Punjab-Haryana High Court
Vivek Sehgal vs State Of Haryana on 2 June, 2023
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2023:PHHC:081282
109+204 2023:PHHC:081282
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-10553-2023 (O&M)
DECIDED ON: 02.06.2023
VIVEK SEHGAL
.....PETITIONER
VERSUS
STATE OF HARYANA
.....RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. A.P.S. Deol, Sr. Advocate with
Mr. Himmat Singh Deol, Advocate and
Mr. Karan Kalia, Advocate
for the petitioner.
Mr. G.S. Dhillon, AAG, Haryana.
Mr. Anil Mehta, Advocate with
Mr. Rahul Gautam and Mr. Anirudh Sharma, Advocates
for the complainant.
SANDEEP MOUDGIL, J (ORAL)
CRM-25474-2023 Application is allowed as prayed for.
Annexures P-9 to P-12 are taken on record subject to all just exceptions.
The jurisdiction of this Court has been invoked under Section 439 of Cr.P.C., for grant of regular bail to the petitioner in FIR No.199 dated 21.07.2022, under Section 120-B, 389 (Sections 418 and 420 of IPC added later on), registered at Police Station Sector-65, Gurgaon (Annexure P-1).
The contents of FIR reads as under:-
This case was registered on a complaint made by Sanjeev Bindal, authorised representative of IREO Residences 1 of 8 ::: Downloaded on - 03-06-2023 11:37:59 ::: Neutral Citation No:=2023:PHHC:081282 CRM-M-10553-2023 -2- Company Pvt. Ltd, wherein he alleged that complainant company is in business of developing Group Housing Townships, Coimercial and other projects in and around Gurugram. In the year 2004, IREO Fund was incepted in Mauritius as a multinational private fund with the primary objective of developing high quality residential, commercial and hospitality projects in India. In furtherance of the same, various companies were established by IREO Fund in India. All these companies were established, as separate and distinct entities for the purposes of launching and developing various projects in India. The complainant company was established on 16.06.2010. Subsequent to establishment of the complainant company by IREO Fund, on 03.07.2014, Ramesh Sanka (accused) was appointed as Chief Operating Officer-Greater Gurgaon. He was also responsible for the managing operations and affairs of all the projects being undertaken by the companies, established by IREO Fund in Gurgaon and Sohna area.
Ramesh Sanka had access to all the confidential information of the complainant company such as layout plants, municipal approvals, financial statements, customer record etc of various proiects launched by the various companies of IREO Fund in Gurgaon and Sohna. Ramesh Sanka worked with various IREO companies and managed the projects being developed in Gurgaon and Sohna up till the date of his resignation on 28.12.2016.At the time of his resignation, Ramesh Sanka executed an Employee separation, Confidentiality, Inventions, Non-Competition and Non-Disparagement agreement dated 28.12.2016 with IPL, and complainant company and IPL undertook to pay him an amount of Rs. 10,37,39,409/- as severance fee. The accused undertook to take necessary precautions to safeguard the confidential information of the complainant company. After 30.09.2017, Ramesh Sanka arm-twisted 2 of 8 ::: Downloaded on - 03-06-2023 11:37:59 ::: Neutral Citation No:=2023:PHHC:081282 CRM-M-10553-2023 -3- the complainant company to pay back the amounts paid by the accused person for booking the two apartments in the Grand Hyatt Residences Proiect of the complainant company causing harm to the completion/development of the project and initiated false and frivolous proceedings against the various companies incorporated by IREO fund in India, so as to extort monies from them illegally and to cause wrongful losses to them by misrepresenting the records of the companies. In addition to the above, Ramesh Sanka made illegal use of the confidential information of the complainant company ie customer data, which he had access to during the course of his employment with IPL, IGR and the complainant company. Accused using data of the complainant company started contacting the company's clients and convinced them that they should hire his services to file complaints against the complainant company and others. He misrepresented the clients that monies paid by them for booking plots in the project launched by the complainant company have been siphoned off by the complainant company and only he can recover the monies for them Complainant company has come in possession of certain emails which show that before his severance from the IREO companies, Ramesh Sanka forwarded various emails containing confidential information and documents from his official email ID to his personal email ID. In furtherance of the aforesaid systematic criminal design adopted by the accused Ramesh Sanka, he colluded with the other accused Sumit Kumar, Vivek Sehgal, Col. Sanjeev Dhawan, Gurinder Singh and other unknown persons, in order to make wrongful gains at the cost and expense of the complainant company, incorporated the accused Limited Liability Partnership namely Ghar Samadhan LLP on 15.01.2020. Only purpose of the accused was to extort monies from the customers of the complainant company by misleading them, about the 3 of 8 ::: Downloaded on - 03-06-2023 11:37:59 ::: Neutral Citation No:=2023:PHHC:081282 CRM-M-10553-2023 -4- actual status of the funds provided by them to the complainant company for booking plots. Accused persons by means of manipulating the records of the complainant company, portrayed to the customers of the complainant company that for recovery of the monies paid by them to the complainant company, litigations will be instituted on their behalf by Ghar Samadhan LLP. The home-buyer was directed to make a payment of Rs.2,36,000/- to the accused LLP for instituting the legal proceedings on his behalf against the complainant company before various forums and used the innocent home buyers/clients against the complainant company. In this way, accused managed to file a number of complaints/ litigations by the home buyers against the complainant company and demanded Rs. 10 crores from the complainant company to manage the withdrawal of the said complainants/ litigations filed by home buyers/clients. The complainant company has various audio recording in its possession wherein the accused persons are openly asking for huge money for taking back the false and frivolous complains/FIRs filed by making extortion threats to the IREO companies and their directors! employees thereby taking undue advantage of innocent home buyers of IREO companies. Accused LLP also entered into agreements with various home-buyers of the complainant company and initiated multiple proceedings, claims, complaints etc against the complainant company in order to make wrongful gain and caused wrongful loss to the complainant company by misusing the confidential information of the complainant company. On these facts, a request for taking necessary action against the accused was made.
Learned Senior counsel appearing for the petitioner contends that the offences under Sections 389, 420, 120-B and 418 of IPC are not prima facie made out even on a bare perusal of the FIR, as has been narrated therein.
4 of 8 ::: Downloaded on - 03-06-2023 11:37:59 ::: Neutral Citation No:=2023:PHHC:081282 CRM-M-10553-2023 -5- He has placed reliance upon the order dated 16.05.2023 (Annexure P-9) passed in CRM-M-19216-2023, whereby the co-accused namely Sumit Kumar has been granted the concession of regular bail by this Court.
Learned State counsel on instructions submits that the petitioner is a signatory to 18 agreements to get the money back with the home buyers giving them false assurance, out of 19 agreements.
In addition to the assertions raised by learned State counsel, learned counsel for the complainant submits that the petitioner is a partner in "Ghar Samadhan LLP" and he along with co-accused instigated 18 home buyers of the complainant company to file complaints before various forums and demanded Rs.10 crores for settlement of these complaints. The further argument is that audio recordings are in possession of Investigating Agency, wherein the petitioner was asking for huge money for settlement of these complaints and also made repeated calls to the witnesses to depose in his favour. Thus, he does not deserve the concession of regular bail.
Mr. Pankaj Nanhera, Advocate has put in appearance on behalf of one of the witness namely Gurinder Singh at this State, who contends that he wishes to bring to the notice of this Court, wherein a threat to the witness has been advanced, the Apex Court has ruled out in various judicial pronouncements that such accused shall not be extended the concession of bail. Though, could not make out any specific instance of facing any threat at the hands of accused or even the State has also failed to establish that there is any serious threat with regard to tampering of evidence, as has been candidly admitted on his behalf. It is merely on the basis of assumption and presumption such plea has been raised.
Having perused the narrated part of FIR qua the petitioner and the 5 of 8 ::: Downloaded on - 03-06-2023 11:37:59 ::: Neutral Citation No:=2023:PHHC:081282 CRM-M-10553-2023 -6- submissions made by counsel for respective parties, this Court has to examine the attraction of Section 420 of IPC, as to whether it is made out or not against the petitioner for which examination of Section 415 of IPC is also to be taken into account.
Before culminating the view, I would be appetite to examine the definition of Section 420 IPC, which reads as under:-
"420. Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
The ingredients of an offence of cheating have been crystallized by the Apex Court in 'SW PalaNitkar versus State of Bihar-2002 SCC(Cri.) 129' as:-
"(i) there should be fraudulent or dishonest inducement of a person by deceiving him, (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii) (b), the act of omission should be one which causes or is likely to cause damage or harm .to the person induced in body, mind, reputation or property."
In fact the definition of cheating has been derived in Section 420 6 of 8 ::: Downloaded on - 03-06-2023 11:37:59 ::: Neutral Citation No:=2023:PHHC:081282 CRM-M-10553-2023 -7- IPC from Section 415 IPC and therefore, both the sections are to be read inconsonance with each other and therefore, it mandates this Court to have a glance on this provision as well, which reads as under:-
"415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this section. After having discussed the statutory provisions as incorporated hereinabove and the submissions of three home buyers, who are actually the aggrieved persons have not made any complaint qua the petitioner and, therefore, the question of any breach of trust, cheating and inducement would not arise prima facie in the instant FIR, as far as the role of the petitioner is concerned at this stage, while considering the application for grant regular bail.
It is also not in dispute, as has been depicted in the custody certificate that the petitioner has suffered incarceration of 6 months and 3 days, who is not involved in any other case, meaning thereby he is not an habitual offender. As far as the contention of advancing the threats to other witnesses or tampering with the material evidence is concerned, though, the same is in the custody of Investigating Agency and has already been made part of challan, after completion of the investigation, which stands presented before the concerned Court on 20.04.2021. This argument is of no help either 7 of 8 ::: Downloaded on - 03-06-2023 11:37:59 ::: Neutral Citation No:=2023:PHHC:081282 CRM-M-10553-2023 -8- to the State or to the complainant by any stretch of imagination.
Looking into the totality of facts and the discussions made hereinabove, this Court is of the firm view that no useful purpose would be served by keeping the petitioner behind the bars for uncertain period, wherein bail is a rule and jail is an exception and it would also violate the principle of right to speedy trial and expeditious disposal under Article 21 of Constitution of India, as has been time and again discussed by this Court, while relying the judgment of the Apex Court passed in Dataram Singh vs. State of Uttar Pradesh & Anr. 2018(2) R.C.R. (Criminal) 131.
In light of the above, the petitioner is directed to be released on regular bail on his furnishing bail and surety bonds to the satisfaction of trial Court/Duty Magistrate, concerned.
The present petition is, hereby, allowed.
However, anything stated hereinabove shall not be construed an expression of the merits of the case.
(SANDEEP MOUDGIL)
02.06.2023 JUDGE
Meenu
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
Neutral Citation No:=2023:PHHC:081282
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