Allahabad High Court
Satindra Singh Bhasin vs State Of U.P. And 9 Others on 21 January, 2020
Bench: Manoj Misra, Deepak Verma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 47 Case :- CRIMINAL MISC. WRIT PETITION No. - 481 of 2020 Petitioner :- Satindra Singh Bhasin Respondent :- State Of U.P. And 9 Others Counsel for Petitioner :- Priyanka Midha,Ram M. Kaushik Counsel for Respondent :- G.A. Hon'ble Manoj Misra,J.
Hon'ble Deepak Verma,J.
Heard Sri G. S. Chaturvedi, assisted by Ram Kaushik, for the petitioner; learned A.G.A. for the respondents 1 to 5; and perused the record.
The instant petition though is with multiple prayers but the same has been pressed for quashing the first information report dated 23.12.2019 registered as Case Crime No.1858 of 2019 at P.S. Surajpur, District Gautam Budh Nagar, under Sections 406, 420, 471, 120-B IPC as in other cases the petitioner has already been granted bail as is stated in paragraph 29 of the petition. In addition thereto, the petitioner has prayed that no coercive processes be adopted against him in the above case and that no further FIR should be registered against him in connection with construction of a Project named Mist Avenue Festival City at plot no.1, Sector 143B, Noida Expressway, Noida by Mist Direct Sales Pvt. Ltd. and that any fresh FIR in connection therewith be clubbed with the already existing FIRs registered at P.S. Surajpur / Knowledge Park and be treated as statement recorded under section 161 CrPC.
Before we proceed to examine the matter, we may notice that we have been provided copy of an order dated 6th November 2019 passed by the Apex Court in Criminal Misc. Writ No.242 of 2019, filed by the petitioner, reported in (2019) 10 SCC 800, in which more or less similar reliefs were sought such as clubbing of all the FIRs lodged against the petitioner at P.S. Kasna, Gautambudh Nagar, Greater Noida, U.P. and at P.S. Economic Offences Wing and at Parliament Street, New Delhi and all other FIRs lodged against the petitioner in the State of UP and State of NCT of Delhi in connection with Grand Venice Project. In the instant petition more or less similar relief has been sought with respect to Mist Avenue Festival City Project. In that matter before the apex court, the court, after examining the matter, in paragraphs 10 to 16 of the order, observed /directed as follows:
"10. The petitioner, on the other hand, would contend that the allegation that the project, in particular, Mall and Commercial Tower in respect of which the stated FIRs have been registered being incomplete, is not correct. For, UPSIDC has already issued completion certificate on 16-4-2015 as well as the occupancy certificate on 3-3-2017 with retrospective date of issuance of completion certificate in respect of the Mall and Commercial Tower portion, i.e., the entire project except the hotel portion. The FIRs referred to in the writ petition in prayer clause (c) are limited to the units in Mall and Commercial Tower of the project in respect of which occupancy certificate has been obtained. The petitioner asserts that the petitioner has handed over possession to 77 allottees in the Mall and 245 allottees in the Commercial Tower. The Mall and the Commercial Tower are fully functional and have been occupied by the brands such as Cine Appeals, Big Bazar, Burger King, H&M etc. The case of the petitioner is that the allottees who have rushed to register FIRs are unwilling to take possession of their unit(s) and are refusing to make payment of the balance consideration amount. In other words, the allottees are not discharging their part of the contractual obligation. Whereas, the petitioner and the company are facing multiple proceedings including before Company Judge [High Court/National Company Law Tribunal (NCLT)] and also before the forum concerned under the Consumer Protection Act for the same subject matter.
11. It is not necessary for us to examine the correctness of the allegations made against the petitioner or the response filed by the petitioner thereto. Suffice it to observe that the project is situated in the National Capital Region and within the territorial jurisdiction of Kasna Police Station (State of Uttar Pradesh). Majority of the cases are registered with the said police station and the police station concerned is inviting further complaints from similarly placed aggrieved persons as a result of which new cases are being registered and investigated by the U.P. State constituted SIT. The SIT of the State of Uttar Pradesh is investigating into a new angle which had cropped up during the course of investigation, about the possibility of collusive and collaborative acts of commission and omission of the officials of the UPSIDC. All this is being investigated by the SIT constituted by the State of Uttar Pradesh which, in turn, has filed charge sheet(s) in as many as 28 FIRs thus far.
12. Taking overall view of the matter, therefore, we are inclined to grant interim relief claimed by the petitioner to release him on bail directly by this Court in connection with all the FIRs mentioned in prayer clause (c) and other FIRs that have been or likely to be registered against the petitioner in connection with the project, namely, "Grand Venice", in particular, Mall and Commercial Tower thereof, at Police Station Kasna, Gautam Budh Nagar, Greater Noida, Uttar Pradesh or any other Police Station within the territory of the State of Uttar Pradesh and, in the same manner, the FIRs registered at the Police Stations in the State of NCT of Delhi at Police Station Parliament Street and by the Economic Offences Wing New Delhi or otherwise.
13. As regards, interim relief of stay of proceedings against the petitioner emanating from the FIRs mentioned in prayer clause (d), that relief can be considered only in respect of FIRs registered in the State of NCT of Delhi, be it with the Economic Offences Wing or Police Station Parliament Street, New Delhi. The question of granting stay of proceedings pending against the petitioner in connection with the FIRs registered at Police Station Kasna, Gautam Budh Nagar, Greater Noida, Uttar Pradesh does not arise as the same are being investigated by one investigating agency, namely, the SIT constituted by the State of Uttar Pradesh. In case any FIR is already registered within the State of Uttar Pradesh in Police Station other than Police Station Kasna, we have no manner of doubt that the SIT will take necessary steps to take over the investigation of all such FIRs registered within the State of Uttar Pradesh.
14. Be it noted that we are inclined to stay further proceedings only arising from the FIRs registered at New Delhi because the substratum of the allegations in the FIRs filed at Delhi are similar and, more so, as aforementioned, 72 complainants are common at both the places. We may, however, permit the remaining informants/complainants in FIRs registered at New Delhi to register their complaint with the Police Station Kasna, Gautam Budh Nagar, Greater Noida, Uttar Pradesh if so advised, which can also be investigated by the SIT constituted by the State of Uttar Pradesh.
15. We are conscious of the fact that out of five cases registered within the State of NCT of Delhi brought to the notice of this Court, charge sheet has been filed in one of the FIRs. However, until the entire issue is debated and considered by this Court, to meet the ends of justice, it would be expedient to stay the further proceedings in connection with all the FIRs registered or to be registered hereinafter in the State of NCT of Delhi.
16. In view of the above, we dispose of the prayers for interim relief, in terms of the prayer clauses (c) and (d) of the writ petition on the following basis :
16.1. The petitioner is granted bail in respect of all the FIRs referred to in prayer clause (c) in respect of the project by name "Grand Venice" in NCR, in particular, Mall and Commercial Tower thereof, on the following conditions:
16.1.1 That the petitioner shall not commit any offence of similar type of which he has been accused.
16.1.2. The petitioner shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to denude such person from disclosing such facts to any Police Station or tamper with the evidence.
16.1.3. The petitioner shall join further investigation as and when called upon to do so by the Investigating Officer or by the SIT constituted by the State of Uttar Pradesh.
16.1.4. The petitioner shall deposit his passport with the Registry of this Court within a period of two weeks from today. If it is with the Police Station at Kasna or any Police Station in the State of NCT of Delhi, the Police Station concerned shall cause to deposit petitioner's passport in the Registry of this Court within the same time.
16.1.5. The petitioner shall report to the Investigating Officer nominated by SIT, constituted by the State of Uttar Pradesh on every Monday between 11 A.M. to 12 Noon and shall also appear before the Court concerned as and when called upon to do so.
16.1.6. The petitioner shall deposit an aggregate amount of Rs.50,00,00,000/- (Rupees fifty crore only) before the Registry of this Court as a pre-condition for grant of bail. On deposit of such amount, authenticated copy of the receipt issued by this Court be produced before the Court/Investigating Officer concerned. The amount so deposited by the petitioner in the Registry, be invested in an appropriate interest bearing deposit scheme in a nationalized bank until further orders including to renew the deposit from time to time.
16.1.7. The petitioner shall furnish personal bail bond of Rs.5,00,000/ (Rupees five lac only) with one surety in the like amount in connection with each FIR independently.
16.1.8. After being released on bail in terms of this order, the petitioner shall make every possible attempt to settle the claims of the complainant(s)/informant(s) concerned as far as possible within six to eight months as ordered by the Court of the Chief Judicial Magistrate, Patiala House Courts while granting bail to the petitioner in FIR No.38/2018 registered with the Economic Offences Wing, New Delhi vide order dated 15-5-2019.
16.1.9. If the petitioner fails to abide by any of the above conditions intentionally and if it is so established before this Court, no less than 50% of the amount deposited by him in this Court in terms of this order [para 16.1.6 above] shall stand forfeited.
16.1.10. The petitioner shall extend full cooperation to the Court concerned as and when necessary for early disposal of the cases.
16.2. All further proceedings emanating from FIRs registered at Police Station Parliament Street, New Delhi or Economic Offence Wing, New Delhi or any other FIR already lodged or to be lodged hereafter in State of NCT of Delhi against the petitioner in connection with the project named "Grand Venice", in particular, units in Mall and Commercial Tower thereof, shall remain stayed until further orders."
From the above extract, it is clear that the matter before the apex court is limited to the FIRs in connection with the project "Grand Venice".
Coming to the impugned FIR, the allegation in nutshell is that the informant, who is a buyer of an office unit no.1142, has been cheated by directors of four companies, namely, Anand Infoedge, Ms Bhasin Group, M/s Mist Avenue Pvt. Ltd and Ms Mist Direct Pvt. Ltd. In some detail, the allegations are that a project by the name of Mist Avenue was floated inviting prospective buyers of the apartments/office spaces to be constructed by the developer and in furtherance thereof money was taken from the prospective buyers under allotment advice. The allegation is that the project was not completed as promised and later it was discovered that false promises were made to dupe the buyers. It is alleged that the rights under the projects were transferred to various other companies, which are shell companies, to siphon off the funds deposited by the prospective buyers /allottees who deposited their hard earned money for allotment of apartments/office spaces in the project to be completed by the developer. It is also alleged in the first information report that the project has been changed from the plan originally sanctioned without the consent of the allottee. Thus, in a nutshell, the allegations are that by making false promises money was taken from the informant including other buyers/ investors and those promises were not fulfilled, rather, the money was siphoned off, as a result, the informant has been cheated.
The contention of the learned counsel for the petitioner is that a similar matter has been reported by one of the allottees, namely, J.P. Kakkar, which is being investigated by the Economic Offences Wing of the New Delhi and, therefore, the lodging of the first information report at the instance of other allottees is not legally sustainable as it would amount to a second first information report. It has also been contended that the transfer of rights under the project in favour of another company is a legal right of the company and the transferee company can be bound by the promise but that could only give right to a civil cause of action therefore lodging of the first information report is not justified. It has also been submitted that there had been a dispute between Greater Nodia Development Authority and the Noida Development Authority in respect of right over the plot over which the project had to be completed and therefore the project got delayed and for which the petitioner cannot be held liable. In addition thereto, it has been submitted that there is an arbitration agreement which may be invoked by the aggrieved party and therefore lodging of the FIR is not justified.
The learned AGA has opposed the prayer by submitting that since the FIR discloses commission of cognizable offences, the matter would have to be investigated and the impugned FIR cannot be quashed. He submitted that in so far as protection from arrest is concerned the petitioner has an alternative remedy of anticipatory bail.
We have considered the submissions and have perused the record.
From a bare reading of the impugned FIR it cannot be said that it lacks the essential ingredients of a cognizable offence. Under the circumstances, merely because the victim has an option to bring a civil action against the accused cannot preclude the victim of an alleged crime from lodging an FIR.
In so far as the submission of the learned counsel for the petitioner that the first information report is a second first information report of the same offence therefore it cannot be registered separately and should be clubbed with previous reports, suffice it to say that it is not in dispute that the earlier FIR by J.P. Kakkar (at page 207) relates to the project Mist Avenue but it relates to a different victim /allottee. As to how that allottee has been cheated would have to be proved and established with reference to the deception played upon him. Whether a false promise has been extended to a person and that person has been cheated are questions of fact and may have to be determined with reference to the facts of each case. Although if during investigation it is reflected that there was a larger conspiracy where under there was a common deception under a same transaction resulting in multiple victims then it is for the investigating agency to club the cases. But the right of a victim to report the cognizable offence of which he is a victim, cannot be taken away. In this regard we may notice the decision of the Apex Court in the case of Chirag M. Pathak and others v. Dollyben Kantilal Patel and others, (2018) 1 SCC 330 where the apex court had set aside the decision of the High Court by which it had quashed five out of a series of six FIRs. In that case, there were five cooperative housing societies which had defrauded its members. The office bearers in the societies were common but the victims were different. The High Court upon finding that the allegations were overlapping in six FIRs lodged by different set of victims, quashed five of them upon the principle that there can be no second FIR of the same offence. The apex court while setting aside the order of the High Court, in paragraphs 14 to 24 of the report, held as under:
"14. The short question which arises for consideration in these appeals is whether the High Court was justified in quashing the five FIRs appearing at Sl. Nos. 2 to 6 extracted above?
15. We have perused all the six FIRs with a view to find out as to whether the grievance urged by the accused persons is made out on facts or not. Having perused, we find ourselves unable to agree with the reasoning and the conclusion arrived at by the High Court, which led to quashing of the five FIRs.
16. We, however, do not consider it proper to give our detailed reasoning as it may cause prejudice to all parties concerned because the investigation is not yet complete and the trial in the first FIR has not yet started except to observe that there appeared no justifiable reason for the High Court to quash the five FIRs by taking recourse to the inherent powers under Section 482 of the Code.
17. We find that the High Court had laboured hard when it devoted 46 pages in examining the factual issues involved in six cases, appreciated the allegations of FIRs like an appellate court to some extent and then reached to a conclusion that all the six FIRs were based on identical facts and the allegations contained therein overlap and, therefore, the first FIR alone will survive for investigation whereas remaining five FIRs would not survive and merge in the first FIR.
18. We do not agree with the manner, reasoning and the conclusion arrived at by the High Court in the impugned judgment.
19. We find that all the five cooperative societies against whom the aforementioned FIRs were registered are different, their members are different, their area of operation is different, the lands which were sold/transferred are also situated in different areas, the lands were also sold/transferred to different parties on different dates for different sums, the accounting books are different, the persons involved in the falsification of the accounts of every society are different, etc. etc.
20. In short, having regard to the totality of the factual allegations made for constituting the commission of several offences in relation to every cooperative society, it is not possible to hold that all the FIRs are overlapping on one another and that first FIR alone will be sufficient to take care of the remaining five FIRs.
21. There may be some overlapping allegations in the FIRs but that is due to myriad reasons and one reason could be that all the cooperative societies were engaged in the same business of sale/purchase of housing and the plots of land which were sold to different persons in different areas by same accused persons due to their involvement in the affairs of all cooperative societies. However, these facts were not by themselves sufficient to quash the five FIRs at the stage of investigation itself.
22. In our view, such issues and many more, namely, the nature and manner of conspiracy, whether it was confined to each society or there was one or larger conspiracy, how and in what manner it was accomplished, who were parties to it, who were those persons who secured financial benefits, what was the modus operandi for misappropriation of the funds of each society and how the funds were siphoned off from each society, etc., need detailed investigation with respect to each cooperative society. Once the investigation is complete in relation to each society, the same would form part of the separate charge-sheet for being proved with the aid of evidence in a competent court against each society and persons involved in the scam. It is for the court to examine the factual issues arising in every case by appreciating the evidence once adduced in support thereof and pass appropriate orders in accordance with law.
23. The High Court, in exercise of its powers under Section 482 of the Code, cannot undertake a detailed examination of the facts contained in the FIRs by acting as an appellate court and draw its own conclusion. It is more so when investigation in other societies is not yet complete.
24. In our considered opinion, it is only when on reading the FIR, a sheer absurdity in the allegations is noticed and when no prima facie cognizable case is made out on its mere reading due to absurdity in the allegations or when facts disclose prima facie cognizable case and also disclose remarkable identity between the two FIRs as if the first FIR is filed second time with no change in allegations then the court may, in appropriate case, consider it proper to quash the second FIR. Such is not the case here."
In view of the law noticed above, we would like to observe that since the matter is under investigation and complete details are not available, the investigating agency would examine the matter in correct legal perspective and take its own decision whether to club the FIRs which are under investigation, as per law.
With regard to the contention of the learned counsel for the petitioner that there had been difficulty in fulfilling the promise on account of extraneous consideration therefore no offence has been committed, it may be observed that this is a matter of defense and would be considered at the appropriate stage but on that ground the FIR which discloses commission of cognizable offence cannot be quashed at the threshold. More so, when the allegations are to the effect that false promises were made; money was taken, thereafter promises were not fulfilled; the entire project was transferred to shell companies, which did not fulfill the promises; and plans were also changed.
With regard to the contention of the learned counsel for the petitioner that there had been a bail granting order in favour of the petitioner in another matter therefore he may be accorded protection, suffice it to say that that aspect may be taken note of in the bail jurisdiction. It is always open for the petitioner to apply for bail or anticipatory bail, as may be advised.
In respect of lodging the FIR despite existence of an arbitration clause, suffice to say that it is well settled that existence of an arbitration clause cannot prevent lodging of the FIR as has been held by the Apex Court in the case of Trisuns Chemical Industries V. Rajesh Agarwal (1999) 8 SCC 686.
Subject to above, the petition is disposed off.
Order Date :- 21.1.2020 AKShukla/-