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2022 (2) TMI 1016 - DSC - Companies LawSeeking grant of Anticipatory bail - Hawala transaction - accusations against applicants are that they have not filed return - HELD THAT - On carefully perusing the police papers, it appears that this complaint had been filed by the Assistant Registrar of the Company. As per the complaint, it reveals that the complainant had received confidential information that Income Tax Department had unearthed hawala-kand with one Chinese company and other cases are filed. The complaint also reveals that pursuant to the news, it came to the light of the Ministry Of Corporate Affairs, Delhi that Savariya International Pvt. Ltd. located at Surat is being running by some Directors and Chartered Accountant and the company was established on 23/07/2012 and after 2015-16 no financial statement had been filed. As per the complaint itself shows that the applicant of bail application no.643/2022 namely Nilamben Bodra had appointed as a director from 23/01/2017 - in absence of production of the books of accounts as well as other documents, C.A. cannot carried-out the function of audit. It is important to note that the Ld. adv. for bail application no.642/2022 and 643/2022 has contended that there is a Savaria International Pvt. Ltd. company situated at Delhi and the present complainant and other department had joined the company of Delhi based with this Savaria International Pvt. Ltd of Surat, but Savaria company located at Surat and Savaria company located at Delhi has no nexus is not tenable and it is to be investigate by the department concerned. On perusing papers, it appears that Ministry of Corporate Affairs Delhi had written a letter of dated 07/01/2022 to Naranpura police station to register the FIR on the ground mentioned therein. Therefore, the complaint itself shows and suggests that in-spite of huge income, less expenses have been shown by the company as alleged by the complainant. Considering facts and circumstance of the present case, there is a difference in balance-sheet is to be investigated and as per the facts of the complaint itself shows that there may be a breach of FERA and rules of RBI by the directors of the company. Therefore, contention of the Ld. adv. for the bail application no.642/2022 that there is no any kind of ingredients of cheating and breach of trust is not tenable looking to the papers - Bail cannot be allowed. Application rejected.
Issues Involved:
1. Anticipatory bail applications under Section 438 of the Criminal Procedure Code. 2. Allegations under Sections 406, 420, 477-A, 120(B), and 114 of IPC, Section 66(D) of the Information Technology Amendment Act, and Section 447 of the Companies Act. 3. Involvement of the Enforcement Directorate (ED) and allegations of a hawala scam. 4. Role and involvement of the accused, including directors and a Chartered Accountant. 5. Arguments for and against granting anticipatory bail. Issue-wise Detailed Analysis: 1. Anticipatory Bail Applications: The applicants sought anticipatory bail under Section 438 of the Criminal Procedure Code for offences registered at Naranpura Police Station. The offences included Sections 406, 420, 477-A, 120(B), and 114 of IPC, Section 66(D) of the Information Technology Amendment Act, and Section 447 of the Companies Act. The applications were considered together due to common facts and law involved. 2. Allegations Under Various Sections: The allegations included breach of trust (Section 406 IPC), cheating (Section 420 IPC), falsification of accounts (Section 477-A IPC), criminal conspiracy (Section 120(B) IPC), and abetment (Section 114 IPC). Additionally, Section 66(D) of the Information Technology Amendment Act and Section 447 of the Companies Act were also invoked. The accusations were related to not filing returns and involvement in a hawala scam unearthed by the Income Tax Department in 2018. 3. Involvement of Enforcement Directorate (ED): The ED had registered a case under the Money Laundering Act against a Chinese citizen in 2018. The applicants argued that there was no pending investigation against them by the ED and no transactions with the Chinese company. They contended that the action was mistakenly initiated against them due to a company with a similar name in Delhi. 4. Role and Involvement of the Accused: - Applicant No. 643/2022 (Nilamben Bodra): Argued that she was appointed as a director in 2017 and had no involvement in the alleged offences. - Applicant No. 644/2022 (Jigneshkumar Hirapara): A Chartered Accountant who audited the company's accounts for 2014-15 and 2015-16. He argued that his role was limited to auditing and he had resigned in 2018 due to irregular payments by the company. - Applicants No. 642/2022 (Mukund Kurne and Sumit Bodra): Long-term directors of the company. The court noted discrepancies in the company's financial statements and potential breaches of FERA and RBI rules. 5. Arguments for and Against Granting Anticipatory Bail: - For Bail: The applicants argued that there were no ingredients of breach of trust or cheating, no custodial interrogation was required, and they would cooperate with the investigation. They cited the Arnesh Kumar judgment to argue against the need for arrest. - Against Bail: The State argued that the offences were serious, involving a hawala scam, and required custodial interrogation. The Registrar of Companies had filed the complaint based on confidential information from the Income Tax Department. Judgment: - Bail Application No. 642/2022: Rejected. The court noted the need for custodial interrogation due to discrepancies in the financial statements and potential breaches of FERA and RBI rules. - Bail Application No. 643/2022 (Nilamben Bodra): Allowed. Considering she was a lady and joined as a director in 2017, her involvement was deemed less significant. - Bail Application No. 644/2022 (Jigneshkumar Hirapara): Allowed. As a Chartered Accountant, his role was limited to auditing, and he had resigned due to irregular payments. Conditions for Bail: The applicants granted bail were required to: - Execute a personal bond of ?15,000 each with one local surety. - Not influence prosecution witnesses or act prejudicially. - Appear before the Investigating Officer on specified dates. - Furnish their residential address and notify any changes. - Not leave India without court permission and deposit their passports. - Regularly attend court during the trial. - Cooperate with the investigation and be available for interrogation. - Report to the police station on the first day of every month until the charge-sheet is filed. - Be subject to potential remand if deemed necessary by the Investigating Officer. The order was pronounced on February 14, 2022.
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