Mohammed Zakir Usman vs The State Of Maharashtra on 9 June, 2021

[Cites 20, Cited by 0]

Bombay High Court

Mohammed Zakir Usman vs The State Of Maharashtra on 9 June, 2021

Bench: Prakash D. Naik

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION

ANTICIPATORY BAIL APPLICATION NO.935 OF 2020
AND
INTERIM APPLICATION NO.470 OF 2021
AND
INTERIM APPLICATION NO.164 OF 2021
AND
INTERIM APPLICATION NO.1428 OF 2020
IN
ANTICIPATORY BAIL APPLICATION NO.935 OF 2020

Sukesh Gupta Applicant
Versus
The State of Maharashtra Respondent

WITH
ANTICIPATORY BAIL APPLICATION NO.936 OF 2020
AND
INTERIM APPLICATION NO.469 OF 2021
AND
INTERIM APPLICATION NO.165 OF 2021
IN
ANTICIPATORY BAIL APPLICATION NO.936 OF 2020

Mohammed Zakir Usman Applicant
Versus
The State of Maharashtra Respondent

WITH
ANTICIPATORY BAIL APPLICATION NO.937 OF 2020
AND
INTERIM APPLICATION NO.468 OF 2021
AND
INTERIM APPLICATION NO.163 OF 2021
IN
ANTICIPATORY BAIL APPLICATION NO.937 OF 2020

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Potlacheruvu Suresh Kumar Applicant
Versus
The State of Maharashtra Respondent

.....

Mr.Ashok Mundergi, Senior Advocate a/w Mr. Niranjan
Mundargi with Mr.Deepak Deshmukh, i/by Naik Naik & Co.
for applicants in ABA No.935 of 2020.
Mr.Girish Kulkarni a/w. Mr.Deepak Deshmukh i/b. M/s.Naik
Naik & Co., Advocate for Applicant in ABA 936 of 2020.
Mr.Diljeet Ahluwalia a/w. Mr.Deepak Deshmukh i/b.
M/s.Naik Naik & Co., Advocate for Applicant in ABA 937 of
2020.
Mr. Vikram Nankani, Senior Advocate, with Mr. Abhay
Jadeja, Mr.Varun Satiya, Mr.Arun Unnikrishnan i/b.
Crawford Bayley and Co. for Respondent no.2 in ABA
No.935 of 2020.
Mr. Rajiv Chavan, Senior Advocate, with Abhay Jadeja,
Mr.Varun Satiya, Mr.Arun Unnikrishnan i/by Crawford
Bayley & Co. for Respondent no.2 in ABA No.936/2020.
Mr.Pranav Badekha a/w. Mr.Abhay Jadeja, Mr.Varun Satiya
and Mr.Arun Unnikrishnan, Advocate i/b. M/s.Craword
Bayley & Co., for Respondent No.2 in ABA 937 of 2020.
Mr. Deepak Thakare, GP with Mr. A.R. Kapadnis, APP, for
State in all applications.

.....
CORAM : PRAKASH D. NAIK, J.

CLOSED FOR ORDERS ON : 9th MARCH, 2021.

DATE OF PRONOUNCEMENT : 9th JUNE, 2021.

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P.C. :

The applicants in all these applications are

apprehending arrest in connection with C.R.No.367 of 2019,

registered with Worli Police Station, Mumbai, for the ofences

punishable under Sections 406, 420, 465, 468, 471 read with

120-B of Indian Penal Code ("IPC", for short). First Information

Report ("FIR", for short) was registered on 19 th September, 2019.

The investigation was thereafter transferred to EOW Unit IX,

Mumbai, vide C.R.No.82 of 2019.

2 The case of the prosecution is as follows:

(a) FIR is lodged by Shri G. Dineshkumar Subhash Chandra,

director Niharika Infrastructure Private Limited. The

registered ofice of the company is situated at 311, 3 rd foor,

plot no.49A, Shiv Smruti Chambers, Dr.Annie Besant Road,

Worli Naka, Worli, Mumbai.

(b) The complainant company is owner of property named

Nazari Baug admesauring 111,882 square feet having toal

area of 28,106 square yard. The said property viz. plot of

land is purchased by complainant company vide sale

agreement dated 30th May, 2011, from original owner and

possessor M/s.Nazari Baug Palace Trust. The agreement is

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registered with Sub-Registrar I, Registration ofice

Hyderabad vide Registration No.1640/2018. M/s. Nazari

Baug Palace Trust were owners/possessor of the property

vide Deed of Trust dated 3 rd July, 2006, bearing registration

no.2758 of 2018, registered with Sub-registrar-I,

registration ofice at Hyderabad.

company held in February 2019 at the registered ofice of

the company, resolution was passed and the directors P.

Suresh Kumar and C.S. Ravindran were removed from the

Board of Directors by following procedure established by

law. Hence from 13th February, 2019, their authorities and

powers, as director of the company had come to an end.

(d) The aforesaid two directors acted in connivance with

Mohammad Zakir Usman and fabricated resolution

appointing Mr.Mohammed Zakir Usamn to enter into the

transaction of sale, transfer etc., in respect to property viz.

Nazri Baug Palace. The fabricated resolution was dated 24 th

January, 2019. On the basis of the resolution, Mr.Mohamed

Zakir Usman executed back dated sale agreement dated 28 th

January, 2019, and the property was handed over to IRIS

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Hospitality Private Limited. In the sale agreement, it was

stated that the consideration for sale of the property was

settled towards the loan given to the complainant company

in 2011.

(e) Mr. Mohammed Zakir Usman, P. Suresh Kumar, C.S.

Ravindran and Amit Amla (Director M/s. IRIS Hospitality

Private Limited) had acted in connivance with each other

and prepared the sale agreement in respect to the aforesaid

plot. The document was prepared in May 2019, and, shown

to have been submitted for registration on 28 th January,

2019, by manipulating the date of registration. The

agreement was registered on 22nd May, 2019, with

registration No.1791 / 2019, in the ofice of Sub-registrar

Hyderabad.

(f) The sister concern of the complainant company M/s.Aashi

Realtors (partner Sukesh Gupta) had obtained loan of 110

crores from non banking fnancial institution on 15th July,

2018, and, the property viz. Nazri Bagh was mortgaged.

Inspite of the knowledge of the said fact to Mr.Sukesh

Gupta, he acted in connivance with Mr.Ravindran, Mr.Amit

Amla and Arjun Amla and on the basis of fabricated

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resolution dated 24th January, 2019, the property was sold to

IRIS Hospitality pvt. Ltd. The value of the property is

around 300 crores.

3 Applicant preferred application for anticipatory bail

before the Sessions Court. Interim protection was granted vide

order dated 10th October, 2019, to the applicants directing the

investigating oficer not to arrest the applicants till the next date.

During the pendency of the said application, the applicants

preferred Writ Petition (Stamp) No.2306 of 2020, before this

Court.

4 By order dated 28th September, 2020, this Court

directed that no coercive measures shall be adopted against the

petitioner in respect to FIR No.367 of 2019 dated 19 th September,

2019. The said order was challenged by the complainant before

the Hon'ble Supreme Court by preferring Special Leave Petition

No.4819 of 2020. The Supreme Court by order dated 12 th

October, 2020, issued notice to the respondents therein and

interim stay was granted on the directions of no coercive

measures to the order passed by this Court. However, it was

clarifed that the said order will not afect the interim order

passed by the Sessions Court. The application for anticipatory

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bail was rejected by the Sessions Court vide order dated 8 th

December, 2020. While rejecting the said application, the learned

Sessions Judge had observed that the say of the investigating

oficer shows that accused C.S. Ravindran was arrested in the

crime. It was revealed in the investigation that from 17 th January,

2019 to 26th January, 2019, Mr.Ravindran was in Hong-Kong and

Vietnam. The original documents (Par Patra) No.Z3594792 show

that Mr.Ravindra was out of India. In the police custody, it was

told by him that he has signed the resolution on 18th May, 2019,

on the say of Sukesh Gupta. The E-mail in respect of the

resolution showing it to be received on 18 th May, 2019, by Mr.C.S.

Ravindran, is seized. The call records of C.S. Ravindran and

WhatsApp record show that Mr.Sukesh Gupta had informed

Mr.Ravindran on 18th May, 2019 that the disputed resolution

dated 24th January, 2019,would be sent by P. Suresh Kumar by E-

mail and he was asked to sign the same and sent it back to

Sukesh Gupta. The fact that C.S. Ravindran was in Hong-Kong

and Vietnam from 17th January, 2019 to 26th January, 2019, is

verifed by investigating oficer. The Par Patra shows that he was

out of India during the said period. The resolution was received

by E-mail on 18th May, 2019 by Mr.C.S. Ravindran. During

investigation, WhatsApp recordings between Mr.Ravindran and

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accused Sukesh Gupta, are seized by WhatsApp dated 18 th May,

2019. Accused Sukesh Gupta had informed Ravindran that

P.Suresh Kumar would forward the resolution dated 24 th January,

2019 in respect to Niharika Infrastructure Pvt. Ltd. and informed

Mr.Ravindran to sign the same. This fact prima facie show that

the resolution dated 24th January, 2019 and the sale deed were

not executed on the shown date. The applicants have fled extract

of minutes of Board of Directors of M/s.Neeharika Infrastructure

Pvt. Ltd. held on 24th January, 2019. The complete copy of the

minutes is not produced. The resolution is not produced. It is not

clear as to how many directors of Board have signed the

resolution. The resolution and the minutes do not appear to be

executed on the date mentioned on it. There is prima facie

material against the accused. Investigation is to be carried out as

to where the resolution was prepared. The original documents

are also yet to be recovered in the investigation. The ofence is

serious. Thorough investigation is necessary. Custodial

interrogation of the applicant is necessary. There is no material

to infer that the accused is falsely implicated in this crime.

5 The applicants have thereafter preferred application

for anticipatory bail before this Court.

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6 All the applications were heard together. They are

arising out of the same FIR. Hence, the applications are disposed

of by common order.

7 Arguments were lead by learned counsel Mr.Diljeet

Ahluwalia, appearing for the applicant in ABA No.937 of 2020.

8 Learned counsel Mr.Ahluwalia has submitted, as

under:

(i) The FIR is frivolous.

(ii) Accused no.1(applicant P. Suresh Kumar) is salaried

employee. He has clear antecedents and deep roots in the

society. He has cooperated with the investigation. He was

interrogated.

(iii) The reply fled by respondent no.2 (complainant) is false and

conveniently bypassing issue which goes to the root of the

matter as recorded in the order of this Court dated 18 th

December, 2020. It also depict undue infuence of Rajesh

Agarwal who has used the powerful pressure of criminal law

against the liberty of the applicant to extract accused not.4

to give up its legal rights in respect to the property.

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(iv) There is no whisper in the FIR of the factum that entire

purchase consideration of Rs.48 crores was paid by

M/s.Aashi Realtors, as per the terms and conditions agreed

in the loan agreement dated 26 th November, 2010, as per

which the property was to be vested with Aashi as on 31 st

March, 2014, on non payment of Rs.94 crores. The period of

repayment of loan was extended by two years vide loan

agreement dated 10th April, 2014. Loan amount of Rs.160

crores not having been paid, the property fnally vested with

Aashi on 31st March, 2016.

(v) Shareholding of respondent no.2 was transferred by the

previous share holders to M/s.Agarwal Reality, whose main

share holder is Mr.Rajesh Agarwal on 19 th October, 2016, at

par value of Rs. 1Lakh on the basis of property having

already vested with Aashi seven months prior. The property

did not weigh in the valuation of its shares as per loan

agreement. The previous share holder Mr.Biyani had

obtained registered declaration-cum-indemnity bond from

accused no.4 (Sukesh Gupta), which is admitted by

respondent no.2 in reply.

(vi) Shareholding was instructed to be transferred to Agarwal

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Reality on behalf of accused no.4 on dishonest inducement

that Agarwal Reality was owner and controlled by him while

Rajesh Agarwal intended to usurp the property of over 300

crores by merely purchasing the shares at Rs.1 lakh. The

question as to how Agarwal Reality bought the shareholding

at Rs.1 lakh, if it had property wroth Rs.300 crores was

observed by this Court in the order dated 18 th December,

2020.

(vii) The complainant in their reply has admitted that

shareholding was purchased for meager amount of Rs.1 lakh

but Agarwal Reality had brought in money subsequently into

the company.

(viii) The justifcation of purchase of share holding at Rs.1 lakh

from Biyanis on 19th October, 2016, is the basis of their

having Rs.45 crores loan into their own company on 29th

May, 2017 i.e. after seven months, which was stated earlier

to be as per per arrangement with previous owner.

(ix) Rs.45 crores loan was taken from IIFL by respondent no.2

against collateral security of Aashi. Thereafter Splash Zone,

a group company of Rajesh Agarwal took a loan of Rs.78

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crors from Indiabulls, out of which clearing the loan of

respondent no.2 in IIFL, by mortgaging the same property

of Aashi now with India Bulls. Thereafter Aashi took a loan

of Rs.110 crores from SREI Finance, out of which clearing

the loan taken by Splash Zone with Indiabulls on the basis

of the same property. This loan was repaid by SREI Finance

selling the same property of Aashi. In efect it was money of

Aashi, which was brought into by respondent no.2 after

seven months of change of shareholding. To justify purchase

of shareholding by Agarwal Reality at par value on this

basis, is preposterous.

(x) In the reply respondent no.2, has alleged that since at the

time of acquisition, respondent no.2 was a debt ridden

company having huge liabilities, the entire share holding of

respondent no.2 was acquired by Agarwal Reality, for an

amount of Rs.1 lakh. Respondent no.2 had denied that the

property vested with Aashi and as a result of which the

entire share holding of respondent no.2 was acquired for

Rs.1 lakh. The respondent no.2 was a debt ridden company.

The balance sheet of respondent no.2 as on 19 th October,

2016, shows it to be a debt free company, and, this

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explanation is false. Agarwal Realty did not consider

valuation of the property while purchasing the shares.

(xi) The respondent no.2 has stated in the reply that applicants

seek to justify its criminal action of forging and fabricating

documents and fraudulently and wrongfully transferring the

property of respondent no.2 to IRIS hospitality, is belied by

the fact that the entire amount has been repaid by

respondent no.2 to Aashi and other companies of Sukesh

Gupta on instructions of Sukesh Gupta. The ledger account

of respondent no.2 with Aashi shows that as on 31 st March,

2019, after adjustment of all inter-se payments, it is the

complainant which owes Aashi Rs.4.81 crores.

(xii) The applicant P. Suresh Kumar and accused no2 C.S.

Ravindran were the only two directors in the Board of

respondent no.2 with efect from 26th March, 2017. They

had authorized accused no.3 Mohammad Zakir Usman to

execute a sale deed qua the property to accused no.5

M/s.IRIS Hospitality, as per the loan agreement. Rajesh

Agarwal came to know about the said fact and he asked the

applicant P. Suresh Kumar to send his digital signature for

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uploading the previous balance sheets for fnancial year

2016 - 17 onwards, which was done by him. By misusing the

digital signature, Rajesh Agarwal hatched the conspiracy to

upload DIR 12 Forms on 5th February, 2019, showing

appointment of Ramesh Pasupuleti and Naveen K. Agarwal

from ante date 26th March, 2017. Thereafter, the fraudulent

incorporated directors signed DIR 12 Forms on 14 th

February, 2019, removing P. Suresh Kumar on 13 th February,

2019.

(xiii) Respondent no.2 had admitted in their impleadment

application before the Sessions Court that when the

intervenor came to know about the criminal conspiracy,

forgery and other criminal activities of respondent no.1

therein committed in collusion and connivance with other

accused, vide its board resolution dated 13 th February, 2019,

passed in Special general meeting had at the registered

ofice of intervenor at Worli removed accused from their

ofice as the directors of intervenor. Same averments were

made in written arguments dated 28 th September, 2020.

This is contrary to FIR.

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(xiv) The applicants had fled application under Section 340 read

with Section 195 of Cr.P.C., before the Apex Court on 11 th

January, 2021. In the reply, the respondent no.2 had stated

that it was done erroneously due to inadvertence.

(xv) The contention of respondent no.2 not knowing about the

loan agreement is absurd. In the reply fled before the

Supreme Court, the respondent no.1 has stated that during

the course of investigation, statement of Sunil Biyani,

erstwhile director of NIPL was recorded. He admitted his

signature and execution of loan agreement dated 26 th

November, 2010, between NIPL and Aashi Realtors. Sunil

Biyani also stated that for purchasing the property, the sale

consideration was directly paid by Aashi Realtors to Nazari

Baug Palace Trust.

(xvi) Respondent no.2 has suppressed material documents. Form

32 fled by G. Dineshkumar, wherein he was appointed

Director with efect from 1st October, 2012, from where he

resigned with efect from 18th September, 2014. Thus loan

agreement dated 10th April, 2014 was signed by Mr.Sunil

Biyani in capacity of being Director of respondent no.2.

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Agreement dated 10th April, 2014, shows that the frst line of

agreement is "This loan agreement is entered on this 10 th

day of April 2014 at Hyderabad." This was referred to in

Resolution. The Resolution passed in meeting of

shareholders of respondent no.2 on 4th April, 2014, shows

consent of members to execute loan agreement to secure

loan amount taken for the property purchased from Nazri

Baug Trust.

(xvii)Aashi has fled civil suit in the Court at Hyderabad seeking

declaration that sale deed dated 28 th January, 2019 is null

and void. The afidavit-in-reply fled by respondent no.2 is

false. Mr.Rajesh Agarwal has infuence with investigating

agency. The FIR is false and prima facie there is doubt on

genuineness of the prosecution case. The essential

ingredients for the ofence under Sections 406, 420, 465,

468, 471 and 120 B of IPC are completely lacking in the FIR.

(xviii) The law relating to anticipatory bail application is well

settled. In the case of Siddharam Mehtra Versus State of

Maharashtra1, it was observed that the courts must

1 (2011) 1 SCC 694

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evaluate the entire material against the accused very

carefully. The court must comprehend exact role of the

accused. Frivolity in prosecution case should always be

considered, and, it is the element of genuineness that shall

have to be considered in matter of bail. In the case of

Gurubaksh Sibbia Versus State of Punjab 2, it is observed

that A person who has yet to lose his freedom by being

arrested asks for freedom in the event of arrest. That is the

stage at which it is imperative to protect his freedom, in so

far as one may and to give full play to presumption that he

is innocent. If malafde shown, anticipatory bail should be

granted in the generality of the cases.

(xix) Dispute is of civil nature. Custodial interrogation is not

necessary. The applicant has cooperated in investigation. He

has attended investigating oficer.

(xx) Learned counsel relied upon the documents annexed to the

application as well as the compilation of additional

documents, in support of his submission. He also tendered

written submissions.

2 (1980) 2 SCC 565

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9 Learned senior advocate Mr.Mundargi appeared for

the applicant in Anticipatory Bail Application No.935 of 2020

(Sukesh Gupta). The contentions of said applicant are as follws:

(a) The applicant has been falsely implicated.

(b) NIPL was to repay due amount of Rs.96.8 crores to

M/s.Aashi Realtors within stipulated time i.e. 31st March,

2014. Complainant failed to comply with its obligation to

repay the due amount to M/s.Aashi Realtors and to avoid

liability, and, usurp the property, registered the FIR.

of complainant to repay the amount, the property Nazri

Baug was to be transferred to M/s.Aashi Realtors.

(d) M/s.Aashi Realtors is a partnership frm. It is in business of

real estate development and investments. In 2010, the

directors of complainant Mr.Gopal Biyani and Sunil Biyani

approached M/s.Aashi to avail fnance to purchase the said

property. After series of discussions, representations and

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undertaking made by directors of complainant, to secure

fnancial facilities Aashi agreed to provide fnancial

assistance. The complainant executed agreement on 26 th

November, 2010, reducing the terms of repayment and

rights of Aashi in the event of non payment of facility by 31st

March, 2014, or the period of extension granted by Aashi.

(e) M/s.Aashi undertook to pay consideration of Rs.48 crores

for the property directly to the Trust with complainant

promising to consider Rs.48 crores to be loan payable to

Aashi from the date of execution of sale deed at the rate of

interest of 24 % per annum, compounded on the monthly

compoundable basis with term loan to be repaid by 31 st

March,2014 failing which the property was to vest with

Aashi without any encumbrances.

(f) Applicant Sukesh Gupta was given special power of

attorney by the trust for registration of the same as

payment was being made by Aashi and being considered as

loan to complainant. Aashi advanced the amounts for

conveyance of said property in the name of NIPL and got

the said sale deed executed on 30th May, 2011. The sale

deed was registered through the applicant Sukesh Gupta.

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(g) Complainant was unable to repay the due amount of

Rs.96.08 crores to Aashi within stipulated time, and, at

their request, extension agreement was executed on 10 th

April, 2014, extending period of repayment by end of 31 st

March, 2016. Inspite of extension, the complainant could

not arrange amount agreed to re-convey the schedule

property to Aashi as per clause 21 of the agreement dated

26th November, 2010. Amount of Rs.160 crores was due on

9th April, 2016 from the complainant.

(h) Mr.Rajesh Agarwal, Mr.Navin Agarwal and Mr.Dilip Agarwal

contacted applicant Sukesh Gupta. They falsely alarmed

him about raid of Directorate of Enforcement and Income

Tax and advised him to get shareholding of Mr.Sunil Biyani

and Gopikishan Biyani transferred. Vide share purchase

agreement dated 19th October, 2016, M/s.Agrawal Reality

purchased 100 % shares of the complainant, which were

earlier held by Mr.Sunil Biyani and Mr.Gopikishan Biyani.

The shares were brought for Rs.1 lakh. The property was

not even considered for purpose of valuing the shares of

complainant. The complainant is trying to usurp and claim

the property wroth Rs.300 crores. On 28th January, 2019,

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M/s.Aashi as consenting party authorised Mr.V.V.Sai to

execute sale deed alongwith complainant in favour of

M/s.IRIS Hospitality Pvt. Ltd. IRIS was aware of the amount

payable by NIPL to Aashi, expressed its interest to

purchase the schedule property. The sale was done to IRIS

as Aashi's nominee in terms of loan agreement. As per loan

agreement and subsequent agreement, the board of NIPL

vide resolution dated 24th January, 2019, authorized

Mr.Mohammad Usman (accused no.3) for completing the

registration of the sale deed of the said property, as per the

terms of loan agreement. The extract of the minutes of

meeting was signed by Mr.C.S. Ravindran. On 28 th January,

2019, the sale deed was signed between complainant, Aashi

and M/s.IRIS Hospitality handing over physical possession

and original of documents to the vendee.

(i) M/s.IRIS Hospitality had no fnancial capacity to purchase

property and M/s.Aashi exercised its right under agreement

dated 26th November, 2010, and got the property conveyed

in the name of its nominee M/s.IRIS Hospitality. Sale deed

was executed in favour of nominee of Aashi i.e. IRIS on 28 th

January, 2019, and, registered at Joint Sub-registrar

Hyderabad.

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(j) The complainant passed resolution dated 13th February,

2019, illegally removing Mr.Suresh Kumar and

Mr.Ravindran, as directors of the complainant.

(k) On 13th December, 2019, the applicant, Sukesh Gupta fled

a complaint with EOW against Mr.Rajesh Agarwal, Mr.Dilip

Agarwal, NIPL and M/s.Agarwal Reality Developers.

(l) The loan amount has escalated to Rs.3,45,14,27,983/- with

interest.

(m) M/s.Aashi had fled a suit against IRIS and complainant

before the Civil Court at Hyderabad, declaring them as

owner of the property, to declare sale deed dated 28 th

January, 2019, as null and void. By order dated 2 nd

September, 2020, the civil Court granted ad-interim

injunction against NIPL from alienating the property.

(n) A private complaint was fled in the Court at Hyderabad and

FIR has been registered against complainant and its

directors vide direction under Section 156(3) of Cr.P.C., for

ofences punishable under Sections 387, 406, 420, 467,

468, 471 read with 120 B of IPC.

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(o) Custodial interrogation of the applicant is not necessary.

The dispute relates to documents. The applicant has co-

operated with the investigation. The FIR do not constitute

any ofences under Sections 406, 420, 467, 468, 471 and

120-B of IPC.

10 Mr.Girish Kulkarni, learned counsel for the applicant

in anticipatory bail application no.936 of 2020, submitted that

the FIR is registered with malafde intention. The applicant has

acted in accordance with the resolution. The applicant was

authorised to sell the property. The documents on record show

that the complainant was to repay the amount to Aashi within

stipulated time. The applicant is not concerned with fabrication

of documents. The applicant is not concerned with the internal

disputes between the complainant and the co-accused. As per the

loan agreement and subsequent agreements, complainant vide

resolution dated 24th January, 2019, authorized the applicant to

complete registration of sale deed of the property as per the

terms of loan agreement. The extract of minutes of the said

meeting was signed by Mr.Ravindran. The sale deed was signed

between complainant, in capacity as vendor and Aashi, as

consenting party and M/s.IRIS Hospitality, as vendee, handing

over possession and original documents to the vendor. Civil

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proceedings are also initiated in respect to the dispute. Custodial

interrogation of the applicant is not necessary. The applicant has

cooperated with investigation oficer.

11 Learned APP submitted that the accused/applicants

are involved in fabrication of documents. False resolution was

prepared. By using the said resolution, the property was

transferred. The accused, who were removed as director of

complainant company had acted in connivance with co-accused.

During the course of investigation, accused C.S. Ravindran was

arrested. The board resolution dated 26th January, 2019, was

allegedly signed by the said accused. During investigation, it was

revealed that from 17th January, 2019 to 26th January, 2019, he

was in Hong-Kong and Vietnam. Thus, it is crystal clear that the

resolution dated 24th January, 2019, is forged. The statement of

Rajesh Kumar Mallur, the company secretary shows that the

resolution is forged as it is not signed by the directors. The seal

on the resolution is also false. The resolution for transfer of loan

is to be passed in annual general meeting and not in the meeting

of board of directors. No such meeting had taken place. The

minutes of the meeting are forged. During interrogation, the

arrested accused has disclosed that he had signed resolution on

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18th May, 2019, on the say of accused Sukesh Gupta. The E-mail

in respect of receipt of resolution showing it to be received on

18th May, 2019, by C.S. Ravindran is seized. The call details of

C.S. Ravindran and the WhatsApp record shows that Sukesh

Gupta had informed C.S. Ravindran on 18 th May, 2019 that the

disputed resolution dated 24th January, 2019, would be sent by P.

Suresh Kumar by E-mail, and, he was asked to sign the same and

sent it back to Sukesh Gupta. Hence, the resolution is forged.

Prima facie, there is material against accused. Investigation is to

be carried out as to where the resolution was prepared. The

amount of Rs.16,25,00,000/-, is lying in the bank account of

M/s.Aashi Realtors. The value of the plot is Rs.300 crores.

Amount of Rs.16,25,00,000/-, is transferred in the account of

M/s.Aashi Realtors by M/s.IRIS Hospitality Private Limited. The

transfer of remaining amount is to be investigated. The original

documents are to be recovered. Learned APP relied upon the

afidavit fled by the Assistant Police Inspector attached to EOW,

opposing the application for anticipatory bail.

12 Learned senior advocate Mr.Vikram Nankani

appeared for the intervenor / respondent no.2. He relied upon

contents of the afidavit in reply fled by the complainant.

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Reliance is placed on the documents annexed to afidavit-in-

reply. The submissions of learned counsel for the complainant

can be summarised as under:

(a) The case of the accused hinges on the alleged ground that

the respondent no.2 had failed to repay the amount of Rs.48

crores alongwith monthly compoundable interest at the rate

of 24% per annum under the purported loan agreement

dated 26th November, 2010, agreement dated 10 th April,

2014 and another agreement dated 10 th April, 2014, and,

that Nazari Baug Palace was vested in M/s.Aashi Realtors

by operation of the alleged loan agreements and Aashi sold

the property to IRIS Hospitality Pvt. Ltd. The alleged

ground on which the applicant seeks to justify criminal

action of forging and fabricating documents and

fraudulently and wrongly transferred the property of

complainant to IRIS is belied by the fact that the entire

amount had been repaid by respondent no.2 to Aashi and

other companies of the applicant Sukesh Gupta, on his

instructions, which fact is suppressed by him to mislead this

Court. Reliance is placed on ledger account of Aashi in the

books of respondent no.2 along with bank statement

refecting payment to Aashi and other companies.

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(b) The accused have suppressed vital facts from this Court. It

is suppressed that post acquisition of the entire

shareholding of the complainant by Agarwal Reality

Developer Private Limited in October 2016, Agarwal reality

through IIFL Wealth Finance Limited and Saibaba

Investment and Finance Private Limited infused an amount

of Rs.49,99,00,000/- into respondent no.2. In addition,

Splash Zone Entertainment Private Limited and Saibaba

Investments on the request of Agarwal Reality, paid amount

of Rs.6,91,39,289/- and Rs.3,53,28,950/- towards payment

of stamp duty in respect of the property. Thus, aggregate

amount of Rs.60,43,68,239/- was infused into respondent

no.2 post acquisition of entire share holding of respondent

no.2 by Agarwal Reality.

Reality, despite payment of part amount to the Trust, the

sale deed dated 30th May, 2011, was not registered and the

property was not refecting in name of respondent no.2/

complainant in the records of Sub-registrar of Hyderabad.

The sale deed dated 30th May, 2011, was registered on 14th

May, 2018, post payment of stamp duty, transfer duty,

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registration fees and other charges by respondent no.2

from the amount infused by Agarwal Reality.

(d) The accused have suppressed that against the amount of

Rs.48 crores, Aashi had actually paid Rs.37 crores to Nazri

Baug Palace Trust on behalf of complainant, which amount

has been repaid by complainant to Aashi. The ledger

account of Aashi in the books of respondent no.2 and the

bank statements of respondent no.2 refect that the entire

amount had been repaid to Aashi and other companies of

Sukesh Gupta.

(e) The fact that Aashi had paid Rs.37 crores and defaulted

payment of Rs.11 crores is substantiated by statement of

Kishor Laxman Joshi recorded by investigating oficer

during investigation. He has stated that as per the sale

deed dated 30th May, 2011, the Trust was entitled to receive

amount of Rs.48 crores as consideration. The trust has

received only Rs.37 crores from Aashi and Rs.11 crores is

due from respondent no.2. Since Aashi failed to pay the

entire consideration of Rs.48 crores to the trust, under the

sale deed, the trust refused to part with physical possession

of property to respondent no.2. the property is in physical

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possession of Trust.

(f) Accused have suppressed that Aashi has received Rs.16.25

crores from M/s.IRIS Hospitality in respect of the property,

which has market value of Rs.300 crores. This fact is

suppressed as the same belies the case of the accused.

Since respondent no.2 failed to return the amount to Aashi,

they had exercised its right under alleged loan agreement

and conveyed the property to IRIS to set of alleged

outstanding amount. The fact that Aashi has received an

amount of Rs.16.25 crores from IRIS has been disclosed by

the investigating oficer in his reply fled before the

Sessions Court.

(g) The accused have suppressed the fact that Mohammad

Zakir Usman who is one of the co-accused who is neither a

director nor employee of respondent no.2 was paid an

amount of Rs.1 crores on 20 th May, 2019, just one day prior

to date of presentation of the forged and fabricated sale

deed before the Sub-registrar of Hyderabad. It would be

safe to assume that Mohammad Usman was paid an amount

of Rs.1 crores for sole purpose of executing and registering

the fabricated sale deed in May 2019, whilst the said sale

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deed is said to be executed and registered on 28 th January,

2019. This is also refected in reply fled by Investigating

Oficer dated 18th November, 2019, before Sessions Court.

(h) The sale deed dated 30th May, 2011, was executed between

the Trust and respondent no.2 at a time when the applicant

Sukesh Gupta was in control of respondent no.2, and, had

even the sale deed registered as power of attorney holder

of the trust, does not make any reference to the loan

agreement dated 26th November, 2019, i.e. prior to

execution of sale deed dated 20th May, 2011.

(i) While entering into the share purchase agreement dated

19th October, 2016, Agarwal Reality was not informed about

loan agreement nor any reference to the same was made in

share purchase agreement. The loan agreements were not

forming part of the application for anticipatory bail fled

before the Sessions Court. The same were tendered

belatedly during the course of arguments. They were

surfaced for the frst time in Criminal Writ Petition No.2306

of 2020, preferred before this Court. The alleged loan

agreements were not forming part of bail application

preferred by co-accused C.S. Ravindran, before the

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Magistrate and Sessions Court. The agreement dated 10 th

April, 2014, in the nature of extension does not make any

reference to alleged loan agreement. The agreement was

signed by P. Suresh Kumar on behalf of respondent no.2 and

Sukesh Gupta. Whereas, the second agreement which

allegedly overrides the frst agreement is signed by Sunil

Biyani on behalf of respondent no.2 and Suresh Gupta. The

second agreement refers Mr.Sukesh Kumar as authorized

representative of respondent no.2. Despite the same, the

second agreement has been signed by Sunil Biyani on

behalf of respondent no.2 and not of P. Suresh Kumar, who

had signed the alleged agreement on the very same day.

There are various discrepancies in the said agreements.

The veracity of alleged loan agreements can be determined

in investigation. Even assuming that the said agreements

are genuine, even then the property could not stand vested

in the name of Aashi by operation of the alleged loan

agreements since entire amount was not advanced to

respondent no.2.

(j) The board resolution dated 24 th January, 2019 and sale deed

dated 28th January, 2019, are fabricated by the accused in

connivance with each other. The board resolution was

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signed by C.S. Ravindran on 18th May, 2019, when he

ceased to be director of respondent no.2 and not on 24 th

January,2019, as alleged. On 18th May, 2019, when

Mr.Ravindran was at Bangalore, he received an E-mail with

an attachment, extract of minutes of board of directors

meeting held on 24th January, 2019. E-mail was followed by

telephone calls from P. Suresh Kumar and Sukesh Gupta

requesting Mr.Ravindran to sign and send extract of

minutes of Board of Directors meeting held on 24 th January,

2019. Therefore the alleged board resolution has been

fabricated and signed by Mr.Ravindran on 18 th May, 2019,

as director of respondent no.2 when infact he ceased to be

director of respondent no.2 with efect from 13 th February,

2019.

(k) In the E-mail dated 21st October, 2019, addressed by

Mr.Ravindran to Investigating oficer, it is stated that on

18th May, 2019, he received an E-mail from Sane Ranu

under the advise of P. Suresh Kumar and Sukesh Gupta with

attached draft Board Resolution, requesting for his

signature and followed telephonic call from P. Suresh

Kumar and Sukesh Gupta requesting him to sign and send

back the board resolution immediately. He also stated that

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he received WhatsApp messages from P. Suresh Kumar and

Sukesh Gupta.

(l) Mr.Ravindran was not in India when the meeting of board

of directors allegedly took place on 24 th January, 2019. He

was at Hong-Kong/Vietnam from 17th January, 2019 to 26th

January, 2019. The stamps on his passport corroborates this

fact. This was refected in reply fled by investigating oficer

before Sessions Court.

(m) Section 174 of Companies Act mandates quorum of

minimum two directors for conducting meeting of board of

directors. In the present case, on 24 th January, 2019,

Mr.Ravindran was in Hong-Kong/Vietnam. Mr.P. Suresh

Kumar had contended in his application for anticipatory bail

that he was unavailable during the meeting held on 24 th

January, 2019, and, he had given his verbal consent for

Board Resolution. No other director was present for the

meeting dated 24th January, 2019. Thus, as to in whose

presence the meeting was held on 24 th January, 2019, is

moot question.

(n) The minutes book of respondent no.2 do not record the

meeting dated 24th January, 2019. The minutes book was

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shown during the investigation. Investigation revealed that,

accused have forged the seal and letterhead of respondent

no.2, and, not complied provisions of Companies Act.

(o) The sale deed has been executed in May 2019 and ante

dated to 28th January, 2019. This is substantiated by letter

dated 22nd August, 2019, addressed by Jt. Sub-registrar-I

Hyderabad, wherein he has categorically stated that the

bogus and fabricated sale deed bearing registration

no.1791 of 2019, was presented on 21 st May, 2019, before

the Sub-registrar-I for registration, and, thereafter, the

same was registered on 22nd May, 2019. The sale deed is

based on wrong and incorrect fact. Sukesh Gupta was

director of respondent no.2 from 1st April, 2012 to 1st

October, 2012. His wife was director from 1 st June, 2012 to

1st October, 2012.

(p) The accused have not cooperated with the investigation.

They have not attended the investigating oficer on several

occasion.

(q) Gopikishan Biyani and Sunil Biyani on instructions of

Sukesh Gupta transferred their shareholding in respondent

no.2 to Agarwal Reality. This is substantiated in complaint

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fled by Sukesh Gupta dated 13 th December, 2019. At

relevant point, Aashi and respondent no.2 were alter egos

of Sukesh Gupta. 27 cases are registered against him. The

respondent no.2 deny that property vested with Aashi and

as a result of which the entire shareholding of respondent

no.2 was acquired for Rs. 1 lakh only. The respondent no.2

was a debt ridden company. Upon acquisition, amount of

Rs.60,43,68,239/-, was infused in respondent no.2. From

this amount, respondent no.2 made payment ot Aashi, paid

stamp duty, transfer duty and registration fees in respect of

property and got sale deed dated 30th May, 2011, stamped

and registered.

(r) P. Suresh Kumar and C.S. Ravindran were legally removed

as directors of respondent no.2 as they failed to obtain the

qualifcation shares within prescribed time. This is evident

from Form No.DIR - 12 fled by respondent no.2 on 14 th

February, 2012.

13 Senior Advocate Mr.Rajeev Chavan, appearing for

respondent no.2 in anticipatory bail application no.936 of 2020,

has reiterated the submission of Shri Nankani. Apart from that he

submitted that the applicant Mohammad Usman was acting in

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connivance with the co-accused. He was not director of the

company. Huge amount was transferred into the account of the

said applicant. The evidence on record clearly shows that he was

acting in connivance with other accused. He relied upon the

afidavit-in-reply fled on behalf of the complainant opposing the

relief sought in the application for anticipatory bail. He relied

upon the decision of the Supreme Court in the case of

Mohammad Ibrahim and Others Versus State of Bihar and

Another3. In the said decision, it was observed that civil disputes

in some cases may also contain ingredients of criminal ofences.

Such disputes have to be entertained notwithstanding that they

are also civil disputes. The Apex Court has also dealt with the

existence of the ingredients which are required to constitute the

ofence under Sections 467 and 471 of IPC. It was observed that

the condition precedent for an ofence under sections 467 and

471, is forgery. The condition precedent for forgery is making

false documents.

14 Learned advocate Mr.Pranav Badheka has submitted

that role is attributed to the accused showing their complicity in

the crime. The role of Sukesh Gupta is that he is main

3 (2009) 8 SCC 751

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conspirator and benefciary. He appointed C.S. Ravindran and P.

Suresh Kumar, as his employees, and Mohammad Zakir Usman,

as his close associate and friend to execute forged documents.

He is the orchestrator of fraudulent transaction between

complainant Aashi Realtors and IRIS Hospitality, forged and

fabricated board resolution dated 24 th January, 2019, and sale

deed dated 28th January, 2019 were executed at his behest.

Applicant Suresh Kumar is the co-conspirator. He telephonically

instructed Mr.Ravindran to sign the forged and fabricated board

resolution dated 24th January, 2019 in May 2019. Mohammad

Usman is a co-conspirator. He was appointed as authorized

representative of complainant company to execute forged sale

deed dated 28th January, 2019. He executed sale deed dated 28 th

January, 2019, on behalf of complainant without authority.

Custodial interrogation of the accused is required since they

have forged and fabricated loan agreement dated 26 th November,

2010, loan agreement dated 10 th April, 2014, Board resolution

dated 24th January, 2019, sale deed dated 28th January, 2019.

Huge amount in cash have changed hands. Government records

have been manipulated. Several cases are registered against

Sukesh Gupta.

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15 From the FIR and all the documents placed for

consideration by both the parties, it is apparent that the main

issue involved in this FIR is that the resolution dated 24 th January,

2019, has been fabricated and that the sale deed in respect to the

subject property was executed. The contention of the applicants,

however, is that the dispute is of civil nature. The applicants have

relied upon the loan agreement. Shares were transferred for

meager amount, although, it was claimed that the value of the

property was 300 crores.

16 The contention of the complainant which is asserted

through the documents on record is that there is suppression of

vital facts by the applicant accused. There is strong evidence on

record to show that the resolution authorizing the co-accused to

execute transaction of transferring property, is forged. The loan

agreements are forged and the agreement for sale is also forged.

It is also contended that the loan agreements had surfaced at

belated stage and there is reason to believe that the same are

fabricated. The entire amount obtained through loan has been

repaid by respondent no.2 company. The investigation has

revealed that the resolution dated 24 th January, 2019, is false and

frivolous. The arrested accused has disclosed the involvement of

the applicants and revealed that the documents are false and

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fabricated. The applicants are trying to divert the issue by

submitting that it was a loan transaction or that the shares were

sold for meager amount etc. The prime question relating to

investigation of FIR is whether the board resolution dated 24 th

January, 2019, and, consequently the sale deed executed by the

accused are fabricated documents and by using them, the

property worth crores of rupees was transferred.

17 It is apparent that the board resolution was signed by

C.S. Ravindran. According to complainant, he ceased to be

director. He was not in India when the meeting of board of

directors was held on 24th January, 2019. The investigation

revealed that from 17th January, 2019 to 26th January, 2019, he

was in Hong-Kong/Vietnam. Apparently, minutes of respondent

no.2 do not record the meeting of board of directors dated 24 th

January, 2019. According to prosecution, the accused have forged

the seal and letterhead of complainant. Fabricated sale deed was

executed in May 2019, and, entry dated 28 th January, 2019. The

Joint Sub-registrar had forwarded letter dated 22 nd August, 2019,

stating that the sale deed bearing registration no.1791 of 2019,

was presented on 21st May, 2019, before the Sub-registrar-I for

registration, and, thereafter, the same was registered on

22nd May, 2019.

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18 The investigating oficer has placed on record by

flling afidavit-in-reply that C.S. Ravindran was arrested and his

custodial interrogation had revealed that during the period 17 th

January, 2019 to 26th January, 2019, he was in Hong-Kong and

Vietnam. The scrutiny of his passport corroborates this fact. Mr.

C.S. Ravindran who has allegedly signed the board resolution

dated 24th January, 2019, was not in India on 24th January, 2019.

The investigating oficer recorded statement of Rajesh Kumar

Vyankatesh Vallu Mallor, company secretary of the complainant.

He revealed that the alleged resolution is false and bogus for

various reasons, viz.

(i) As per Companies Act 2013, it is mandatory that all

company resolutions should bear signatures of atleast two

directors. The present resolution is signed by one director

Mr.Ravindran;

(ii) The company seal used to prepare resolution dated 24 th

January, 2019, is fake and forged;

(iii) The name of company on the resolution is mentioned as

Neeharika Infrastructures P. L., whereas, as per section 4

of Companies Act, 2013, it is mandatory that this name

should be Neeharika Infrastructure Private Limited;

(iv) Any Resolution regarding sale of the company property,

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have to be passed in Annual General Meeting. The present

Resolution is allegedly passed in the meeting of Board of

Directors.

(v) No Board meeting or any other type of meeting of the

company was held on that date.

19 The afidavit of EOW, further mentions that, during

the course of investigation Mr.Rajesh Kumar Mallor produced

minutes book of M/s.Neeharika Infrastructure Pvt. Ltd., and its

scrutiny revealed that there is no mention of alleged board

meeting or passing of any resolution on the said date. During

custodial interrogation of Mr.C.S. Ravindran, it is revealed that,

he has signed the alleged resolution dated 24 th January, 2019,

under instructions of applicant Sukesh Gupta. Mobile number of

Mr.Ravindran was seized and its scrutiny had revealed that

Sukesh Gupta had sent WhatsApp message to Mr.Ravidran on

18th May, 2019, stating that P. Suresh Kumar would be sending an

E-mail to him in respect of resolution of NIPL and he was asked

to sign the resolution and send it back. Draft of Resolution was

sent on WhatsApp to Mr.Ravindran. Thus, investigation has prima

facie revealed that, alleged forged back dated resolution is

prepared by accused on 18th May, 2019. On 21st October, 2019,

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Mr.Ravindran had sent E-mail from his E-mail ID which contains

attachment of E-mail which he had received from Mr.Sane Ramu

in respect of resolution. However, attachment was not accessible.

E-mail account was scrutinized to check the original mail

containing draft of said resolution sent by Mr.Sane Ramu to Mr.

Ravindran was not found. Prima facie there is reason to believe

that, Mr.C.S. Ravindaran has destroyed evidence. In the bail

application, Mr.Ravindran has admitted that on 18 th May, 2019,

he was at Bangalore, while he received an E-mail from Mr.Sane

Ramu with an attachment i.e. extract of minutes of Board of

Directors meeting held on 24th January, 2019. the E-mail was

followed by phone callas from Mr.P. Suresh Kumar and Mr.Sukesh

Gupta requesting him to sign and send extracts immediately.

During investigation, letter was received from T. Durga Palavi,

practicing company secretary, stating that, Mr.Mohammad Zakir

Usman was never a Director or employee of company, which

authorised him to sell the property of the company. Sukesh Gupta

and his wife are partners of Aashi Realtors. Investigation

revealed that, amount of Rs.16.25 crores was transferred from

account of IRIS hospitality to Aashi Realtors. On 20th May, 2019,

one day before registration of agreement, amount of Rs.1 crore

was transferred from said account to the account of Mohammad

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Zakir Usman. Mr.Ravindran, during interrogation has revealed

that the other accused had received consideration in cash. Sunil

Biyani admitted execution of loan agreement dated 26 th No

ember, 2010, extension agreement dated 10 th April, 2014 and

share purchase agreement dated 19th October, 2016. He stated

that, equity shares of NIPL were sold at face value to

M/s.Agarwal Reality since the property was 100% fnanced by

Aashi and there was interest burden which diluted value of

property. Statement of Kishor Joshi was recorded during

investigation. He is authorised signatory of Nazari Baug Palace

Trust to the sale deed dated 30 th May, 2011. He admitted

execution of sale deed and execution of General Power of

Attorney dated 30th May, 2011, in favour of Mr.Sukesh Gupta.

Trust was entitled to receive Rs.48 crores, as consideration.

Trust has received Rs.37 crores from Aashi Realtors. Rs.11

crores are due from Ashi Realtors. Statement of Mr.V. Ravinder,

Joint Sub-Registrar- I, R.O. Hyderabad was recorded. He revealed

that, the said agreement was produced in his ofice on 21 st may,

2019, as Document No. P - 63 / 2019 for scrutiny and was

registered on 22nd May, 2019, as Document No. 179 / 2019. The

discrepancy in presentation date was clerical error, which was

rectifed under orders of District Registrar, Hyderabad, dated 14 th

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August, 2019, wherein Registrar warned the staf to be more

careful and avoid such error. The oficer had communicated with

Jammu and Kashmir Bank, Srinagar branch and sought

information regarding original deed of sale dated 30 th May, 2011,

executed between Nazri Baug Palace Trust, represented by Sedef

Trustee Company Pvt. Ltd., through its director Mr.Kishor Joshi

and NIPL, and, original sale deed dated 28 th January, 2019,

executed between NIPL by Mohammad Zakir Usman on behalf of

NIPL and IRIS Hospitality. The bank had intimated that, IRIS

Hospitality has mortgaged original documents with it and availed

loan. In the suit fled by IRIS, the Court by order dated 16 th

November, 2019, directed the bank to maintain status-quo vis-a-

vis safe custody of documents. It is further stated that, custodial

interrogation of the accused and in depth investigation of crime

is required to unearth truth of preparation of forged Resolution

dated 24th January, 2019, and, to fnd out participation of other

persons. By order dated 18th December, 2020, the accused were

directed to appear before EOW from 5 th January, 2021 to 8 th

January, 2021, and, cooperate with investigation. They have

failed to abide by the order of this Court.

20 The prosecution case is that the accused in

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connivance with each other, fabricated the board resolution with

an intention to usurp property. The prosecution relied on

following circumstances:

(i) The alleged Board Resolution was signed by C.S. Ravindran

on 18th May, 2019, when he ceased to be director of

Respondent No.2 and not on 24th January, 2019 as alleged.

(ii) On 18th May, 2019, when C.S. Ravindran was in Bangalore,

he received an email from Sane Ramu with an attachment

named 'Extract of Minutes of Board of Directors meeting

held on 24th January, 2019. This email was followed by

telephone calls from P. Suresh Kumar and Sukesh Gupta

requesting Mr.C.S. Ravindran to sign and send the 'Extract

of Minutes of Board of Directors meeting held on 24th

January, 2019 immediately.

(iii) The fact that Mr.C.S. Ravindran forged and fabricated the

alleged Board Resolution on 18th May, 2019 is substantiated

from the averments made by C.S. Ravindran in his Bail

Application No. 282 of 2019 fled before the Learned

Magistrate Court, Mumbai and Bail Application No. 2985 of

2019 fled before the Honb'le Sessions Court, Mumbai,

wherein C.S. Ravindran clearly admits to the fact he signed

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the alleged Board Resolution on 18th May, 2019 on the

instructions of P. Sureshkumar and Sukesh Gupta.

(iv) In the email dated 21st October, 2019 addressed by C.S.

Ravindran to the Investigation Oficer, C.S. Ravindran

reiterated that on 18th May, 2019, when he was in

Bangalore, he received an email from Sane Ramu under

the advice of P. Sureshkumar and the applicant with an

attached drafted board resolution requesting for his

signatures and followed telephone calls from P. Suresh

Kumar and Suresh Gupta requesting Mr.C.S. Ravindran to

sign and send board resolution immediately.

(v) C.S. Ravindran was not in India when the alleged meeting

of the Board of Directors of Respondent No.2 purportedly

took place on 24th January, 2019. During the period starting

from 17th January, 2019 and ending on 26 th January, 2019

C.S. Ravindran was in Hong Kong/Vietnam. The stamps

forming part of his Passport No. Z3594792 corroborate

that, during the period starting from 17 th January, 2019 and

ending on 26th January, 2019, C.S. Ravindran was in Hong

Kong/Vietnam.

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(vi) Section 174 of the Companies Act, 2013 mandates the

quorum of minimum 2 directors for conducting a meeting

of the Board of Directors of a company. In the present case,

on 24th January, 2019 C.S. Ravindran was in Hong

Kong/Vietnam and P. Suresh kumar in his Anticipatory Bail

Application No.937 of 2020 fled before the Hon'ble Court

has averred that he was unavailable during the course of

the alleged meeting of the board of Directors of

Respondent No.2 purportedly held on 24th January, 2019

and that he had only given his verbal consent for the

alleged Board Resolution. No other director of Respondent

No.2 was present for this alleged meeting of the Board of

Directors of Respondent No.2 purportedly held on 24th

January, 2019.

(vii) The Minutes book of Respondent No.2 do not record the

alleged meeting of the Board of Directors of Respondent

No.2 taking place on 24th January, 2019. In fact, during the

course of investigation, the Investigation Oficer had seized

the Minutes book of Respondent No.2 when no record of

the alleged meeting of the Board of Directors of

Respondent No.2 purportedly taken place on 24th January,

2019 was found.

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(viii) The Investigation conducted so far has revealed that the

accused have forged the seal and letter head of

Respondent No.2 and not complied with several provisions

of the companies Act, 2013, in order to pass the alleged

Board Resolution and usurp the Property.

21 It is alleged that on the basis of forged and fabricated

Board Resolution, the accused caused the execution and

registration of alleged Sale Deed and wrongly transferred the

Property to its nominee IRIS in May, 2019 and thereafter, ante

dated bogus and fabricated Sale Deed, in order to show that the

same was purportedly executed on 28th January, 2019.

22 To buttress the allegation that the bogus and

fabricated Sale Deed has been executed in May, 2019 and ante

dated to 28th January, 2019 is substantiated by the letter bearing

No.300/RTI/Hyd/2018 dated 22nd August, 2019 addressed by the

Joint Sub-Registrar-I, R.O. (O.B.) Hyderabad, wherein he has

categorically stated that the bogus and fabricated Sale Deed

bearing registration No. 1791 of 2019 was presented on 21 st May,

2019 before the Sub-Registrar-I for registration and, thereafter,

the same was registered on 22nd May, 2019.

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23 According to complainant until such time that the

entire shareholding of Respondent No.2 was acquired by Agarwal

Reality, Respondent No.2 and Aashi were alter egos of Sukesh

Gupta. The same is evident from the following :

(i) In FIR No. 367 of 2019 dated 19 th September, 2019

registered at Worli Police Station, Mumbai and

subsequently transferred to Economic Ofice Wing, Unit IX,

Mumbai and numbered as C.R. No.82 of 2019 (FIR)

Respondent No.2 has stated that, at the relevant time,

Aashi was a sister company of Respondent No.2.

(ii) The fact that the Trust gave a Power of Attorney to

Mr.Sukesh Gupta, on its behalf to register the Sale Deed

dated 30th May, 2011.

(iii) Mr.Sukesh Gupta was a director of Respondent No.2 during

the period starting from 1st April, 2012 and ending on 1 st

October, 2012.

(iv) The wife of Sukesh Gupta was a director of Respondent

No.2 during the period starting from 1st June, 2012 and

ending on 1st October, 2012.

(v) The fact that Gopalkrishnan Biyani and Sunil Biyani on the

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instructions of Mr.Sukesh Gupta transferred their entire

shareholding in Respondent No.2 to Agarwal Reality. The

same is substantiated by the Complaint dated 13 th

December, 2019 fled by Sukesh Gupta.

(vi) The above mentioned statement of Sukesh Gupta in the

complaint dated 13th December, 2019, even substantiates

and corroborates the fact that, since, at the time of

acquisition, Respondent No.2 was a debt ridden company

having huge liabilities, the entire shareholding of

Respondent No.2 was acquired by Agarwal Reality for an

amount of Rs.1,00,000/-.

(vii) Mr.Sukesh Gupta is a habitual ofender. The present FIR is

not the only criminal case registered against him. A total of

27 criminal cases are registered against him.

24 Thus, apart from the FIR and the documents placed

for consideration by the complainant, the investigation conducted

by the oficer has prima facie disclosed the complicity of the

applicants in the crime. The afidavit-in-reply fled by

investigating agency prima facie disclosed involvement of

applicants. The investigation indicate that the documents are

false and fabricated. It is the creation of the accused. In the light

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of the facts, as stated above, custodial interrogation of the

applicants is necessary. They are not entitled for relief under

Section 438 for Cr.P.C. Hence, the applications deserves to be

rejected.

25 Hence, I pass the following order:

:: O R D E R :

(i) Anticipatory Bail Application Nos.935 of 2020, 936 of 2020 and 937 of 2020, stand rejected;

(ii) All interim applications stand disposed of.

(PRAKASH D. NAIK, J.) At this stage learned counsel for the applicants submit that the applicants were on interim protection for a long period of time and to enable them to challenge this order before the Apex Court, interim protection granted by this Court may be extended by a period of four weeks. This submission is objected by learned APP as well as by learned counsel for the complainant. Since the applicants propose to approach the Apex Court, interim protection shall continue for a period of four weeks from today.

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