M/s. Sarvayoni Builders & Developers Pvt. Ltd v. State of Orissa
2017-04-26
J.P.DAS
body2017
DigiLaw.ai
JUDGMENT J.P. DAS, J. - This order shall dispose of the aforesaid two criminal misc. cases, both the applications filed under Section 482, Cr.P.C. with the prayer to quash the F.I.R. in G.R. Case No. 989 of 2015 on the file of learned J.M.F.C. (O), Bhubaneswar arising out of E.O.W. Bhubaneswar P.S. Case No. 22 of 2015 dated 30.10.2015 registered under Sections 406/420/467/468/109/120-B/34, I.P.C. against the petitioners in both the applications. The case was registered on the F.I.R. lodged by the opposite party no. 2, one Saranpal Singh Sethi in both the cases. 2. The brief facts of the case are that the informant opposite party no. 2 submitted a written F.I.R. at Balianta Police Station in the district of Khurda on 05.09.2015 alleging that he as the Director of Reputed Real Estate private limited company, New Delhi, was approached by one Rahul Gaur and his wife Navnit Bhadla who were Chairman and Director respectively of the company M/s. Bryce International Pvt. Ltd. for a loan of Rs. 18.00 crores on favour of their company and after due negotiation the informant entered into a loan agreement through two unregistered deeds with the said company on 29.02.2014 and advanced a loan of Rs. 18.00 crores by way of RTGs and cheque payment. As security for repayment of the advanced loan amount both the loanees created a security interest in favour of the informant by creating first and exclusive charge of the informant on certain properties at Bhubaneswar and in Noida, New Delhi by depositing title deeds. He further alleged that the secured property at Noida was subsequently released by the informant on the request of the loanees and it was replaced with an alternate security of three flats. It was agreed between the parties, as per the loan agreement that the loanee company will neither part with the possession of the mortgaged properties nor any part thereof nor put it to sell, mortgage, lease, surrender or otherwise alienate the mortgaged properties or any part thereof or create any their party interest in the mortgaged properties. The informant further alleged that it was agreed upon between the parties that the particulars of the charges created in favour of the informant would be registered with the Registrar of Companies within seven days from the date of disbursement of the loan amount but the loanees did not comply the same.
The informant further alleged that it was agreed upon between the parties that the particulars of the charges created in favour of the informant would be registered with the Registrar of Companies within seven days from the date of disbursement of the loan amount but the loanees did not comply the same. In the month of June 2015 when the informant approached the loanees for refund of part amount including interest they failed to do so. Despite repeated requests and reminders the loanee company did not repay the loan amount or its interest accrued thereon. The informant doubting credibility of the loanees made an enquiry and found out that the company through its Chairman and Director had entered into a Collaboration and Development Agreement (for short CD) on 14.07.2015 with one Sarvoyoni Builders and Developers Pvt. Ltd. (petitioner no. 1 in CRLMC No. 95 of 2016) through its Director Arun Mohan (petitioner no. 2 in CRLMC No. 95 of 2016) for development of a commercial and housing/residential project over part of the secured property at Bhubaneswar which was mortgaged with the informant under the loan agreement. The said agreement was entered into with a consideration of Rs. 6.50 crores which was not actually paid. As per the agreement, the loanees granted development and sale rights over part of the secured property granting 50% share in the entire project in favour of the said company. 3. The informant further alleged that on further enquiry he could learn that the subsequent company Sarvoyoni Builders and Developers was merely a façade of the original loanees and the loanee Rahul Gaur was appointed as the Additional Director of the said company and subsequently he resigned from the said company on 10.09.2015, i.e., after five days of the registration of the F.I.R. and Ramesh Chandra Chopra the petitioner in CRLMC No. 1308 of 2016 became the Director thereof. Hence the informant alleged that the original loanees along with their company in collusion with the present petitioners hatched a criminal conspiracy to cheat the informant in respect of the property mortgaged as security for the loan amount. The informant further alleged that the present petitioners intentionally and illegally entered into the CDA despite having knowledge of the existence of the loan agreement with a malafide intention to defraud the informant besides violating the terms of agreement. 4.
The informant further alleged that the present petitioners intentionally and illegally entered into the CDA despite having knowledge of the existence of the loan agreement with a malafide intention to defraud the informant besides violating the terms of agreement. 4. Pursuant to the F.I.R., Balianta P.S. Case No. 223 dated 05.09.2015 was registered and subsequently the investigation of the case was taken over by the Economic Offence Wing of the Crime Branch. In course of investigation it was found out that the subsequent company Sarvoyoni Builders and Developers Pvt. Ltd. was incorporated on 10.03.2014 with Mr. Arun Mohan (petitioner) and H.S. Singh who was the father-in-law of Rahul Gaur the Chairman of the Bryce International Pvt. Ltd. as the share holders and Directors. On 10.04.2015 H.S. Singh resigned from the company and Rahul Gaur and Ramesh Ch. Chopra (petitioner) were appointed as Additional Directors of the said company. Both the CDA dated 12.05.2015 and 14.07.2015 in respect of the alleged mortgaged land in Bhubaneswar were executed when Rahul Gaur and Ramesh Ch. Copra were the Directors of Sarvoyoni Builders and Developers Pvt. Ltd. Similarly it was found out that the petitioner Arun Mohan and his wife were the paid employees of Bryce International Pvt. Ltd. owned by Rahul Gaur during the period when the loan agreement was entered into. Similarly Ramesh CH. Chopra and his family members were also the share holders of Bryce International Pvt.Ltd playing a vital role in its regular affairs. The first CDA dated 12.05.2015 was signed by Rahul Gaur and Ramesh Ch. Chopra as aforesaid but subsequently with some malafide intention another CDA with a consideration amount of Rs. 3.43 crores was prepared where accused Rahul Gaur and Arum Mohan put their signatures and got it registered. 5. It may be mentioned here that in course of investigation, the accused Rahul Gaur was arrested on 29.01.2016 and in bail application he was allowed to go on bail by this Court with a direction to deposit Rs. 3.00 crores but he defaulted in making the deposit and absconded. The investigation of the case is continuing. 6. It was submitted on behalf of the petitioners that they being the Directors of Sarvoyoni Builders and Developers Pvt. Ltd. had no knowledge about the properties being mortgaged with the informant since admittedly the loan agreement was unregistered document by way of depositing title deeds.
The investigation of the case is continuing. 6. It was submitted on behalf of the petitioners that they being the Directors of Sarvoyoni Builders and Developers Pvt. Ltd. had no knowledge about the properties being mortgaged with the informant since admittedly the loan agreement was unregistered document by way of depositing title deeds. Hence they entered into the CDA with a bonafide intention of developing the said property by paying a substantial amount of more than three crores to the undisputed owners thereof namely Bryce International Pvt. Ltd. It was further submitted that there has been some settlement in the meantime between the main accused Rahul Gaur and the informant relating to certain properties in Delhi and the present petitioners have been impleaded as accused only in order to harass them. It was further submitted that the alleged loan agreement and mortgage of properties between the informant and the said main accused having not been registered was not a valid document so as to create an interest over the involved property and further the matters being related to agreements, the nature of dispute is purely civil but has been tried to be given a cloak of criminal conspiracy only to harass the present petitioners. It was also submitted that the informant can exercise his right to get back the loan amount from the loanee company and its Directors basing on the agreements as entered into but he has no cause of action against the present petitioners since they had no transaction with the informant relating to the concerned property. Some other submissions were made regarding the internal affairs of the company of the informant and its authority to enter into loan agreement accepting mortgage besides the absence of materials so as to constitute the alleged offence under Sections 406 or 467/468, I.P.C., but in my considered view, those submissions did not appear to be of much relevance for considering the present question in order to exercise the power under Section 482, Cr.P.C. by this Court. 7. Mostly it was stressed upon on behalf of the petitioners that the disputes between the parties are absolutely civil in nature and the informant in this case has also filed a civil suit and hence, the petitioners having no criminal liability, the F.I.R. so also the proceeding should be quashed.
7. Mostly it was stressed upon on behalf of the petitioners that the disputes between the parties are absolutely civil in nature and the informant in this case has also filed a civil suit and hence, the petitioners having no criminal liability, the F.I.R. so also the proceeding should be quashed. It was also submitted that all the allegations, as leveled, are against the main accused Rahul Gaur and the present petitioners had no relation with the alleged affairs. 8. Per contra it was submitted on behalf of the State as well as on behalf of the informant that the allegations as made and the materials so far collected in course of investigation go to show that the present petitioners having full knowledge about the involved property as to its mortgage with the informant created the subsequent agreement only to defraud the informant apart from violating the conditions of the agreement. No doubt matters relating to any contract or violation of any condition thereof are disputes of civil nature. But in the instant case, the allegations as made in the F.I.R., as detailed herein before, and the submissions made on behalf of the State that in course of investigation some witness has deposed about the motive of the present petitioners along with the undisputed facts that the petitioners had some relation at some point of time in some capacity with the loanee company as well as the subsequent company entering into the agreement, all taken together cannot be said to be a dispute of purely civil in nature. 9. The contentions advanced on behalf of the petitioners pleading their innocence and ignorance about the involved property can only be thrashed out in course of hearing of the case on evidence. That apart, the investigation of the case is still in progress and at this stage it is too pre-mature to say that there is absolutely no material against the petitioners so as to quash the F.I.R. 10. It is the settled proposition of law that where the allegations made in the F.I.R. or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused then it would be a case fit to be quashed by exercising the power under Section 482, Cr.P.C. by this Court.
it is also the settled position of law that while considering an application under Section 482, Cr.P.C., the Court need not go to the details of evidence or the materials available in course of investigation. On the touch stone of the said guidelines, I do not find this to be a case to hold that there is absolutely no material against the petitioner so as to quash the F.I.R. or the proceeding. Accordingly, both the CRLMCs. Stand rejected. CRLMCs. rejected.