Pankaj Naqvi, J. - (1.) Heard Sri D.N. Goverdhan assisted by Sri Jatin Sehgal and Ms. Devna Soni, learned counsel's for the applicant, Sri Tanveer Ahmad Mir assisted by Ms. Priyanka Midha, learned counsel for the informant / O.P. No.2 and Sri R.K. Maurya, the learned A.G.A.
(2.) This application has been filed for quashing the proceedings of Charge-sheet No.11/2017, dated 8.5.2017 in Case Crime No. 1233 / 2016, under Sections 420 / 467 / 468 /471 / 120-B IPC, P.S. Noida Sector 20, Gautam Budh Nagar, pending in the court of Chief Judicial Magistrate, Gautam Budh Nagar.
(3.) The case of the prosecution / O.P. No.2 is as under: (A) The O.P. No.3 along with 2 other Directors / Promoters of the company, namely, Jeevesh Sabharwal (for short "JS") and Naresh Sabharwal, incorporated a company under the name and style of "M/s Horizon Buildcon Private Limited", the parent company (for short "HBPL"), having its office at 8/13, Jangpura Extn., New Delhi, for the purposes of construction and building of flats, which over a period of time, attained good will and repute in the real estate. (B) With a view to expand further business, the "HBPL" desired to engage marketing / sales young talents for promoting their business. The applicant represented to the "HBPL" that he is an expert who has sufficient technique / experience in real estate. The applicant set up a company called "Concept Capital Structures Limited" to collaborate with "HBPL" for the project "Iridia" a co-operative housing society, to build 780 flats at Sector-86 Noida. An MOU dated 5.10.2012 was executed by "HBPL" through "JS", a Director and the applicant, under which the applicant was conferred extensive marketing rights of the project with sales office at Noida under his control which included specialized software control over data dealings and receipts of cheques. In terms of the MOU, a Special Purpose Venture ("SPV") was constituted as "Horizon Concept Private Limited" (HCPL) of which the applicant was the Director and the other Directors were to be appointed by the HBPL. In terms of the MOU, an escrow account was to be opened in the name of "HCPL" with Punjab & Sindh Bank / Indian Oversees Bank at Sector-18, Noida and as per the agreed norms, all receivable were to be deposited in these 2 dedicated accounts, where 65 % was to be transferred to "HBPL", the parent company and 35 % to remain in escrow for operational activities of "HCPL", it was also an agreed term that all banking operations were to be carried out by the joint signatures of the applicant and either of the Sabharwals. With the execution of the MOU, the operation of the "HCPL" commenced. The applicant approached O.P. No.3 to widen the banking network, he recommended that an account be opened with Axis Bank at Vikas Puri, New Delhi. Pursuant thereto, the directors of the "HCPL" on 15.1.2013 resolved to open a salary account of "HCPL" with Axis Bank, Vikas Puri, New Delhi as "Account No.913020022627619". The applicant brought a blank account opening form of the Axis Bank which gave no details of the branch office, etc. over which "JS" was made to sign. (C) The Auditors raised an objection that as the MOU does not contain any provision for a separate bank account except the above 2 dedicated accounts, a separate account cannot be opened. The proposal for opening a new account with Axis Bank was dropped and the applicant informed that he has destroyed the bank opening form, signed by "JS". (D) On 5.7.2016, one Mr. B.C. Pant, a retired Air Marshall approached the informant at his registered office for a refund of the amount which he had invested for buying a flat from "HCPL", to which it offered a refund of Rs.12,81,534/- whereas according to Pant, he had deposited Rs.16,41,384/-, a claim backed by deposit receipts. (E) It is alleged that the additional amount of Rs.3,59,850/- was received by the applicant on behalf of "HCPL" but the same was not credited to the authorized bank account of "HCPL". Subsequent inquiry / investigation, revealed that the applicant with a criminal intent, had not destroyed the original Axis Bank account opening form rather on the basis of Board Resolution dated 15.1.2013, sought to open an account in the name of HCPL with Axis Bank, Vikas Puri, New Delhi, with the help of Himanshu Vishwas, an official of the Axis Bank, by giving wrong address, wrong telephone number of the company, fabricated KYC documents, on which forged signatures of "JS" were made. A current account in the name of "HCPL" could not be opened as an objection was raised by the head office of the Axis Bank that as the Board Resolution dated 15.1.2013 provided for the opening of a salary account as "HCPL"- Salary Account, whereas what was sought to be opened, was only a current account in the name of "HCPL". The applicant then forged a Board Resolution dated 7.5.2013 with the forged signatures of "JS" for opening the current account of "HCPL" . (F) It is alleged that the modus operandi adopted by the applicant, was that the unauthorized bank account of the "HCPL" at Vikas Puri was extensively used by him from 9.5.2013 to 18.11.2013, by taking money from potential customers, crediting the same into the said account, thereafter routing it into the accounts of other named individuals / entities, using the forged signatures of "JS" on the RTGS / NEFT / Cheques during the above period, who thereafter repatriated the same with interest either into a fictitious account at Axis Bank or in the account of the applicant, in the name of Concept Capital Infra Project Private Limited, resulting in siphoning off about Rs.6.17 cr. by cheating / forgery.;