thought evil design to defraud the innocent people. Moreover, the fact that Reena Gambhir & Tarun Kumar (accused) etc. were granted pre-arrest bail and Sanjay Gambhir (accused) was released on regular bail in some other cases, will not entitle the petitioners to the benefit of anticipatory bail in the present cases, in which, very serious allegations of collecting and misappropriated the crores of rupees of innocent persons are assigned to them.
10. Not only that, there is yet another aspect of the matter, which can be viewed entirely from a different angle. For example, the perusal of the record would reveal that the petitioners were granted interim anticipatory bail in case FIR No.185 dated 23.7.2011 (Annexure P1), to enable them to join the investigation by the Additional Sessions Judge, by CRM Nos.16890, 16891, 16887 & 16889 of 2013 7 way of order dated 1.5.2013, subject matter of CRM No. M-16887 of 2013. They have neither joined the investigation nor cooperated with the investigating agency nor any cogent explanation in this regard was forth coming on record. They exhibited the same misconduct in the connected criminal cases as well. Therefore, their petitions for anticipatory bail were dismissed by the Court, by virtue of impugned order dated 7.5.2013 (colly), which, in substance, is as under:-
"While granting pre-arrest bail, the petitioner was directed to join investigation on 4.5.2013, but he failed to comply with direction on account of his illness. Alongwith the application for extending date of joining investigation, the petitioner has placed on record a certificate dated 2.5.2013 issued by Dr.Divya Malhotra advising him to take best rest for a week. However, Ld. Counsel for the petitioner could not dispute the fact that on 2.5.2013 itself, the petitioner had appeared in the court and had sworn an affidavit for moving another application for pre-arrest bail in FIR No.184 of 2011. This goes to show that the petitioner has concocted a false story of his illness and had not appeared before the Investigating Officer on 4.5.2013 on account of pendency of another FIR against him.
Keeping in view the fact that despite specific direction, the petitioner has failed to join investigation on 4.5.2013, no ground is made out to grant concession of pre-arrest bail which is discretionary in nature. Therefore, the application is dismissed."
11. Meaning thereby, instead of joining the investigation, the petitioners-accused have created false evidence/certificates for extension of time. Even they have not handed over the impugned amount, forged documents and other case property to the investigating agency. Not only that, they are accused in more than seven other similar criminal cases, in which, they have also cheated and misappropriated the crores of rupees of public at large. That means, they are habitual offenders and have no CRM Nos.16890, 16891, 16887 & 16889 of 2013 8 respect for law. Similarly, the petitioners are influential & rich persons and if they are granted the concession of anticipatory bail, then, possibility of their influence to win over the witnesses cannot be ruled out under the present set of circumstances. As they have defrauded individual persons, promised to give them their respective plots/flats and individually collected the huge amount, therefore, there is no illegality in registering the different criminal cases in the wake of independent cause of actions by different complainants against the accused, as contrary claimed/urged on their behalf.
12. Therefore, taking into consideration the seriousness of nature of allegations of heinous offences of cheating & misappropriation of crores of rupees of public at large, to me, the custodial interrogation of petitioners is essential in this regard and they are not entitled to the concession of anticipatory bail in any manner. If they are allowed the benefit of anticipatory bail, then, the prosecution would be deprived from recovering the huge amount, to ascertain the length & magnitude of scam, to unearth the modus operandi, recovering the forged documents, case property and effective investigation, which would naturally adversely affect & weaken the case of the prosecution, which is not legally permissible. Moreover, all other irrelevant contentions, now sought to be urged on their behalf, have already been considered in the right perspective and negated by the Additional Sessions Judge in a well reasoned impugned order.
13. What cannot possibly be disputed here is that it is now well settled principle of law that the order of anticipatory bail cannot be CRM Nos.16890, 16891, 16887 & 16889 of 2013 9 allowed to circumvent normal procedure of, arrest, recovery of indicated amount and case property from the petitioners and investigation by the police. The Court has also to see that the investigation is in the province of the police and an order of anticipatory bail could not and should not operate as an in-road into the statutory investigational powers of the police, in exercising the judicial discretion in granting the anticipatory bail. At the same time, the Court should also not be unmindful of the difficulties likely to be faced by the investigating agency and the public interest likely to be affected thereby. Thus, seen from any angle, to my mind, the petitioners are not at all entitled for anticipatory bail in this relevant connection.
14. No other point, worth consideration, has either been urged or pressed by the counsel for the petitioners.
15. In the light of aforesaid reasons and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of main cases, the instant petitions filed by the petitioners are hereby dismissed in the obtaining circumstances of the case.
16. Needless to mention that nothing recorded, here-in-above, would reflect, on merits of the main cases, in any manner, during the course of trial, as the same has been so observed for a limited purpose of deciding the present petitions for anticipatory bail.
21.5.2013 (Mehinder Singh Sullar) AS Judge