9911796707
TMI Blog2023 (4) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... 020 was got registered on basis of complaint made by Tript Singh (hereinafter referred to as "the complainant") regarding fraudulent transfer of 62,500 equity shares of Genesis Finance Ltd. owned by the complainant on 10.05.2016 in favor of Nirmala Devi by committing forgery and in FIR Genesis Finance Ltd. (hereinafter referred to as "the accused no. 1"), Naresh Garg, Managing Director of Genesis Finance Ltd. (the accused no. 2/applicant in bail application no. 1696/2022 and hereinafter referred as "the applicant no. 1"), Gopal Bisht, CFO & Whole Time Director of Genesis Finance Ltd. (the accused no. 3), Sangeeta Garg, Whole Time Director of Genesis Finance Ltd.(the accused no. 4), Kapil Berera, Ex-Director of Genesis Finance Ltd.(the accused no. 5), Umang Sarkar. Director of Genesis Finance Ltd.(the accused no. 6), Aashish Ghai, Director of Genesis Finance Ltd.(the accused no. 7), Nirmala Devi (the accused no.8/ applicant in bail application no. 1697/2022 and hereinafter referred as "the applicant no. 2"), Sanjay Prasad Jain (the accused no. 9), Kavita Bhulani (the accused no. 10), Roohi Reshi (the accused no. 11), Skyline Financial Services (the accused no. 12), Swaroop Narain Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed no. 11) and when Kavita Bhulam (the accused no. 10) transferred 100 equity shares in favour of wife of the complainant namely Preet Kaur. 2.2.2 Skyline Financial Services (the accused no. 12) is registrar and Share Transfer Agent (STA) for undertaking physical transfers and acts as Depository Agency on behalf of the accused no. 1 and Swaroop Narain Aggarwal (the accused no. 13) is the Director of Skyline Financial Services (the accused no. 12). 2.3 The accused no. 1 to 5 including the applicant no. 1 induced the complainant to become a share-holder of the accused no. 1 on the pretext that the accused no. 1 is in the business of finance and the value of the shares of the accused no. 1 would increase multi-fold. The applicant no. 1 (the accused no. 2) repeated approached the complainant to invest in the shares of the accused no. 1. The complainant was also having other financial transactions with the accused no. 1. The applicant no. 1 assured the complainant that investment in equity shares at Rs. 200 is good option and price of the share would increase multi-fold and thereafter the complainant invested in the equity shares of the accused no. 1. 2.3.1 The accused no. 1 on 27.11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by showing wrong transfer of 62,500 equity shares which after allotment of 437500 bonus equity shares at the rate of 7 equity shares for every equity share having become 500000 shares. The accused no. 1 along with other accused has reduced shareholding of the complainant from 500000 equity shares to only 100 equity shares as on 31.03.2018. 2.5 The accused no. 1 and its directors have never given any share certificate for the allotment of 62,500 equity shares to the complainant. The complainant has never received notice of any of the AGM or EGM conducted by the accused no. 1. 2.6 On basis of the complaint, after enquiry prima facie FIR bearing no. 445/22 for offences punishable under sections 420/468/471/34 IPC was got registered and investigation was handed over to SI Pankaj Kumar. 3. The applicants no. 1 & 2 have filed bail applications bearing no. 734/2022 and 765/2022 which were dismissed by the court of Additional Sessions Judge-02, Patiala House Courts, New Delhi vide order dated 28.05.2022 and observed as under:- At the very outset, 1 have no hesitation in observing that the facts of the instant case are mired in mendacity, exaggeration and embellishments and unfortunate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o provide any request of the complainant regarding his willingness for transfer of his shares or adjustment of the amount in his loan account nor have they provided any intimation to the complainant regarding the adjustment of the consideration amount in the loan account. lt is inexplicable as to why Genesis Company would give a rebate to the complainant and his brother for shares purchased by applicant/accused Nirmala Aggarwal in her individual capacity. In fact such a rebate, if at all given by the company, is in fact a fraud played upon the other share holders, as the loan owed to the company cannot be utilized for creating private assets for the mother-in-law of Managing Director Naresh Garg. Furthermore, in contradiction to the earlier claim, in reply to the notice u/s 91 CrPC dated 07.05.2022, it is informed by the IO that vide Para No. 13, it is claimed that the transaction of sale and purchase of shares by applicant/accused Nirmala Aggarwal and complainant is an independent transaction and has no connection with the waiver given on loan account of the complainant and his brother. During the course of arguments, it was informed to the court by the prosecution that while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated that he is an innocent person and has been falsely implicated. The applicant no. 1 is a respectable member of the society with clean antecedents and has joined the investigation on several occasions. The applicant no. 1 cooperated in the investigation and supplied all the documents and information as sought by the investigating agency. It was informed in 2021 that FSL result has concluded that the signatures of the complainant and his wife on the share transfer forms were not made by them. Thereafter during investigation handwriting/signatures of the applicant no. 1 were taken by the Investigating Officer who also asked the applicant no. 1 to settle the matter with the complainant otherwise he would be arrested. The applicant no. 1 filed an application for grant of anticipatory bail and was granted interim protection vide order dated 28.04.2022 with the direction to join the investigation. The applicant no. 1 joined the investigation. The court of Additional Sessions Judge, Patiala House Courts, vide order dated 28.5.2022 dismissed the bail application. 4.1 The applicant no. 1 is the Managing Director of the accused no. 1 and the complainant was a regular customer of the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the complainant. The applicant no. 2 submitted share transfer form along with original share certificate for transfer of 62,500 shares and the accused no. 1 upon receiving intimation from M/s Skyline Financial Services (the accused no. 12) regarding receipt of application approved the share transfer vide its board meeting held on 10th May, 2016. 4.6 The accused no. 1 and the complainant along with his family, had settled pending disputes pertaining to business and personal loans vide agreement dated 05.06.2020 and the complainant had agreed to pay Rs. 15.30 crores with future interest @18% pa to the accused no. 1. The complainant after the settlement dated 05.06.2020 filed complaint on 14.06.2020 which after inquiry was converted into FIR on 25.11.2020. Vinod Kumar and Vinod Tayal also stated that the complainant signed and handed over the original share certificate and signed share transfer form to the applicant no. 2 on 03.05.2016. 4.7 The complainant also submitted that share transfer form along with original share certificate with STA for transfer of 50 shares of the accused no. 1, which were purchased from Sanjay Prasad Jain. The accused no. 1, vide Board Resolution da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. The accused no. 1 provided a copy of speed post dated 12.12.2008 by which original share certificate was sent to the complainant which could not be verified from postal department as relevant record was stated to be weeded out. The applicant no. 1 also claimed that the complainant also received Rs. 6,25,000/- in lieu of the shares sold to the applicant no. 2 by crediting said amount in the loan account of the complainant. 5.1.1 The specimen and admitted signatures of the complainant and his wife Preet Kaur were collected during investigation and sent to FSL along with question signatures on all four alleged Original Share Certificates (SH-4) for expert opinion on 04.06.2021. As per FSL result received on 24.10.2021, signatures of the complainant and his wife Preet Kaur on Original Share Certificates do not match with specimen and admitted signatures of the complainant and his wife Preet Kaur. 5.2 The applicants during investigation revealed that the complainant sold shares to the applicant no. 2 and on her request Rs. 6,25,000/- were credited into his loan account and thereafter handed over duly signed share transfer form to the applicant no. 2. The applicant no. 1 could no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no. 1 stated that the said certificate no. 31269 was issued on 13.12.2017. 6.4 The respondent/State opposed bail applications filed by the applicants and prayed for custodial interrogation on grounds that the applicant no. 1 was Managing Director of the accused no. 1 at the time of allotment of 62,500 shares to the complainant and at the time of fraudulent transfer of shares. The applicant no. 1 admitted that he was aware that the complainant sold his shares to the applicant no. 2 and on request of the complainant, Rs. 6,25,000 was credited into his loan account but the applicant no. 1 could not provide any such request. The applicant no. 2 in whose favour 62,500 shares were fraudulently transferred is mother-in-law of the applicant no. 1. The accused no. 1 could not establish receiving of the share certificates by the complainant as the speed post receipt dated 12.12.2008 could not be verified. The payment of Rs. 6,25,000/- qua alleged transfer of 62,500 equity shares was internally adjusted by the accused no. 1 by making book entries in their records which reflects that no direct money was transferred by the accused no. 1 to the bank account of the complainant. The complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Managing Director of the accused no. 1. The accused no. 1 had allotted 62,500 equity shares having face value of Rs. 10 with premium of Rs. 190 in favour of the complainant on 27.11.2008. 7.1 The complainant primarily alleged that he never received share certificates in respect of 62,500 shares allotted to him and were fraudulently transferred in favour of the applicant no. 2 on 10.05.2016 who is mother in law of the applicant no. 1. The complainant never sold these shares to the applicant no. 2 and never executed any share transfer deed in favour of the applicant no. 2. The documents pertaining to alleged transfer of 62,500 equity shares in favour of the applicant no. 2 are forged and fabricated. 7.1.1 The complainant also alleged that 50 equity shares stated to be owned Sanjay Prasad Jain (the accused no. 9) were transferred in his favour on 14.10.2017 but he never purchased these shares; 100 equity shares stated to be owned by Kavila Bhulani (the accused no. 10) were transferred on 30.12.2017 in favour of his wife namely Preet Kaur but his wife never purchased these shares; and 300 shares owned by the complainant were transferred on 30.12 2017 in favour of Roohi Reshi (the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embers and companies in which the complainant and his family members are Directors/Shareholders/Guarantors are clients/borrowers of the accused no. 1 for the last 15-20 years. The complainant in the year 2008 was allotted 62,500 shares of the accused no. 1 at a total value of Rs. 1.25 crores with distinctive nos. 3802501 to 3865000. The complainant had received share certificate through speed post dated 12.12.2008. The complainant in the year 2015-16 sold these shares to the applicant no. 2 and the applicant no. 2 requested to the accused no. 1 to pay Rs. 6,25,000/- to the complainant on her behalf and said amount was credited in the loan account of the complainant on 03.05.2016. The complainant also handed over duly signed share transfer form to the applicant no. 2 along with original share certificate. The share transfer form along with original share certificate was submitted to the Share Transfer Agent (STA) M/s Skyline Financial Services (the accused no. 12) on 06.05.2016 for transfer of 62,500 shares. The applicant no. 2 submitted share transfer form along with original share certificate to the accused no. 1 and thereafter the accused no. 1 approved the share transfer vide it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low a person to seek bail in anticipation of an arrest on accusation of having committed a non-bailable offence. Section 438 of the Code deals with grant of bail to a person who is apprehending arrest. It reads as under:- 438. Direction for grant of bail to person apprehending arrest. (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail. (2) When the High Court or the Court of Session makes a direction under sub- section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding why bail was being granted particularly where the accused is charged of having committed a serious offence. The Supreme court in Prasanta Kumar Sarkar V Ashis Chatterjee and another, (2010) 14 SCC 496 considered the factors which should be examined at time of deciding anticipatory bail application and observed as under:- 9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv)danger of the accused absconding or fleeing, if released on bail; (v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxxxxxxxxxxx 92.6. An order of anticipatory bail should not be "blanket" in the sense that it should not enable the accused to commit further offences and claim relief of indefinite protection from arrest. It should be confined to the offence or incident, for which apprehension of arrest is sought, in relation to a specific incident. It cannot operate in respect of a future incident that involves commission of an offence. 9.5 The Supreme Court in Nathu Singh V State of UP, (2021) 6 SCC 64, has emphasized on liberal interpretation in relation to grant of anticipatory bail and observed as under:- 19. At first blush, while this submission appears to be attractive, we are of the opinion that such an analysis of the provision is incomplete. It is no longer res integra that any interpretation of the provisions of Section 438 CrPC has to take into consideration the fact that the grant or rejection of an application under Section 438 CrPC has a direct bearing on the fundamental right to life and liberty of an individual. The genesis of this jurisdiction lies in Article 21 of the Constitution, as an effective medium to protect the life and liberty of an individual. The provision theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal obligation to maintain the files of loan accounts which had been closed in the year 2016. The complainant in net worth statement which he had submitted in the year 2018 to a bank for securing loan facility, did not disclose that he owned 62,500 shares of the accused no. 1 which established that the complainant had sold shares in the year 2016. 10.3 The learned Senior Counsel further argued that Rs. 6,25,000/- was adjusted in the loan account of the complainant on 03.05.2016. The complainant and his brother Mr. Gaganmeet Singh were given discount of about Rs.92 lacs and thereafter their loan accounts were closed which indicated that Rs. 6,25,000/- was adjusted in loan account of the complainant. 10.4 The applicant no. 2 is not required for custodial interrogation. The original share certificate no. 30141 in respect of 62,500 shares was converted into Jumbo shares along with various other shares belonging to the applicant no. 2 and as such the original share certificate has been destroyed. The Jumbo certificates were submitted to share depository. There is no possibility of availability of the original share certificates pertaining to 62,500 shares. 10.5 The complainant also d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arguments. The learned Senior Counsel argued that the applicants in conspiracy with each other have committed the grave economic offence in a cool, calculated and systematic manner and have already tampered with evidence and destroyed evidence. The applicants have taken repeated false and varying stances and custodial interrogation of the applicants is required to bring out the actual facts as well as recover forged documents. The accused who are implicated in FIR are closely related or directly associated with each other. The applicants are habitual offenders. 12.1 The learned Senior Counsel for the complainant partitioned offences alleged to have been committed by the applicants in five different transactions which are pertaining to the 62,500 equity shares, 50 equity shares, consequent 350 bonus shares, 300 shares and 100 equity shares. 12.2 The learned Senior Counsel for the complainant during arguments brought out list of forged and fabricated documents pertaining to different transactions. It was argued that share certificate regarding 62,500 shares is containing endorsement 'paid-up' whereas the actual amount was paid much later. FSL Report confirmed forgery in Share Trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hares from Kavita Bhutani and alleged transfer of 100 shares is fraudulent. 12.4 The learned Senior Counsel for the applicant cited Centrum Financial Services Limited V State of NCT of Delhi, 2022 SCC OnLine SC 100 wherein grant of anticipatory Bail was cancelled considering the modus operandi followed by the accused as disclosed by the State in Status Report, by observing that said bail was granted by considering that it was a commercial transaction, but not considering the nature of accusation and material collected during course of investigation. The learned Senior Counsel also referred Sadhna Chaudhary V State of Rajasthan, 2022 SCC OnLine SC 869. 12.5 The learned Senior Counsel regarding requirement of custodial Interrogation in cases of serious offences, such as forgery, etc. cited Maruti Nivrutti Navale V State of Maharashtra, (2012) 9 SCC 235 wherein it was observed that custodial interrogation is essential in order to bring out material information and documents and to ascertain the genuineness of the document alleged to be forged. The learned Senior Counsel to support arguments that anticipatory Bail should not to be granted on the basis of generalized grounds but shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m arrest would make his interrogation a mere ritual. 13.1 Custody means formal arrest or the deprivation of freedom to an extent associated with formal arrest. Interrogation means explicit questioning or actions that are reasonably likely to elicit an incriminating response. The Supreme Court in State rep. by the CBI V Anil Sharma, (1997) 7 SCC 187 observed that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with favourable order under section 438 of Code. It was further observed that effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The Supreme Court in Muraleedharan V State of Kerala, AIR 2001 SC 1699 held that custodial interrogation of accused is indispensably necessary for the investigating agency to unearth all the links involved in the criminal co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stake. Therefore, a delicate balance is required to be established between the two rights - safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India. Ordinarily, arrest is a part of the process of the investigation intended to secure several purposes. There may be circumstances in which the accused may provide information leading to discovery of material facts and relevant information. Grant of anticipatory bail may hamper the investigation. Pre-arrest bail is to strike a balance between the individual's right to personal freedom and the right of the investigating agency to interrogate the accused as to the material so far collected and to collect more information which may lead to recovery of relevant information. 13.4 The Supreme Court in P. Chidambaram also referred Siddharam Satlingappa Mhetre V State of Maharashtra and Others, (2011) 1 SCC 694 wherein the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail and held that the nature and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d transfer of 62,500 equity shares in favour of the applicant no. 2 are forged and fabricated. As per FSL result received on 24.10.2021, signatures of the complainant and his wife Preet Kaur on original share certificates do not match with their specimen and admitted signatures and as such are forged and fabricated documents. 14.1 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/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge-02, Patiala House Courts, New Delhi, in order dated 28.05.2022 also noticed under contradictions in stand taken by the applicants during investigation. The concerned court was not justified in dismissing bail applications of the applicants on basis of alleged more tainted and stained conduct of the applicants. 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. 14.5 There is no much force in arguments advanced by the learned Senior Counsel who assisted the Additional Public Prosecutor the applicants that custodial interrogation of the applicants is required to recover forged documents as alleged forged and fabricated documents pertaining to different transactions as mentioned in written documents are within knowledge of the Investigating Officer. FSL Report which is stated to be confirming forgery in all share transfer certificates is already received. The alleged discrepancies and contradictions in 350 bonus shares, 100 shares, jumbo share certificates etc. are also within knowledge of the complainant an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en directed by the concerned Investigating Officer and shall extend full cooperation in investigation.
ii) The applicants shall not leave country without prior permission of the concerned trial court.
iii) The applicants shall not temper with the evidence and shall not influence the witnesses in any manner.
14.8 The applicants were granted interim protection from arrest vide order 31.05.2022 subject to the deposition of Rs. 5 crores in the form of FDR in the name of Registrar General. It was held by the Supreme Court in Guddan @ Roop Narain V State of Rajasthan, 2023 Live Law (SC) 45, observed excessive conditions imposed on the appellant (convict) in practical manifestation acted as a refusal to the grant of bail. The present litigation is not for recovery of damages. The trial to be initiated out of present FIR may take time as investigation is still pending. It would not be appropriate to keep amount of Rs. 5 crores on record and accordingly, FDR of Rs. 5 crores is ordered to be released to the applicant no. 1 immediately from the office of the Registrar General.
15. Nothing in this order shall be taken as an opinion on merits of the case. X X X X Extracts X X X X X X X X Extracts X X X X
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