CRM No.M-27362 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM No.M-27362 of 2008 Decided on : 09.08.2010 Darshan Singh ... Petitioner versus State of Punjab ... Respondent Present : Mr. Sanjay Kaushal, Advocate for the petitioner. Dr. Anmol Rattan Sidhu, Sr. Advocate with Mr. Vinay Arora, Advocate for the complainant. Mr. V.P.S.Sidhu, AAG, Punjab. **** S.S.SARON, J. This petition has been filed by the petitioner seeking pre arrest bail in case FIR No.143 registered against him on 30.09.2008 (Annexure P-1) for the offences under Sections 406/420 Indian Penal Code at Police Station Derabassi, Distt. SAS Nagar Mohali. The FIR (Annexure P-1) has been registered on the complaint of Manoj Jain, Director M/s Blue Sea Sites Pvt. Ltd. (complainant-company) against 13 accused including the petitioner- Darshan Singh, who is accused No.9 in the said complaint. It is alleged by Manoj Jain - complainant that the accused No.9 – Darshan Singh (petitioner) who is an ex-Director of the complainant-company entered into an agreement to sell dated 07.01.2006 with one Ajit Singh (accused No.8) who was holding general power of attorney on behalf of Gurdas Bansal (accused No.1), Lal Chand (accused No.2) and Nisha Bansal (accused No.3). The said agreement to sell was executed between Darshan Singh (petitioner) and Ajit Singh, attorney of CRM No.M-27362 of 2008 -2- accused Nos.1 to 3 in respect of land measuring 29 kanals 16 marlas and was for a consideration of Rs.15.50 crores. The sale deed in respect of the land was to be executed on or before 06.08.2006. It is alleged that Darshan Singh (petitioner) was earlier Director of M/s Blue Sea Sites Pvt. Ltd. and he resigned from the position of Director of the company w.e.f. 02.03.2006. The directorship of Darshan Singh is mentioned in Form 32-A. It is alleged that the deal with regard to the property was settled and an amount of Rs.4.25 crores was given as advance by Darshan Singh (petitioner) on behalf of M/s Blue Sea Sites Pvt. Ltd. on 07.01.2006. At that time Darshan Singh (petitioner) was a Director and he resigned as Director w.e.f. 2.3.2006. The amount of Rs.4.25 crores it is alleged was given in cash in presence of Manoj Jain (complainant), Anil Kumar, Pardeep Gulati and Gurinder Pal who are now Directors of the complainant-company w.e.f. 2.3.2006. It is alleged that a letter of consent was prepared whereas it had not been obtained from them. The complainant- Manoj Jain after taking over as Director of the complainant-company on 2.3.2006 in the interest of the company applied for the grant of special package of incentive of Mega Multiplex Project to M/s Blue Sea Sites Pvt. Ltd. and the same was granted by the Department of Industries and Commerce vide memo dated 22.9.2006. The sale deed in respect of the transaction was to be drawn up prepared and executed on 6.8.2006 in terms of the agreement to sell executed on 7.1.2006. However, the general power of attorney namely Ajit Singh (holding power of attorney on behalf of Gurdas Bansal, Lal Chand and Nisha Bansal accused Nos.1 to 3) and other owners of the land were not in a position to execute the sale deed as two members of accused were unable to come to the office of Tehsildar owing to personal difficulties. Therefore, an oral request was CRM No.M-27362 of 2008 -3- made by them for extending the date for executing the sale deed by one week. The original agreement to sell and letter for grant of extension in time as per the request of accused were sent to them for signatures. However, instead of returning the original agreement to sell and the extension letter, the accused resiled and backed out from their bargain. They also refused to return back the agreement and extension letter despite various follow ups and reminders by the complainant – Manoj Jain. This reflected their mala fide intentions and ulterior motives of not wanting to sell the land as stipulated in the agreement to sell. This was solely for the reason that the price of the land had gone up. The original agreement to sell had been handed over to one Mukesh Kumar alias Billu on 3.8.2006 as desired by the accused and the said original documents were handed over to the accused. The complainant made several attempts seeking return of the original documents from the accused but to no effect. Since the accused refused to return back the documents, it is alleged that they had no intention to honour the agreement. Moreover, they had also threatened the complainant of dire consequences, if any legal or police action was sought to be taken against them. The notary who had attested the agreement had obtained the signatures of Mukesh Kumar alias Billu in her register at Sr. No.2043 dated 3.8.2006. At that time, Darshan Singh (petitioner) was also present with Ajit Singh (accused No.8) and other accused. They had threatened to eliminate the complainant Manoj Jain if the said documents were ever asked to be returned and if execution of the sale deed was pressed by the complainant. The complainant had also got a public notice dated 11.11.2006 issued whereby warning was given to the general public against any kind of transaction with the accused. All the accused in CRM No.M-27362 of 2008 -4- connivance with each other in criminal conspiracy sold the land on 24.8.2006 to one R.K.Sharma (accused No.10), Managing Director of M/s Ishan Developers and Infrastructure Pvt. Ltd. The sale was done by the accused in favour of accused No.10 despite being aware that agreement to sell the land had already been entered into but still it was sold and at a higher price. The further mala fide and ulterior motives were that one Beant Singh (accused No.11) had given general power of attorney to Gurdas Bansal (accused No.2). He also sold the land to R.K.Sharma(accused No.10) vide sale deed dated 4.10.2006. Similarly, one Sewa Singh (accused No.12) and Swaran Singh (accused No.13) sold their portion of land to R.K.Sharma (accused No.10) vide sale deed dated 5.3.2007 and 27.10.2006. The said land was in fact the very same land, which had been agreed to be sold to Darshan Singh (accused No.9) by Ajit Singh (accused No.8). The token money had been taken by the purchaser from the seller. Thereafter, if they sold the land to anybody else they are liable for prosecution under Section 420 and 406 IPC. Once the agreement to sell was executed on behalf of the company by the petitioner – Darshan Singh (accused No.9), the said land could not have been further sold to any body since the land belonged to the complainant-company M/s Blue Sea Sites Pvt. Ltd. But Ajit Singh (accused No.8) holding general power of attorney in pursuance of criminal conspiracy between him and other accused i.e. accused Nos.1 to 7 and 9 to 13 sold the land mentioned in the agreement to sell to R.K.Sharma (accused No.10) Managing Director of M/s Ishan Developers and Infrastructure Pvt. Ltd. When the complainant with his brother Rakesh Kumar was present at site on 16.10.2006, R.K.Sharma (accused No.10) along with 3-4 constables came to the land and CRM No.M-27362 of 2008 -5- removed the boards of the complainant-company M/s Blue Sea Sites Pvt. Ltd. and threatened the complainant about the land. R.K.Sharma (accused No.10) along with police constables threatened the complainant who out of fear and terror could not report the matter to the police. The act of the accused to hatch a criminal conspiracy to sell the land of the complaint in spite of having entered into an agreement to sell to accused No.10 reflected their dishonest and fraudulent act. They had not only misappropriated the money amounting to Rs.4.25 crores deposited by the complainant but had also committed breach of trust. Thus, they were liable to be prosecuted under Sections 420, 406 read with 120-B of Indian Penal Code and R.K.Sharma – accused No.10 is further liable for offence under Section 506 read with section 34 IPC read with 382 IPC. The primary allegations against the petitioner – Darshan Singh are that he gave an advance of Rs.4.25 crores on behalf of the complainant company M/s Blue Sea Sites Pvt. Ltd. The advance was given on 7.1.2006 when he was director of the complainant company. Thereafter, the petitioner ceased to be the Director of the company w.e.f. 2.3.2006. The accused who were the owners of the land measuring 29 kanals 16 marlas, which was subject matter of agreement dated 7.1.2006 sold the land to R.K.Sharma (accused No.10), Managing Director of M/s Ishan Developers and Infrastructure Pvt. Ltd. The investigations in the case were conducted by the members of the Committee which comprised of Sh. Kewal Deep Singh, Superintendent of Police (Local) Distt. SAS Nagar, Sh. Rajbalwinder Singh Marrah, Deputy Superintendent of Police, Kharar and ASI Anoop Singh, Office of SP Headquarters, SAS Nagar (Mohali). On inquiry, an opinion of the Deputy District Attorney (Legal) was taken. On the CRM No.M-27362 of 2008 -6- report of DDA (Legal) an offence under Section 406/420 IPC were found to be made out against Darshan Singh (petitioner). The said report was accepted by the SSP, on which the case has been registered. During investigations, it transpired that the petitioner after he had resigned from the directorship of M/s Blue Sea Sites Pvt. Ltd. had in fact compromised the matter with Ajit Singh (accused No.8) on behalf of the company on 18.8.2006 and received back the earnest money of Rs.4.25 crores but he did not deposit the said amount in the accounts of the complainant company. Rather he gave a duly attested affidavit deposing therein that the original agreement to sell had been torn off and if anybody used the photocopy or the duplicate copy, legal action would be taken against him. The petitioner further stated that R.K.Sharma, Managing Director of M/s Ishan Developers and Infrastructure Pvt. Ltd. forcibly tried to get the sale deed registered in his favour without the consideration amount under the influence of Mr. S.K.Sharma, Inspector General of Police, Patiala Range as District Mohali fell within his jurisdiction. On these allegations, petitioner filed a complaint and an inquiry was marked to the Deputy Superintendent of Police (Headquarters) SAS Nagar, Mohali. In the inquiry, the inquiry officer after considering all the facts and circumstances of the case found that the petitioner indeed had received back a sum of Rs.4.25 crores as earnest money from Ajit Singh (accused No.8) but he did not deposit the same in the accounts of the company. Accordingly, it was concluded that the petitioner had committed offences under Sections 420/406 IPC. Besides, the statement of one Ajaib Singh was recorded by the police on 13.12.2008. It was stated by him that he had paid a sum of Rs.1.50 crores to Darshan Singh (petitioner) and the petitioner CRM No.M-27362 of 2008 -7- had assured him for distributing the profit money. However, neither the amount was returned nor any profit was distributed. Rather the land was further sold to a third party. Statement of one Jasmer Singh was also recorded by the police on 13.12.2008. He stated that he paid a sum of Rs.56.25 lacs together with Ashok Kumar, Sukhbir Singh, Shankar Dass and Ravinder Singh. Darshan Singh (petitioner) had assured him (Jasmer Singh) that profit as per individual share of everybody will be distributed. Statement of Anil Kumar was also recorded by the police on 13.12.2008. He stated that he was the director of M/s Blue Sea Sites Pvt. Ltd. and he withdrew a sum of Rs.10 lacs from Punjab National Bank, Sector 20, Panchkula and paid the same as token money to Ajit Singh (accused No.8). The total sale consideration was Rs.15.50 crores. The earnest money amounting to Rs.4.15 crores was paid to Ajit Singh (accused No.8) on 7.1.2006. He submitted that in the aforesaid amount of earnest money he (Anil Kumar) along with Amar Kapoor contributed Rs.86.50 lacs, Ajaib Singh contributed Rs.1.50 crores, Manoj Jain - complainant contributed a sum of Rs.58.75 lacs. Mr. Gulati contributed Rs.37.75 lacs and Jasmer Singh contributed a sum of Rs.56 lacs. Besides, Rs.20 lacs was contributed by Darshan Singh (petitioner) and Navdeep Singh, Directors of M/s Blue Sea Sites Pvt. Ltd. Subsequently, Anil Kumar was kidnapped on 9.7.2006 by Darshan Singh (petitioner) in connivance with other accused and a case in this regard was registered at police station Zirakpur. It may be noticed that Ajit Singh (accused No.8) who was holding general power of attorney on behalf of accused No.1 to 3 executed four sale deeds on 24.08.2006, 4.10.2006, 27.10.2006 and 5.3.2007. Two sale deeds were executed by Ajit Singh in favour of M/s CRM No.M-27362 of 2008 -8- Ishan Developers and Infrastructure Pvt. Ltd. through its Managing Director R.K.Sharma. The amount of the sale consideration was Rs.1.20 crores. The sale deed dated 04.10.2006 was executed by Beant Singh (accused No.11) as general power of attorney of Gurdas Bansal in favour of M/s Ishan Developers and Infrastructure Pvt. Ltd. for a consideration of Rs.1 crore. The sale deed dated 27.10.2006 was executed by Swaran Singh as attorney of Surinder Bansal in favour of M/s Ishan Developers and Infrastructure Pvt. Ltd. for a consideration of Rs.1 crore. The sale deed dated 5.3.2007 was executed by Sewa Singh as power of attorney of Lal Chand for a consideration of Rs.1 crore in favour of M/s Ishan Developers and Infrastructure Pvt. Ltd. In this manner, the total amount of sale consideration works out of Rs.4.20 crores. Six cheques of Rs.7.20 crores were issued in favour of M/s Blue Sea Sites Pvt. Ltd. by R.K.Sharma. Besides, Rs.1 crore was paid by demand drafts, which were issued in favour of M/s Blue Sea Sites Pvt. Ltd. The police during the course of investigation has recovered the draft of Rs.1 crore dated 7.8.2006, two cheques of Rs.50 lacs dated 5.8.2006 and 7.8.2006 and another cheque of Rs.25 lacs dated 26.7.2006 in favour of M/s Blue Sea Sites Pvt. Ltd. In this manner, police recovered an amount of Rs.2.25 crores. Therefore, the position is that cheques were obtained in favour of M/s Blue Sea Sites Pvt. Ltd. through its director Darshan Singh (petitioner) but the sale deeds have been executed by the attorneys of the owner in favour of M/s Ishan Developers and Infrastructure Pvt. Ltd. The case was taken up for hearing in this Court on 22.10.2008. On the said date, learned counsel for the petitioner – Darshan Singh submitted that petitioner was still Director of the company and had never resigned. He further submitted that writ CRM No.M-27362 of 2008 -9- petition in this regard was pending in this Court. He had orally made certain allegations against Mr. S.K.Sharma, Inspector General of Police, Punjab and his brother R.K.Sharma. He was directed to submit an affidavit detailing therein the allegations against these persons and place the same on record. Thereafter, in terms of order dated 14.11.2008 passed by this Court, learned counsel for the petitioner submitted that the petitioner is a Director of the complainant company. He further submitted that the signatures of the petitioner were fabricated on his resignation. He further submitted that in lieu of the bargain of the land of the company, of which, the petitioner is a Director, which took place between R.K.Sharma and the company, the petitioner as Director had obtained nothing. Only post dates cheques in lieu of the consideration of the land were handed over to him by R.K.Sharma but when the same were presented these were dis- honoured. He further submitted that he had been falsely implicated in the instant case. Accordingly, notice of motion was issued for 4.12.2008. Thereafter, during the hearing of the case on various dates by different Benches, the petitioner was granted interim bail vide order dated 18.3.2009. It was observed by this Court that it appeared that the investigation was not being conducted in a fair manner. Property dealers, apparently backed by certain official powers in the State of Punjab, are at a logger heads over a piece of land adjoining, Chandigarh. The nature of the transaction, as to whether it was on behalf of the firm or by the petitioner in his individual capacity was the basis for this dispute. Consequently, and in view of the reply filed by the Investigating Officer, the petitioner was directed to appear before the Investigating Officer on 24.3.2009. In the meantime, it was directed that in the event of arrest, he be released on bail. It is in CRM No.M-27362 of 2008 -10- compliance of the order dated 22.10.2008, the petitioner had filed his affidavit on 3.11.2008 in which he has stated that false case has been registered against him at the instance of R.K.Sharma and Mohan Jain – complainant with the connivance of S.K.Sharma, Inspector General of Police. It may be noticed that in the said affidavit on 3.11.2008, it is stated that the petitioner was a partner with Paramjit Kaur who got struck a deal for the land on the National Highway 21 of village Barmajra Near Mohali with Gurdas Bansal and others with Ajit Singh (purchaser) by getting commission. The same deal was further by giving profit to Ajit Singh, got struck with the petitioner @ Rs.15.50 crores. As the deal was not completed due to lack of funds, the agreement of petitioner regarding the land was mutually cancelled and the partner of the petitioner got the sale deal with R.K.Sharma, owner of M/s Ishan Developers and Infrastructure Pvt. Ltd. with further profit which was to be paid before the last date of execution of the sale deed. R.K.Sharma and owner of the property promised to return the earnest money of Rs.4.25 crores and profit of Rs.3 crores at the time of execution of the sale deed. In guarantee they had given three post dated and three undated cheques issued by R.K.Sharma, which were in possession of the petitioner and that the same would be produced before the Court at the time of arguments for its perusal. Therefore, the petitioner accepted the cheques of earnest money of Rs.4.25 crores and profit of Rs.3 crores was with him by way of three post dated and three undated cheques issued by R.K.Sharma. In fact in the petition, it is stated by the petitioner that the agreement of the petitioner regarding land was mutually cancelled and the partner of the petitioner got the sale deal with R.K.Sharma, owner of M/s Ishan Developers and Infrastructure Pvt. Ltd. with further profit which was to CRM No.M-27362 of 2008 -11- be paid before the last date of execution of the sale deed. R.K.Sharma and owner of the property promised to return the earnest money of Rs.4.25 crores and profit of Rs.3 crores at the time of execution of the sale deed. In guarantee they had given three post dated and three undated cheques issued by R.K.Sharma, which were in possession of the petitioner and the same would be produced before the Court at the time of arguments for its perusal. Mr. Sanjay Kaushal, Advocate for the petitioner during the hearing of the case on the previous dates also submitted that the petitioner was in possession of six cheques, which were in favour of M/s Blue Sea Sites Pvt. Ltd. and photocopies of the same were annexed as Annexure P-3. These cheques are stated to have been signed by R.K.Sharma in favour of M/s Blue Sea Sites Pvt. Ltd. and these would be submitted in Court. Mr. Anmol Rattan Sidhu, Sr. Advocate appearing with Mr. Vinay Arora, Advocate for the complainant – Manoj Jain, Director M/s Blue Sea Sites Pvt. Ltd. submitted that these cheques can be handed over to the complainant and the same may be deposited in the accounts of the company and can be en-cashed and the matter can be resolved. Learned counsel for the petitioner took time to bring the cheques. Today, learned counsel for the petitioner stated that the petitioner had informed him that he was not in possession of the cheques and the said cheques were taken away by Navdeep Singh, Director of M/s Blue Sea Sites Pvt. to produce them in the Court. Therefore, it is prima facie quite evident that the amount of the cheques which are to be accounted for in the accounts of M/s Blue Sea Sites Pvt. Ltd. have been mis-appropriated by the petitioner as in his affidavit dated 3.11.2008 and in his petition, filed in this Court he had CRM No.M-27362 of 2008 -12- stated that three post dated and three undated cheques issued by R.K.Sharma, Managing Director M/s Ishan Developers and Infrastructure Pvt. Ltd. were issued in favour of M/s Blue Sea Sites Pvt. Ltd. and were in his possession and that photocopies of the same (Annexure P-3) had been placed on record. Now, the petitioner has clearly backed out and shown his inability to produce the same in Court. This shows that he has not adhered to his stand as taken in the affidavit dated 3.11.2008 and also in the petition. Therefore, the custodial interrogation of the petitioner is necessary to ascertain regarding the deposit of Rs.4.25 crores, which was initially given by the petitioner on behalf of the company, to deposit it in the accounts of the complainant-company; besides the cheques (Anneuxre P-3) for an amount of Rs.7.20 crores are to be recovered. It is well known that considerations governing the Court's decision on an application seeking pre-arrest bail under Section 438 Cr.P.C. are materially different from that seeking post-arrest bail or for that matter seeking suspension of sentence pending an appeal before the higher court. In case of pre- arrest bail, the benefit of eliciting more and useful information is to be kept in view. Besides, the power to grant pre-arrest bail is somewhat extra-ordinary in nature. In these circumstances, no ground for grant of pre-arrest bail is made out and the criminal miscellaneous petition is dismissed. August 09, 2010 (S.S.SARON) sonia JUDGE