IN THE HON’BLE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

S.L.P. (CRL) No. 5658/2018

IN THE MATTER OF: -

ASHOK SAXENA & ORS PETITIONER

VERSUS

STATE (NCT OF DELHI) & ANR RESPONDENTS

COUNTER AFFIDAVIT ON BEHALF OF RESPONDENTS No. i.e., U.O.I.

I ____________________working as _____________________ with the

_____________________, having office at _________________________, do here
by solemnly affirm and state on oath as under:-

1. That I am working with office of the Respondents herein and as such in my

above official capacity is well conversant with the fact of the case on the basis
of the record maintained in the office and therefore, competent to affirm this
Counter Affidavit. The facts stated in the affidavit are true to the best of my
knowledge and belief derived from such official records.

2. That I have read the contents of the present Special Leave Petition along with its
annexures filed by the petitioner and has fully understood the contents there of
and denies each and every averment made by the petitioner unless and until the
same is specifically admitted to that extent. That on the basis of information
derived from the official record and reading of this SLP I am in the position to
reply the same and the facts are as under:

a) T h e c a s e F I R N o . 0 1 / 1 5 , d a t e d 0 2 . 0 1 . 2 0 1 5 , U / s 406/420/120-B
IPC was registered at PS - EOW (New Delhi) on the joint complaint of Sh.
Kamal Kumar Khurana 86 other 41 complainants/investors against the
company M/s Adel Landmarks Ltd. (formerly known as Era Landmarks Ltd.)
having its Regd. office at B-39, Ground Floor, Friends Colony (West), New Delhi.
Complainants alleged that in March 2011, the alleged company M/s Adel
Landmarks Ltd. (formerly known as Era Landmarks Ltd.) has made a pre-
launch of a project by the name of Cosmocity which was to come up at
Sector-103, Gurgaon. The alleged company came out with a newspaper
advertisement regarding the pre-launch and called interested investors to
apply and invest in the said project and make their bookings. The alleged
 company and its representatives mislead the investors by saying that the
company has already acquired 200 acres of land and has the license to
start the project. The alleged company and its agents then induced the
complainants to start making payments by saying that if they make booking
in the pre-launch stage the rates would be Rs. 3,000/- per Sq. Ft. and once
the project is officially launched the rates would double up. The alleged
company s t a r t e d a c c e p t i n g b o o k i n g m uc h b e f o r e t h e n e c e s s a r y
approvals from the authority. Later the alleged company transferred
the land on which the said project was to come up to Ansal Housing
through its 100 % subsidiary company i.e. Identity Buildtech Pvt. Ltd.
Accordingly, above noted case was registered and investigation was taken
up.

b) During the course of investigation it was revealed that the company

namely M/s Identity Buildtech Pvt. Ltd. which was the associate
company of M/ s Era Landmarks Ltd. (now renamed as ADEL
Landmarks Ltd.) at the time of grant of l i c e n c e a n d o n w h i c h
p r o j e c t C o s m o c i t y - 2 h a d t o b e constructed by the alleged company
was sold to M/s Ansal Housing and Construction Ltd. by way of change of
Directors a n d t r a n s f e r o f 1 0 0 % S h a r e s . T h e s a m e w a s n o t
i n t i m i d a t e d t o t h e c u s t o m e r s . During the said period, accused
Sumit Bharana was Whole-Time-Director of the alleged company i.e. Era
Landmarks Limited.

c) The rights of the prospective buyers were jeopardized. Furthermore, reply

from DTCP Haryana received in this context indicates that the bookings
of pre-launch units were illegal. Both the above mentioned facts
indicates that the accused had no intention whatsoever to deliver in his
assurances and intended to make huge profits on the expense of
prospective buyers.

d) That, during investigation, it revealed that accused Sumit Bharana is

one of the authorized signatory in the bank accounts of the alleged
company. He was authorized on behalf of M/ s Headway Buildcon Pvt.
Limited (100% subsidiary company of accused company i.e. M/ s
ADEL Landmarks Limited (formerly known as M/s ERA Landmarks Limited)
to execute Collaboration Agreement dated 02.11.2010 with accused
company i.e. M/s ADEL Landmarks Limited (formerly known as M/s ERA
Landmarks Limited) for the said alleged project. He had control over the
company and managing its day-to-day operations since 2010. He has also
been named in all the complaints. During examination the complainants stated
that accused Sumit Bharana personally met them assured that all
 necessary approvals and permissions in respect of the said project are in
place and have already been obtained in the year 2011 before launching the
project. He further assured that construction is about to start whereas the
said company had already sold the said project land to an ot h e r
de ve l op e r i n t h e ye a r 201 2 i t s el f.

e) Th at t he a l l e ge d company further offered some of the investors to

return their i n v e s t e d a m o u n t i n t h e s a i d p r e - l a u n c h p r o j e c t . W h e n
cust om ers app roach ed for r efund, t h e a l l eged com pan y cancelled
the booking of such investors and deliberatel y issued cheques of
closed accounts.

f) That, the accused Sumit Bharana was not only one of the Whole-Time-
Director of M/s ERA Landmarks Limited, but also by being so h e
i s s u e d s o m e c h e q u e s a s o n e o f t h e a u t h o r i z e d signatories for
refund of amount to some of the complainants, which were apparentl y
of the closed accounts/insufficient f u n d .

g) T h e n a m e o f t h e c o m p a n y w a s a l s o c h a n g e d w i t h o u t intimating
the customers.

h) That, during investigation, more than 200 complaints against the alleged
company for the same project have been received which have been clubbed
with the present case and numbers of complainants are increasing ever y
da y. The cheat ed amount is Rs. 44 crones approximately.

i ) T h a t , d u r i n g i n v e s t i ga t i o n a c c u s e d S u m i t B h a r a n a deliberately
avoided the investigation and absconded.

j) On 01.02.2016 he was declared Proclaimed Offender. Further, he was arrested

(as PO) in the present case and charge-sheet has been filed against him.

k) Vide order dated 01.05.2017, the court of Ld. ASJ, South East, Saket
Court, Delhi granted interim bail to accused Sumit Bharana 'in the present case
in order to facilitate the accused to make compliance of the directions contained
in bail order dated 15.03.2017 passed on an application of accused for
seeking bail in the case titled as Sumit Bharana vs. State of Haryana. The Ld.
Court further directed that the accused shall also furnish an undertaking before the
trial court for compliance with the interim directions as passed by Hon'ble High
Court of Punjab Haryana in respect of d i s b u r s a l o f R s . 1 0 C r o r e s
per month to t h e complainants/investors. Since then Accused Sumit
Bharana is running on interim bail.
l) The next date of hearing in the matter is fixed for 13.12.2018 for
argum ent on bail application of accused Sumit Bharana That, during the
hearing of interim bail of accused Sumit Bharana and vide order dated
08.03.2017, the court of Ld. ASJ, Saket, Delhi cancelled the interim bail of accused
Sumit Bharana and directed to surrender before Ld. Trial court.

m) Accused Sumit Bharana challenged the said order before the Hon'ble Delhi High
Court.

n) That, vide order dated 16.03.2018, the Hon'ble High Court of Delhi set aside the
order dated 08.03.2018 to the extent it cancels the interim bail of accused.
The Hon'ble court further ordered that the petitioner/accused shall make
genuine endeavor to settle the matter with remaining complainants in
present FIR.

o) The supplementary investigation of case FIR No. 01/15, dated

02.01.2015, 13/ s 406/409/420/120 -B IPC is being carri ed out
expeditiously. The supplementary charge sheet shall he f i l e d b e f o r e t h e
Ld. Trial Court after the completion of investigation .

That in the light of the submissions made herein above, it is humbly prayed before
this Hon’ble Court to:-

(i) Dismiss the SLP with order to pay heavy cost.

(ii) Pass any further orders as this Hon’ble Court may deem fit and proper
in the facts and circumstances of the case.

3. That no facts which were not pleaded before the court below have been pleaded
in this affidavit.

DEPONENT

Verification

I _____________________, the above named deponent do hereby verify that the

contents of the foregoing affidavit are true to the best of my knowledge based on
records and no part of it is false and nothing material has been concealed therefrom.

Verified at New Delhi, on ___ day of ____________ 2018.

DEPONENT