Crl. Misc. No.M-13164 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Misc. No. M-13164 of 2009 Date of Decision: November 9, 2010 Rakesh Kumar …..Petitioner Vs. State of Punjab …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.S.S. Narula, Advocate for the petitioner. Mr. N.K. Sanghi, Addl. A.G., Punjab. Mr. Bipan Ghai, Sr. Advocate with Mr. Amit Dhawan, Advocate. Mr. Sarjit Singh, Sr. Advocate with Mr. Pavit Mattewal, Advocate -.- M.M.S. BEDI, J. The petitioner seeks the concession of pre-arrest bail in a case FIR No. 277 dated May 19, 2008 registered under Sections 420, 467, 468, Crl. Misc. No.M-13164 of 2009 [2] 471, 120-B IPC at Police Station Civil Lines, Amritsar at the instance of M/s Vipul Limited against the petitioner and his wife Manju Sharma, Pankaj Bhardwaj, Neha Sharma and Nidhi Sharma, alleging that Akhara Braham Buta was owner in possession of land measuring 51 kanals 14 marlas situated in Village Tung Bala, Urban, Tehsil and District Amritsar. The said land was acquired by State of Punjab for the benefit of Improvement Trust, Amritsar for establishment of a scheme known as Ajnala Road Development Scheme which is presently located in area known as Block A and Block B in Ranjit Avenue, Opposite Red Cross Bhawan, Amritsar. The Akhara Braham Buta wanted to get the land in question excluded from the preview of acquisition and the matter was contested in the Supreme Court. Vide order dated August 24, 1992, the Supreme Court held that no part of the land shall be given back to the appellant (Akhara Braham Buta). Thereafter Akhara Braham Buta had sought the recovery of Rs.2,96,22,859.20 paisa in execution petition. The said execution is still pending in the Court of Additional Civil Judge, (Senior Division), Amritsar. The Amritsar Improvement Trust deposited Rs.85,61,520/- in the Court. The said amount has been withdrawn by Akhara Braham Buta on August 11, 2006. Akhara Braham Buta had leased out a portion of the land in favour of six lessees who had put up their industrial units. The said lessees filed six suits for permanent injunction against Improvement Trust to restrain the Improvement Trust to forcibly dispossess them. The injunction applications of all the six tenants were dismissed. Subsequently, they had withdrawn their suits on July 29, 1999. The abovesaid six lessees and their Crl. Misc. No.M-13164 of 2009 [3] successors have sold their leasehold rights in favour of M/s R.P. Empires Pvt. Ltd. vide 11 separate sale deeds of leasehold rights. M/s R.P. Empires Pvt. Ltd. claim to have acquired leasehold rights of the land measuring 9500 sq. yards. M/s R.P. Empires Pvt. Ltd. filed a suit on September 22, 2006 in the civil Court at Amritsar claiming itself to be the owner of the land pleading that it had deposited Rs.1.9 crores towards change of land use charges with Improvement Trust, Amritsar. The claim of M/s R.P. Empires Pvt. Ltd. was vehemently opposed by Amritsar Improvement Trust. The injunction was finally declined to M/s R.P. Empires Pvt. Ltd., as Akhara Braham Buta was the owner of the property. As per the allegations in the FIR, some sale deeds of leasehold rights have been executed in favour of M/s Raghupati Vihar Developers Pvt. Ltd. but the validity of the sale deeds of lease hold rights have been challenged by filing two suits titled M/s Raghupati Vihar Developers Pvt. Ltd. Vs. Rakesh Sharma and others. Rakesh Sharma in the capacity as Managing Director of M/s R.P. Empires Pvt. Ltd. filed objections on August 19, 2006 in the Court of Sh.Karunesh Kumar Kakar, Civil Judge (Senior Division), Amritsar and admitted the factum of acquisition of land and claimed that being lessee he was entitled to compensation. Despite the fact that the acquisition proceedings had attained finality uptill the Apex Court, but the petitioner approached the complainant Company in December 2005, offering to sell the acquired land by the Improvement Trust, Amritsar, with an ulterior motive to cheat and defraud the complainant Company by impersonating himself to be the owner of the land. Petitioner did not disclose to the complainant that the Crl. Misc. No.M-13164 of 2009 [4] land stood acquired as such petitioner and his accomplice entered into a share purchase agreement on September 18, 2006 with complainant Company M/s Vipul Limited agreeing to transfer 9500 sq. yards land. The petitioner and others represented that they had obtained permission for change of land use. The said permission was obtained by fraudulent means in connivance with concerned officials. The sale deed in the name of M/s R.P. Empires Pvt. Ltd. and permission for change of land use were shown to the complainant to obtain crores of rupees. The complainant Company came to know about the cheating after reading a newspaper item in Hindustan Times on November 13, 2006 that petitioner was attempting to grab the property by way of illegal sale deeds. The complainant Company stopped payment of further post-dated cheques issued in favour of petitioner and his accomplices. From the very inception, the intention of R.K. Sharma and his accomplice was to cheat and defraud the complainant Company and other persons. Counsel for the petitioner has vehemently contended that an FIR No.107 of 2007 was registered against the petitioner on the allegations that the land belonging to Improvement Trust, Amritsar, had been transferred without any authorization. The subject matter of the earlier FIR was the same as the subject matter of the present FIR. Petitioner had been granted the concession of pre-arrest bail by the High Court. Attention had been drawn to the contents of the earlier FIR No. 107 dated April 16, 2007, annexure P-8 which was registered at the instance of Amritsar Improvement Trust against 19 persons including the petitioner alleging that Akhara Crl. Misc. No.M-13164 of 2009 [5] Braham Buta had been the owner of 9500 sq. yards land which had been acquired by Amritsar Improvement Trust and that the accused persons in connivance with the senior officials and the tenants and pattedars prepared bogus documents in record to the land vested in Improvement Trust executed sale deeds in favour of bogus company and got permission for using the land as commercial. M/s R.P. Empires Pvt. Ltd. forcibly and illegally demolished the building constructed over the land whereas the Improvement Trust had already become owner of the land. It is contended by counsel for the petitioner that the subject matter of the property in FIR No.107 lodged at the instance of Improvement Trust is the same as the subject matter of the present FIR; petitioner having been granted the concession of bail by the Apex Court, the launching of prosecution by second FIR was illegal and as such, the petitioner is entitled to the concession of pre-arrest bail. On the other hand, counsel for the complainant has argued that after 30 years of litigation, the Improvement Trust had become the real owner of the land in dispute but on the basis of false documents prepared in connivance with the officers of Tehsil Complex Office, portrayed M/s R.P. Empires Pvt. Ltd. as the new purchaser. The petitioner posing himself the owner of the land, which actually vests in Improvement Trust, obtained fictitious permission certificate regarding the use of land as commercial and further sold the same to the complainant. The petitioner has forged and fabricated encumbrance certificate annexure A-1 and further got the concession of pre-arrest bail on the basis of forged documents. The Crl. Misc. No.M-13164 of 2009 [6] encumbrance certificate on the basis of which the petitioner got pre-arrest bail was found to be forged. The enquiry conducted by DSP has been relied upon. It is contended by the complainant that the said document is now being relied upon for the grant of anticipatory bail by producing the same forged, fake and fabricated documents and committed fraud with the Court. Reliance was placed on the judgment passed by Division bench of this Court in CWP No. 10622 of 1999 decided on November 9, 2009. In the said judgment while deciding six writ petitions by the Division Bench of this Court, the rights of Improvement Trust, Amritsar on the basis of acquisition, rights of M/s R.P. Empires Pvt. Ltd.; exemption of the land from acquisition; change of land use and transfer of investigation in case FIR No.107 of 2007 to CBI were taken into consideration and it was held that transfer of rights and interests held by lessee(s) to M/s R.P. Empires Pvt. Ltd. could not be recognized as the same was not binding upon the Government or Improvement Trust and there was no occasion for exemption of the land under Section 56 of the Improvement Trust Act on account of violation of condition precedent for such exemption. It was held in the said judgment that (a) the acquisition proceedings qua the land in question are valid in the eyes of law; (b) claim for exemption from abandonment of the acquisition proceedings was untenable; and (c) transfer of the rights held by the lessee (s) to M/s R.P. Empires Pvt. Ltd. was not binding upon the Government and the Improvement Trust being void; and M/s R.P. Empires Pvt. Ltd. could not obtain the change of land use from Government. Crl. Misc. No.M-13164 of 2009 [7] I have carefully heard counsel for the petitioner and counsel for the complainant as well as State counsel. The petitioner claims that the allegations in FIR No.107 dated April 16, 2007 registered at the instance of Amritsar Improvement Trust are same as that of the allegations in the present FIR and that he had joined investigation pursuant to the interim orders passed by this Court as such he should be granted the concession of pre-arrest bail. The allegation against the petitioner is that he had constituted a company M/s R.P. Empires Pvt. Ltd. and claiming itself to be the purchaser, the said Company, on the strength of forged documents in connivance with the officials of Municipal Corporation, Amritsar, got fake site plan sanctioned of the land in dispute and presented the bogus deed as genuine by concealing true facts from the officials and on the basis of false deeds, got permission for use the land as commercial. On the basis of forged documents persuaded the complainant Company to enter into share purchase agreement dated January 27, 2006. Copy of the share-purchase agreement dated January 27, 2006 annexure P-12 reflect that no reference was made to the litigation which was pending regarding the title of the property which vested in Amritsar Improvement Trust and the writ petitions filed by M/s R.P. Empires Pvt. Ltd. challenging the scheme and the land acquisition proceedings or the pendency of the litigation regarding the exemption of the land from acquisition which have been finally determined by a Division Bench of this Court in CWP No. 10622 of 1999 on November 9, 2009. The affidavit of DSP North, Amritsar City has been placed on record. Copy of the FIR NO. 173 dated May 23, 2007 under Sections Crl. Misc. No.M-13164 of 2009 [8] 224/225 IPC Police Station Civil Lines, Amritsar, registered at the instance of Ramesh Chander indicating that the petitioner was arrested in FIR No. 107 dated April 16, 2007 under Sections 420, 467, 468, 471, 120-B IPC, Police Station Civil Lines, Amritsar. The petitioner ran away from the custody of Additional SHO, of the Police Station on the pretext that he wanted to talk to his brother who was a senior police official in Punjab Police. In view of the conduct of the petitioner having escaped from the custody of the police and being accused for the said offence, the grant of pre-arrest bail to the petitioner is not permissible. I have considered the contention of counsel for the petitioner that the petitioner had been granted the interim pre-arrest bail on the ground that he had obtained encumbrance certificate and deposited conversion charges to the tune of Rs.1.9 crores on May 28, 2007 and the said order was confirmed on May 28, 2008. The encumbrance certificate and the payment of conversion charges has been found to be an act of perjury by the police as per the affidavit of DSP placed on record of Crl. Misc. No. M-27888 of 2010. The petitioner has been the Director of the Company M/s R.P. Empires Pvt. Ltd. whose rights have been finally adjudicated upon by a Division Bench judgment of this Court in CWP NO. 10622 of 1999 decided on November 9, 2009. All the rights acquired by M/s R.P. Empires Pvt. Ltd. regarding the transfer of the rights held by lessee (s) to the said Company have been nullified and it has been held that these are not binding upon the Government and Improvement Trust being void. It has also been held that M/s R.P. Empires Pvt. Ltd. could not have obtained change of land Crl. Misc. No.M-13164 of 2009 [9] use from the Government and that “change of land use” sanctioned in its favour could not make any difference, so far as the validity of the transfer in its favour was concerned. The status of M/s R.P. Empires Pvt. Ltd. has been held to be not more than that of a person holding land under instruments of transfer that were void and enforceable against the State Government and Improvement Trust. The rights of M/s R.P. Empires Pvt. Ltd. had not been determined by a Division Bench of this court when concession of pre-arrest bail was granted on May 28, 2007 on the basis of encumbrance certificate and the deposit of conversion charges. I have considered the contention of Mr.S.S. Narula that the petitioner was the bonafide purchaser and was unaware of his defective title, when the petitioner entered into an agreement of sale with the complainant Company, vide annexure P-12 dated January 27, 2006. The said contention is without any force as the writ petition challenging the scheme and land acquisition proceedings had been filed by M/s R.P. Empires Pvt. Ltd. in 2008 and the matter regarding grant of exemptions of the land from acquisition were pending since 1999. The petitioner has persuaded the complainant to part with huge amount of about Rs.45 crores. No extraordinary exceptional circumstances exist for the grant of pre-arrest bail to the petitioner as the custodial interrogation seems to be necessary to enable the investigating agency to arrive at a fair conclusion regarding the modus operandi adopted by the petitioner to grab the land which vested in the Improvement Trust. Dismissed. Interim order passed by this Court is vacated. Crl. Misc. No.M-13164 of 2009 [10] November 9, 2010 (M.M.S.BEDI) sanjay JUDGE