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TMI Blog2021 (9) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Indsur Global Limited, had themselves admitted in the letter dated 20.11.2019 that the Board of Directors of the abovesaid company has been suspended by the National Company Law Tribunal (hereinafter to be referred as "the NCLT") vide order dated 24.09.2019 but, however, in spite of the same, they had placed two purchase orders on 17.10.2019 amounting to Rs. 68,44,000/- and Rs. 34,22,000/- respectively and had also signed two post dated cheques with regard to the same. It is further alleged that even prior to 24.09.2019, three different purchase orders have been placed by the accused persons with the complainant-company and the payment regarding the same had not been made. Although, supplies with respect to the same had been made. It has been alleged that the accused persons had the intention of cheating which fact was clear from placing of the two purchase orders dated 17.10.2019 after the appointment of the Interim Resolution Professional (hereinafter referred to as "IRP") on 24.09.2019 by the NCLT, Mumbai. It is further alleged that the accused persons had never informed the complainant or his company regarding the matter pending before the NCLT, Mumbai and that Section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed persons had placed two purchase orders dated 17.10.2019 and from the said fact alone, it is apparent that respondent Nos.3 to 5 had a fraudulent intention. Further reference has been made to the order dated 24.09.2019 to show that the accused company could not even defend the claim of Rs. 61,19,000/- in the IBC proceedings and thus, should not have placed the orders in question. However, learned Senior Counsel has very fairly stated that neither any delivery was made in pursuance of the order dated 17.10.2019 nor any amount was due on the said account but has highlighted that even after 24.09.2019, with respect to the orders which were placed prior to 24.09.2019 i.e. on 09.07.2019 (Annexure P-3, Page 21 of the paper book), on 03.08.2019 (Annexure P-3, Page 23 of the paper book) and on 09.09.2019 (Annexure P-3, Page 25 of the paper book), the supplies were received on 25.09.2019, 27.09.2019 and 03.10.2019, respectively. It is submitted that out of the total outstanding amount of Rs. 2,22,69,193/- only the payment of Rs. 37,18,907/- has been paid and thus, the outstanding amount of Rs. 1,85,50,286/- is still due from the accused persons. It is also submitted that certain post dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranting bail, particularly in serious cases like murder some reasons justifying the grant are necessary." Further reliance has also been placed on the judgment of the Hon'ble Apex Court in Sudhir Vs. State of Maharashtra and another and other connected matters reported as 2015(4) RCR (Criminal) 649. Para 13 of the said judgment, which has been relied upon, is reproduced hereinbelow:- "13. Having considered the submissions made by learned counsel for the parties and after considering the gravity of the offence, circumstances of the case, particularly, the allegations of corruption and misappropriation of public funds released for rural development, and further considering the conduct of the appellants and the fact that the investigation is held up as the custodial interrogation of the appellants could not be done due to the anticipatory bail, we are of the opinion that the High Court has rightly cancelled the anticipatory bail granted to the appellants by the Additional Sessions Judge, Jalgaon. Therefore, we are not inclined to disturb the same." On the basis of the above submissions, it has been submitted that the impugned order should be set aside and the anticipatory bail g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him. Further reference has also been made to Annexure R-3/6 to show that even in the independent forensic audit of the accused company, no fraud was found as per the provisions of IBC, 2016. Reference has also been made to the purchase orders (Annexure P-3) dated 09.07.2019, 03.08.2019 and 09.09.2019 to show that the said purchase orders were in the name of the accused company and not in the individual names of the answering respondents and thus, the goods which have been received in pursuance of the said purchase orders belong to the accused company whose assets are at present in the custody and control of the IRP. It is submitted that on the basis of the said purchase orders, the complainant company had submitted its claim. With respect to the aspect of non-joining of investigation, reference has been made to order dated 04.01.2021 (Annexure R-3/1) passed by the Sessions Judge, Rewari, vide which an application for cancellation of bail of applicants/accused/respondent Nos.3 to 5 herein, moved by the prosecution was withdrawn in view of the fact that they have already joined the investigation. It is further submitted that the answering respondents are always ready and willing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elming grounds or circumstances are required to cancel the bail which has already been granted. This Court has perused the impugned order dated 01.10.2020 passed by the Sessions Judge, Rewari (Annexure P-11) and find that the said order is a speaking one and has been passed after considering all the relevant factors. It has been observed in the impugned order that the two purchase orders dated 17.10.2019, which were placed on behalf of the accused-company had been cancelled on learning of the actual impact of the Order passed by the NCLT, Mumbai and no goods were ever supplied to the accused persons by the complainant party on the basis of the above two orders. The said fact is not disputed before this Court. It is further observed in the impugned Order that all documents relating to the case are in the office of the accused-company which is now under the control of the IRP. It was also observed that the custodial interrogation is not required because the entire case is based upon documentary evidence. Conditions with respect to furnishing of bonds to the satisfaction of the Investigating Officer and not to leave the country without prior permission of the Court and other conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that since admittedly the cheques in question were post dated cheques, however, bearing dates subsequent to 24.09.2019 (Annexure P-4), thus, could not have been credited as by the said date the Board of Directors stood suspended and the said fact was brought to the notice of the complainant-party vide letter dated 30.10.2019 and 20.11.2019 (P-6 and P-7 respectively). It is further the defense that the cheques were issued along with the purchase orders which were prior to 24.09.2019 and on the said date the concerned respondent was authorized to issue the same and that since the purchases were made by the Company and not by Respondent nos. 3 to 5 in their personal capacity, thus, the remedy of the complainant-party for recovery of money is against the accusedcompany and at any rate, for the said purpose apart from the claim before the IRP, even complaints under Section 138 of the Negotiable Instruments Act, 1881, have been filed. From the above, it is apparent that for every argument/allegation raised, there is a plausible argument/defense put up. This Court does not wish to give an affirmative finding on the same, lest, it would prejudice the case of either of the parties. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions Judge can be tested on merits also. This Court has therefore, considered the totality of the case, including the merits, and has come to the conclusion that the impugned order granting anticipatory bail is detailed and has not been passed in a mechanical manner and thus, deserves to be upheld. The Petitioner has not been non-suited on the ground of maintainability and all the arguments raised have been considered on merits, however, keeping in view the law laid down by the Hon'ble Apex Court in Mahant Chand Nath Yogi's case (supra). With respect to the Judgment of the Hon'ble Apex Court in the case of Sudhir (supra) relied upon by the Learned Senior Counsel for the Petitioner, it is stated that the facts of the aforesaid case were completely different from the facts of the present case inasmuch as, in the aforesaid case there were serious allegations of criminal misappropriation of funds released for implementation of schemes of drinking water and the said allegations were against the accused therein working as executive engineer and sectional engineer in the Government Department and the aforesaid FIRs were registered only after enquiries were made under the direction of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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