9911796707
TMI Blog2023 (4) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... n C.C. No. 245 of 2021, wherein present applicant was arraigned as accused no. 10, among 12 accused persons. The applicant was summoned to appear on 25.05.2022, and upon entering his appearance, he was sent to judicial custody by the learned Trial Court. Subsequently, his application for grant of regular bail was dismissed by the learned Trial Court vide order dated 14.07.2022. 3. The background of the present complaint against Parul Polymers Private Limited (hereinafter "PPPL") is that the said company had availed various credit facilities from Central Bank of India, due to non-payment of same as per terms and conditions, appropriate proceedings were initiated by the concerned Bank. During the course of litigation between the parties, this Court on 07.12.2015 had issued directions to Serious Fraud Investigation Office (hereinafter "SFIO") to investigate certain issues, and pursuant to same, SFIO conducted an investigation in limited scope and the report was submitted to this Court on 20.05.2016 as well as to the Ministry of Corporate Affairs. Thereafter, the Ministry of Corporate Affairs ordered investigation into the affairs of PPPL on 14.03.2017. The said investigation led to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry account. It is further alleged that present applicant had also admitted in his statement on oath that he had introduced certain persons to accused Suman Chadha for opening of bank accounts. In brief, the allegations against the applicant are that he used to arrange documents and people in whose name fake entities and bank accounts were opened, which were subsequently used to route the funds of PPPL. 6. Learned counsel for applicant/accused states that main accused Suman Chadha created a fictitious proprietorship firm in the name of Kewal International by using the documents of the applicant, and the applicant is totally ignorant about the operation of the bank account of Kewal International, as the same was operated by Ms. Komal Chadha. It is stated that applicant is an illiterate person and was working as an office boy in the main accused company. It is also submitted that one of the main accused Komal Chadha, who is the Director of PPPL and wife of Suman Chadha, has already been granted regular bail by a Co-ordinate bench of this Court vide order dated 21.12.2022 in Bail Application No. 1740/2022. It is stated that as also held by the Co-ordinate bench while granting bail to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rocedure, 1973, [offence covered under section 447] of this Act shall be cognizable and no person accused of any offence under those sections shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs..." 11. As per Section 212(7), the limitation or bar to grant of bail under Section 212(6) is in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for grant of bail. The aforesaid principles were held to be mandatory in nature by the Hon'ble Apex Court in Serious Fraud Investigation Office v. Nitin Johari & Anr. (2019) 9 SCC 165. 12. However, the applicant in the present case was not arrested during the course of investigation, but was taken into custody at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bail application has to be decided on its own merits. Suffice it to state that for due compliance of Section 170 of the Code, there is no need for filing of a bail application. **** 65. We may clarify on one aspect which is on the interpretation of Section 170 of the Code. Our discussion made for the other offences would apply to these cases also. To clarify this position, we may hold that if an accused is already under incarceration, then the same would continue, and therefore, it is needless to say that the provision of the Special Act would get applied thereafter. It is only in a case where the accused is either not arrested consciously by the prosecution or arrested and enlarged on bail, there is no need for further arrest at the instance of the court. Similarly, we would also add that the existence of a pari materia or a similar provision like Section 167(2) of the Code available under the Special Act would have the same effect entitling the accused for a default bail. Even here the court will have to consider the satisfaction under Section 440 of the Code..." (Emphasis supplied) 13. The issue at hand was also considered by a Co-ordinate Bench of this Court in Ran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Supreme Court in Satinder Kumar Antil. It is not mandate of section 170 of the Code that if the accused is not taken into custody or arrested during investigation can be arrested or taken into custody after appearance in court post summoning order particularly when neither investigation agency nor prosecution agency sought arrest of accused. 34. The arguments advanced by the learned Special Counsel for the respondent that the applicant has misinterpreted para no 65 of Satinder Kumar Antil is misplaced. There is no force in argument advanced by the learned Special Counsel for the respondent that the applicant before grant of bail required to pass test of 45 of PMLA. The position would have been different, had the applicant arrested during investigation. The investigating agency as mentioned hereinabove consciously preferred not to arrest the applicant during investigation or post filing of charge sheet. The arguments advanced and case law relied on by the Special Counsel for the respondent are considered in right perspective to the given facts and circumstances but they do not provide much legal help to the respondent in opposing present bail application." (Emphasis supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner to judicial custody, or of allowing her to go through the trial while not in custody. Evidently, the learned Special Judge misdirected himself in applying section 212(6) of the Companies Act, which is not a section that deals with the question of remanding the petitioner to judicial custody..." (Emphasis supplied) 17. It is an admitted position, that even at the stage when the applicant appeared before the learned Trial Court upon being summoned, the Investigating Officer never sought his remand to judicial custody. It is not the case of prosecution that applicant did not join or did not co-operate in the investigation. The Director of accused company Komal Chadha has already been granted bail by this Court, and present applicant is allegedly an employee of accused company. There is no allegation that applicant can either intimidate any witnesses or tamper with the evidence. Even otherwise, the alleged fraudulent transactions in the present case relate to the years 2012 to 2015 and investigation qua the same is complete and cognizance has already been taken by the concerned Court. A perusal of complaint also shows that accused no. 2 i.e. Suman Chadha had created sever ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
