S.K.Ahuja & Another vs State Of Madhya Pradesh

This order shall also govern the disposal of MCRC No.19336/2018 and MCRC No.19317/2018, which have also arisen out of the same FIR lodged

vide Crime No.318/2018 at Police Station Piplani District Bhopal.

These are the first applications filed under Section 438 of Cr.P.C. by the present applicants, who are apprehending their arrest in connection with

Crime No.318/2018 registered at Police Station Piplani District Bhopal for the offences punishable under Sections 420, 423, 467, 468, 469, 471, 477-A,

506, 120, 34 and 406 of IPC.

The facts giving rise to the present applications and the lodging of the FIR lodged by the complainant/objector MPS Guliyani on 3.5.2018 are that

complainant MPS Guliyani and his family members had entered into a partnership to carry out business of house construction and development with

applicant S.K.Ahuja and his family and in pursuance to which a registered partnership deed was also executed between the parties, each family’s

share being 50%. The ladies of both the families were inducted as sleeping partners. The said partnership firm decided known as M/s AG

Constructions, and in order to commence the business, the firm AG Constructions purchased three acres of land from one Smt. Romila Kapahi and

her family members through a registered sale deed, and the firm also decided to do joint venture project with Kapahi family as they have adjoining

land. Consequently, a project was started for total land ad-measuring six acres. Since the aforesaid joint venture could not taken off, hence the same

was dissolved and subsequently the firm AG Construction entered into an agreement with firm M/s Adya Innovation Housing to carry out joint venture

project on the land owned by AG Construction. Similarly, another agreement was also executed by Kapahi family with the same firm and therefore

firm Adya Innovation Housing was entrusted to execute the joint venture project on 6 acres of land, independently owned by AG Constructions and

Kapahi family respectively. Subsequently, the land owned by AG Constructions and Kapahi family was also got diverted and the project was started.

During the execution of the said project, M/s Adya Innovation Housing paid a total sum of Rs.1.85 crores to M/s AG Constructions and the firm

had to pay total sale consideration of Rs.4 crores within a period of 33 months from the date of grant of permission. In the agreement it is also

provided that in case of any supplementary agreement, which is required to be executed between the parties, the same can be done and terms and

conditions will also be changed, if required. The dispute between the parties was also referable to the arbitrator. Subsequently, a dispute took place

between the parties, and it was alleged by the complainant MPS Guliyani that despite having 50% share in the AG Constructions, they were not been

paid appropriate amount and this is despite the fact that property of AG Constructions was also sold without his consent and signature. The allegation

of the objector MPS Guliyani is that the aforesaid project has not been completed within the stipulated period of 33 months and on such failure, the

sum of Rs.4 Crores has also not been paid to M/s AG Construction by Adya Innovation in which Hitesh Ahuja the applicant no.2 is also one of the

partners. It is further alleged that certain registered sale deeds have also been executed by the applicants without obtaining the signatures of the

objector. Thus, the FIR has been lodged under the aforementioned sections not only against the partners of the firm but also against their chartered

accountants who have allegedly prepared a forged audit report at the instance of the applicants and other partners.

The contention of Shri Ajay Mishra, learned senior counsel is that in order to pressurize them and other partners of the firm, a false report has been

lodged by the complainant at the Police Station Piplani District Bhopal, who have also issued a show cause notice dated 27.4.2018 to the applicants

seeking their response to the complaint filed by the complainant/objector hence the response was also filed by the applicants promptly on 28.4.2018 but

to their utter surprise, the police, without adverted to their response, has already registered an FIR against the applicants and other persons on

3.5.2018.

Shri Mishra has also submitted that the complainant, with a view to pressurize the applicants, to extract the money, has lodged the aforesaid FIR

and the police, without even considering the response made by the applicants to the notice dated 27.4.2018 issued by them only decided to lodge the

FIR, which speaks volume about high handed approach of the concerned police officer. Learned counsel for the applicants has further submitted that

the applicants are reputed businessmen and their arrest would tarnish their image and would prejudicially affect not only them but their family

members as well and also the other business partners and their customers. It is further submitted that even otherwise the applicants arrest is not

required as the entire case is based on documentary evidence which is freely available with the parties as also with the various departments of the

State Government in the form of public documents.

In MCRC No.19317/2018 learned counsel for the applicants has submitted that the applicants are running a Tax firm. The applicant no.1 happens to

be an advocate and the applicant no.2 is an Income Tax consultant and advocate. They have a reputation to maintain and have been dragged into this

litigation with mala-fide intentions. Allegations against them are that being the consultants of AG Construction, they have prepared a false audit report

on behalf of AG Constructions and have manipulated the income tax return and have shown the profit, which has not even been accrued to the firm.

Learned counsel for the applicant has further submitted that in the tax return itself it is specifically mentioned that the mercantile system of accounting

has been adopted, according to which only the accounting has been done and the tax return has been prepared by the chartered accountant of the

firm. In support of his contention, Shri Ajay Mishra learned counsel for the applicants has relied upon the judgment of Hon’ble Apex Court in the

case of Keshave Mills Ltd. Vs. Commissioner of Income Tax, Bombay, reported in AIR 1953 187.

In MCRC No.19336/2018 which refers to applicant Vinod Kapahi, learned counsel for the applicants has submitted that there are absolutely no

allegations against the present applicant, and as such no case is made out against him. The applicant is a member of Kapahi family and only because

of this reason he is also dragged in the dispute between the AG Construction and the Gulani family therefore he cannot be held liable specially when

the matter is yet to be adjudicated by the arbitrator, as the dispute is purely of civil nature, which has been projected as a criminal case.

On the other hand Shri Brahamdatt Singh, learned Govt. Advocate for the State has opposed the applications and has submitted that a complaint

was filed on 3. 5.2018 and on the basis of the same, an FIR has been lodged on 3.5.2018 only. It is further submitted that relevant documents have

been filed along the complaint and there appears to be a prima facie case is made out against the applicants in siphoning of the money from AG

Construction to their own account.

Shri Anil Khare, learned senior counsel for the objector has also opposed the bail applications. He has submitted that the applicants have entered

into a conspiracy and cheated the complainant, and therefore cannot escape liability for the same. It is further submitted that even if an arbitration

proceeding is pending between the parties, it cannot deprive the complainant from lodging a criminal case against the applicants. In support of his

contention, learned counsel for the objector has relied upon the judgments of Hon’ble Apex Court in the case of S.W. Palanitkar and others Vs.

State of Bihar, reported in (2002) 1 SCC 241 and in the case of Arun Bhandari Vs. State of UP and others, reported in (2013) SCC 801. It is further

contended by the Sr. Counsel that applicant S.K.Ahuja and Hitesh Ahuja, the applicant no.2 are also the partners in another partnership firm M/s

Adya Innovation Housing thus, cannot escape the liability of Adya Housing who has also entered into a separate agreement with AG Construction and

as per the Clause 3.2 of the said agreement, an amount of Rs.4 crores was to be paid by M/s Adya Innovation Housing to the AG Construction and

the remaining amount was to be kept by M/s Adya Innovation Housing against the cost of construction etc. It is also provided that since the time shall

always be of essence of the agreement, hence M/s Adya Innovation Housing was bound to pay Rs.4 crores to AG Construction within a period of 33

months from the date of execution of the agreement, whereas breach of agreement has been committed as the project has not been completed within

the aforesaid period of 33 months.

It is further contented by shir Khare that building permission of the construction has already been expired on 20. 9.2016 as also the other

permissions issued by the State Government, but still development of the construction has continued even in the absence of such permissions. It is

further submitted that a complaint has already been filed by the objector with the Real Estate Regulatory Authority (for short “RERAâ€) against

M/s Adya Innovation Housing and its partners, and the RERA vide its order dated 10.10.2017 has directed the promoter of the project to refrain from

marketing, advertisement and booking activities in relating to the said project, but even that order has not been honoured by the applicants. It is further

submitted that the properties have already been misappropriated as more than 35 houses have been sold despite the fact that the said houses were

built on the land belonging to the objector’s partnership.

Against the applicants/Tax Consultants in M.Cr.C.No. 19317/2018 it is submitted that in the audit report for the financial year 2016-17, Rs.4 crores

have been shown by way of sale of land Khajuri despite the fact that no such amount has been received by the firm and no such sale of Land Khajuri

has been made nor any such intimation has been given to the objector. It is further submitted that if the applicants are released on anticipatory bail,

they would interfere in the investigation, hence their applications be rejected.

So far as the case of applicant Vinod Kapahi in MCRC No.19336/2018 is concerned, learned counsel for the objector has submitted that the

present applicant is hand in gloves with the co-accused S.K.Ahuja and Hitesh Ahuja and therefore cannot escape the responsibility.

Heard the learned counsel for the parties and perused the case diary.

A bare perusal of the FIR reveals that it was lodged on 3.5.2018 on a complainant made by MPS Guliyani on 3.5.2018 itself, which belies the

documents filed by the applicants along with their applications, in which they were initially issued a notice by the Police Station Piplani on 27. 4.2018

on certain points and reply to the aforesaid notice was also submitted by the applicants on 28.4.2018 which is also apparent from its receipt by the

police station. Thus, it is clear that even before lodging of the FIR, when the police obtained a complaint from the complainant on 27.04.2018 or earlier,

looking to the dispute between the parties, certain queries were made by the police station to the applicants, but it appears that subsequently another

complaint was filed by the complainant MPS Guliyani on 3. 5.2018, on the basis of which an FIR has been registered against the applicants.

When enquired, learned counsel for the State has also informed this Court that along with the aforesaid FIR various documents voluminous in

nature were also filed and on perusal of the case diary it is also apparent that documents comprising more than 300 pages were filed along with the

FIR. In the considered opinion of this Court when the case is purely based on various documents and disputed question of facts, the culpability of the

applicants would be a matter to be decided by the trial Court and their custodial interrogation is not necessary, especially when all the partners of the

firm have also been made accused regardless of their role in the firm itself.

So far as the allegations against the applicants/Tax Consultants are concerned, the allegations against them that they have forged the audit report

by reflecting a sum of Rs.Four Crores in it which has not even accrued to the firm. The contention of the said applicants is that they have followed the

mercantile accounting system which is in accordance with law. In this regard, the judgment of the Hon’ble Apex Court cited by Shri Ajay Mishra

in the case of Keshav Mills Ltd. (supra) appears to be relevant. Para 12 of the same is reproduced as under:

“12. The mercantile system of accounting or what is otherwise known as the double entry system is opposed to the cash system of book keeping

under which a record is kept of actual cash receipts and actual cash payments, entries being made only when money is actually collected or disbursed.

That system brings into credit what is due, immediately it becomes legally due and before it is actually received and it brings into debit expenditure the

amount for which a legal liability has been incurred before it is actually disbursed. The profits or gains of the business which are thus credited are not

realised but having been earned are treated as received though in fact there is nothing more than an accrual or arising of the profits at that stage. They

are book profits. Receipt being not the sole test of chargeability and profits and gains that have accrued or arisen or are deemed to have accrued or

arisen being also liable to be charged for income-tax, the assessability of these profits which are thus credited in the books of account arises not

because they are received but because they have accrued or arisen.â€​

Thus, prima facie it is again a disputed question of law, which cannot be gone into and decided at this stage of anticipatory bail proceedings hence in

the considered opinion of this court, these applicants are also entitled to be released on anticipatory bail.

So far as the case of applicant Vinod Kapahi in M.Cr.C.No. 19336/2018 is concerned, omnibus allegations have been made against the applicant

and his family members, hence since his case is akin to S.K. Ahuja and Hitesh Ahuja, he is entitled to be released on anticipatory bail.

So far as the judgments cited by the learned senior counsel for the objector in the case of S.W. Palanitkar (supra) and in the case of Arun

Bhandari (supra), the question was whether the dispute between the parties is civil in nature or criminal one and both these judgments have arisen out

of a petition under Section 482 of Cr.P.C. for quashing the order taking cognizance. In the present case, the issue is whether the applicants are

entitled to bail or not, hence the judgments are distinguishable on facts.

In view of the aforesaid discussion, the applicants have prima facie made out a case for grant of anticipatory bail. Thus, without expressing any

opinion on the merits of the case, the aforesaid applications filed by the applicants under Section 438 of Cr.P.C. are hereby allowed.

It is directed that in the event of their arrest, present applicants namely S.K.Ahuja, Hitesh Ahuja in MCRC No.19332/2018, Prakash Kelkar,

Ashwin Kelkar in MCRC No.19317/2018 and Vinod Kapahi in MCRC No.19336/2018 shall be released on bail on their furnishing a personal bond in

the sum of Rs.50,000/-(Rupees fifty thousand only) each with a solvent surety in the like amount to the satisfaction of the Arresting Authority

(Investigation Officer). The applicants shall further abide by the other conditions enumerated in sub-Section (2) of Section 438 of Cr.P.C.