The Lucknow Bench of the Allahabad High Court while allowing the bail application observed that now-a-days a trend is developing very fast that persons acquire interest in immovable properties evade payment of stamp duty and registration fee and the cumulative effect thereof causes a significant loss to the public exchequer. Thereafter when some disputes occur, the purchasers initiate criminal prosecution for putting pressure on the seller to transfer the property or to repay their amount.
A Single Bench of Justice Subhash Vidyarthi passed this order while hearing a Criminal Misc Bail Application filed by Anil Kumar Tulsiani.
The application has been filed seeking release of the applicant on bail in Case under Sections 409, 420, 504, 506, 467, 468, 471 & 120-B IPC, Police Station Vibhuti Khand, District Lucknow.
The aforesaid case has been registered on the basis of an F.I.R lodged on 08.11.2021 against the applicant and his brother Mahesh Tulsiyani, alleging that the complainant had booked three flats in the name of his company in Golf View Apartment Scheme in the year 2012. The flats were not constructed within the stipulated period and the flats had not been finished properly. No penalty was paid for the delay in handing over the flats. The complainant had sold away one flat in the year 2015. The FIR categorically states that some consideration remains to be paid by the complainant.
It is further alleged that the entire building had been mortgaged by the accused persons with a bank and the loan account was declared N.P.A and the bank took over possession of the flats.
In the affidavit filed in support of the bail application, it has been stated that the applicant is innocent and he has falsely been implicated in the present case.
Regarding the criminal history, the counsel for the applicant has stated that the applicant has been implicated in a total of 15 cases of similar nature. Although the State has claimed that the applicant is involved in 17 cases, the counsel for the applicant has submitted that 6 of the cases have already been quashed by the Court.
The counsel for the applicant has submitted that the dispute is entirely of civil nature regarding which no civil proceedings have been initiated by the complainant.
Nandit Srivastava Senior Advocate, the counsel for the complainant has vehemently opposed the bail application and he submitted that on the basis of advertisement given in newspapers and allurements given by the applicant, who is a Director of Tulsiani Construction and Developers Private Limited, the complainant had booked three flats in the year 2012 in Golf View Apartment Scheme in the year 2012 in the name of his Company. The complainant paid Rs1.25 Crores to Tulsiani Construction and Developers Private Limited for the flats after taking loan from a Bank. The complainant had sold one of his flats in the year 2015. Thereafter he deposited Rs 68 Lakhs and 1 Crore 24 Lakh respectively for the two other flats. Tusiani Builders issued an allotment letter and builder buyer agreement to ensure allotment of flats. As per builder buyer agreement, fine was to be imposed in delay in giving the possession. Flats were not constructed on time and after a delay of about four years, possession was offered in three towers without the works inside the flat having been finished and the services which were offered at the time of booking viz club, parking pool play area were not completed. Penalty of flat which was sold by Complainant in the year 2015 was not given to the Complainant.
In the year 2016, Subsequently the applicant told that loan of Bank of Baroda was pending against said flats wherein all the flats were mortgaged and he demanded Rs 10 Lakh per flat i.e Rs 20 Lakh and also asked for Rs. 33 Lakh as interest on both the flats to which Complainant objected. The applicant threatened the Complainant that if money would not be given as per demant, he would sell the flat to someone else and would usurp his whole money.
As the applicant failed to repay the loan amount, the loan account was declared as NPA and possession over the flats has been taken over by the Bank. No information in this regard was given by the applicant to any of the flat buyers which is cheating. When Complainant talked about the same to Anil Tulsiani and Mahesh Tulsiani they used filthy language, abused him and threatened him to pay the demanded money otherwise his whole money would go in vain.
The Court observed that,
What prima facie appears from the averments made in the FIR is that the complainant’s company had entered into an agreement to purchase three flats in Golf View Apartment Scheme launched by Tulsiani Construction and Developers Private Limited, of which the applicant is a director. The complaint has not disclosed the name of the company which had booked the flats, although the allottee company would be a separate juristic person.
From the material available before the Court at this stage prima facie it appears that no registered agreement had been executed between the parties regarding purchase of flats where any agreement for purchase of immovable property of value exceeding Rs. 100/- can only be made through a registered agreement, after payment of the prescribed stamp duty and registration fee.
The corporate entity which had entered into agreement for purchasing three flats and evaded payment of stamp duty and registration fee payable in respect of the agreement for purchase of the flats, and which has kept itself veiled, has committed an offence of evasion of stamp duty payable to the public exchequer, thereby illegally depriving the public at large of the benefits of that amount, which affects every single citizen of the country.
Although the amount of stamp duty and registration fee payable in respect of three agreements may prima facie appear to be small, the Court cannot restrain itself from observing that now-a-days a trend is developing very fast that persons acquire interest in immovable properties evade payment of stamp duty and registration fee and the cumulative effect thereof causes a significant loss to the public exchequer. Thereafter when some disputes occur, the purchasers initiate criminal prosecution for putting pressure on the seller to transfer the property or to repay their amount, because they cannot invoke the civil remedies for the reason that the unregistered agreement is inadmissible in evidence and no rights can be claimed in respect thereof in civil proceedings.
This tendency of misusing the criminal proceedings for claiming enforcement of civil rights by indirect methods and evading payment of stamp duty, registration fee and court fee cannot be appreciated by the Courts and it should not be encouraged. It is nothing but cheating committed against the public exchequer and the persons who would stand benefited thereby.
“Having considered the aforesaid facts and circumstances of the case, coupled with the fact that the applicant is languishing in jail for more than one year and without making any observation, which may affect the merits of the case, I am of the view that the applicant is entitled to be released on bail in the aforesaid crime”, the Court further observed while allowing the bail application.
The Court ordered that,
Let the applicant Anil Kumar Tulsiani be released on bail in Case under Sections 409, 420, 504, 506, 467, 468, 471 & 120-B IPC, Police Station Vibhuti Khand, District Lucknow on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicant shall not tamper with the prosecution evidence;
(ii) The applicant shall not pressurize the prosecution witnesses;
(iii) The applicant shall appear on each and every date fixed by the trial court.