Delhi High Court - Orders
Ashish Bhalla vs State on 6 January, 2023
Author: Yogesh Khanna
Bench: Yogesh Khanna
$~19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 3487/2018
ASHISH BHALLA ..... Petitioner
Through: Mr.Mohit Mathur, Sr Advocate with
Ms.Nistha Gupta, Advocate.
versus
STATE ..... Respondent
Through: Ms.Nandita Rao, ASC, Mr.Amit
Peswani, Advocate and Inspector
Kamal Kishore, EOW for the State.
Mr.Arshdeep Khurana, Advocate for
complainant.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA
ORDER
% 06.01.2023 CRL.M.A. 27604/2022 and 326/2023
1. Exemption allowed, subject to all just exceptions.
2. The application(s) stand disposed of.
CRL.M.A. 27603/2022 and 325/2023
3. The learned senior counsel for petitioner / applicant has pointed out to the orders dated 14.01.2019 and 07.11.2019 in the captioned matter, which inter alia notes:-
Order dated 14.01.2019 The learned Senior Advocate for the petitioner seeks two more days to file a rejoinder. Let it be so done.
The learned Additional Standing Counsel for the State submits, upon instructions, that as of 31.12.2018, a Special Investigation Team (SIT) has been constituted for thorough investigation into the FIRs concerned. He further submits that the SIT is being supervised by the DCP of the Economic Offences Wing. It is headed by an ACP and Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:07.01.2023 15:19 comprises three other senior and experienced officers. A copy of the said order has been supplied to the learned Senior Advocate for the petitioner. He seeks time to obtain instructions.
Order dated 07.11.2019
3. The petitioners have filed the present petitions, inter alia, praying that the investigation in relation to FIR bearing nos. 64/2016, 114/2016 and 116/2016 be transferred to the Central Bureau of Investigation (CBI) or in the alternative, be transferred to any special investigating team. The principal challenge in the petitions is founded on the assertion that that there has been little progress in the investigation.
4. Mr Bhushan, learned counsel appearing for one of the petitioners has pointed out that a chargesheet was filed in the year 2017 and a statement was made that a supplementary chargesheet would be filed shortly after receipt of the forensic report. He points out that as on date, the supplementary chargesheet has not been filed. The filing of the supplementary chargesheet was delayed on account of conducting a forensic audit. He submits that the forensic audit has effectively been abandoned since the firm of auditors engaged to conduct the forensic audit was removed almost one year ago. Next, he submits that one of the accused is stated to be absconding. However, the complainant had provided CCTV Footage showing him in a public place.
5. It has also been submitted that although investigation has been done, the money trail has not been followed to the ultimate beneficiaries. Further one of the complainants (petitioner in W.P.(Crl.) 3715/2018) alleges that even though she is one of the complainants, she has been intimidated and is being treated as an accused. She claims that she has been threatened that she would be made involved in other complaints.
6. At this stage, this Court is not inclined to accede to the prayers of transferring the investigation to CBI. However, it cannot be disputed that the investigation must proceed expeditiously and in a manner which instils confidence in all concerned. In this regard, this Court had also sought assistance of the DCP, EOW.
7. Ms Versha Shanna, DCP, EOW, is present in Court and she handed over a list of twenty-three empanelled auditors that can be appointed to conduct the forensic audit. She also states that four firms out of the same, have the Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:07.01.2023 15:19 requisite experience for conducting a forensic audit. This includes M/s V. Malik and Associates. After arguments, it is accepted that M/s V. Malik and Associates shall be appointed as a forensic auditor to conduct the forensic audit.
8. It is further directed that auditors be appointed immediately and the audit be completed within a period of four months from today.
9. Insofar as the investigation is concerned, this Court directs that the same be conducted under the supervision of the DCP present (Ms. Versha Sharma). The same would also be under the overall supervision of the Additional Commissioner of Police, EOW.
10. Since the petitioners have also expressed little confidence in Inspector Dharmender and SI Harpal Madan, without going into the contentions in this regard, this Court considers it apposite to direct that both the said officers not be included in the investigation team. The concerned DCP (Ms Versha Sharma) shall form a team for conducting the investigation in consultation with the Additional Commissioner of Police, EOW.
11. The investigating team shall investigate all facets, including the utilisation of the funds received from the flat buyers.
12. The status report be filed, if necessary in a sealed cover, on or before the next date of hearing.
4. The aforesaid orders were further reiterated on 14.09.2021 to the following effect:-
1. Since besides the three FIRs against the petitioner, there are number of complaints which are pouring in inter-se the Investors, Promoters and Directors which according to learned Senior Counsel appearing for the petitioner are being investigated by different officers of Economic Offences Wing which ideally should be inquired into/investigated by the same set of officers as they know the entire background, the money trail etc., a complete and detailed status report will be filed under the signatures of the DCP who is over-seeing the SIT. The detailed status report will contain the entire sequence of events along with the material collected till date showing how the allegations against each of the accused is substantiated, who brought the investment in the company and against which of the Promoters, Directors allegations of siphoning of the funds Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:07.01.2023 15:19 has been substantiated.
2. Status report will also indicate as to why subsequent complaints interse the Promoters, Directors, Investors are being inquired into/investigated by other officers in the Economic Offences Wing thereby causing the investigation to spread to various officers. Detailed status report also indicating the stage at which the investigation and further investigation has culminated will be filed by the DCP concerned, before the next date of hearing.
5. It is argued despite above orders qua formation of SIT under the supervision of the DCP, yet another notice has been received by petitioner under Section 41A Cr PC to appear before one SI Nafe Singh, Section-VI, EOW and has been asked to explain the entire facts afresh, whereas for the last 3½ years the petitioner has been giving information to various Investigating Officers and this action is unnalled for.
6. The learned ASC appearing on advance notice submits SI Nafe Singh came into picture only on transfer of SI Ajay Kumar - who was an erstwhile member of the SIT and SI Nafe Singh continued with the investigation only for a period of two months and that too under supervision of the DCP. It is stated now Inspector Kamal Kishore is looking after the case in place of SI Ajay Kumar and has prepared draft charge sheet in FIR No.128/2018 which shall be filed shortly.
7. It is also pointed out by the learned ASC for the State all the FIRs No.64/2016, 114/2016, 116/2016 and 128/2018 are being investigated by the SIT under the supervision of the DCP.
8. As sought, a short affidavit in response to IA No.27603/2022 be filed by the State within two weeks from today with an advance copy thereof to the learned counsel for the petitioner.
9. Response to IA No.325/2023 be filed by the State before next date of hearing with an advance copy thereof to the learned counsel for petitioner.
Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:07.01.2023 15:1910. List both applications on date already fixed i.e. 27.02.2023. Order dasti.
YOGESH KHANNA, J.
JANUARY 06, 2023 M Signature Not Verified Digitally Signed By:PRADEEP SHARMA Signing Date:07.01.2023 15:19