Delhi District Court
Sajjan Singh Beniwal vs State on 5 June, 2024
IN THE COURT OF MS. SHEFALI SHARMA,
ADDITIONAL SESSIONS JUDGE-02, NORTH DISTRICT,
ROHINI COURTS, DELHI
In the matter of:
Criminal Revision No. 298/2023
Bijender Lather
S/o Late Sh. Prabhu Dayal
R/o H.No. 24, Chara Beri Road, Sector 3A,
Sarai Aurangabad, Bahadurgarh,
Haryana - 124507. ..... Revisionist
Vs.
1. State (Through PP)
2. Suman Solanki
W/o Sh. Mahesh Solanki,
R/o X-50, Phase - 1, Budh Vihar,
Delhi. ..... Respondents.
CR No. 301/2023
Bhavna Lather
D/o Joginder Singh Lather
R/o PDM College of Engineering, Sector 3A,
Sarai Aurangabad, Bahadurgarh,
Haryana - 124507 (presently at New Delhi)..... Revisionist
Vs.
1. State (Through PP)
2. Suman Solanki
W/o Sh. Mahesh Solanki,
R/o X-50, Phase - 1, Budh Vihar,
Delhi. ..... Respondents.
CR Nos. 298/23, 301/2023,
302/2023 & 334/2023
Page 1 of 23
CR No. 302/2023
Joginder Singh Lather
S/o Late Sh. Prabhu Dayal
R/o PDM College of Engineering, Sector 3A,
Sarai Aurangabad, Bahadurgarh,
Haryana - 124507 (presently at New Delhi)..... Revisionist
Vs.
1. State (Through PP)
2. Suman Solanki
W/o Sh. Mahesh Solanki,
R/o X-50, Phase - 1, Budh Vihar,
Delhi. ..... Respondents.
CR No. 334/2023
Sajjan Singh Beniwal
S/o Late Sh. Pratap Singh
R/o 1214, Sector 6, Bahadurgarh,
District Jhajjar, Haryana. .... Revisionist
Vs.
1. State (Through PP)
2. Suman Solanki
W/o Sh. Mahesh Solanki,
R/o X-50, Phase - 1, Budh Vihar,
Delhi. ..... Respondents.
Date of Institution of CR No. 298/2023: 13.09.2023
Date of Institution of CR No. 301/2023: 16.09.2023
Date of Institution of CR No. 302/2023: 16.09.2023
Date of Institution of CR No. 334/2023: 08.12.2023
Date of Conclusion of arguments : 31.05.2024
Date of Order : 05.06.2024
ORDER
Vide this common order, I am disposing off 04 CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 2 of 23 connected revision petitions, arising out of the same impugned order between the parties in the same Cr. No. 5354/2022, FIR No. 50/2019, PS EOW.
FACTUAL MATRIX
1. It is the case of the prosecution that several complainants were home buyers and that on the inducement of accused persons, they booked flats in the project, namely, PDM High Tech Homes of accused persons situated at Sector 3-A Bahadurgarh, Jhajhar Haryana on land measuring 8.976 acres. On the assurance and inducement of accused persons, the complainants booked the flats and also paid almost complete consideration amount to the accused persons but the accused persons did not complete the project in time bound manner as well as thereafter. They did not give possession of any flat to the complainants. They also did not return invested amount to the complainants. The complaints were made, FIR was registered and after investigation, the charge-sheet is filed against six accused persons i.e. Bijender Singh Lathar, Joginder Singh Lathar, Sajjan Singh Beniwal, Bhawna Lathar, Ram Niwas Lathar and M/s Prabhu Shanti Real Estate Pvt Ltd. for offences U/s 406/420/120B IPC.
The complainants, thereafter, moved an application for further investigation and lastly filed an application under Section 190(1)(b) Cr.P.C. for further addition of Sections as per the offences made out from the charge sheet itself. According to CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 3 of 23 them, there was sufficient evidence as per the charge-sheet out of which additional offences punishable U/s 409/467/468/471 IPC are also made out against all accused persons, therefore, they filed the said application.
Vide the impugned order dated 11.08.2023, the Ld. Trial Court disposed off the said application and summoned the accused persons under Section 409/420/467/468/471 IPC read with 120B IPC.
2. The present revision petitions have been filed against the impugned order dated 11.08.2023 passed by Ld. CMM, North, taking cognizance and summoning the revisionists and whereby he disposed off the application for taking cognizance under Section 190(1)(b) Cr.P.C. under the appropriate offences moved by the respondent (complainant in the main case).
ARGUMENTS
3. It was argued by the Ld. Counsel for the revisionists respectively that initially charge-sheet had been filed only under Section 406/120/120B IPC but without any substantive evidence on record, the Ld. Trial Court has incorporated additional Sections at the stage of cognizance and has taken cognizance under the offence 409/420/467/468/471 IPC read with Section 120B IPC and took cognizance of the offences.
CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 4 of 23 It was argued that there is no element of criminality made out in the entire transaction of the home buyers. It is submitted that the company i.e. Prabhu Shanti Real Estate Pvt. Ltd. never defaulted in repayment of AU Small Finance Bank. In fact, it was related party association i.e. PDMREA which defaulted in repayment due to which the corporate insolvency process was admitted against the corporate debtor. Further, the said default was also settled by the petitioner, however, in absence of any provision to settle under IPC, in 2016 at the relevant time the CIRP could not be discontinued. Therefore, the petitioner has never had any criminal intent which is a sine qua non for proceeding under IPC whereas the petitioner has consistently tried to provide flats to the complainants.
That the entire material in chargesheet is based on a private party forensic audit conducted by an IRP who himself has been suspended for a period of 1 year due to misconduct by him. It is submitted that the investigation authorities ought to have conducted an independent investigation and not merely relied upon a private audit conducted by the IRP. Moreover, the said audit is itself subject to scrutiny by NCLT.
In addition to the above, it has been specifically argued by Mr. Naresh Kaushik, Sr. Advocate for revisionist Bijender Lather and Sajjan Singh, that the two protest petitions filed by the complainant under Section 173(8) Cr.P.C. had not been decided by Ld. Trial Court. It has been further argued that the Magistrate erred in adding new Sections at the stage of CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 5 of 23 cognizance as the same could have only be done at the stage of charge. For this, reliance has been placed on State Vs. Girish Radhakrishnan (2014) 3 SCC 659. It is further argued that the principle of natural justice has been denied to the accused/revisionist as without giving them any opportunity, Ld. Magistrate has taken cognizance of Sections which were not there initially in the charge sheet. It is further argued that the Forensic Audit Report which had been heavily relied upon by the Ld. Magistrate to come to a conclusion that there is misappropriation of funds and cheating has already been set aside by the National Company Law Tribunal vide orders dated 12.09.2023 and directions have been issued for a fresh Forensic audit and therefore, the order of the Ld. Magistrate be accordingly set aside.
In addition to the above arguments, it has been specifically argued by Mr. Yogesh Goel and Mr. Anil Rathee, ld. Counsels for revisionists/accused Joginder Lather and Bhawana Lather that it was a State case and as per the procedure under the Code complainant could not have filed an independent application U/s 190(1)(b) CrPC and as such there is not such material available on record to attract the offence U/s 409/468/471 IPC.
All Ld. Counsels had relied upon various case laws which have been duly considered.
CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 6 of 23
4. Per contra, it has been argued by the Ld. Counsel for respondents Mr. Sunil Dalal, Senior Advocate and Mr. Sandeep Chaudhary that on the inducement of accused persons, the complainants/respondents booked flats in the project namely PDM High Tech Homes of accused persons situated at Sectorm 3-A Bahadurgarh, Jhajhar, Haryana on land measuring 8.976 acres. That on the assurance and inducement of accused persons, the complainants booked the flats and also paid almost complete consideration amount to the accused persons but the accused persons did not complete the project in time bound manner as well as thereafter. They did not give possession of any flat to the complainants. They also did not return invested amount to the complainants. The complaints were made, FIR was registered and after investigation, charge-sheet was filed under Section 406/420/120B IPC. That Ld. Trial Court after perusal of the record has rightly incorporated the Section 409 IPC as the revisionists were like agents to deal with the entrusted money of the complainants which has been misappropriated by diverting the funds in other projects. Further, since they made bogus invoices, offences under Section 468/471 IPC are also attracted.
5. Heard. Perused.
FINDINGS
6. Complainants were home buyers and it is the case of the prosecution that on the inducement of accused persons, they CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 7 of 23 booked flats in the project, namely, PDM High Tech Homes of accused persons situated at Sector 3-A Bahadurgarh, Jhajhar Haryana on land measuring 8.976 acres but the accused persons did not complete the project in time bound manner as well as thereafter. They did not give possession of any flat to the complainants. They also did not return invested amount to the complainants. The complaints were made, FIR was registered and after investigation, the charge-sheet was filed against six accused persons i.e. Bijender Singh Lathar, Joginder Singh Lathar, Sajjan Singh Beniwal, Bhawna Lathar, Ram Niwas Lathar and M/s Prabhu Shanti Real Estate Pvt Ltd. for offences U/s 406/420/120B IPC.
After going through the record, the Ld. Trial Court found there was sufficient evidence as per the charge-sheet out of which additional offences punishable U/s 409/467/468/471 IPC are also made out against all accused persons.
7. At the very outset, it is imperative to note the relevant provisions of law.
Section 409 IPC "Criminal breach of trust by public servant, or by banker, merchant or agent- Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 8 of 23 imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."
Section 420 IPC "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."
Section 463 IPC "Forgery - Whoever makes any false document or false electronic record or part of a document or electronic record with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
Section 468 IPC "Forgery for the purpose of cheating -
Whoever commits forgery, intending that the document or electronic record1 forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 9 of 23 Section 471 IPC Using as genuine a forged (document or electronic record)- Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document."
In this backdrop, this Court proceeds to analyize the arguments raised by both the parties.
8. The first limb of argument raised by the revisionist was that the Ld. Trial Court had erred in taking cognizance of additional sections 409/467/468/471 IPC which were not the part of the original charge sheet as per the provision of Cr.P.C. as the same could have only be done at the stage of charge. For this, reliance has been placed on State Vs. Girish Radhakrishnan (2014) 3 SCC 659.
At this stage, it is pertinent to mention that the Magistrate after receipt of police report under Section 173 Cr.P.C. has three options:
I. He may decide that there is no sufficient ground for proceeding further and drop action.
II. He may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report;
CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 10 of 23 III. He may take cognizance of the offences under Section 190 (1)(a) Cr.P.C. on the basis of the original complaint and examined the complainant and the witnesses under Section 200 Cr.P.C. or may direct an further inquiry under Section 202 Cr.P.C. if he thinks fit.
However in the case of Zunaid Vs. State of UP passed by the Hon'ble Supreme Court on 29.08.2023, it is observed as under: -
"9. ....The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also."
Infact even if there is a closure report or cancellation report filed, the Magistrate has powers to take cognizance of the offence on a protest petition on same allegations if there is sufficient material available on record. Reliance is placed on the case decided by Hon'ble Supreme Court in Gopal Vijay Verma Vs. Bhuneshwar Prasad Sinha and Others (1982) 3 SCC 510, as followed in B. Chandrika Vs. Santhosh and Another (2014) 13 SCC 699, wherein it is held that a Magistrate is not debarred CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 11 of 23 from taking cognizance of a complaint merely on the ground that earlier he had declined to take cognizance of the police report.
It is trite law that the Magistrate is not bound by the Sections incorporated by the Investigating Agency in the charge- sheet. However, no doubt a Magistrate while exercising his judicial discretion has to apply his judicial mind to the contents of the Protest Petition or the complaint as the case may be. Thus, the Magistrate having applied his judicial mind on the material available on record could have summoned the accused under appropriate offences, in accordance with law.
9. As regards the contention that the miscellaneous application filed by the complainants was still pending it cannot be said that merely because there was no specific order to hold that the said applications have been disposed off, it can be said that they were not considered and even if so, it is for the complainants and not the revisionists to have pressed those applications for further investigation. As such, the recent application of the complainant/respondent to take cognizance under appropriate Sections having similar contents as earlier application the Ld. Magistrate has passed the detailed order dated 11.08.2023. Also it is the judicial mind applied by Ld. Magistrate based on the material available.
CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 12 of 23
10. The next argument which was raised by the revisionist was that there is no sufficient material on record. That there were no element of forgery or misappropriation.
I have perused the charge-sheet, documents and statements of witnesses under Section 161 Cr.P.C.
After the detailed investigation and charge-sheet filed and analysis of the account statement of the accused company, following evidence was found. There were two accounts viz.:
• A/C No. 3252320001605 in the name of M/S. Prabhu Shanti Real Estate Pvt. Ltd. maintained with HDFC Bank. • A/C No. 3252000001101 in the name of M/S. Prabhu Shanti Real Estate Pvt. Ltd. maintained with HDFC Bank.
Evidence against accused Joginder Singh Lather • He was Chairman and promoter of Director of accused company since inception and was taking all major decisions.
• He is authorised signatory in bank accounts of M/s Prabhu Shanti Real Estate Pvt. Ltd.
• Inter related parties transactions in many crores (as loans) were done with Bhagwati Tiles, Bharti Techno Medical Enterprises, AMI Prabh Developers Pvt. Ltd., PDM Religious and Educational Association Sangam Infra Estate Pvt. Ltd. and HRHK Builders Pvt. Ltd. without any legal agreement for services rendered by them. It has been found CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 13 of 23 that these firms/ companies are related to accused Joginder Singh Lather.
• No legal agreement was found executed between accused company and other parties for short terms loans and advances of Rs.11,71,96,308/- in FY 2015-16. • The summary of transaction done in A/C No. 3252000001101 in the name of M/s Prabhu Shanti Real Estate Pvt. Ltd, shows:
• Since 02.01.2012 till 27.05.2016, he received Rs.2,57,04763/- (aprox. Rs.2.57 crores) into his personal capacity.
• On 30.03.2015 M/s Bharti Technomedical Equipments Pvt.
Ltd. received Rs.76,50,000/-. He along with his daughter Ms.Bhawna Lather and son Chitresh Lather is Director in this company.
Evidence against accused Bijender Singh Lather • He is authorised signatory of bank accounts of M/s Prabhu Shanti Real Estate Pvt. Ltd.
• Accused company took a loan of Rs. 25 Crores from M/s India Infoline Housing Finance Ltd. for their project 'PDM Hi-Tech Home'. Out of this loan amount, accused directors have misappropriated Rs. 20.70 Crores with the malafide intention to invest in other project of JBG Buildcon. In addition, no Tax Compliance (TDS and Service Tax) was made by neither the accused company nor India Infoline Housing Finance Ltd.
CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 14 of 23 • During investigation it has also been revealed that loan of Rs. 5 Crore was also obtained by PDMREA from M/s AU finance Ltd. wherein M/s Prabhu Shanti Real Estate Pvt. Ltd. is guarantor. In default of above loan, for recovery, M/s AU finance Ltd. attached M/s Prabhu Shanti Real Estate Pvt. Ltd. and petition was filed before NCLT for recovery of loan. Due to which project 'PDM Hi-Tech Home' could not be completed in time bound manner. • Inter related parties transactions were done with Bhagwati Tiles, Bharti Techno Medical Enterprises, AMI Prabhu Developers Pvt. Ltd., PDM Religious and Educational Association, Sangam Infra Estates Pvt. Ltd. and HRHK Builders Pvt. Ltd. without any legal agreement for services rendered by them.
• No legal agreement was found executed between accused company and other parties for short term loans and advances of Rs. 11,71,96,308/- in FY 2015-16. • The summary of transactions done in A/C no. 3252000001101 in the name of M/s Prabhu Shanti Real Estate Pvt. Ltd. shows that since 05.01.2012 till 30.10.2013, he received Rs.66,05,000/- (approx. Rs.65 lakhs) into his personal account(s).
• The summary of transactions done in A/C no. 325230001605 in the name of M/s Prabhu Shanti Real Estate Pvt. Ltd. shows that since 18.07.2013 till 03.01.2018, CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 15 of 23 he received Rs.30,40,25,446/-(approx. Rs.30.40 lakhs) into his personal account(s).
Evidence against accused Sajjan Singh Beniwal • Accused Sajjan Singh Beniwal is one of the Directors of M/s Prabhu Shanti Real Estate Pvt. Ltd. • Accused Sajjan Singh Beniwal received Rs.612000/- as salary from the alleged company in FY 2013-214. • Inter related parties transactions were done with Bhagwati Tiles, Bharti Techno Medical Enterprises, AMI Prabhu Developers Pvt. Ltd., PDM Religious and Educational Association, Sangam Infra Estates Pvt. Ltd. and HRHK Builders Pvt. Ltd. without any legal agreement for services rendered by them.
• No legal agreement was found executed between accused company and other parties for short term loans and advances of Rs. 11,71,96,308/- in FY 2015-16. • The summary of transactions done in A/C no. 3252000001101 in the name of M/s Prabhu Shanti Real Estate Pvt. Ltd. shows that since 22.03.2014 till 01.08.2016, he received Rs.24,96900 (approx. Rs.25 lakhs) into his personal account(s).
Evidence against accused Bhavna Lather • Accused Ms. Bhavna Lather was one of the directors of M/s Prabhu Shanti Real Estate Pvt. Ltd. and held 317830 shares of the company.
CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 16 of 23 • A number of home buyers/victims, in their complaints and statements u/s 161 Cr.P.C., have alleged against Ms. Bhavna Lather that she persuaded/allured them to invest in the project.
• During investigation it has also been revealed that a loan of Rs. 5 Crore was also obtained by PDMREA from M/s AU finance Ltd. wherein M/s Prabhu Shanti Real Estate Pvt. Ltd. is guarantor. In default of above loan, for recovery, M/s AU finance Ltd. attached M/s Prabhu Shanti Real Estate Pvt. Ltd. and petition was filed before NCLT for recovery of loan. Due to which project 'PDM Hi-Tech Home' could not be completed in time bound manner. • Inter related parties transactions were done with Bhagwati Tiles, Bharti Techno Medical Enterprises, AMI Prabhu Developers Pvt. Ltd.,PDM Religious and Educational Association, Sangam Infra Estates Pvt. Ltd. and HRHK Builders Pvt. Ltd. without any legal agreement for services rendered by them.
• No Legal agreement was found executed between accused company and other parties for short term loans and advances of Rs.11,71,96,308/- in FY 2015-16. • The summary of transactions done in A/c No. 3252000001101 in the name of M/s Prabhu Shanti Real Estate Pvt. Ltd. shows:
• Since 04.04.2012, she received Rs.5,00,000/- into her personal account.
CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 17 of 23 • On 30.03.2015 M/s Bharti Technomedical Equipments Pvt. Ltd. received Rs.76,50,000/-. Ms. Bhawna Lather along with her father Joginder Singh Lather and brother Chitresh Lather is Director in this company. Thus, the record reveals that all the revisionist were responsible for the day to day affair of the company and made various transactions interse between sister concerns without any legal agreement and made bogus invoices.
11. It was further strongly harped upon by the ld. Counsel for the revisionists that the IRP appointed by NCLT conducted Forensic Audit of the accused company for the period 2016 to 2018 but the said Forensic Audit Report itself has been set aside by the orders dated 12.09.2023.
Firstly, the said audit report only pertains to two years between 2016 to 2018 and there is no order regarding the previous years and there is sufficient other material available on record, as discussed above including dummy accounts, bogus invoices and alleged misappropriation of funds.
Secondly, it was an order passed on the application filed by one of the co-accused/ revisionist Bijender Singh Lather against other co-accused Joginder Singh Lather/revisionist interse merely on the pretext that the applicant Bijender Singh Lather came to know that the Forensic Auditors had taken into consideration the statement of account bearing A/C No. 03252000001101 of the Corporate Debtor of which Joginder CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 18 of 23 Singh Lather was the Authorized Secretary and had been since operating the said account and transaction of more than Rs.100 crores had been done by him with various parties.
However, it no where suggests that the other material available on record or even the earlier Forensic Audit Report was incorrect. There were only directions to conduct a fresh audit report on the specific points. As such, there were other material available on record, as discussed above including the dummy salary accounts and bogus invoices and the misappropriation of funds and illegal transactions made as revealed from the bank accounts of the accused and saying that cognizance has been taken by Ld. Magistrate only on basis of Forensic Audit Report is incorrect.
12. It was further argued that Principles of Natural Justice have been denied to the accused as they have not been heard. This court is not in agreement with the ld. Counsel for the revisionists. The revisionists/accused themselves have not appeared and have been since absconding and thus, have not come to the court with clean hands. Even otherwise, at the stage of cognizance and summoning, the Ld. Trial Court is expected to pass a reasoned order based on the material available on record and it is only a prima facie view and it is only consequent to the stage of summoning, that accused would have appeared and as such the revisionists/accused shall have ample opportunity at the CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 19 of 23 stage of charge and during the course of trial to put forth their case and defence.
It was argued by ld. Counsel for respondents that all the purchases as shown were bogus invoices, which were raised without any actual reciprocal supply of goods because of which the project could not be completed and several of the buyers were left in lurch.
13. Thus, from the evidence available on record, it transpires that after going through the charge-sheet, the Agreements were executed between the complainants and accused persons for the purchase of respective flats, wherein in Para 22 of the agreement, it is mentioned that " the apartment allottee hereby authorizes and permits the company to raise finance/loan from any financial institutions /bank by way of mortgage/charge/securitization of receivables or in any other mode or manner by charge/mortgage of the said apartment/said building / said complex / said portion of land subject to the condition that the said apartment shall be free from all encumbrances at the time of execution of conveyance deed" . Thus, the Company/directors/accused persons were working in the capacity of agent of complainants and other persons who booked their respective flats/ apartments and paid almost complete amount.
As per the investigation, the accused persons obtained loan of Rs.25 crores each from Tamil Nadu Mercantile Bank and CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 20 of 23 M/s Muthoot Fincorp Ltd. for completion of PDM High Tech Homes project. It is also revealed during investigation that a loan of Rs. 5 crores was obtained by PDMREA University from M/s AU Finance Ltd. wherein M/s Prabhu Shanti Real Estate Pvt. Ltd. is guaranteer. In default of above loan M/s AU Finance Ltd. attached the project of M/s Prabhu Shanti Real Estate Pvt Ltd. Further, a loan of Rs. 25 crore was taken by the accused persons from M/s India Infoline Housing Finance Ltd. for the completion of PDM Hitech Home. Out of said loan, the accused persons have misappropriated Rs. 20.70 crore and invested in other project, namely, JBG Buildcon. Thus, being agents of complainants, the accused persons firstly obtained loans for completion of the PDM High Tech Home projects but misappropriated the amount and secondly the accused no. 6 stood guaranteer for the loan of PDMREA which does not have any concern with PDM High Tech Homes project.
Hence, the case in hand, prima facie, the accused persons have breached the trust in respect of property of complainants which was entrusted to the accused persons by complainants, hence, there are sufficient grounds to take cognizance for offence U/s 409 IPC against all accused persons.
As per the charge-sheet at page on 61 and 67 dummy salary accounts of Prabhu Shanti Real Estate Pvt. Ltd. i.e. the accused no. 06 were prepared. The remaining accused persons are directors in accused no. 06 who are responsible for its day to day affairs as per the investigation done by IO. Further, as per the CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 21 of 23 page no. 30-31 of the charge-sheet bogus invoices were raised on the same date amounting to Rs. 125.24 lakhs from June 2016- 2018 from HKRH Pvt. Ltd. Bogus continuous cash payments of Rs. 169.16 lakhs were made during June 2016 to 2018 as labour charges and Rs. 234 lakhs were paid against purchase of Rodi during June 2016 to 2018. Thus, the accused persons prepared bogus invoices and opened dummy salary accounts and thus, prima facie from the material available on record, ld. Trial Court rightly opined that offences under Section 467/468/471 IPC were attracted and thus, ld. Trial Court after considering evidence available on record rightly took cognizance for offences U/s 409/420/467/468/471 IPC read with Section 120B IPC against all accused persons.
14. Further, record reveals the bail application of accused Bijender Singh Lathar has been dismissed up to Hon'ble Apex Court and he has been declared as proclaimed person. The bail application of accused Joginder Singh Lathar and Ram Niwas Lathar have also been dismissed up to Hon'ble Delhi High Court. Process U/s 82 Cr.PC were issued against them. That the bail applications for accused Sajjan Singh Beniwal were also dismissed by Ld. Sessions Court. IO also mentioned in the charge-sheet that the said accused persons did not cooperate in investigation. The accused persons are not available at their addresses.According to him, their presence cannot be secured except by way of issuance of NBWs against them. He also CR Nos. 298/23, 301/2023, 302/2023 & 334/2023 Page 22 of 23 prayed that NBWs should also be issued against accused Bhawna Lathar as the charge-sheet is filed against her without arrest and she also did not cooperate during investigation. Ld. CMM (North) is directed to take appropriate steps in accordance with law.
15. In view of the above said discussion and observations, the impugned order dated 11.08.2023 is upheld. The four revision petitions bearing CR No. 298/2023, 301/2023, 302/2023 and 334/2023 are dismissed. Interim stay, if any, on the impugned order stands vacated.
Copy of this common order be kept in all the connected revision files for record.
16. It is clarified that nothing stated herein shall tantamount an expression on the merits of the case.
17. TCR, if any be sent back to the concerned court with copy of this common order.
18. Revision files be consigned to Record Room.
SHEFALI Digitally signed by
SHEFALI SHARMA
SHARMA 10:05:16 +0530
Date: 2024.06.06
Pronounced in open (SHEFALI SHARMA)
Court on 05.06.2024 ADDITIONAL SESSIONS JUDGE-02,
NORTH DISTRICT,
ROHINI COURTS, DELHI
CR Nos. 298/23, 301/2023,
302/2023 & 334/2023
Page 23 of 23