Hon'ble Subhash Vidyarthi,J.
1. We have heard Shri Rakesh Pande, learned Senior Advocate assisted by Shri Prashant Rai and Ms. Vishakha Pande, appearing for the petitioner and Shri Manish Goyal, learned Additional Advocate General assisted by Shri S.A. Murtaza, learned A.G.A. for all the respondents.
2. This petition under Article 226 of Constitution of India has been filed by Anil Saha with a prayer for issuing writ, order or direction in the nature of certiorari, quashing the impugned First Information Report dated 26.06.2021 registered as Case Crime No.0558 of 2021 under Sections 2 and 3 (1) of the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 at Police Station Dadri, District Gautam Budh Nagar. Further prayer has been made not to arrest the petitioner in the aforesaid case.
3. It appears that the petitioner is a qualified architect and business man. He has constructed several residential complexes in Gautam Budh Nagar and New Delhi. A company was formed in the name of 'Garvit Innovative Promoters Limited' (in short, the Company), which was duly registered under the Companies Act, 1956. The petitioner was not associated with the said company as Director, Promoter, Signatory, Shareholder or in any other capacity. The said company decided to start a business of E-bikes/Taxi Bikes under a "BIKEBOT" scheme in August 2017 and under this Scheme, anybody could invest Rs.62,100/- and in lieu thereof, he would receive monthly profit of Rs.4,590/- per month for a period of 12 months and Rs.5,175/- per month for reimbursement/repayment of the invested amount. Thus, the company was required to pay Rs.9,765/- per month against an investment of Rs.62,100/-. The aforesaid amount was to be paid monthly for a period of 12 months. The investor was also required to enter into written agreements with the Company in this regard. More than 2,43,000 persons invested under the said Scheme. Consequently, the company raised a sum of Rs.2,500/- crores under the Bike Bot Scheme. From the money so raised, 10,000/- Bikes, 129 Luxury Cars like Fortuner, Mercedes, Jaquar etc. and 700 Cars of middle segment were purchased and the same are stated to be running as taxis in various cities. The Company suffered some losses, as a result whereof, rumours were spread that its entire business had collapsed and the Company was not in a position to refund the money to the investors, according to the agreement entered into between them. Subsequently, on account of rumours and certain fake and malicious newspaper reports, more than 70 FIRs were lodged in District Gautam Budh Nagar by the investors of the Scheme. On the basis of the FIRs, the property of the Company has been seized as also the Bank Accounts of the Company and its Directors. It also appears that one FIR was registered as Case Crime No.510 of 2019 at P.S. Dadri, District Gautam Budh Nagar under Sections 420, 409, 201, 467, 468, 471 and 120B IPC on 19.5.2019. The petitioner was not named in the said FIR but he was arrested in the case on 01.3.2021 on the allegation that certain amount had been transferred to the account of the petitioner by the said Company. The petitioner approached this Court and preferred Criminal Misc. Bail Application No.19568 of 2021 (Anil Saha vs. State of UP) in which learned A.G.A. was directed to file response in the matter. In the meanwhile, impugned FIR has been lodged.
4. In this backdrop, learned Senior Counsel for the petitioner argued that the petitioner is not named in the FIR dated 19.5.2019 registered as Case Crime No.510 of 2019. The petitioner is neither a Director, Promoter, Signatory or Shareholder of the company nor a beneficiary of the 'Bike Bot Scheme' in any way floated by the said Company. However, the Investigating Officer had given an application under Section 167 Cr.P.C. for remand on 01.3.2021, wherein, it was indicated that the petitioner, who is Director of Saha Infratech Private Ltd., was an accused in view of the fact that the company and its sister concern company Primex Broadcast Private Ltd. had transferred a sum of Rs.21,67,00,177/- to Saha Infratech. The name of the petitioner has been included as an accused only on the basis of surmises and conjectures. In the year 2018, the representatives of the said Company approached the petitioner for taking over Saha Infratech and in this regard, a Memorandum of Understanding (for short, MOU) dated 19.9.2018 was signed between two companies. For acquisition of equity shares, the said Company paid advances to the tune of R.19,16,00,000/- to Ms/ Abet Build Tech Pvt. Ltd. The said Company suffered losses and eventually, the MOU dated 29.1.2019 was signed between them, whereby the company expressed inability to complete the transaction of acquisition of shares and thus, agreed to utilize the advances paid to M/s Saha Infratech Pvt. Ltd. towards booking of flats in the group housing projects. The advance money deposited with Saha Infratech had been utilized for construction of its ongoing project.
5. Learned Senior Advocate further submits that in the impugned FIR the allegations of fraud and cheating have been levelled against Sanjay Bhati and other named accused. There is no allegation of violence, threat or show of violence or intimidation or coercion or otherwise against the petitioner either singly or collectively as a constituted member of a gang and as such, no offence is made out against the petitioner under Section 2 read with Section 3 (1) of the Act. The concept of violence, threat or show of violence or intimidation or coercion is the necessary ingredients under Section 2 (b) of the Act and no offence is made out against the petitioner on the basis of sole allegation relied upon for treating the petitioner as Gang or Gangster. In all the FIRs, the allegations of fraud and cheating have been levelled against Sanjay Bhati, who is Managing Director of the said Company. There is no material on record to indicate that the petitioner could be treated as member of the gang. In the impugned FIR, allegations have been levelled that the accused as an organized members of the gang was committing forgery under a criminal conspiracy and duped innocent investors and money and as such, it was not in the public interest that he would remain free. The charge sheet has been submitted in most of the cases relating to Bike Bot Scheme. Hence, protection has been claimed.
6. Per contra, Shri Manish Goyal, learned Additional Advocate General has vehemently opposed the writ petition with this contention that huge amount invested by the investors in the Scheme in question was parked by the Directors of said company & its sister companies in the account of Saha Infratech Pvt. Ltd. & its sister companies only to defraud the investors. If there was MOU between said company and Saha Infratech Pvt. Ltd. for sale of entire share-holding, the value of shares must have been cleared in the agreement itself. It was further submitted that aforesaid MOU dated 19.9.2018 was not meant for acquisition of entire share-holding. Due to this reason, agreement could not materialize and further agreement was entered into between the parties on 28.1.2019, changing the purpose of payment. It was further contended that since the amount of Rs.21 Crores said to have paid to Saha Infratech Pvt. Ltd., the company was only for the purpose of parking the aforesaid amount and thus, aforesaid MOUs were prepared only for the purpose to show the paper work. The intention of the parties was only to park the investors' amount in the garb of acquiring of the share-holding of Saha Infratech & its Sister Companies. In similar matter, a coordinate Bench of this Court has already dismissed the writ petition1 on 16.7.2021 with following observations:-
"In our considered opinion, only two points arise for our consideration. One, whether the criminal prosecution lodged against the petitioners under the provisions of the Indian Penal Code and the U.P. Gangster & Anti-social Activities (Prevention) Act, 1986 are barred in view of Section 5 of the Indian Panel Code.
The second and ancillary question which arises is the forum for trial of the petitioners, in case, it is held that the allegation against them are liable to be looked into under the provisions of the Companies Act, 2013 in view of Sections 36 and 337 thereof.
The first argument is not tenable as Section 5 I.P.C., read in conjunction with the provisions of the General Clauses Act, provides that a person cannot be punished twice for the same offence. Section 5, per se, does not provide as to which Act, a general Act or a Special Act is to be used for prosecuting an offender. In any case, admittedly, petitioners are not being prosecuted under the Companies Act, 2013. The choice in this regard is that of the prosecutor and not that of the person being prosecuted. It is also settled vide Emperor Vs. Jiwa Lal, AIR 1932 All 69 that where an offence falls strictly within the purview of a special Act, it is appropriate to prosecute the offender under the Special Act. The petitioners are being prosecuted under the U.P. Gangsters and Anti Social Activities (Prevention) Act, 1986 which is undisputedly a special Act. Therefore, in view of the above facts and circumstances, petitioners are not entitled to any relief on the basis of the argument raised.
Insofar as the second question is concerned, it no doubt appears that both the Gangsters Act and the Companies Act 2013 provide for trial by special courts constituted there under. A conflict, if any, can arise only in the case of simultaneous prosecution and trial both under the Gangsters Act and the Companies Act, 2013. Such is not the position in the case at hand and therefore the second question does not require consideration in the instant case as it does not arise in the facts and circumstances of the instant case.
Apart from the above, there are specific allegations against the petitioners, who are Directors of a Company, that they in connivance with his other co-accused, while running a company in the name of GIPL have duped innocent people of crores of rupees and have misappropriated the same after assuring them of good returns in the form of interest on the amount invested as also return of the principal invested amount.
Besides, perusal of the record reflects that the investigation is still on and is being conducted to establish the complete nexus between all those involved. The aspect of money laundering and the petitioner's specific involvement in the same is also being investigated. The accused persons/petitioners are not only the beneficiaries of the alleged fraudulent earnings, but are also the brains behind the business.
In our view, quashing the subject FIR at this stage is unwarranted, keeping in view the allegations and the alleged fraud committed.
The writ petition is accordingly, dismissed."
7. Shri Manish Goyal further submitted that the petitioner was arrested in Case Crime No.510 of 2019 on 01.3.2021. Consequently, he moved Bail Application2 and the same has been rejected by learned Single Judge of this Court 07.10.2021 with following observations:-
"In this matter, as is evident from the record, although applicant is not named in the F.I.R. nor he is the Director, share-holder, signatory of G.I.P.L. & its Sister Companies, but keeping in view this fact that MOU entered into between the parties did not materialize, huge amount of investors invested in the Scheme has been diverted in the account of applicant's company and same has not been returned to G.I.P.L. on non-completion of the agreement entered into between the parties nor the flats shown in the affidavit have been handed over to the G.I.P.L. & its Sister Companies, thus, keeping in view the entire facts and circumstances of the case; the large amount of money invested by the investors, who are mainly the retired persons having life long savings and invested hard earned money, in the Scheme as well as the transactions made in the account of the applicant's Company were nothing but sham transactions as also the fact that numerous F.I.R.s have been lodged against the applicant by the investors, the Court is of the view that the applicant cannot be allowed on bail in the aforesaid crime number / F.I.R. simply on the basis of order passed in respect of co-accused referred here-in-above.
Bail application of the accused-applicant Anil Saha is hereby rejected."
8. It is further submitted that there is no provision that case under the Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986, may not be registered on the basis of single criminal antecedent. Rather, the condition precedent is that the ingredient for registration of case under above Act ought to be fulfilled as per definition of "gangster" given in Section 2 (c) and "gang" given under Section 2 (b) of Act. The offence for which this Act is in effect are given in Section 2 (b) (I):- "offences punishable under Chapter XVI or Chapter XVII or Chapter XVIII of the Indian Penal Code (Act No. 45 of 1860), or ....(i.e. ii to xv)". Hence, as has been propounded by Division Bench of this Court in Writ Petition3, the point of single offence as a basis for registering a case under Act No. 7 of 1986 is of no effect, rather, the condition of offences given under Section 2 (b) (i) to (xv) of Act, being committed by gang or member of gang amounting to gangster i.e. defined in sub-section (c) of Section 2 of the Act. Hence, in the present case, offence against petitioner is within above category of offences and gang with its gang leader and members have been committing these offences for which this registration of case crime number is there. Hence, no indulgence is required.
9. As has been propounded by Division Bench in the case of Somvir as well as in many judgments by this Court that even a single case, if fulfils the category of offences given under Section 2(b) (i) to (xv) of Act and is being committed by gang defined under Section 2 (b) or gangster defined under Section 2 (c) of the Act may be basis for registration of case crime number for offence punishable under Section 2/3 of Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986.
10. So far as legal position regarding quashing of F.I.R. is concerned, in the case of R. Kalyani v. Janak C. Mehta and Others4, Hon'ble Apex Court has held as under:
"(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a First Information Report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose, the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."
11. The said decision has also been followed by the Apex Court in the case of Kamlesh Kumari and Ors. v. State of U.P. and Ors.5 "The law regarding sufficiency of grounds which may justify quashing of F.I.R. in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in submission of charge sheet and then eventually in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offence is required in order to see whether the F.I.R. requires to be investigated or deserves quashing. The ambit of investigation into the alleged offence is an independent area of operation and does not call for interference in the same except in rarest of rare cases."
12. Hon'ble Apex Court in State of Haryana and others vs. Bhajan Lal and others6; M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra7, as well as in Leelavati Devi @ Leelawati & another vs. the State of Uttar Pradesh8 has further reiterated above principle.
13. The statements raised by learned counsel for the petitioner called for determination of question of fact, which may be adequately discerned either through proper investigation or it may be adjudicated upon only by the trial court and even the statements made on points of law can also be more properly gone into by the trial Court in case charge-sheet is submitted in this case. The perusal of record makes out prima facie offence at this stage and there appears to be sufficient ground for investigation in the case. This Court does not find any justification to quash the impugned FIR or proceeding against the accused-petitioner arising out of above case crime number as the case does not fall in all the categories recognized by the Apex Court, which may justify their quashing. Moreover, in the similar matter, a coordinate Bench of this Court has already dismissed Criminal Misc. Writ Petition No.489 of 2021 on 16.7.2021.
14. Accordingly, the writ petition is dismissed.