Delhi District Court
Piyush Gopal Bandopadhyay vs State on 3 February, 2023
IN THE COURT OF MS. ANU AGGARWAL: ASJ06
(POCSO): SOUTHEAST DISTT: SAKET COURTS: NEW
DELHI
CNR No. DLND010021932021
Criminal Revision no. 13/21
In the matter of :
Piyush Gopal Bandopadhyay
R/o D84, Sector 47
Noida, Uttar Pradesh ........... Petitioner
Versus
1. State
Through Public Prosecutor
Patiala House Courts,
New Delhi.
2. Mitsumi Housing Pvt. Ltd.
Through It's Authorized Director
Ajay Kumar Shah.
Office at D1108, The First, B/H
Keshavbaug Party Plot,
Vastrapur, Ahmedabad, Gurat ....... Respondents
Date of institution : 09.03.2021
Date on which order reserved : 10.11.2022
Date of order : 03.02.2023
The case is listed for orders today. Pursuant to
the order of Hon'ble High Court of Delhi No.
CR No. 13/21 Piyush Gopal Bandopadhyay Vs State & Anr. Page 1 of 18
07/G.1/Gaz.IA/DHC/2023 dated 01.02.2023, I have
been transferred from the post of ASJ07, New Delhi,
Patiala House Court to ASJ06 (POCSO), SouthEast,
Saket. In the said transfer order, the directions have
been given by the Hon'ble High Court of Delhi as
under:
"the judicial officers under transfer shall notify
the cases in which they have reserved judgments/
orders before reliinquishing the charge of the Court
in terms of the posting/ transfer order. The judicial
officer shall pronounce judgments/ orders in all
such matters on the day fixed or maximum within a
period of 2/3 weeks thereof, notwithstanding the
posting/ transfer."
Therefore, pursuant to the above directions of
the Hon'ble High Court of Delhi, I am hereby
proceeding with the order of the present case.
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ORDER
1. The present revision petition has been filed by the revisionist against order dated 03.12.2020 passed by Ld. CMM, PHC, New Delhi in FIR No. 114/2020 registered at EOW, New Delhi. Vide the impugned order, the Ld. CMM has directed the release of an amount of Rs. 25,60,00,000 which was lying frozen in the account held by the revisionst to the entitled companies as detailed in the said order.
2. It is stated by the revisionist that a complaint was lodged by Mr. Dayashankar Mishra with PS EOW alleging that Ms. Shweta Sorout and Mr. Piyush Bandyopadhyay have misrepresented and cheated the complainant. On the said complaint, FIR No.114/2020 was registered at PS EOW on 26.08.2020.
3. It is stated that the application was filed by respondent no. 2 u/s 451/457 of Cr.P.C, 1973 for CR No. 13/21 Piyush Gopal Bandopadhyay Vs State & Anr. Page 3 of 18 direction for release of money in favour of respondent no. 2 which was in the account of the revisionist and his wife and was frozen/ seized by the IO during investigation.
4. It is stated that the said application was moved on 28.11.2020 and was put up for consideration by the Ld. CMM for 01.12.2020. No notice of the application was issued either to the revisionist or to other coaccused persons or other parties who were involved in the present matter. It is stated that the matter was taken up on 01.12.2020 and 02.12.2020 but no notice was issued to the revisionist. It is stated that the counsel of the revisionist appeared on 01.12.2020 before the Ld. MM but arguments of the respondent no. 2 were heard and no opportunity was given to the revisionist to submit arguments and the matter was fixed for remaining orders on 02.12.2020. It is stated that on 02.12.2020, no one CR No. 13/21 Piyush Gopal Bandopadhyay Vs State & Anr. Page 4 of 18 appeared on behalf of the petitioner and Ld. MM has heard the arguments of respondent no. 2 and put up the case for orders on 03.12.2020. It is stated that on 03.12.2020, the Ld. CMM passed the order without giving any opportunity to the petitoner and other affected parties on the ground that the money which is lying frozen in the account held by the revisionist and his wife belongs to repondent no. 2.
5. it is stated that by passing the impunged order, the Ld. CMM did not consider the reply of the IO wherein IO had stated that certain critical aspects of the entire transaction of various companies, credentials of different directors in the various companies and benefeciaries are still under investigation. It is stated that the money released to respondent no. 2 belongs to revisionist. It is stated that the complainant was not made party by respondent no. 2 to the application and no notice was CR No. 13/21 Piyush Gopal Bandopadhyay Vs State & Anr. Page 5 of 18 even served to the complainant.
6. It is stated that as per the reply of IO, there are four companies namely M/s SRM Bio Toilets Pvt. Ltc. M/s MCF Project, M/S Mitsumi Housing and M/s Sumi Solar from which the alleged money was transferred in the bank account of M/s Intellectual Innovation of Think Tank but none of the abovesaid companies were made party. It is stated that the impunged order is liable to set aside.
7. In reply, it is stated by respondent no. 2 that the present revision petition is not maintainable as it is barred by limitation and no application for condonation of delay has been filed. It is stated that the order dated 03.12.2020 has already been acted upon and the amount has already been released in the bank account of respondent no. 2 and therefore, the revision petition has become infructuous.
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8. It is stated that the application of respondent no. 2 for release of the amount and the bail application of the revisionist were listed on the same dates and both the applications were heard simultaneously and the order dated 01.12.2020 clearly reflects that the revisionist was present with senior advocate and both the parties were heard by the Ld. CMM. It is stated that that revisionist has not informed the Court about the execution of the settlement agreement dated 12.11.2020 and as per settlement, the revisionist and his wife has no objection if money is released to respondent no. 2.
9. It is stated that the reviosionist and Shweta Sorut moved their respective bail application relying upon the settlement and respondent no. 2 also admitted the execution of the settlement agreement. It is stated that the just and proper order has been passed by the Ld. Trial Court and hence, the revision petition be dismissed.
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10. I have heard the arguments of Ld. Counsel for both the side and have gone through the entire record. I have also gone through the Trial Court record.
11. The Ld. Counsel for the revisionist has mainly assailed the impugned order on the basis that no opportunity of hearing was given to the revisionist before passing of the impugned order. The Ld. Counsel has further submitted that before the trial is conducted, the Ld. CMM could not have come to the conclusion that the money belongs to respondent no. 2. It is further argued by the Ld. Counsel that as regards settlement agreement as per terms of settlement, the respondent no. 2 was not to oppose the bail applications of the revisionist and his wife but respondent no. 2 opposed the bail application, thereby, violated the terms and conditions of the settlement agreement.
12. Ld. Counsel for the respondent no. 2 has argued on similar lines as his reply. It is further argued by the CR No. 13/21 Piyush Gopal Bandopadhyay Vs State & Anr. Page 8 of 18 Ld. Counsel that the revision petition is barred by limitation. It is further argued that the order has already been complied with and money has already been transferred in the account of respondent no. 2 and therefore, nothing survives in the revision petition. It is further argued that due opportunity of hearing was given to the revisionist before passing of the impugned order.
13. The perusal of the trial court record reflect that an application u/s 451/457 Cr.P.C was filed by respondent no. 2 before Ld. Trial Court on 28.11.2020. The said application was listed for consideration for 01.12.2020. The perusal of order dated 28.11.2020 further reflects that the attendance of Ld. Counsel for the applicant has been marked. The applicant in the present case was respondent no. 2 and it seems that inadvertently, the Ld. CMM had marked the attendance as "Ms. Sairica S. Raju, Ld. Counsel for applicant/ accused", even though accused was not the applicant. The application was only CR No. 13/21 Piyush Gopal Bandopadhyay Vs State & Anr. Page 9 of 18 put up for consideration for 01.12.2020 and no notice of the application was issued to any person including revisionist on the said date.
14. The perusal of the trial Court further reflect that the revisionist/ accused had also moved his bail application before the Ld. Trial Court. The said application was listed on 13.11.2020, 15.11.2020, 17.11.2020 and then on 01.12.2020. The perusal of order dated 17.11.2020 that the bail application was listed on 01.12.2020 as Ld. Counsel for the revisionist/ accused Sh. Kirti Uppal did not appear before the Court being unwell. It is in these circumstances that both the applications i.e. the bail application of the revisionist and the application of respondent no. 2 u/s 451/457 Cr.P.C came up for hearing together on 01.12.2020.
15. In the trial court record, there are two orders dated 01.12.2020. The perusal of both the orders does not reflect as to which order is for which application. Vide CR No. 13/21 Piyush Gopal Bandopadhyay Vs State & Anr. Page 10 of 18 both the orders, the Ld. Court has observed that part arguments have been heard and the case was adjourned for further arguments for 02.12.2020. Though it is not clear from both the orders dated 01.12.2020 as to which order is for which application but it assumes importance in considering the greivance of the revisionist that he was not given notice of the application and was not heard.
16. In order to have clarity, I am hereby reproducing both the orders, so far as relevant:
Order1 dated 01.12.2020 "Present: Mr. Kirti Uppal and Mr. Jatin Sharma, Ld. Counsel for accused.
Mr. Vinod Kumar, Ld. Counsel for applicants. Sh. Vikash, Ld. APP for the State. Part arguments heard.
Put up for remaining orders tomorrow I.e 02.12.2020 at 11:00 am."
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Order2 dated 01.12.2020 "Present: Sh. Vikas, Ld. APP for the State. Ms. Sairica S. Raju, Ld. Counsel for applicant/ accused.
Part arguments heard.
Put up for remaining arguments tomorrow i.e. 02.12.2020."
Though both the orders dated 01.12.2020 are not mentioning the application which was taken up and heard but it is from the attendance of the counsel that one can make out as to which order is for which application. The application u/s 451/457 Cr.P.C was moved by Ld. Counsel Ms. Sairica S. Raju and therefore, the order2 was passed for an application u/s 451/457 Cr.P.C. Since, the bail application of the revisionist was being argued by Ld. Counsel Sh. Kirti Uppal, order1 was passed in the bail application of the revisionist. The perusal of the order2 reflect that even CR No. 13/21 Piyush Gopal Bandopadhyay Vs State & Anr. Page 12 of 18 on 01.12.2020, no notice of the application was issued to the revisionist and part arguments of the applicant was heard and the matter was listed for remaining arguments for 02.12.2020.
17. There are two orders of 02.12.2020. The first order is pertaining to the bail of the revisionist which was heard and it was put up for orders for 03.12.2020. The second order dated 02.12.2020 is pertaining to the applicatoin of the respondent no. 2. The perusal of the said order reflect that only Ld. Counsel for respondent no. 2 was heard on the said application and the application was listed for orders for 03.12.2020.
Therefore, it is clear from all the ordersheets of the Ld. Trial Court of the relevant dates that though the Ld. Trial Court was hearing the bail application and the application of the respondent no. 2 simultaneously but no notice of the application of respondent no. 2 was ever issued to the revisionist and it is also clear from the CR No. 13/21 Piyush Gopal Bandopadhyay Vs State & Anr. Page 13 of 18 different attendences being marked on the ordersheet of the same date. Therefore, I do find force in the contention of the Ld. Counsel for the revisionist that the impugned order was passed without giving any opportunity of hearing to the revisionist.
18. However, the perusal of application u/s 451/457 of Cr.P.C filed by revisionist no. 2 before the Ld. Trial Court reflect that the said application was moved on the basis of settlement agreement between respondent no. 2 and the revisionist and his wife. The perusal of the said settlement agreement reflect that it was agreed that the revisionist alongwith his wife shall repay an amount of Rs. 25.6000000/ in the bank account of Mitsumi Housing Private Limited. It was also agreed that they would not have any objection if the settlement amount is directly paid to Mitsumi Housing Private Limited. It was also declared by the revisionist and his wife that the frozen/ settled amount belongs to respondent no. 2 to CR No. 13/21 Piyush Gopal Bandopadhyay Vs State & Anr. Page 14 of 18 the tune of Rs. 25,6000000/ and the said amount may be released in the bank account of the respondent no. 2. It was further agreed that the respondent no. 2 shall not object to the bail application of the revisionist. The said settlement deed is duly signed by the revisionist and attested by Deputy Superintendent, Central Jail, Rohini
89. Therefore, it is not disputed that the revisionist and respondent no. 2 entered into an agreement whereby the revisionist agreed that the frozen amount may be directly released to the respondent no. 2. As regards, the contention of Ld. Counsel for the revisionist that the respondent no. 2 opposed the bail application in contravention of the settlement agreement, I do not find any force in the said argument of the Ld. Counsel. The perusal of order dated 02.12.2020 reflect that Ld. Counsel for the complainant had specifically stated before the Ld. Trial Court that the bail application be decided on merit and he is not averse to it. Therefore, CR No. 13/21 Piyush Gopal Bandopadhyay Vs State & Anr. Page 15 of 18 the Ld. Counsel for the respondent no. 2 had informed the Court that he is not opposing the bail application. The grant of bail or no bail is the prerogative of the Court and the Court can decline the bail application even if the parties have arrived at settlement and it is not being opposed by the complainant.
19. Therefore, even though no opportunity of hearing was given to the revisionist on the application of respondent no. 2 u/s 451/457 Cr.P.C but the basis of the said application was the settlement between both the parties of which the revisionist was signatory. It is in terms of the settlement that the amount was released to respondent no. 2 and therefore, I do not find any infirmity in the impugned order.
20. However, I do agree with the contention of the Ld. Counsel for the revisionist that the trial is yet to take place and in case, FIR is not quashed and the judgment comes in favour of the revisionist then he would be CR No. 13/21 Piyush Gopal Bandopadhyay Vs State & Anr. Page 16 of 18 adversely affected by the impugned order as the amount has already been credited in the account of respondent no. 2 from the account of revisionist. Therefore, the end of the justice would meet if the respondent no. 2 would file an indemnity bond of the amount so released to him vide impugned order giving undertaking to indemnify the revisionist, in case the outcome of the case comes in favour of the revisionist. Therefore, the respondent no. 2 is directed to file the said indemnity bond before the Ld. Trial Court within 15 days from today.
21. With the above directions, the present revision petition is disposed off. The revision file be consigned to record room of PHC, New Delhi. The revision file alongwith the trial court file be sent to the Court of ASJ07, PHC, New Delhi by the Ahlmad of this Court and the Trial Court record alongwith copy of the order be sent to the Trial Court by the Ahlmad of Court of Ld. ASJ07, PHC, New Delhi. The CR No. 13/21 Piyush Gopal Bandopadhyay Vs State & Anr. Page 17 of 18 soft copy of the order be sent to the reader of the Court of Ld. ASJ07, PHC, New Delhi to upload the order on the website.
Announced in Open Court on 03rd February, 2023.
(Anu Aggarwal) ASJ06 POCSO Act, SouthEast District, Saket Courts, New Delhi Earlier was posted as ASJ07, PHC, New Delhi.
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