2023 (4) TMI 1083 - HC - Companies Law

Seeking grant of anticipatory bail - fraudulent transfer of shares - forged and alleged share certificates and share transfer forms are fabricated documents - forged signatures - HELD THAT - Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enrobed in the crime and would not misuse his liberty. The applicant no. 1 as per Status Reports did not provide the requisite original Share certificates and also gave evasive replies during investigation. It is also appearing as surfaced during investigation that the applicant no. 1 who is managing director of the accused no. 1 could not produce any proof regarding request of the applicant no. 2 made to the accused no. 1 for payment of Rs. 6,25,000/- to the complainant on her behalf and said amount was actually credited in the loan account of the complainant. The applicant no. 1 also could not produce Jumbo share certificates which were stated to be issued on 29.1.2018 in lieu of 62,500 shares of the complainant and stated to be bearing the signature of Gulshan Jhurani as Director of the accused no. 1. Gulshan Jhurani in his statement dated 30.07.2022 also stated that he did not sign the share certificate/Jumbo share certificate after 2012. It also came into investigation that original share transfer deed between the complainant and Roohi Reshi for transfer of share certificate no. 31269 for 300 shares was executed on 12.12.2017 whereas new certificate no. 31269 was issued on 13.12.2017. The respondent/State prayed for custodial interrogation of the applicants on grounds that they have not provided requisite documents and gave evasive replies during investigation. It is also alleged that there are contradictions in replies given by the applicants as mentioned in Status Reports and also argued by the Additional Public Prosecutor and the learned Senior Counsel for the complainant. The issue which needs judicial assessment and consideration is that whether the applicants can be subjected to custodial interrogation merely the applicants as per investigating agency did not produce documents as sought by the investigating officer and gave evasive and contradictory replies during investigation. It was also surfaced during investigation that the complainant is having financial transactions with the accused no. 1 for the last 15-20 years. The bail applications filed by the applicants were dismissed by the court of Additional Sessions Judge-02, Patiala House Courts, New Delhi, vide order dated 28.05.2022 wherein it was observed that none including the complainant has appeared before the court with truth and conduct of the applicants is also shrouded in suspicion and appears to be much more tainted and stained as compared to the complainant - It appears that the concerned court minutely examined material collected during investigation in manner as deciding case on merits after conclusion of trial which was not warranted at time of consideration of bail applications. The Supreme Court in relation to power to grant anticipatory bail and power of investigating agency to investigate in P. Chidambaram also observed that the judicial discretion to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. The custodial interrogation of the applicants is not warranted under given facts and circumstances of the present case and after evaluation of the available material against the applicants and particularly only to recover certain documents pertaining to the share transfer and contradictions in the replies given by the applicants during investigation. There is no direct and apparent apprehension that the applicants may flee or avoid further investigation. The applicants cannot be remanded to custodial interrogation in the absence of convincing material which warrants that certain documents and evidence pertaining to present FIR cannot be recovered without custodial interrogation of the applicants. After considering all facts, the bail applications bearing no. 1696/2022 and 1697/2022 filed by the applicants Naresh Garg and Nirmala Aggarwal respectively are allowed, subject to conditions imposed.

Issues Involved:
1. Fraudulent transfer of 62,500 equity shares.
2. Alleged forgery and fabrication of share transfer documents.
3. Requirement of custodial interrogation for the applicants.
4. Evaluation of anticipatory bail applications.

Summary of Judgment:

Issue 1: Fraudulent Transfer of 62,500 Equity Shares
The complainant alleged that 62,500 equity shares of Genesis Finance Ltd., allotted to him on 27.11.2008, were fraudulently transferred to Nirmala Devi on 10.05.2016 without his consent. The complainant claimed he never received the share certificates and did not execute any transfer deed.

Issue 2: Alleged Forgery and Fabrication of Share Transfer Documents
The court noted the FSL report which confirmed that the signatures on the share transfer forms were forged. The complainant did not sell the shares to the applicants and never executed any share transfer deed. The documents were found to be forged and fabricated.

Issue 3: Requirement of Custodial Interrogation for the Applicants
The court evaluated whether custodial interrogation was necessary. It was argued that the applicants did not provide requisite documents and gave evasive replies during the investigation. However, the court found that the investigation had already progressed significantly and the applicants had participated in it. The FSL report was already received, and the court did not find sufficient grounds for custodial interrogation merely based on the applicants' failure to produce documents or giving contradictory replies.

Issue 4: Evaluation of Anticipatory Bail Applications
The court considered the nature and gravity of the accusations, the applicants' cooperation in the investigation, and the absence of direct and apparent apprehension that the applicants might flee or avoid further investigation. The court noted that anticipatory bail is discretionary and should be granted when exceptional circumstances exist. It was held that the applicants' custodial interrogation was not warranted under the given facts and circumstances.

Conclusion:
The anticipatory bail applications filed by Naresh Garg and Nirmala Aggarwal were allowed. The applicants were granted bail on furnishing a personal bond of Rs. 50,000 with one surety of like amount, subject to conditions including cooperation in the investigation, not leaving the country without permission, and not tampering with evidence or influencing witnesses. The court also ordered the release of the Rs. 5 crores FDR deposited by the applicants.

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