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TMI Blog2021 (3) TMI 1142X X X X Extracts X X X X X X X X Extracts X X X X ..... Thus, on the the basis of interim protection granted to co-accused by the Apex Court, the applicant cannot be enlarged on bail. Further, keeping in view the modus operandi adopted by the Companies concerned for obtaining the Letter of Credit and the amount of NPA, applicant can also not be enlarged on bail on the ground that his daughter is suffering from Cancer. Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties and keeping in view the nature of offence, evidence, complicity of accused and without expressing any opinion on the merits of the case, the Court is of the view that there is no substance in the submissions made by the learned counsel appearing for the applicant - Application dismissed. - Criminal Misc. Bail Application No. - 22234 of 2020 - - - Dated:- 25-3-2021 - Hon'ble Om Prakash-VII, J. For the Applicant : Gunjan Jadwani, Kartikeya Saran For the Opposite Party : Gyan Prakash (Senior Adv.), Sanjay Kumar Yadav ORDER HON'BLE OM PRAKASH-VII, J. 1. Present Bail Application has been filed on behalf of the applicant with the prayer to enlarge the applicant on bail in Sessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and son both are languishing in jail. Daughter of the applicant is also suffering from Cancer disease, which is at advanced stage. None is to look after her. She requires special care. Since father and brother both are behind the bar, other family members are also in trouble. It was next contended that main accused of Rotomac Group, namely, Vikram Kothari and co-accused in the present matter, namely, Sunil Verma and Anoop Wadhera had approached Apex Court challenging the constitutional validity of the provisions of Section 212(6) of the Companies Act and the Apex Court granted interim protection to them in their petitions. Thus, on this ground as also on medical ground applicant is entitled for bail. It was further submitted that no purpose would be served by keeping the applicant behind the bar as applicant is ready to abide the conditions imposed by the Court. At this juncture, learned Senior Counsel also referred to provisions of Section 212(6) of the Companies Act and further submitted that since applicant is an old and sick person, therefore, bar created under Section 212(6) of the Companies Act will not come in the way of release of applicant on bail. Shri Rohatgi, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support of his submissions, learned Senior Counsel has placed reliance on the following decisions : (i). Raj Kumar Modi vs. SFIO, (2019) SCC Online P H 4987. (ii). Y.S. Jaganmohan Singh Vs. CBI, (2013) 7 SCC 439. (iii). Shivinder Mohan Singh Vs. Directorate of Enforcement, (2020) SCC Online Del 766.. (iv). P. Chidambaram Vs. CBI, (2019) SCC Online SC 1380. (v). D.K. Shivakumar Vs. Directorate of Enforcement, 2019 SCC Online Del 10691. (vi). SFIO Vs. Nittin Johari, (2019) 9 SCC 169. (vii).State of Maharashtra Vs. Nainmal Punjaji Shah, (1969) 3 SCC 904. (viii). Sanjay Chandra Vs. CBI, (2012) 1 SCC 40. (ix). Nikesh Tarachand Shah Vs. Union of India, (2018) 11 SCC 1. (x). Gudikanti Narsimhulu Vs. Public Prosecutor, High Court of AP, (1978) 1 SCC 240. 6. In reply, Shri Gyan Prakash, learned Senior Counsel appearing for SFIO submitted that present bail application is not maintainable as applicant has directly approached this Court for regular bail. Since entire documents annexed with the complaint are not available before this Court, legal mandate required under Section 212(6) of the Companies Act cannot be arriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ari vs. Serious Fraud Investigation Office, 2020 SCC OnLine Del. 394. (ix). State of Maharashtra vs. Nainmal Punjaji Shah, (1969) 3 SCC 904. (x). Niranjan Singh vs. Prabhakar Rajaram Kharote, (1980) 2 SCC 559. (xi). P. Chidambaram vs. Central Bureau of Investigation, 2019 SCC OnLine SC 1380. (xii).D.K. Shivakumar vs. Director of Enforcement, 2019 SCC OnLine Del. 10691. (xiii). Satpal Singh vs. State of Punjab, (2018) 13 SCC 813. (xiv). Beant Singh vs. State of Punjab, 2017 SCC OnLine P H 3801. (xv). P. Chitambaram vs. Directorate of Enforcement, (2019) 9 SCC 24. (xvi). Y.S. Jagan Mohan Reddy vs. CBI, (2013) 7 SCC 439. (xvii). Rohit Tandon Vs. Directorae of Enforcement, (2018) 11 SCC 46. (xviii). State of Gujarat Vs. Mohanlal Jitamalji Porwal, (1087) 2 SCC 364. (xix). Shivani Rajiv Saxena vs. Directorate of Enforcement, 2017 SCC OnLine Del 10452. (xx). Aditya Kumar Bhandari Vs. Serious Fraud Investigation Office, 2020 SCC OnLine Del. 588. 7. Shri Anurag Khanna, learned Senior Counsel appearing for applicant, in rejoinder, submitted that rule of parity is applicable in the present matter as co- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness of commodities and merchant trading and Chairman Audit Committee and Director in Mohan Steels Limited. He alongwith his son were the ultimate decision makers with reference to Merchanting Trade business of the FIL and MSL. FIL had secured the credit facilities by way of margin money / FD's as well as other collaterals. It has also been averred that since its incorporation in 1995 till February, 2018 FIL had duly serviced all its loans and obligations towards Banks and other creditors in a timely manner and over a period of time, Banks have increased the sanction limit from time to time. Later on, on the basis of complaint, Banks initiated action against FIL based on R.B.I. Circular dated 12.2.2018 and also before the National Company Law Tribunal, Mumbai under the Insolvency and Bankruptcy Code. FIL had challenged the said RBI Circular before Apex Court and the NCLT proceeding was stayed and Circular was quashed. Thereafter, Banks stopped FIL's credit lines and the money received as advance from the buyers for future supplies were adjusted by the Banks against the devolved Letters of Credit. It has also been averred that applicant under the garb of MT conducted mopi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he interest arbitrage and showed it in the books as Merchanting Trade business. Since it was not actually into MT business the corresponding sales and purchase shown in the financial statements and books of accounts is false. Since mopping of interest was done by keeping the rotated funds obtained through LC discounting in Fixed Deposits to camouflage the same the interest income from FD was shown as part of revenue from operation in the financial statements to give a false picture of profitability of MT business. A large amount of these fictitious trade receivables were standing against their undisclosed related parties. 13. The issues in the MT business and otherwise in the case of FIL which have been revealed during the investigation viz. Round tripping of LC funds for interest arbitrage mopping, segment reporting, revenue manipulation, fictitious trade receivables against foreign parties under the garb of MT and flouting of RBI guidelines were never reported in audit report of FIL of F.Y. 2017-18 by Ankit Bhargawa. 14. Thus, the sum and substance of the outcome of the investigation conducted in the matter and the facts mentioned in the complaint for prosecution are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in India and actual physical possession of goods / articles is not required and intermediary business is permissible on the basis of bill of lading without actual physical possession of the goods / articles, as it goes to the end user directly from first person, yet on the basis of the accusation made against the applicant when proper treatment is being given to him by the concerned Jail Authorities, prayer for bail is not liable to be granted. 18. Further, keeping in view the modus operandi adopted by the Companies concerned for obtaining the Letter of Credit and the amount of NPA, applicant can also not be enlarged on bail on the ground that his daughter is suffering from Cancer. 19. Hence, in view of the Court the nature and gravity of the allegations / offences levelled against the applicant shake the conscience of the society and public at large. Therefore, considering the entire facts and circumstances of the case, submissions of learned counsel for the parties and keeping in view the nature of offence, evidence, complicity of accused and without expressing any opinion on the merits of the case, the Court is of the view that there is no substance in the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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