Crl. Misc. No.M-28272 of 2011 1 Crl. Misc. No.M-38757 of 2011 Crl. Misc. No.M-16139 of 2012 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Misc. No. M- 28272 of 2011 (O&M) Date of Decision : December 5th, 2012 Col. Rajnish Soni .... Petitioner Versus State of Haryana .... Respondent 2. Criminal Misc. No. M- 38757 of 2011 (O&M) Date of Decision : December 5th, 2012 Mrs. Anjeleena Soni .... Petitioner Versus State of Haryana .... Respondent 3. Criminal Misc. No. M- 16139 of 2012 (O&M) Date of Decision : December 5th, 2012 Anjaleena Soni .... Petitioner Versus State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Crl. Misc. No.M-28272 of 2011 2 Crl. Misc. No.M-38757 of 2011 Crl. Misc. No.M-16139 of 2012 .. Present Mr. J.S.Bedi, Advocate, and Mr. Rakesh C. Aggarwal, Advocate, for the petitioners. Mr. Vikas Malik, AAG, Haryana, for the State. Mr. Anmol Rattan Sidhu, Senior Advocate with Mr. Aman Arora, Advocate, for the complainant. VIJENDER SINGH MALIK, J. Col. Rajnish Soni has brought Criminal Misc. No. M-28272 of 2011 seeking pre-arrest bail in a case registered by way of FIR No. 192 dated 23.7.2011 at Police Station Khaidkidaula, Gurgaon District Gurgaon for an offence punishable under sections 420 and 406 of Indian Penal Code. The other two connected petitions, bearing Criminal Misc. No. M-38757 of 2011 and Crl. Misc. No.M-16139 of 2012 are brought by Anjeleena Soni, the first for quashing of the FIR in question and the second for pre-arrest bail in the said case. For deciding all these matters, the facts, though prolix, are required to be noticed in brief as under:- In October, 2009 Cdr. Neeraj Singla (Retd.) came to the complainant Cdr. Kuldeepak Mittal (Retd.) and informed him that he had become director of Konark Infra Developers Private Limited (KIDPL). After some meetings, he was able to convince the complainant that KIDPL had bought land in sector 79, Gurgaon. He also reminded him of his long association with Navy and with Col. Rajnish Soni (Retd.) and made huge Crl. Misc. No.M-28272 of 2011 3 Crl. Misc. No.M-38757 of 2011 Crl. Misc. No.M-16139 of 2012 .. promises. The complainant trusted a fellow ex-naval officer. Since Government Officers Welfare Organization (GOWO) had a memorandum of understanding (MOU) with India Affordable Housing Solution (IAHS), the complainant took up the matter with IAHS and IAHS sought details by writing a letter. Cdr. Singla provided a representation to the complainant which was also sent to HUDA. He also made the complainant meet some farmers from whom land was said to have been purchased. MOU dated 14.6.2010 for sector 79, Gurgaon was then entered between IAHS and KIDPL based on the letter of intent (LOI) application and written statement of KIDPL that they had the land. The responsibilities of KIDPL in the matter were delineated in para No. 6 thereof and they are as under:- a). Konark has already done agreements for 13 acres of land & applied for LOI , b). Konark will require further land from farmers, c) Konark will get the license and approval from HUDA. d). Konark will get bank loan approved for home loans. e). Konark will be solely responsible for all legalities arising from this project towards title of land, LOI license home loan etc. Though, Col. Soni in the MOU with IAHS had promised in his own handwriting to provide 500-700 houses, yet as his GOWO was not that big, they pledged only 200 houses. A sum of ` Crl. Misc. No.M-28272 of 2011 4 Crl. Misc. No.M-38757 of 2011 Crl. Misc. No.M-16139 of 2012 .. 3.00 crores was advanced by GOWO to IAHS which was further given by IAHS to KIDPL for this project. The complainant came to know in August/September, 2010 that he had been cheated in a very planned manner because no subsequent steps were taken by KIDPL towards fulfilling its commitments under the said MOU. The facts responsible for the complainant to have this view were that no LOI was produced, no efforts were made to start the project and it appeared to be a conspiracy hatched to commit a fraud on the complainant from the very beginning. When this fact was brought to the notice of Col. Rajnish Soni and Cdr. Singla, Col. Rajnish Soni gave six post dated cheques in October, 2010 in favour of IAHS. He kept telling that he will get the money and will give the money by way of draft of the full amount. However, the complainant had put these post-dated cheques in bank in November, 2010 and the bank returned all these cheques with endorsement “payment stopped by drawer”. Cdr. Singla and KIDPL had the intention to defraud and cheat the complainant from the very beginning as they had shown land which was never in their name by signing MOU without having approvals and by stopping payment of their money. The complainant then moved HUDA by way of an application under the Right to Information Act and came to know that all promises made by Konark were lies and they had made false statements Crl. Misc. No.M-28272 of 2011 5 Crl. Misc. No.M-38757 of 2011 Crl. Misc. No.M-16139 of 2012 .. to HUDA while applying for LOI. On these facts, the case was registered and the present petitions are before the court seeking various reliefs. Learned counsel for the petitioners has submitted that towards the project of sector 79, Gurgaon, the petitioner Col. Rajnish Soni received an amount of ` 3.00 crores by way of two cheques. According to him, the first is the cheque of ` 1.00 crore drawn on Canara Bank, bearing No. 495844 and the second has been the cheque of ` 2.00 crores drawn on the same bank bearing No. 495845. According to him, only the cheque of ` 1.00 crore was encashed and the complainant borrowed a sum of ` 65.00 lakhs at one time and ` 35.00 lakhs at the other time from this amount as he was requiring the same for the deal of his offices to materialize and as the other cheque was not encashed, there was no money with the petitioners for proceeding further with the project. He has submitted that Annexure P2 is the MOU for development of a project in sector 79, Gurgaon. He drew my attention to para No. 7 of the MOU where IAHS is said to have paid ` 3.00 crores to KIDPL. According to him, though the petitioner, Col. Rajnish Soni received two other cheques for ` 3.00 crores, yet that amount was with regard to prior commitments of Cdr. Kuldeepak Mittal (Retd.) towards him. He drew attention of the court in this regard to other documents on record including the e-mails exchanged between Col. Rajnish Soni and Cdr. Kuldeepak Mittal. He has submitted that the other two cheques for ` 3.00 crores, which were in the nature of payment to compensate the Crl. Misc. No.M-28272 of 2011 6 Crl. Misc. No.M-38757 of 2011 Crl. Misc. No.M-16139 of 2012 .. petitioner Col. Rajnish Soni, had been encashed. He has further submitted that six cheques were given by the petitioner Col. Rajnish Soni in October, 2010 by way of security. According to him, they were for a sum of ` 3.00 crores and against the understanding between the parties, they were put for realization by Cdr. Kuldeepak Mittal and payment of the same was stopped when the petitioner Col. Rajnish Soni came to know that the plan on the part of Cdr. Kuldeepak Mittal (Retd.) was to cheat him in this manner. Learned counsel for the petitioners has further submitted that with regard to the project of sector 79, Gurgaon, only two cheques were given out of which the cheque of ` 1.00 crore was encashed and the cheque of ` 2.00 crores was not encashed. According to him, from this amount of ` 1.00 crore which was realized on encashment of the first cheque, two sums of ` 65.00 lakhs and ` 35.00 lakhs were taken by the complainant. Therefore, no amount was left with the petitioner for proceeding further with the project. Learned counsel for the petitioners has further submitted that from the side of the complainant, funds were not coming and own funds of Col. Rajnish Soni were also held up and, therefore, he could not proceed with the project. Learned counsel for the petitioners has further submitted that Ms. Babita Khanduja, Managing Director, IAHS made a complaint to Station House Officer, Police Station Barahkhamba, New Delhi (Annexure P4) in this regard and annexure P5 is another such complaint by Satpal Khanduja, another director of IAHS. He has submitted that to Crl. Misc. No.M-28272 of 2011 7 Crl. Misc. No.M-38757 of 2011 Crl. Misc. No.M-16139 of 2012 .. these complaints, petitioner Col. Rajnish Soni filed his reply Annexure P6 before the police and placed his side of the story before them. According to him, the police on careful perusal of the matter found no criminal case to be made out and took the matter to be a business dispute between the two parties who were in business. In this regard, he drew my attention to Annexure P8. Learned counsel for the petitioners has further submitted that Cdr. Kuldeepak Mittal (Retd.) is a person who changes his stand frequently. According to him, in a complaint filed by KIDPL against IAHS, Kuldeepak Mittal has been an accused and he sought exemption of his appearance on the plea that he has been falsely arrayed as a partner of the accused firm whereas he is neither a partner nor an employee of the said firm to the very knowledge of the complainant. According to him, the company IAHS was in fact, a creation of GOWO which was an NGO of the complainant. Learned State counsel assisted by learned senior counsel for the complainant has referred to the terms of MOU (Annexure P2) entered between KIDPL and IAHS. He referred to paragraphs No. 4 and 6 of the MOU. According to him, though commitments were there on behalf of KIDPL that it had done agreements for 13 acres of land and had applied for LOI for the same and that it would acquire further land from farmers, yet it was GOWO who was to fund the projects. According to him, cheque No. 495844 was encashed but cheque No. 495845 was not presented knowingly and the impression given by KIDPL to IAHS was Crl. Misc. No.M-28272 of 2011 8 Crl. Misc. No.M-38757 of 2011 Crl. Misc. No.M-16139 of 2012 .. that the cheque was misplaced. According to him, before 30.7.2010, the letter of intent application stood withdrawn and six cheques for ` 3.00 crores of October, 2010 were presented by the concern of the complainant, but they were also not encashed. According to him, the cheques were presented for payment taking the deal to have been cancelled. He has further submitted that cheque No. 495845 was presented on 28.12.2010 and as the deal already stood cancelled, the complainant was forced to stop payment. He has further submitted that the petitioner, Col. Rajnish Soni had dishonest intention at the time of entering into MOU and, therefore, the offence under sections 420 and 406 IPC is clearly established. Crl. Misc. No.M-28272 of 2011 The first aspect that strikes mind is that the deal was taken as cancelled in October, 2010 by the complainant and he had presented six cheques of ` 50.00 lakhs each for payment. On 28.12.2010, the cheque of ` 2.00 crores bearing No. 495845 is said to have been presented for payment by the petitioner and coming to know of the same, the payment was stopped by the complainant. Though, the petitioner is claimed to have received 4 cheques for ` 6.00 crores, yet it is his claim that two cheques bearing No. 495844 and 495845 for ` 1.00 crore and ` 2.00 crores respectively were with regard to the project of sector 79, Gurgaon and the other two cheques were with regard to compensation payable by the complainant to the Crl. Misc. No.M-28272 of 2011 9 Crl. Misc. No.M-38757 of 2011 Crl. Misc. No.M-16139 of 2012 .. petitioner Col. Rajnish Soni regarding some past transactions. In the FIR, there is no reference to the other two cheques which the petitioner claims to have been given in connection with past transactions. It shows that with regard to the project of sector 79, Gurgaon, only two cheques for ` 3.00 crores were given, out of which one was encashed and the other which was presented for payment on 28.12.2010 was dishonoured on account of stopping of payment. The amount of `1.00 crore, which the petitioner received under the MOU, was eventually taken back by the complainant on some other pretext on two occasions. It shows that the petitioner was left with no amount as received from the complainant. The information the complainant got under the RTI Act was that LOI for 13 acres of land was applied on 29.3.2010 much before the MOU was entered into between KIDPL and IAHS. The information furnished by the petitioner that he was not getting any money from the complainant and his own money was also held up and so, he had to give up the matter, has to be considered at the time of trial. The conclusion of the police of Police Station Barahkhamba, New Delhi that it was a matter regarding some business dispute between the two business people can also not be lost sight of. Thus, prima facie it appears to be a business dispute and the petitioner Col. Rajnish Soni appears to be entitled to pre-arrest bail. Consequently, Criminal Misc. No. M-28272 of 2011 is allowed and the petitioner Col. Rajnish Soni is granted anticipatory bail subject to the conditions laid down in section 438 sub section 2 clauses (i), (ii) and (iii) of the Code of Criminal Crl. Misc. No.M-28272 of 2011 10 Crl. Misc. No.M-38757 of 2011 Crl. Misc. No.M-16139 of 2012 .. Procedure. Crl. Misc. No.M-38757 of 2011 Crl. Misc. No.M-16139 of 2012 Anjeleena Soni is one of the directors of KIDPL. Besides it, she is the wife of Col. Rajnish Soni, a petitioner here. As would be apparent from the above discussion, there is no reference to Anjeleena Soni any where in the FIR or the submissions made on the side of complainant. The transactions are between Col. Rajnish Soni and GOWO and IAHS of the complainant. The FIR makes a reference to Anjeleena Soni at the very end in para No. 16 where submission is made that case may kindly be taken over by the crime branch for speedy delivery of justice to the complainant and before the accused got a chance to destroy all evidence and evade justice. The complainant then names the people responsible for fraud as under:- a). Cdr. Neeraj Singla (Retd.) b). Col. Rajnish Soni (Retd.) c). Mrs. Anjeleena Soni. Apart from this, the name of Anjeleena Soni does not find reference anywhere else in the FIR. She is not shown in the forefront with regard to any transaction between the two sides. She did not sign the MOU and she appears to have been falsely involved in this matter. It can be said without hesitation that there is no case whatsoever against Anjeleena Soni. Consequently, I accept Criminal Misc. No.M-28272 of 2011 and quash FIR No. 192 dated 23.7.2011 at Police Station Crl. Misc. No.M-28272 of 2011 11 Crl. Misc. No.M-38757 of 2011 Crl. Misc. No.M-16139 of 2012 .. Khaidkidaula, Gurgaon District Gurgaon for an offence punishable under sections 420 and 406 IPC with all subsequent proceedings arising therefrom, qua her. Since the aforesaid FIR with all subsequent proceedings arising therefrom, has been quashed qua Anjeleena Soni, Criminal Misc. No. M-16139 of 2012 filed by her seeking pre-arrest bail in the said case has become infructuous and is dismissed as such. (VIJENDER SINGH MALIK) JUDGE December 5th, 2012 som