Second petition filed for issuing arrest warrant against them.
Already Charity Commissioner had ordered prosecution against them for filing false affidavit and obtaining order by misleading the court.
Special C.B.I. /PMLA Court on 23rd June rejected bail of another co-accused Avinash Bhosale in money laundering case. Avinash Bhosale is arrested by ED/CBI on 26.05.2022 and he is in jail since then. [Download order]
Avinash Bhosale is partner with Vikas Oberoi in ABVO reality who sought to grab the Aram Nagar Project.
MHADA slapped accused with a new report that the Aram Nagar Tenants’ Association is not the owner of the lands have no right to terminate earlier developer and appoint ABVO as new Developer.
Mumbai: – In Aram Nagar development project the three persons Rakesh Shreshtha, Shabnam Kapoor and Manoj Mehta are slapped with new contempt and perjury charges for filing false affidavit before High Court. The charges levelled against them are under section 191, 192, 193, 199, 200, 201, 209, 409, 466, 471, 474, 120(B), 34, 109 of IPC & section 2(c) of Contempt of Court Act, 1971. The maximum punishment under section 409 of IPC is imprisonment for life.
1. Brief Background of the case: –
1.1. The Aram Nagar Tenant Welfare Association is a society of tenants of MHADA property.
1.2. As per consent terms before High Court submitted by the MHADA & State Government, the development of the said project was given to East & West Builders.
1.3. As per MHADA’s affidavit before Civil Court and as per the report of MHADA’s, V.P. & CEO which was accepted by the Chief Minister, it is clear that the non-cooperative members of association like Rakesh Shreshtha were trying to delay the project by filing various proceedings in court. Actually Rakesh Shreshtha’s group lost the battle up to Supreme Court and now they withdrawn their SLP after knowing that they are likely to be prosecuted under perjury & Contempt before the Supreme Court.
Download the order of Supreme Court.
1.4. In the meantime, Jt. Charity Commissioner had started enquiry for suspension and removal of Rakesh Shreshtha and others from the membership of Association who are disqualified to be the members.
1.5. Rakesh Shreshtha & two others challenged the said order and obtained the order from then Charity Commissioner Shri. P. S. Tarare filing false and misleading affidavit.
1.6. Thereafter, Executive committee member of Association Sh. Paresh Benduir had filed an application under section 340 of Cr.P.C. for prosecution against three.
1.7. New Charity Commissioner Shri Mahendra Mahajan, after conducting enquiry found that three accused i.e. Shri Rakesh Shreshtha, Smt. Shabnam Kapoor & Shri Manoj Mehta, have played fraud upon the Charity Commissioner and guilty of filing false and misleading affidavit.
1.8. The Charity Commissioner ordered prosecution against the three.
The observations of Charity Commissioner in Aram Nagar Tenants Welfare Association in Application No. CC/74/2022/Misc on order dated 13 September, 2022, are as under;
“1. This is application under section 340 of Criminal Procedure Code for direction to initiate prosecution against accused Shri Rakesh Shreshtha and others under section 191, 192, 193, 199, 200, 201, 209, 409 read with 120(B) and 34 of Indian Penal Code. In the application, it is prayed that –
(A) To record a finding that the accused Rakesh Shreshtra filed the Application No. 30/2022 with false affidavit, suppression, dishonest, concealment and twisting of the material facts. He made false statements that-
i. The Appln. No. 30/2022 is shown to he filed on behalf of the Society. But infact Society has not apprised him to file such application nor he produced any resolution to that effect.
ii. He affirmed the petition in the capacity as Secretary of the Society. But his term is already expired in the year 2020 and he suppressed this fact.
iii. In para-4 of the application, he made a false statement that the trustees/accused did not receive any notice. Therefore, they could not attend the inquiry. But the record and inquiry report proved the falsity of the said submission, as the accused were served with the three times recently.
iv. He made a false statement that the complaint is only by the developer. But, he malafidely suppressed the fact that the main complaint is by the Joint Secretary of the trust.
v. Applicant Rakesh Shreshtha does not qualify the basic criteria to become the member of the society, as he does not reside there and therefore, he is guilty of cheating and misrepresenting this court by portraying himself as a trustee of the society.”
1.9. The observations of Charity Commissioner in Aram Nagar Tenants Welfare Association in Application No. CC/74/2022/Misc on order dated 14th December, 2022, are as under;
“11. Having regard to the aspects of the inquiry and finding of the Inquiry Officer, it is prima facie revealed that except one.i.e(v), in other aspects of inquiry, there is prima facie material of false statement, suppression of material facts.
12. There are four false statements in respect of aspect no. (i) to (iv) and suppression of fact about aspect No. (vi) in Appln. No. 30/2022.
13. The false statement and suppression of material facts attract the offences under section 191, 192, punishable under section 193, 199, 200, 209 read with 34 and 109 of IPC. The acts of the respondent show that there was abatement to commit the above offences, therefore, offence under section 109 for abatement of above offences is also attracted.
14. Offence under, section 201 is not applicable. There is no any material to show that there was conspiracy to commit the offence. So, offence under section 120-B is not attracted. So far as Section 471 and 474 are in respect of forged and fabricated documents. In our case, the act of accused is about false statement and suppression of material fact. It is not about the documents. So, those offences are not attracted. Offence 409 is not contemplated under section 195. Therefore, that is not attracted under section 340 of Cr.P.C.
15. Hence, complaint needs to be filed against the respondents before the concerned Magistrate having the jurisdiction for the offences under section 191, 192 punishable under section 193, 199, 200, 209 read with 34 and 109 of, I.P.C. The Superintendente(Litigation) is to be directed to file the written complaint against the respondents. Hence, my finding to the point No: (1) is in ‘affirmative’, So, the order.
1) Application is.allowed.
2) The respondents viz., Mrs. Shabnam Kapoor, President, Mr. Rakesh Shreshta, Secretary and Shri Manoj Mehta, Treasurer have prima facie committed the offences under section 191, 192 punishable under section 193, 199, 200, 209 read with 34 and 109 of I.P.C.
3) Superintendent (Litigation) of this Office is directed to file the written complaint against the above respondents before the Metropolitan Magistrate having the jurisdiction for the above offences.
4) Applicant to furnish the full name of the respondents and their residential address to the superintendent (litigation).
5) Inform the superintendent (litigation) accordingly.
6) Dictated on Dias and pronounced in the open court.”
1.10. The said three accused had challenged the order before Bombay High Court. Their affidavit before High Court was also false and misleading therefore, another application for action of perjury & contempt is filed against them. [I.A. No.16158 of 2023, in Writ Petition (C) No.2851 od 2023]
The prayers in the said I.A. reads thus;
“PRAYER: – It is therefore humbly requested that this Hon’ble Court may please to;
(a) Record a finding as per section 340 of Cr.P.C. that:-
(i) The Petitioner had first filed a false affidavit on 19.04.2022 before Charity Commissioner in transfer petition (CC/30/2022) Exhibit – Q at Pg. No. 222, and obtained an order of transfer of case by stating that they have filed an application of recall/ revocation before Jt. Charity commissioner (II) which needs to be transferred to other Court or before charity commissioner itself due to the reason that there are allegations of bias against the Jt. Charity Commissioner II and no one can be Judge in his own case.
However, such application was never filed by the petitioner.
(ii) When this dishonesty and fraud by petitioner was disclosed in an enquiry conducted under section 340 of Cr.P.C. and prosecution is ordered against the petitioner then they again filed a false affidavit before this Hon’ble Court stating that they never filed any affidavit and charity commissioner had initiated proceedings malafidely.
(iii) The petitioner before this Hon’ble Court had taken various false misleading pleas with dishonest concealment and suppression of material facts.
(iv) Petitioner made false, unfounded contemptuous, reckless; scandalous, derogatory and defamatory allegations of malafides, bias etc. against the judicial officers such as Charity Commissioners and thereby undermined the majesty and dignity of the courts of law;
(v) The petitioner and their advocates deliberately made submissions contrary to binding precedents by relying upon overruled judgments in petition and during hearing and thereby misled the court and wasted the valuable time of the court;
(vi) The act of deliberate commission and omission on the part of petitioner i.e. Sh. Rakesh Shreshtha, Smt. Shubham Kapoor & Sh. Manoj Mehta and their advocates who drafted the petition and made such scandalous, false and misleading submissions to the court is an offence under sec 2(c), 14 of the Contempt of Courts Act, 1971 and also an offence under section 191, 192, 193, 199, 200, 201, 209, 409, 466, 471, 474, 120(B), 34, 109 etc of IPC;
(b) Direct Registrar (Judicial) of this Hon’ble Court to file a complaint as per section 343 of Cr. P. C. before Magistrate having jurisdiction;
(c) To hold that all the members of Executive Committee of petitioner who supported, abated or involved in filing of such false affidavit and frivolous petition are also liable to be prosecuted under sec. 340 of Cr. P. C. in view of law laid down in Godrej & Boyce Manufacturing Co. Pvt. Ltd Vs. The Union of India 1991 SCC OnLine Bom 496 & Sanjeev Kumar Mittal Vs. State 2010 SCC OnLine Del 4006;
(d) Issue non-baillable warrants against petitioner Rakesh Shreshtha and others, as per law laid down in case of Arvindervir Singh Vs. State Of Punjab (1998) 6 SCC 352;
(e) To saddle a cost of Rs. 5 Crores against petitioners as per sec. 342 of Cr. P. C. and as per law laid down in Godrej & Boyce Manufacturing Co. Pvt. Ltd Vs. The Union of India 1991 SCC OnLine Bom 496, Dr. Sarvepalli Radhakrishnan Vs. Union of India (2019) 14 SCC 761, Sciemed Overseas Inc. Vs. BOC India Limited and Ors. (2016) 3 SCC 70, Badhuvan Kunhi Vs. K.M. Abdulla MANU/KE/0828/2016, Chandrashekharan Vs. Administrative (2012) 12 SCC 133;
(f) To take Suo-Moto cognizance under sec. 14 of the Contempt of Courts Act, 1971 against petitioner and their advocates as per mandatory requirement laid down by Hon’ble Supreme Court in the case of Re: Perry Kansangar 2022 SCC OnLine SC 858;
(g) Direct the trial court to decide the proceedings against the petitioner in a time bound manner of six months.
(h) Pass any other order which deems fit and proper in the facts and circumstances of the case.”
1.11. The report dated 22.12.2022 submitted by MHADA is another trouble for said Rakesh Shreshtha and others including their sponsor builders like ABVO. Avinash Bhosale was arrested by CBI & ED on 26.05.2022 since then he is in jail. Recently on 23.06.2023 Special PMLA Court had rejected the bail of Avinash Bhosale.
The summary of report dated 22.12.2022 & other reports by MHADA is as under;
“(a) As per resolution passed by MHADA and as per ‘consent arrived between the parties’ filed before this Hon’ble High Court the Tripartite Agreement (JDA) dated 02.09.2009 was approved by the Government and entered between the parties.
(b) The Aram Nagar Tenants Welfare Association was only a party respondent and only in view of the ‘consent arrived’ before hon’ble High court the appointment of East & West Builders as a Developer which was appointed by (Association) was confirmed.
(c) The decision by Association in terminating JDA dated 02.09.2009 and to appoint a new Developer is highly illegal because the Association has no right to terminate the JDA dated 02.09.2009. The Association cannot appoint a new Developer because: –
(i) The Association is not an owner of the land or tenements.
(ii) That as per Rule No. 19 of Government decision dated 04.07.2021 only the co-operative housing societies having
ownership right of the government land are entitled to take a decision for redevelopment of the said property.
(iii) The (Association) is not a registered co-operative housing society but only a welfare Association and it is not the owner of the land or tenements and therefore they have no right to take any decision regarding redevelopment of the property belonging to government.
(iv) The term of Executive committee had been expired in March 2020 (v) Record also shows that the Tenants Association had not followed any rules and regulations issued by the government.
(vi) The appointment of any new Developer could have been done only by way of publication of notice in newspaper by calling tenders and following proper procedure, which has not been followed in this case.
(vii) MHADA is the actual owner of the said land at Aram Nagar, and also as per the terms and conditions of the agreement only MHADA is having the right to cancel the said agreement. But the tenant’s association had acted without any authority and cancelled the Development Agreement (JDA) with Petitioner without taking any permission from MHADA. This act is highly illegal.
(viii) Few members of Executive committee of Tenants Association are not taking all the members of the Association in to confidence and are working on behalf of and only for the welfare of another Developer ABVO LLP. By (Avinash Bhosale & Vikas Oberoi). In this regard a complaint is received from the Vice President of the Aram Nagar Tenant welfare Association (ix) In view of the above illegality, a detailed enquiry and action it is recommended against Executive members of Association as per section 89-A of the Maharashtra Co-operative societies Act,1962.
(d) The order dated 26.07.2019 passed by the VP & CEO of MHADA in terminating JDA with the East & West Builders is challenged in Supreme Court. Therefore, it has to be seen as to the earlier development agreement (JDA)will remain in force till the decision by the court;
(e) In the view of the aforesaid factual background it is just and necessary that an opinion/explanation in this regard be called from the Law and Justice Department regarding all the issues.
(f) In view of the illegality committed by the Executive Committee of the Association action is required to be taken as per recommendation given by the Deputy Registrar in his letter/report dated 20.05.2022”.