BAIL APPLN./1627/2023 of AJAY KUMAR Vs STATE NCT OF DELHI

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Digitally Signed By:DINESHKUMARSigning Date:17.11.2023BAIL APPLN. 1627/2023 and connected17:44:18

versus

+BAIL APPLN. 1645/2023

AJAY KUMAR..... PetitionerThrough:Mr. Rajesh Anand, Mr. Abhay Kr.TripathiandMs.HasleenKaur,AdvocatesThrough:Mr. Rajesh Anand, Mr. Abhay Kr.TripathiandMs.HasleenKaur,Advocatesversus

CORAM:HON'BLE MR. JUSTICE AMIT BANSALJUDGMENT

1.By way of the present bail applications, the applicant seeks regular bailin (i) FIR NO. 42/2019 dated 16[th]March, 2019, (ii) FIR NO. 33/2019 dated12[th]March, 2019, (iii) FIR NO. 10/2019 dated 8[th]February, 2019 and (iv) FIRNO. 43/2019 dated 16[th]March, 2019, all under Sections 420/406/120B of theIndian Penal Code, 1860 (IPC) registered at Police Station EOW.

2.The aforementioned FIRs were registered on the complaints ofhomebuyers, who have alleged that M/s Amrapali Leisure Valley PrivateLimited, M/s Amrapali Dream Valley Private Limited (hereinafter theaccused companies), and their directors/officials, including the applicant

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BAIL APPLN. 1627/2023 and connected

herein, have committed offences of cheating, fraud and criminal breach oftrust in respect of various residential projects in Greater Noida, Uttar Pradesh.It is alleged that despite payment of majority of the consideration amount bymost of the homebuyers, the projects were either stalled/abandoned or thepossession of flats was given in highly delayed and incomplete manner. Itis further alleged that the accused persons had misrepresented the fact that allthe requisite permissions/sanctions were obtained from the concernedauthorities, prior to accepting the booking amount from the homebuyers.

3.The dates of arrest in each of the FIRs are as follows: -

The Chargesheet has been filed in all of the four FIRs. However, thecharges are yet to be framed in any of the FIRs.

4.As per the Status Reports filed on behalf of the State, the applicantalong with other accused persons, is involved in large number of cases and

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BAIL APPLN. 1627/2023 and connected

the EOW and Delhi Police are investigating more than 60 cases against theAmrapali Group of Companies.

5.During the investigation, data taken from the Registrar of Companies(ROC) showed that the accused company i.e., M/s Amrapali Leisure ValleyPvt. Ltd. had last filed its audited balance sheet with the ROC for the financialyear 2014-2015 and thereafter, no financial records were filed. As per the saidbalance sheet, out of the Rs. 1009 crores received by the accused companyfrom homebuyers for various projects developed by it, an amount to the tuneof Rs. 503.58 crores has been diverted in the form of long-term loans andadvances and Rs. 65.81 crores as short term loans and advances to the groupcompanies of Amrapali Group and others.

6.It is submitted that the present applicant, along with other accusedpersons, was an authorised signatory in the bank accounts of the accusedcompanies which proves that the applicant was at the helm of the financialaffairs of the accused companies.

7.Furthermore, the entire gamut of alleged financial fraud along withsiphoning of the funds, allegedly committed by the accused persons includingthe applicant herein has been dealt with by the Supreme Court in BikramChatterji and Ors. v. Union of India in Writ Petition No. 940/2017 dated 23[rd]July, 2019. Further, the Supreme Court had also ordered forensic audit ofthe Amrapali Group of Companies. As per the findings of the ForensicAuditor, the accused companies i.e., M/s Amrapali Leisure Valley PrivateLimited and M/s Amrapali Dream Valley Private Limited have diverted hugeamounts to the tune of Rs. 431.11 crores and Rs. 445.33 crores respectively,collected from homebuyers, in the form of Inter Corporate Deposits (ICDs)to other companies in the Amrapali Group.

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8.Per Contra, it has been submitted on behalf of the counsel for theapplicant that the applicant herein has neither been named, nor there is anyallegation against him in any of the aforementioned four FIRs.

9.It is submitted that the applicant is one of the directors of the holdingcompany of the Amrapali Group of Companies i.e. M/s Ultra HomeConstruction Pvt. Ltd. with minuscule shareholding of 3.25%. It is furthersubmitted that the applicant had no role in the day-to-day affairs of thecompany and had no say in the financial matters, policy-making or theadministration of the company. The applicant was entrusted with theconstruction activities of the various projects, many of which were deliveredon time. The applicant was the director of the accused companies only for abrief time, between 2013 to 2016.

10.It is further submitted that delivery of apartments under the pendingprojects is now being undertaken by the NBCC, through the Supreme Courtappointed Receiver, who is managing the affairs of the accused company interms of the orders of the Supreme Court in Bikram Chatterji (Supra).

11.The applicant further states that notice under Section 41A of theCriminal Procedure Code, 1973 (Cr.P.C.) was not served on him in any of theaforementioned four FIRs, which is in violation of the guidelines passed bythe Supreme Court in Satender Kumar Antil v. CBI, AIR 2022 SC 3386

12.It is submitted that of the several FIRs registered against the AmrapaliGroup of Companies and its directors, the applicant has been granted regularbail/anticipatory bail in several FIRs, including in FIR No. 113/2018 by thiscourt in case titled Ajay Kumar v. State (NCT of Delhi) in BAIL APPLN.3986/2021 decided on 6th March, 2023. Further, the applicant was recently

granted regular bail in FIR No. 202/17 and FIR No. 178/17, filed under thesame charges, by the Sessions Court vide orders dated 31st October, 2023.13.Further, the applicant had joined the investigation as and when he wascalled by the Investigation Officers (IO) in respective FIRs and has dulycooperated in the same.

14.I have heard the counsels for the parties and perused the material onrecord.

15.As per the Status Report filed on behalf of the State, there are 59 casespending against the applicant.

16.The Applicant has filed additional list of documents on 21st September,2023, wherein the status of various cases has been provided, as per which: -2023, wherein the status of various cases has been provided, as per which: -

i.In 11 cases the applicant has been granted regular bail/ anticipatorybail, including by the Coordinate Bench vide order dated 6[th]March,2023.bail, including by the Coordinate Bench vide order dated 6[th]March,2023.

ii.In two of the FIRs bearing No. 202/2017 and No. 178/2017, theapplicant has been granted bail by the Sessions Court on 31[st]October,2023.applicant has been granted bail by the Sessions Court on 31[st]October,2023.

iii.In 14 cases the Chargesheet has been filed without arrest.iv.In one case, Closure Report has been filed.iv.In one case, Closure Report has been filed.

v.In two cases, the FIRs have been compounded.

vi.In 17 cases, the applicant has not been arraigned as an accused.

vii.In FIR No.110/2018 and FIR No.06/2018, the main co-accused, AnilSharma, CMD of the Amarpali Group of Companies, has beengranted regular bail.Sharma, CMD of the Amarpali Group of Companies, has beengranted regular bail.

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BAIL APPLN. 1627/2023 and connected

17.Vide detailed judgment dated 6[th]March, 2023, Coordinate Bench ofthis court had granted regular bail to the applicant in FIR No. 113/2018, takinginto account the period of incarceration as well as the role of the applicant.

18.Though in respect of the present FIRs, the applicant was arrested on23[rd]June, 2021 (in FIR nos. 33/19 and 10/19) and on 10[th]February, 2022 (inFIR nos. 42/19 and 43/19), the applicant has been in judicial custody since 9[th]October, 2018 in other FIRs. Therefore, he has already been incarcerated formore than five years.

19.Even though the applicant was one of the directors in the accusedcompanies as well as the holding company of the Amrapali Group ofCompanies, there are no specific allegations against the applicant beingresponsible for the financial matters, policy-making or the administration ofthe company. As per the Report of the Forensic Auditor appointed by theSupreme Court, it appears that the applicant was involved in the“construction and coordination” activities of the company. Needless to state,the exact role of the applicant shall be determined only after the conclusionof the trial.

20.In Ashok Sikka v. State, 147 (2008) DLT 552, it has been held by thisCourt that mere statement that the petitioners were directors of the companyat the time of commission of offence, without reference to their precise role,would not be sufficient to attach criminal liability to them.

21.It is also matter of record that sum of Rs.8.36 crores has alreadybeen recovered from the applicant and his family members through sale ofassets, in terms of the Supreme Court’s order dated 5[th]April, 2021.

22.Further, the Supreme Court is seized of the matter in Bikram Chatterji(Supra) whereby the Supreme Court is monitoring the completion of the

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BAIL APPLN. 1627/2023 and connected

aforesaid residential projects and delivering of the constructed houses/ flatsto the homebuyers. The fact that the Supreme Court is seized of the matterrelating to home buyers being given possession of their flats cannot be theground for not granting bail to the applicant in the present case.

23.The Chargesheets have been filed in all of the aforesaid FIRs and theentire evidence is documentary in nature. It is also to be noted that the chargesare yet to be framed in any of the FIRs and the trial is likely to take longperiod of time, taking into account the voluminous documents and the largenumber of witnesses to be examined.

24.The conduct of the applicant in jail has been satisfactory. He wasgranted interim bail for period of two months on medical ground on 31[st]October, 2020 and he had duly surrendered back on time. The applicant hasalso surrendered his passport.

25.It is settled principle of law that bail is the rule and jail is an exception.The right to speedy trial and justice has been recognized as fundamentalright by the Supreme Court. Reliance in this regard is placed on the SupremeCourt’s judgment in Sanjay Chandra v. CBI, (2012) 1 SCC 40. The relevantportions of the said judgment are set out below: -

“21. In bail applications, generally, it has been laid down fromthe earliest times that the object of bail is to secure theappearance of the accused person at his trial by reasonableamount of bail. The object of bail is neither punitive norpreventative. Deprivation of liberty must be considered apunishment, unless it is required to ensure that an accusedperson will stand his trial when called upon. The courts owemore than verbal respect to the principle that punishment beginsafter conviction, and that every man is deemed to be innocentuntil duly tried and duly found guilty.22.From the earliest times, it was appreciated that detentionthe earliest times that the object of bail is to secure theappearance of the accused person at his trial by reasonableamount of bail. The object of bail is neither punitive norpreventative. Deprivation of liberty must be considered apunishment, unless it is required to ensure that an accusedperson will stand his trial when called upon. The courts owemore than verbal respect to the principle that punishment beginsafter conviction, and that every man is deemed to be innocentuntil duly tried and duly found guilty.22.From the earliest times, it was appreciated that detention

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in custody pending completion of trial could be cause of greathardship. From time to time, necessity demands that someunconvicted persons should be held in custody pending trial tosecure their attendance at the trial but in such cases, “necessity”is the operative test. In this country, it would be quite contrary tothe concept of personal liberty enshrined in the Constitution thatany person should be punished in respect of any matter, uponwhich, he has not been convicted or that in any circumstances,he should be deprived of his liberty upon only the belief that hewill tamper with the witnesses if left at liberty, save in the mostextraordinary circumstances.”

26.In the present case, the evidence is primarily documentary in nature andalready within the custody of the prosecution therefore there is no likelihoodof the applicant tampering with the evidence if released on bail. Alsoconsidering that the complainants are homebuyers, there is little possibility ofapplicant influencing or threatening the witnesses. The applicant has alreadydeposited his passport, hence there is no possibility of him leaving thecountry.

27.Taking into account the voluminous documents, the number ofwitnesses and that the trial is likely to take long time, the applicant cannotbe kept under incarceration for an indefinite period of time. Accordingly,considering the totality of the facts and circumstances and the period ofincarceration already suffered by the applicant, this Court is inclined to grantbail to the applicant.

28.For the forgoing reasons, the applications are allowed and the applicantis directed to be released on furnishing personal bond in the sum of Rs.1,00,000/- with one surety of the like amount subject to the satisfaction of theTrial Court and further subject to the following conditions:

i.The applicant shall not leave the country without the prior permissionof the Court.of the Court.

ii.The applicant shall appear before the Trial Court as and when thematter is taken up for hearing.matter is taken up for hearing.

iii.The applicant shall join investigation as and when called by theInvestigating Officer (IO) concerned.Investigating Officer (IO) concerned.

iv.The applicant shall provide his latest/fresh mobile number(s) to the IOconcerned, which shall be kept in working condition at all times andshall not switch it off or change the mobile number(s) without priorintimation to the IO concerned.concerned, which shall be kept in working condition at all times andshall not switch it off or change the mobile number(s) without priorintimation to the IO concerned.

v.The applicant shall provide his permanent address to the Trial Court.The applicant shall intimate the Court by way of an affidavit and to theIO regarding any change in his residential address.The applicant shall intimate the Court by way of an affidavit and to theIO regarding any change in his residential address.

vi.The applicant shall not indulge in any criminal activity and shall notcommunicate with or come in contact with any of the prosecutionwitnesses or tamper with the evidence of the case.communicate with or come in contact with any of the prosecutionwitnesses or tamper with the evidence of the case.

29.Needless to state that any observations made herein are purely for thepurposes of deciding the question of grant of bail and shall not be construedas an expression on the merits of the case.purposes of deciding the question of grant of bail and shall not be construedas an expression on the merits of the case.

30.Accordingly, the applications are disposed of.

NOVEMBER 17, 2023

AMIT BANSAL, J.

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Digitally Signed By:DINESHKUMARSigning Date:17.11.202317:44:18