# Anil Kumar Tulsiani v. State of U.P

- **Citation:** (2023) 8 ILRA 61
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-23
- **Case number:** Criminal Misc. Bail Application No. 14783 of 2022
- **Bench:** Subhash Vidyarthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-tulsiani-v-state-of-u-p-50692
- **Pages:** 5

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 482 & 438 -
Indian Penal Code, 1860 - Sections 120B,
323, 504, 506, 406, 420, 467, 468 & 471-
Application for bail - FIR - offence of criminal
breach of trust, cheating, forgery and criminal
conspiracy - allegations of financial irregularities
and fraud related to a real eSt. project - and
accused-applicant and his brother failed to
deliver flats booked in a housing scheme,
mortgaging the property to a bank, and
defaulting on the loan, leading to the bank
taking possession of the flats - the applicant
claimed innocence, stating that the dispute was
civil in nature and that he had been falsely
implicated - The St. opposed the bail, citing the
applicant's criminal history involving multiple
similar cases - court finds that, the law provides
civil remedies for redressal of grievances alleged
in the FIR - impugned proceedings have been
initiated with an oblique motive to coerce the
accused persons to redress the civil grievances
of the veiled commercial corporate entity being
represented by the complainant - held, (i)
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 - and (ii) applicant is languishing
in jail for more than one year and without
making any observations, which may affect the
merits of the case, - hence, applicant is entitled
to be released on bail - accordingly, bail
application is allowed. (Para - 16, 17, 18)

Application Allowed. (E-11)

List of Cases cited:

## Text

8 All. Anil Kumar Tulsiani Vs. State of U.P.
61
as an expression on the merits of the case.
The Trial Court shall be absolutely free to
arrive at its independent conclusions on the
basis of evidence led unaffected by
anything in this order.
----------
(2023) 8 ILRA 61
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.08.2023

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Criminal Misc. Bail Application No. 14783 of
2022

Anil Kumar Tulsiani ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Vaibhav Kalia, Abhinav Mishra, Vidhu
Bhushan Kalia

Counsel for the Opposite Party:
G.A., Pranjal Krishna

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 482 & 438 -
Indian Penal Code, 1860 - Sections 120B,
323, 504, 506, 406, 420, 467, 468 & 471-
Application for bail - FIR - offence of criminal
breach of trust, cheating, forgery and criminal
conspiracy - allegations of financial irregularities
and fraud related to a real eSt. project - and
accused-applicant and his brother failed to
deliver flats booked in a housing scheme,
mortgaging the property to a bank, and
defaulting on the loan, leading to the bank
taking possession of the flats - the applicant
claimed innocence, stating that the dispute was
civil in nature and that he had been falsely
implicated - The St. opposed the bail, citing the
applicant's criminal history involving multiple
similar cases - court finds that, the law provides
civil remedies for redressal of grievances alleged
in the FIR - impugned proceedings have been
initiated with an oblique motive to coerce the
accused persons to redress the civil grievances
of the veiled commercial corporate entity being
represented by the complainant - held, (i)
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 - and (ii) applicant is languishing
in jail for more than one year and without
making any observations, which may affect the
merits of the case, - hence, applicant is entitled
to be released on bail - accordingly, bail
application is allowed. (Para - 16, 17, 18)

Application Allowed. (E-11)

List of Cases cited:

1. Indian Oil Corpn. Vs NEPC India Ltd., (2006)
6 SCC 736

2. G. Sagar Suri Vs St. of U.P., (2000) 2 SCC 636

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Heard Sri Vaibhav Kalia Advocate,
the learned counsel for the applicant, Sri
Gyanendra Singh, the learned AGA for the
State and Sri Nandit Srivastava Senior
Advocate assisted by Sri Panjal Krishna
Advocate, the learned counsel for the
complainant.

2. The instant application has been
filed seeking release of the applicant on
bail in Case Crime No. 595 of 2021, under
Sections 409, 420, 504, 506, 467, 468, 471
& 120-B IPC, Police Station Vibhuti
Khand, District Lucknow.

3. 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
62 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

4. 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. In para
60
of
the
affidavit,
the
applicant's
involvement in 7 other cases have been
disclosed.

5. The State and the complainant have
filed counter affidavits opposing the bail
application.

6. The applicant has filed a rejoinder
affidavit.

7. Regarding the criminal history, the
learned 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 learned counsel
for the applicant has submitted that 6 of the
cases have already been quashed by this
Court and copies of the orders have been
annexed as Annexure No. 10 of the
affidavit filed in support of the application.

8. The learned 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.

9. Sri. Nandit Srivastava Senior
Advocate, the learned counsel for the
complainant has vehemently opposed the
bail application and he submits 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 Rs.1.25
Crores
to
Tulsiani
Construction
and
Developers Private Limited for the flats
after taking loan from a Bank. The
complainant had sold one of his flat in the
year 2015. Thereafter he deposited Rs. 68
Lakhs and 1 Crore 24 Lakh respectively for
the two other flats. Tusiani Builders issued
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
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
8 All. Anil Kumar Tulsiani Vs. State of U.P.
63
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 buyer 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.

10. The learned Counsel for the
applicant has further submitted that after
considering the entire facts of the case, the
learned Sessions Judge, Lucknow has
rejected the bail application of the applicant
after recording that the accused-applicant
and some others have prepared forged
documents with regard to ownership of
property Khasra No. 22, 35, 38;,44, 46, 47,
65, 66 and thus, at the time of booking of
the aforesaid flats, accused-applicant had
no land as such and nor any lay-out plan
was
passed
Lucknow
Development
Authority and accordingly.

11. 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.

12. 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.

13. 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-adays 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.

14. As far back as in the year 2006,
the Hon'ble Supreme Court had observed
in Indian Oil Corpn. v. NEPC India Ltd.,
(2006) 6 SCC 736, that: -

"13. While on this issue, it is
necessary to take notice of a growing
tendency in business circles to convert
64 INDIAN LAW REPORTS ALLAHABAD SERIES
purely civil disputes into criminal cases.
This is obviously on account of a
prevalent
impression
that
civil
law
remedies are time consuming and do not
adequately
protect
the
interests
of
lenders/creditors. Such a tendency is seen
in several family disputes also, leading to
irretrievable
breakdown
of
marriages/families. There is also an
impression
that
if
a
person
could
somehow be entangled in a criminal
prosecution, there is a likelihood of
imminent settlement. Any effort to settle
civil disputes and claims, which do not
involve any criminal offence, by applying
pressure through criminal prosecution
should be deprecated and discouraged. In
G. Sagar Suri v. State of U.P. (2000) 2 SCC
636, this Court observed:

"It is to be seen if a matter,
which is essentially of a civil nature, has
been given a cloak of criminal offence.
Criminal proceedings are not a short cut
of other remedies available in law. Before
issuing process a criminal court has to
exercise a great deal of caution. For the
accused it is a serious matter. This Court
has laid certain principles on the basis of
which the High Court is to exercise its
jurisdiction under Section 482 of the Code.
Jurisdiction under this section has to be
exercised to prevent abuse of the process of
any court or otherwise to secure the ends of
justice."

14.
While
no
one
with
a
legitimate cause or grievance should be
prevented from seeking remedies available
in criminal law, a complainant who
initiates or persists with a prosecution,
being fully aware that the criminal
proceedings are unwarranted and his
remedy lies only in civil law, should
himself be made accountable, at the end
of
such
misconceived
criminal
proceedings, in accordance with law. One
positive step that can be taken by the
courts, to curb unnecessary prosecutions
and harassment of innocent parties, is to
exercise their power under Section 250
CrPC more frequently, where they discern
malice or frivolousness or ulterior motives
on the part of the complainant. Be that as it
may."

15. However, instead of being
checked and restrained, the tendency of
entangling opponents in criminal cases to
indirectly pressurize them to enter into a
settlement for redressal of their grievances
of infringement of civil rights is ever
growing. A very large share of the judicial
time of the Courts is consumed in dealing
with matters involving allegations of
disputed contractual rights, for which no
civil proceedings for recovery of money,
cancellation
of
agreement,
specific
performance of contract etc., are initiated,
which require payment of court fee. The
amount paid as court fee would obviously
add to the public exchequer and would be
used for the benefit of public at large.

16. 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.

17. Although the acts alleged in the
F.I.R. may make out commission of some
offence punishable under criminal law, the
dispute between the parties predominantly
appears to be of the civil nature. The law
provides civil remedies for redressal of
grievances alleged in the FIR that the
8 All. Smt. Shraswati Vs. State of U.P.
65
possession of the flats was not delivered
within the stipulated period and that the
flats were not finished in a proper manner.
It is not that the complainant has initiated
the
criminal
proceedings
for
merely
punishment of the accused persons and he
has initiated civil proceedings separately
for
enforcement
of
his
rights,
the
complainant
has
initiated
criminal
proceedings
only
which
prima
facie
indicates that the criminal proceedings have
been initiated with an oblique motive to
coerce the accused persons to redress the
civil grievances of the veiled commercial
corporate entity being represented by the
complainant.

18. 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.

19. Accordingly, this bail application
stands allowed.

20. Let the applicant Anil Kumar
Tulsiani be released on bail in Case Crime
No. 595 of 2021, 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.
----------
(2023) 8 ILRA 65
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.08.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Criminal Appeal No. 213 of 2019

Smt. Shraswati ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Piyush Kumar Singh

Counsel for the Respondent:
Govt. Advocate

Criminal
Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Sections 8, 17, 20, 35 & 54 - Code of
Criminal Procedure, 1973 - Sections 161 &
313 - Appeal against conviction - Rigorous
imprisonment with fine - As per recovery
memo, during search, opium along with
nepali currency recovered from possession
of appellant. (Para 2, 3)

Statementof P.Ws.1 to 3 shows noncompliance of Section 50, NDPS Act, as
mandatory, prosecution not assigned any
reason for not producing other members
of raiding team as prosecution witness -
Non-compliance of Section 57, NDPS Act
and Standing Instructions - Link evidence
not complete as malkhana register not
produced - No independent eye-witness to
alleged recovery - Appellant prior to
search not produced before Magistrate,
nor effort made by P.W.1 and P.W.2 to
produce
her
-
Prosecuting
agency
produced only two witnesses of fact
despite fact that as per prosecution case
itself, other witnesses of fact present at
place of occurrence, prosecution failed to