Madhya Pradesh High Court
Dilip Sisodia vs The State Of Madhya Pradesh on 21 October, 2021
Author: Vivek Rusia
Bench: Vivek Rusia
-1- MCRC No.47156/21, MCRC No.47147/21, MCRC No.41496/21, MCRC
No.41603/21, MCRC No.45934/21 & MCRC No.45941/21,
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
SINGLE BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA
MCRC NO.47156/2021
Dilip Sisodiya s/o Late Shri
Anandilal Jain, Age 53 years,
occupation -Business
R/o 15/2, Girdhar Nagar,
Indore (M.P)
vs.
State of M.P Through
PS Khajrana, District
Indore M.P
Shri Vishal Baheti, learned counsel for the applicant.
Shri Aditya Garg, learned Government Advocate for the State.
MCRC NO.47147/2021
Dilip Sisodiya s/o Late Shri
Anandilal Jain, Age 53 years,
occupation -Business
R/o 15/2, Girdhar Nagar,
Indore (M.P)
vs.
State of M.P Through
PS Khajrana, District
Indore M.P
Shri Vishal Baheti, learned counsel for the applicant.
Shri Aditya Garg, learned Government Advocate for the State.
---------------------------------
MCRC No.41496/2021
Deepesh Kumar Vohra (Jain) s/o Shri
Mahindra Kumar Jain
Age- 45 years, occupation- Business
R/o 201-202, Rohan Residency,
Kanadia Road, Indore M.P
vs.
State of Madhya Pradesh
Through PS Khajrana
District Indore M.P
Shri V.K.Jain, learned Senior Counsel with Shri Atul Gupta for the
applicant.
Shri Aditya Garg, learned Government Advocate for the State.
-2- MCRC No.47156/21, MCRC No.47147/21, MCRC No.41496/21, MCRC
No.41603/21, MCRC No.45934/21 & MCRC No.45941/21,
MCRC No.41603/2021
Deepesh Kumar Vohra (Jain) s/o Shri
Mahindra Kumar Jain
Age- 45 years, occupation- Business
R/o 201-202, Rohan Residency,
Kanadia Road, Indore M.P
vs.
State of Madhya Pradesh
Through PS Khajrana
District Indore M.P
Shri V.K.Jain, learned Senior Counsel with Shri Atul Gupta for the
applicant.
Shri Aditya Garg, learned Government Advocate for the State.
----------------------------------------
MCRC No.45934/2021
Omprakash s/o Lt. Radhamalji Dhanwani
Age 55 years, Occupation Business
R/o 91 Gumasta Nagar, Indore M.P
vs.
State of M.P through
Police Station Khajrana Indore M.P
Shri Vinay Saraf, learned Senior Counsel with Shri Ravindra Pal for
the applicant.
Shri Aditya Garg, learned Government Advocate for the State.
MCRC No.45941/2021
Omprakash s/o Lt. Radhamalji Dhanwani
Age 55 years, Occupation Business
R/o 91 Gumasta Nagar, Indore M.P
vs.
State of M.P through
Police Station Khajrana Indore M.P
Shri Vinay Saraf, learned Senior Counsel with Shri Ravindra Pal for
the applicant.
Shri Aditya Garg, learned Government Advocate for the State.
----------------------------------
ORDER
(Passed on 21.10.2021) MCRC NO.47156/2021 (Dilip Sisodiya Versus State of M.P. ) This is the first application filed under section 438 Cr.P.C. seeking anticipatory bail as the applicant apprehends his arrest in
-3- MCRC No.47156/21, MCRC No.47147/21, MCRC No.41496/21, MCRC No.41603/21, MCRC No.45934/21 & MCRC No.45941/21, connection with crime no.161/2021 registered at police station Khajrana, district Indore for the offence punishable under sections 406, 420, 467, 468, 471 & 120-B of the IPC.
MCRC NO.47147/2021 (Dilip Sisodiya Versus State of M.P. ) This is the first application filed under section 438 Cr.P.C seeking anticipatory bail as the applicant apprehends his arrest in connection with crime no.159/2021 registered at police station Khajrana, district Indore for the offence punishable under sections 406, 420, 467, 468, 471 & 120-B of the IPC.
---------------------------
MCRC No.41496/2021(Deepesh Kumar Vohra (Jain) Versus State of M.P. ) This is the first application filed under section 439 Cr.P.C seeking bail in connection with crime no.159/2021 registered at police station Khajrana, district Indore for the offence punishable under sections 467, 468 & 471 of the IPC.
MCRC No.41603/2021(Deepesh Kumar Vohra (Jain) Versus State of M.P. ) This is the first application filed under section 439 Cr.P.C seeking bail in connection with crime no.161/2021 registered at police station Khajrana, district Indore for the offence punishable under sections 420, 467, 468, 471 & 120-B of the IPC.
--------------------------
MCRC No.45934/2021(Omprakash Dhanwani Versus State of M.P. ) This is the first application filed under section 439 Cr.P.C seeking bail in connection with crime no.159/2021 registered at police station Khajrana, district Indore for the offence punishable under section 406, 420, 467, 468, 471 & 120-B of the IPC.
MCRC No.45941/2021(Omprakash Dhanwani Versus State of M.P. )
-4- MCRC No.47156/21, MCRC No.47147/21, MCRC No.41496/21, MCRC No.41603/21, MCRC No.45934/21 & MCRC No.45941/21, This is the first application filed under section 439 Cr.P.C seeking bail in connection with crime no.161/2021 registered at police station Khajrana, district Indore for the offence punishable under sections 406, 420, 467, 468, 471 & 120-B of the IPC.
Facts of all the above cases are identical and arise out of the same criminal numbers (two FIRs), hence all the M.Cr.Cs. are being decided by a common order.
2. As per the prosecution story, the Collector, Indore received various complaints from the plot owners or prospective purchasers of plots of Pushp Vihar Colony developed by Mazdoor Panchayat Grih Nirman Sahkari Sanstha Maryadit, Indore (for short 'the society'). The said complaints were forwarded to the SDM for taking appropriate action. After conducting a preliminary enquiry, the SDM Shri Akshay Singh Markam, Sub-Division Kanadia, district Indore submitted a written application on 17.2.2021 in the police station Khajrana against (i) Deepak Jain @ Dilip Sisodiya @ Deepak Madda,
(ii) Omprakash Dhanwani, (iii) Deepesh Kumar Vora, Kamlesh Jain,
(iv)Nasim Hyder (v) Omprakash Dhanwani (vi) Keshav Nachani alleging that they hatched a criminal conspiracy and entered into the sale of land belonging to the society which had already been allotted to the members of the society. The said complaint has been registered as Crime No.159/2021 u/s 406, 420, 467, 468, 471 & 120-B of the IPC. Shri D.Devrajan s/o Dharmarajan has also submitted a written complaint dated 17.2.2021 which led to the registration of crime no.161/2021 in the police station Khajrana under aforesaid sections. In sum and substance, the allegations of both the complaints are identical against all the accused persons.
The investigation has revealed that in the year 1990 the society in the name of Mazdoor Panchayat Grih Nirman Sahkari Sanstha Maryadit, Indore developed the residential colony in the name of Pushp Vihar Colony after obtaining approval and permission from various authorities and local boby. The society had reserved various plots with the Indore Municipal Corporation to be released after
-5- MCRC No.47156/21, MCRC No.47147/21, MCRC No.41496/21, MCRC No.41603/21, MCRC No.45934/21 & MCRC No.45941/21, completion of development work. In the year 2005-06 Deepak Jain s/o Mahendra Kumar Jain and Kamlesh Jain were holding the post of President and Vice President respectively. A so-called forged resolution dated 24.11.2005 was passed authorizing Deepak Jain President, Kamlesh Jain Vice President and Dharasingh Director to operate the bank account. Another resolution was passed by the aforesaid 3 members on 12.4.2006 authorizing Nazeem Hyder s/o Illiyas Hyder, Manager of the society and Manish Prem Singh Pawar, Asst. Manager to operate the bank account jointly. Vide letter dated 12.4.2006 the President and Vice President had informed the bank about authorization of Nazeem Hyder and Manish Pawar for the operation of the current account no.57064 in Nanda Nagar Sahkari Sanstha Maryadit Indore.
3. Vide registered sale deed dated 31.3.2006 Nazeem Hyder has sold the land belonging to the society bearing survey no.92/2, 92/3, 92/4, 92/5, 92/6 and 93, area 1.013 hectare (1013316 sq. mtr.) as one crop un-irrigated agricultural land to Omprakash Dhanwani for a total sale consideration of Rs.2 crores. The sale consideration was paid by four cheques of Rs.50-50 lakhs each in the name of the society. The said cheques were deposited in the Nanda Nagar Sahakari Sanstha by Nazeem Hyder. It is the case of the prosecution that the aforesaid account was opened by all the accused persons hatching a criminal conspiracy in order to sell the aforesaid land illegally. The investigation has further revealed that out of Rs.2 crores only a cheque No.482664 of Rs.50 lakhs was credited in account no.57064 and payment of the remaining cheques was stopped by the purchaser and the remaining amount of Rs.1.5 crores was given to Deepak Jain in cash. Out of Rs.50 lakhs, an amount of Rs.30 lakhs was transferred to the account of Dilip Sisodiya (Dilip Madda) on 22.3.2006 vide cheque no.086065 and Rs.24 lakhs vide cheque no.086066 dated 27.3.2006 in his City Bank account. Another sale deed was also executed in a similar manner with Keshav Nachani. None of the sale transaction amount was received by the society.
-6- MCRC No.47156/21, MCRC No.47147/21, MCRC No.41496/21, MCRC No.41603/21, MCRC No.45934/21 & MCRC No.45941/21, It is the case of the prosecution that Dilip Siodiya (Dilip Madda) is a known property dealer in Indore city who has managed all aforesaid transactions and caused loss to the society and cheated the plot owners / the complainants. He is involved in similar types of transactions in other housing societies by using three different names i.e. Deepak Jain @ Dilip Sisodiya @ Deepak Madda. The Investigation officer has received information from the Deputy Commissioner, Cooperative, Indore in respect of the list of office bearers since 2011, audit report of 2004-05 to 2007-08 and information about the land and plots. The Investigating Officer has obtained information from Indore Municipal Corporation about the status of the development and reserved plots. Vide letter dated 1.4.2021 the Deputy Commissioner, Colony Cell has informed the Investigation officer that vide order dated 29.12.1988 a permission was granted to develop a colony over the land Halka No.16 (new No.36), Gram Khajrana and various plots were reserved till the completion of the development. Vide order dated 27.6.1996, 125 plots were released by issuing a NOC. Plot No.1 to 6, 13 to 24, 77 to 86, 11 to 16, 200 to 213 and 216 to 273, in total 106 were continued to be reserved and these plots cannot be sold without permission from the competent authority. The sale deeds have been executed by the society without release, hence offence under section 420 IPC has been committed.
4. During the investigation, the police has arrested Keshav Nachani on 17.3.2021, Naseem Hyder on 19.3.2021, Om Prakash Dhanwani on 23.6.2021, Deepesh Vora on 21.6.2021 & Kamlesh Jain on 9.8.2021 except Deepak Jain @ Dilip Sisodiya @ Deepak Madda. The police have recorded the statements of various complainants who purchased the plots either directly from the society or the existing members by way of second and third sales. Later on, they came to know that the land had already been sold to Omprakash Dhanwani and Keshav Nachani by these accused persons. The police have recorded the statement of Sanjay, director of M/s Mohraj Infrastructure with whom Dilip Sisodiya, Omprakash Dhanwani and Keshav Nachani
-7- MCRC No.47156/21, MCRC No.47147/21, MCRC No.41496/21, MCRC No.41603/21, MCRC No.45934/21 & MCRC No.45941/21, entered into an agreement to sell 10780 sq. ft. shopping area within the Pushp Vihar colony. The police have also recorded the statement of others who were sold the plots by these accused of the same land which had already been illegally sold to Omprakash Dhanwani and Keshav Nachani. The charge sheet was filed on 17.5.2021. Thereafter a supplementary charge sheet has also been filed. The investigation is open u/s 173(8) of the Cr.p.C against Deepak Madda.
5. Shri Vinay Saraf, learned Senior Counsel appearing on behalf of Omprakash Dhwanwani (MCRC No.45934/21 & MCRC No.45941/21) submits that the applicant himself is a victim of the fraud committed by the President, Vice President and Manager of the society by executing the sale deed dated 24.06.2006. He paid the entire sale consideration and the FIR (crime no.119/19) had already been registered against him in the year 2019 in which Nasim Haider has been granted bail. A civil suit has also been filed in respect of the cancellation of the sale deed. He is in custody since 23.06.2021. This court has rejected the bail of Keshav Nachani (MCRC No.36906/2021) mainly on the ground that he has taken a loan of Rs.7.5 crores over the said land but there is no such allegation against the applicant as he has paid the entire sale consideration. He was not aware of the internal affair of society. The Manager of the society was authorized to execute the sale deed. He paid the sale consideration by way of cheques in the name of the society. The investigation is complete and a charge sheet has been filed. No further custodial interrogation of the applicant is required in the matter. The allegations and contents of the charge sheet (crime no.119/19) and the present two charge sheets are identical, hence fresh two FIRs have wrongly been registered in order to victimize this applicant by keeping him in the custody. The SDM has no authority to lodge an FIR because the land belongs to the society and sold to a private person, hence the applicant may kindly be enlarged on bail.
6. Shri V.K.Jain, learned Senior Counsel appearing on behalf of applicant Deepesh Vohra (Jain) (MCRC No.41496/21 & MCRC
-8- MCRC No.47156/21, MCRC No.47147/21, MCRC No.41496/21, MCRC No.41603/21, MCRC No.45934/21 & MCRC No.45941/21, No.41603/21) submits that the applicant was elected as President on 18.11.2005 for the period of a five-year term and thereafter on 31.1.2007 he resigned from the post of President as well as a member of the society. Nazeem Haider was not appointed by the applicant as Manager. He filed the cancellation of bail of Nazeem Haider in crime no.119/19 which is still pending before this Court. In FIR number 119/19 the applicant has been arrayed as a witness by the police. The present two FIRs as well as the FIR No.119/2019 are identical about the same charges in respect of the sale of land vide registered sale deed-24.06.2006. It is further submitted that the SDM has no locus to lodge an FIR. No new material has been discovered for the registration of the FIRs. The prosecution had an option to seek permission from the Magistrate for filing of additional charge sheet in crime no.119/2019. This applicant could have been added as an accused in the pending trial by an order of the trial court. The dispute is purely civil in nature. By way of the last submission, it is urged by the learned senior counsel that the applicant is in jail since 21.6.2021. No further custodial interrogation of the applicant is required in the matter as the investigation is complete and a charge sheet has been filed.
7. Shri Baheti, learned counsel appearing for the applicant Dilip Sisodiya @ Madda (MCRC No.47156/21 & MCRC No.47147/21) submits that he has been made accused in this case because he is the brother of Deepesh Vohra (Jain) and Kamlesh Jain. He is neither a member nor he was office bearer at any point of time in society. He has been projected as a mastermind of the entire transaction. At a time six FIRs have been registered against him in respect of the land transaction in 3 different societies. He is being projected as land mafia of Indore city In other FIRs he has been granted anticipatory bail by this Court. He is neither the signatory of the sale deed nor received any amount from the purchasers OmPraksh Dhanwani and Keshav Nachani. He entered in to a sale transaction for his private land to the society for which amounts of Rs.30 lakhs and Rs.24 lakhs were paid to
-9- MCRC No.47156/21, MCRC No.47147/21, MCRC No.41496/21, MCRC No.41603/21, MCRC No.45934/21 & MCRC No.45941/21, him which he had returned to the society on 15.9.2006 as the deal was not finalized. The Manager of the society issued a receipt dated 20.9.2006. These account statements and receipts are part of the charge sheet and apart from that, there is no transaction between the applicant and the society. He is ready to cooperate with the investigation . On the basis of the oral evidence given by certain plot owners at the most the offence u/s 420 IPC is made out for which the law laid down by the Apex Court in the case of Arnesh Kumar vs. State of Bihar- (2014) 8 SCC 273 will apply, hence no arrest is mandatory.
8. Per contra Shri Aditya Garg, learned GA submits that the applicants are not entitled to bail as the dispute is pertaining to 89 plot owners who purchased the plots from their hard-earned money but they are unable to construct their houses because of the forgery and cheating committed by the applicants. The applicants along with co- accused hatched a conspiracy in order to sell the land of the society as agricultural land despite knowing that this land is within the sanctioned layout and the plots carved out in it had already been sold to its members. Nazim Haider was not authorized by the society to execute the sale deed but the then President and Vice President by way of forged resolution got opened the account in the Nanda Nagar Co- operative Bank, illegally authorized Nazim Haider to operate the account and sold the land of the society. Even the sale consideration was not paid fully. The Rs.50 lakhs which was credited in the Nanda Nagar Co-operative Bank is not an authorized bank account of the society. The said amount was later on withdrawn and utilized for purchasing other lands. Deepak Jain @ Dilip Sisodiya @ Deepak Madda is using his three names in other different societies in order to sell the land illegally. He is the mastermind behind all these land scams. Omprakash Dhanwani and Keshav Nachani are close relatives. Deepak Madda, President and Vice President of the society are all close relatives which they have admitted in their memorandum statement recorded under section 27 of the Evidence Act and they all have committed substantial loss to the society. The landowners have
-10- MCRC No.47156/21, MCRC No.47147/21, MCRC No.41496/21, MCRC No.41603/21, MCRC No.45934/21 & MCRC No.45941/21, categorically stated in their 161 statement that Deepak Madda received a cash amount from them despite knowing that the land had already been sold. The investigation is still open against Deepak Madda as he has not been arrested so far. If these applicants are released then they would influence the witness and tamper the evidence . In similar facts and circumstances, coordinate Bench of this Court has dismissed the bail applications like Nyay Nagar Extension Society in MCRC No.41117/21 (Sameer s/o Moosa vs. State of M.P), MCRC No.41139/21 (Sameer s/o Moosa vs. State of M.P), MCRC No.43302/21 (Rjesh s/o Makhan Singh vs. State of M.P), MCRC No.26138/21 (Mohammad Sabir vs. State of M.P), MCRC28995/21 (Imran vs. State of M.P), MCRC no.32337/21 (Imran vs. State of M.P), MCRC No.25899/21 (Manoj Nagar vs. State of M.P), hence prayed that the present bail applications may kindly be rejected at this stage.
Heard and perused the charge sheet.
9. The investigation has revealed that on 14.12.2005 Deepak Jain and Kamlesh Jain being the President and Vice President of the society ( in the years 2005-2006) had opened a new account in Nanda Nagar Co-operative Society (bank/financial institution) in the name of Mazdoor Panchayat Grih Nirman Sahkari Sanstha Maryadit, Indore by depositing Rs.2,500/-. Thereafter, on an application, current account No.57064 was opened. They being the President and Vice President authorized Nazim Haidar and Manish Singh Pawar to operate the account jointly in view of the decision taken by the Board of Directors in its meeting dated 12.4.2006. In the said meeting only President, Vice President and one of the Directors participated and authorized only any of the two for operating the bank account and thereafter they all three jointly authorized Nazim Haidar and Manish Pawar to operate the bank account on the same day i.e. 12.4.2006 and sent a letter dated 12.4.2006 to the Manager of the Nanda Nagar Co-operative Bank. As per the prosecution story, this account was illegally opened and only authorization was given to operate the bank account which has been
-11- MCRC No.47156/21, MCRC No.47147/21, MCRC No.41496/21, MCRC No.41603/21, MCRC No.45934/21 & MCRC No.45941/21, further delegated to Nazim Haidar and thereafter Nazim Haidar had sold the land in question to Omprakash Dhanwani and Keshav Nachani by two different registered sale deeds, therefore, prima facie there is enough material to establish the conspiracy between President, Vice President and the society Manager Nazim Haidar irrespective to the fact that the President has resigned later on. When the society did not authorize or pass a resolution to sell the land to Omprakash Dhanwani and Keshav Nachani then the entire sale would be illegal. Being a Secretary of the society he was very much aware that this land is a part of the sanctioned layout and 89 plots have already been carved out and sold/allotted to the members then in order to cheat the society the land has been mentioned as agricultural land and sold in hectares. Thereafter, Omprakash Dhanwani in the year 2008-09 has mortgaged this land with the Indusind bank and took a loan of Rs.8 crores. He has got seized the sale deed and loan documents from his office. Likewise, Keshav Nachani had also mortgaged the land with Allahabad bank and took the loan of Rs. 10 crores. Since he did not return the amount to the bank a proceeding before the DRT has been initiated. By virtue of mortgage another right of the bank has been created in the property in question which would further come in the way of giving possession to the plot owners of Pushp Vihar Colony, therefore, until and unless the applicants come up with a proposal to settle the dispute of the owners of the plots they are not entitled to bail. This court has denied bail to Keshav Nachani vide MCRC No.36906/2021 filed under section 439 of Cr.P.C.
10. So far the authority of Sub Divisional Magistrate in respect of registration of one FIR is concerned the FIR is liable to be registered on the information given to the police about the commission of cognizable offence irrespective of the source of information and locus of the informant. Even otherwise, another FIR is registered by some of the victims.
11. The local administration of Indore has taken the task to restore the right of genuine buyers over their property by removing dirt in the
-12- MCRC No.47156/21, MCRC No.47147/21, MCRC No.41496/21, MCRC No.41603/21, MCRC No.45934/21 & MCRC No.45941/21, mushroom growth of illegal colonies and illegal sales by way of cheating and forgery. Innocent persons have invested their hard money with a dream to construct a house and if these applicants are released on bail they would create a hurdle in it. All the applicants are related to each other and they are in hand-in-glove in hatching the criminal conspiracy to grab the land of the society to cheat the innocent public. Indore city has become a hub of illegal colonies. Land mafias are fearlessly cheating the innocent public by selling the land without title by way of forgery. Superintendent of Police and Collector of Indore are getting the number of complaints day by day. After registration of FIR, number of bail applications are coming to this court, which shows the magnitude of the crime in respect of the land transaction. If applicants are released on bail wrong message would go to the public and it would be an encouragement to the others who are still involved in these types of activities. Considering the magnitude of the case, the seriousness of the charges and involvement of the interest of a large number of persons, at this stage no case is made out for releasing them on bail.
12. The investigation is complete but the main accused Deepak Jain @ Dilip Sisodiya @ Deepak Madda has not been arrested. In view of the above discussion, without commenting on the merit of the case he is not entitled to bail under section 438 of Cr.P.C.
13. With the above observations, all the bail applications are rejected.
(VIVEK RUSIA)
Digitally signed by HARI JUDGE
KUMAR C G NAIR
hk/ Date: 2021.10.26 15:13:21
+05'30'