2018 (11) TMI 1848 - HC - Companies Law

Two Bail Applications - distinction of complicity between the two accused applicants - HELD THAT - The Court has heard the case of both the applicants in the light of material gathered in the charge sheet filed on 19.5.2018. The charge sheet, prima facie, makes a distinction of complicity between the two accused applicants in the backdrop of their role which each of them has severally played in the business of the Company of which they are joint beneficiaries. The distinction lies in the framing of charges itself This Court while dealing with the right of personal liberty must have due regard to such a fundamental right of a citizen and the procedure established by law has to be essentially weighed of which the premise cannot be founded on mere apprehensions. That apart, for any such conduct, it is always open to the investigating agency to approach the court of law for seeking cancellation of bail but at this stage nothing would turn on the basis of presumptive apprehensions of the investigating agency insofar as the grant of bail to Rahul Kothari is concerned. The bail application of Vikram Kothari is rejected at this stage and that of Rahul Kothari, is allowed.

Summary

Issues Involved:
1. Personal liberty of the accused persons.
2. Threat to the investigating agency from the accused persons tampering with evidence.
3. Retrieving the alleged loss caused to the Bank.

Issue-wise Detailed Analysis:

1. Personal Liberty of the Accused Persons:
The Court emphasized the primacy of personal liberty as a fundamental right under Article 21 of the Indian Constitution, which can only be curtailed by following the procedure established by law. The Court noted that the charge sheet had already been filed, and the accused had been in detention for over nine months. The Court found that further detention of Rahul Kothari would be punitive before trial, which is impermissible under Article 21. Hence, the bail application for Rahul Kothari was allowed. However, for Vikram Kothari, despite similar arguments, the Court noted the need to secure public money and the alleged misrepresentation by the Managing Director, leading to the rejection of his bail application at this stage.

2. Threat to the Investigating Agency from the Accused Persons Tampering with Evidence:
The Court acknowledged the CBI's concerns about potential tampering with evidence. However, it found that after filing the charge sheet, there was little scope for the investigation to claim apprehension of evidence tampering by the accused. The Court held that the right to personal liberty must be weighed against mere apprehensions, and no additional material had been presented against the accused since the charge sheet was filed. Therefore, the Court did not find sufficient grounds to deny bail to Rahul Kothari on this basis.

3. Retrieving the Alleged Loss Caused to the Bank:
The Court noted the failure of the consortium of nationalized banks to secure advances as per the Banking Regulation Act, 1949. The Court expressed concern over the unsecured advances made to Rotomac Global Pvt. Ltd. and emphasized the need for the CBI to retrieve the loss and hold accountable those who breached public trust. The Court highlighted that the creditworthiness of the company had been compromised due to alleged misrepresentation by the Managing Director, Vikram Kothari. Consequently, Vikram Kothari's bail application was rejected to ensure the investigation's integrity and the retrieval of the alleged loss.

Conclusion:
The Court allowed the bail application of Rahul Kothari, subject to conditions such as surrendering his passport, informing the court about movements, and ensuring presence in court on specified dates. The bail application of Vikram Kothari was rejected, considering the need to secure public money and the alleged misrepresentation by him. The Court also emphasized the need for expeditious trial proceedings.

Conditions for Rahul Kothari's Bail:
1. Surrender his passport immediately upon release.
2. Inform the court about any movement within the country with a specific schedule.
3. Undertake not to seek adjournments when witnesses are present.
4. Remain present in court on each date fixed, either personally or through counsel.
5. In case of misuse of bail, the court may initiate proceedings under Section 174-A IPC.
6. Be present in person for opening of the case, framing of charge, and recording of statement under Section 313 Cr.P.C.

The trial court is expected to expedite the trial following the filing of the charge sheet.