Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Date of decision: 30 JULY, 2024
IN THE MATTER OF:
+ CRL.M.C. 1557/2022 & CRL.M.A. 6691/2022
AJAY KUMAR .....Petitioner
Through: Mr. Rajesh Anand, Ms. Nidhi Gaur,
Advocates
versus
STATE NCT OF DELHI .....Respondent
Through: Mr. Shoaib Haider, APP for the State
Insp. Anand Pratap Singh, PS EOW
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. Petitioner has approached this Court seeking quashing of FIR
No.06/2018, dated 09.01.2018, registered at Police Station Economic
Offences Wing, for offences under Sections 406/420/120B IPC, and the
charge-sheet filed in the said FIR and all the criminal proceedings emanating
therefrom.
2. The facts of the case reveals that the Petitioner herein was one of the
Directors of M/s Ultra Home Construction Pvt. Ltd., which is the holding
company of Amrapali Group of Companies, which is a real estate company
engaged in construction of housing projects in Delhi NCR. It is stated that
the Petitioner herein was also inducted as Director in some of the
subsidiaries of M/s Ultra Home Construction Pvt. Ltd. It is stated that in
2011 in Noida and Greater Noida various real estate projects for housing
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By:RAHUL SINGH
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were started and in various projects, the Amrapali Group of Companies
proposed to construct approximately 42,000 flats. Various brochures were
published and it was assured that the delivery of possession shall be made in
36 months and other world-class amenities were also promised. disputes
arose between home buyers and the company due to delay in construction.
The Apex Court in a batch of Writ Petitions in Bikram Chatterji v. Union of
India, (2019) 19 SCC 161 , while considering the allegations of defalcation
of money started looking into the complaints. The Petitioner herein was
taken into custody on 26.04.2019. A forensic audit was ordered and the
report of the forensic audit was submitted in the Apex Court and the charge-
sheet was filed on 24.06.2019 against the Petitioner herein and others. The
Petitioner has approached this Court contending that there is no allegation
against him either in the FIR or in the charge-sheet and that he has not been
named in the Charge-sheet for having committed any defalcation of money
and he was not instrumental in siphoning off the money of the home buyers.
3. Notice in the present Petition was issued on 11.04.2022. Status Report
has been filed.
4. Learned Counsel for the Petitioner states that the Petitioner was a
Director of the Amrapali Group of Companies from 2013-16. He states that
the investigation started in 2018, i.e. after the Petitioner has retired as a
Director. He further states that a reading of the FIR and the charge-sheet
shows that the Petitioner has not been named in the FIR and the charge-
sheet. He, therefore, states that the proceedings against the Petitioner must
be quashed.
5. During the course of hearing, the Investigating Officer, who was
assisting the learned APP for the State instructed the learned APP to submit
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that the Petitioner has not been named either in the FIR or in the charge-
sheet and that there is no allegation against the Petitioner. The matter was
heard and the Judgment was reserved on 11.07.2024.
6. While dictating the Judgment, this Court found that there were
allegations in the forensic audit report against the Petitioner. Accordingly,
the matter was put for re-hearing on 19.07.2024.
7. On 19.07.2024 it was stated by the learned Counsel for the Petitioner
that the correctness or otherwise of the forensic report is under consideration
before the Apex Court until and unless a finality is attained in the said
matter, nothing can be attributed to the Petitioner herein.
8. In Bikram Chatterji supra, the Apex Court has held that various
homebuyers booked their apartments in the Amrapali Group of Companies
during the period 2010-2014 by signing the standard form of allotment-cum-
flat buyers agreement and even after payment of 40 to 100% of total
consideration, they were faced with the threat of forfeiture of huge booking
amount. The Apex Court further took cognisance of the fact that there was
hardly any progress in construction of the apartments and the home buyers
had invested their life savings and had also taken loans from the banks.
Contending that approaching the NCLT would not be an efficacious remedy,
the Home Buyers approached the Apex Court directly and the Apex Court
started looking into the matter. The forensic report was filed before the Apex
Court. Instead of going into the forensic report, this Court is confining itself
to the role attributed to the Petitioner herein in the forensic report and the
same reads as under:
“ 60. The summary of report submitted by forensic
auditors in the Court is as under:
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.......
9. Misuse of funds by Directors involved in scam
The Directors and executives colluded with each other
and diverted homebuyers funds. Directors received
huge amount of money in the form of salary as well as
professional fee, both together. A person could have
been either in whole-time employment of the company
or render services as consultant. However, a person
cannot enjoy salary income and earn professional
income at the same time and also both cannot be
earned at the same time from same company. But
Directors of Amrapali Group withdrew sums using all
possible ways, be it salary, professional fee,
reimbursement of expenses, use of luxury cars or loans
and advances to self/relatives/self-controlled
entities/trusted partners or booking of bills of self-
controlled entities/trusted partners.
Further professional fee was booked without any
agreement or proof of service. It had no correlation
with the amount of work done by the Directors.
Professional fee was booked as per wish and desire of
Directors and did not have any fair basis. There were
standing instructions to transfer company funds to the
individual Directors bank accounts when the balance
was reaching to the specified set minimum balance
limit.
The professional fee paid to the Directors, relatives of
Directors, and senior managers was a unique way of
diverting money. Huge amounts were paid without any
agreements at the whims and fancies of the Directors
and managers. Moreover it was tax free and the tax
liability was discharged by another group company.
The whole of professional fee received by the Directors
(as stated hereunder) is recoverable from them. (Vol.
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II, pp. 416-17).
Name of director Professional fee
received (as per
affidavit)
Anil Kumar Sharma 29,13,23,580
Shiv Priya 26,43,64,571
Ajay Kumar 5,76,90,240
Suvash Chandra Kumar 5,11,21,752
Amresh Kumar 68,11,110
Total 67,13,11,253
Professional fee was underdisclosed to the tune of Rs
33.4 crores (Anil Kumar Sharma 8.75 cr + Shiv Priya
24.65 cr) in affidavits filed on 3-12-2018 (Vol. II, pp.
414-15). The difference was found from the affidavit
file and the tax returns.
It shall be noted that Directors did not share company-
wise receipts in the affidavit and also books of
accounts of Directors were not provided.
Directors along with their trusted partners and
relatives cheated and did criminal breach of trust with
the homebuyers. They transferred the funds from the
projects to the companies which were closely held by
the Directors, their family members and/or by their
trusted associates. The objective was to create assets in
the closely held companies and leave the homebuyers
on the road. For example, Eklavya Building Solutions
Pvt. Ltd. acquired property in Goa amounting to is Rs
2 crores through funds received from Amrapali Group,
27 other companies further invested Amrapali funds in
Amrapali projects (for example, many flats in IT Park
at Greater Noida).
The Directors spent homebuyers funds on wedding of
daughter of Director, foreign travels, expensive
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watches, jewellery, purchasing luxury cars for use by
Directors. The homebuyers funds were also used for
investment in mutual funds, creating personal
properties, payment of housing loans, investment in
shares & securities. The Directors created discreet
projects for personal income for example in the name
of Amrapali Hospitality, a hotel at Deogarh was
constructed out of funds received from homebuyers
without their knowledge of it. They used homebuyers
funds in the form of construction of assets for other
projects, example, constructed mall at Muzzafarpur,
Bareilly, etc., hotel at Deogarh, Bareilly, hospital at
Noida, etc.
Few particulars of diversion of funds received from
Amrapali Group are as under:
xxx
xxx
By Ajay Kumar
Yogesh Chand 25,00,000
Transferred to Sweep
Account
1,33,00,000
Ozone GSP Infratech 50,00,000
Quality Synthetic
Industries Ltd.
40,00,000
Investment in mutual
funds
2,25,00,000
Payment of housing
loan for IRS Colony,
Abhay Khand,
Indirapuram
56,31,000
Payment of housing
loan for Pelican Villa
Jaypee Green
37,55,784
Payment for LIC 2,56,53,384
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Total 8,23,40,168
Instances of misuse of funds are hereunder:
xxx
xxx
Ajay Kumar
1. Mr Ajay Kumar received funds from Amrapali
Group of Companies which was used for acquiring
personal properties, as stated hereunder:
(a) Property located at Plot No. A-014 Savanna
Villas, Jaypee Greens Sector 128, Noida; the property
was not disclosed in affidavit submitted on 3-12-
2018—(Housing loan was paid for this property out of
amount received from Group companies).
(b) Property located at IRS Colony, Abhay Khand,
Indirapuram, Ghaziabad—Rs 1.38 crores.
(c) Property located at Plot No. A-014, Pelican
Villa Jaypee Green Noida 201301—Rs 1.11 crores.
2. Mrs Seema Kumari (wife of Ajay Kumar) made
investments in different mutual funds amounting to
Rs 2.25 crores out of amounts received from Amrapali
Group of Companies during August to September
2018.
3. Mr Ajay Kumar made investments in life insurance
policies of Rs 2.59 crores out of amounts received from
Amrapali Group of Companies.
4. Mr Ajay Kumar made payment of Rs 1.25 crores to
following third parties out of amounts received from
Amrapali Group of Companies.
(a) Yogesh Chand : Rs 25,00,000
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Signing Date:03.08.2024
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(b) Ozone GSP Infratech : Rs 50,00,000
(c) Quality Synthetic Industries Ltd. : Rs 50,00,000
5. Mr Ajay Kumar made investment of Rs 1.12 crores
in Ultra Home Construction as share capital out of
amounts received from Amrapali Group of Companies.
6. Mr Ajay Kumar made payment of direct tax of Rs
0.11 crore out of amounts received from Amrapali
Group of Companies.
7. Mrs Seema Kumari holds mutual funds with HDFC
mutual funds Folio No. 14756739/01, which have
market value amounting to Rs 0.48 crore as on 28-2-
2019.
8. Bank statement of Anandi Singh of IndusInd Bank
Account No. 150019032006
A sum of Rs 1.73 crores has been transferred from
Date Particulars Amount
16-8-2018 Mirae Asset MF 50,00,000
16-8-2018 Aditya Birla
Mutual Fund
50,00,000
18-8-2018 Kotak Mutual
Fund
50,00,000
11-9-2018 HDFC Mutual
Fund
50,00,000
12-9-2018 Tata Mutual
Fund
25,00,000
Total 2,25,00,000
Seema Kumari on 9-8-2018.
Further a sum Rs 2.25 crores has been invested in
mutual funds as per details given below:
Note : This amount can be attached and recovered by
encashment of these investments.”
9. It is pertinent to mention that Seema Kumari is the wife of the
Petitioner herein.
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By:RAHUL SINGH
Signing Date:03.08.2024
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10. A perusal of the role attributed to the Petitioner herein in the forensic
report shows that there are serious allegations against the Petitioner in the
forensic report. The charge-sheet also mentions about the forensic audit
report and states that the forensic audit report is under consideration of the
Apex Court.
11. The contention of the learned Counsel for the Petitioner that there is
no allegation against the Petitioner cannot be accepted at this stage.
Unfortunately, the Investigating Officer had instructed the APP that there is
no allegation against the Petitioner ignoring the fact that there are serious
allegations against the Petitioner in the forensic report.
12. In view of the fact that there are serious allegations against the
Petitioner in the forensic report, which is under consideration of the Apex
Court, this Court is not inclined to quash the present FIR and the
proceedings emanating therefrom.
13. Accordingly, the Petition is dismissed, along with the pending
applications, if any.
SUBRAMONIUM PRASAD, J
JULY 30, 2024
Rahul
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By:RAHUL SINGH
Signing Date:03.08.2024
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