The Allahabad High Court has refused to grant bail to Mukesh Khurana, the promoter of the Noida-based Rudra Group.
A single-judge bench of Justice Vivek Agarwal passed this order while hearing a Criminal Misc Bail Application filed by Mukesh Khurana. The bail application has been filed by applicant Mukesh Khurana aggrieved of the order dated December 2, 2020 passed by Additional Sessions Judge, Gautam Budh Nagar rejecting his bail application moved by the applicant in the case under Sections 420, 406, 467, 468 and 471 IPC at Police Station Phase-3, Sector 71, District Gautam Budh Nagar.
The counsel for the applicant submitted that the applicant is on bail since June 26, 2021 on account of his health issues as the applicant has undergone angiography. Reading an angiography report, it is submitted that one of the arteries had 90% blockage, whereas in another artery, there is mild narrowing of less than 40%, therefore, for treatment, the applicant requires regular bail.
The counsel further submitted that there were in all 153 flat buyers, of which, money to 107 persons has been either returned in toto or in part and the process of refund is going on, therefore, there is no element of cheating or forgery.
It is also submitted that another FIR was registered at Delhi, where applicant is already on bail and for the same transaction, second FIR is not permissible in terms of the provisions contained in Section 300 CrPC, because once, a person has been convicted or acquitted, he is not to be tried again for the same offence.
The counsel for the applicant said that since the main complainant has entered into a settlement and this fact is verified by Saurabh Yadav (counsel for the informant) that his client complainant Sunita Devi has entered into a compromise and settlement and had furnished an affidavit to this effect before the court below, there is no justification in continuing with the case and investigation.
Dililp Kumar, senior advocate appearing for the intervenors, submitted that it is not a case of double jeopardy. FIR at Delhi is in relation to another project and not relating to the project in which Sunita Devi and others represented by their respective counsel have stakes and have been duped.
It is further submitted that deliberately no copy of FIR or charge-sheet has been filed in relation to so-called Delhi case, in which Rebecca John, Senior Advocate, has argued that applicant was enlarged on bail by the District Court, Saket.
It is also further submitted that though an angiography report has been brought on record, no follow-up treatment has been prescribed and none of the documents pertaining to follow-up treatment have been produced.
Dililp Kumar said provisions of Section 439 cannot be invoked, unless the accused is in custody and, therefore, bail application is not maintainable.
Counsel further said that the applicant is already on interim bail, which was granted for a period of 60 days and, therefore, unless he surrenders his application for regular bail should not be considered.
Rebecca John, Senior Advocate for the applicant submitted that applicant always wanted to complete the project, but got struck in several legal formalities, though, courts on civil side have decided some issues in his favour, but fairly admits that neither papers of future treatment have been brought on record, nor she is aware as to what is the future course and line of treatment prescribed for the applicant.
She also admits that as far as documents are concerned, she has not brought either a copy of the FIR or the charge-sheet filed in another case so as to bring the case within the four corners of provisions contained in Section 300 Cr.P.C. or Article 20(2) of the Constitution of India.
John, Sr. Advocate has placed reliance on the decision of a co-ordinate Bench in Criminal Misc. Bail Application No.29639 of 2018 (Dhirendra @ Dheeraj Tyagi Vs. State of U.P.) decided on January 13, 2020 and placing reliance on this order, it is submitted that even when the applicant was on interim bail, a coordinate Bench of this Court held that he was in constructive custody of the court and considered his application for regular bail.
“After hearing Counsel for the parties and going through the records, it is evident that health ground as has been canvassed by Rebecca John, Sr. Advocate is not complete in itself to be taken to be a circumstance for grant of bail in absence of necessary documents suggesting future course of treatment and the extent of disease, especially when Rebecca John admits that applicant is on medication and hopes to recover through medication,” the court observed.
The Court held, “Second ground of double jeopardy and case being hit by the provisions contained in Article 20(2) of the Constitution of India and Section 300 Cr.P.C. is also not made out in absence there being any material to show that in the same crime number, applicant was granted bail by Delhi Court and for the same crime another FIR has been lodged at Gautam Budh Nagar. Thus, it is evident that compromise will not help the applicant to seek bail as that is not one of the grounds for grant of bail or for cancellation of bail.
“However, this issue of surrender not with standing the language used in Section 439 is academic for the present, fact of the matter is that, looking to the nature and gravity of accusations, merely an attempt to refund the money after several years of accepting the deposits, when buyers are forced to accept their depreciated value of money coupled with heart burn of being deprived of their dream home, value of which would have been several times than the amount of money paid by them way back 8-10 years back and the fact that once, it was discovered that project has not been cleared in the year 2012- 13, then no attempt was made by the applicant to initiate refund of the money and that has been initiated only now that too under the orders of the court, it cannot be said that firstly, there are no elements of cheating and forgery and secondly that refund of money in part will exonerate the applicant of his liability to be prosecuted on the ground of collecting amounts without taking prior project clearance etc. and thus, cheating, mis-representation and de-frauding innocent investors/buyers, this is not a fit case to enlarge the applicant on bail,” the Court said while dismissing the application.
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