9911796707
TMI Blog2023 (4) TMI 1083X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough: Mr. Ramesh Gupta, Senior Advocate with Mr. Vikas Arora, Ms. Radhika Arora, Mr. Mohit Dagar, Mr. Siddharth Singh and Mr. Abhay Sachar, Advocates. For the Respondent Through: Mr. Raghuvinder Varma, APP for State with Insp. Sandeep Kumar, P.S. Vasant Vihar. Ms. Rebecca John, Senior Advocate with Mr. Kanay Pisal, Ms. Anushka Baruah and Mr. Rudraksh, Advocates for complainants. JUDGMENT 1. The present common order shall decide two bail applications bearing no. 1696/2022 and 1697/2022 filed by the applicants Naresh Garg and Nirmala Aggarwal respectively under section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ) for grant of anticipatory bail in FIR bearing no. 445/2020 dated 16.06.2020 registered under sections 420/468/471/34 of the Indian Penal Code, 1806 (hereinafter referred to as IPC ) at P.S Vasant Vihar. 2. FIR bearing no. 445/2020 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 02.03 1995) were the Directors of the accused no. 1 at the time of allotment of 62,500 shares i.e. on 27.11.2008 besides others. The applicant no. 1 (appointed on 10.07.1994), Gopal Bisht (the accused no. 3 and appointed on 30.06.2004), Sangeeta Garg (the accused no. 4 and appointed on 27.11.1997), Kapil Berera (the accused no. 5 and appointed on 02.03.1995), Umang Sarkar (the accused no. 6 and appointed on 14.08.2014) and Aashish Ghai (the accused no. 7 and appointed on 21.08.2015) were the directors of Genesis Finance Ltd. at the time of fraudulent transfer of 62,500 equity shares in favour of the applicant no. 2 on 10.05.2016. The above persons were also directors on 14.10.2017 when Sanjay Prasad Jain i.e. the accused no. 9 had transferred 50 equity shares in favour of the complainant; on 30.12 2017 when 300 equity shares were allegedly transferred by the complainant to Roohi Reshi (the accused 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay Prasad Jain (the accused no 9). It was also shown that on 30.12.2017 Kavita Bhutani (the accused no. 10) has transferred 100 equity share of the accused no. 1 to the wife of the complainant namely Preet Kaur who never purchased these shares from Kavita Bhutani (the accused no. 10). It was also shown that the complainant on 30.12.2017 had transferred 300 equity share to Roohi Reshi (the accused no. 11). The complainant did not know Roohi Reshi (the accused no. 11) and never sold any shares to her. The transfer documents are forged and fabricated. 2.4 The complainant also came to know that the accused no. 1 in its AGM held on 30.09.2017 allotted bonus of 7 equity shares for each equity share to the complainant and as such 350 equity shares were allotted to the complainant making total number of equity shares to 400. 2.4.1 The accused no. 1 with the help of accused no. 2 to 13 has cheated the complainant 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n reply, prior to receipt of FSL result, mentioned that vide letter dated 30.04.2016, she requested the Genesis Company to pay Rs. 6,25,000 /- to the complainant on her behalf towards the payment for the above said 62,500 shares purchased by her. She further mentioned that upon receipt of money, the complainant handed over his duly signed share transfer form. However contrary to the claim of Ms. Nirmala Aggarwal, it was subsequently claimed by co-accused Naresh Garg that the company adjusted the said amount in the loan account of the complainant. The accused persons have failed to provide any request from or intimation for the complainant regarding the adjustment of the said amount in the loan account. Further, the claim regarding the rebate provided to the complainant and his brother by the accused persons in consideration of the re-purchase of the shares also fails to inspire confidence. The accused persons have failed to 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot shy away from the consequences. Even the judgments relied upon by the accused persons would not come to their rescue as none of the judgments mandates that the anticipatory bail should be granted as a matter of right lo the accused persons in such circumstances wherein grant of anticipatory bail shall cause an irreparable damage to the pending investigations. Consequently, I do not find any merits in the applications at hand and the same arc accordingly dismissed. Before: parting, it would be pertinent to observe that it appears that the company is involved in certain shady transaction with respect to the transfer of shares. Consequently, it is desirable that the IO may bring the matter to the notice of SEBI authorities so as to rule out the possibility of the violation of any of the provisions of SEBI Act. With these observations, both the anticipatory bail applications are disposed off accordingly. 4. The applicant no. 1 in bail application stated 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 occasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 1and the applicant no. 2 requested to the accused no. 1 to pay Rs. 6,25,000/- to the complainant on her behalf and accordingly Rs. 6,25,000/- was credited on 03.05.2016 in the loan account no. LNHOF00l 11-120000179 of the complainant. The complainant handed over duly signed and filled share transfer form to the applicant no. 2 along with original share certificate. The complainant signed SH4 form in the presence of Vinod Kumar as a witness. Thereafter share transfer form along with original share certificate was submitted to the Share Transfer Agent i.e. M/s Skyline Financial Services (the accused no. 12) on 06.05.2016 for transfer of 62,500 shares. 4.5 The complainant and his brother, namely, Gaganmeet Singh, were having two outstanding loan accounts with the accused no. 1 which were in default. The accused no. 1 gave rebate of Rs. 38,81,547/- to the complainant on 03.05.2016 and Gaganmeet Singh was given rebate of Rs. 52,64,408/- and Rs. 6,25,000/- were also credited in the loan account 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant no. 1 also raised other grounds for grant of anticipatory bail and prayed that he be released on anticipatory bail in FIR no. 445/2020 registered at P.S Vasant Vihar under sections 420/468/471/34 IPC. 4.10 The applicant no. 2 in bail application also mentioned similar facts as stated by the applicant no. 1 in his bail application. 5. The respondent/State filed Status Report dated 11.07.2022 under signature of SHO PS Vasant Vihar and another Status Report dated 23.11.2022 under signature of Surender Singh, ACP/District Investigation Unit, South-West District, Delhi in Bail Application bearing no. 1696/2022 filed by the applicant no. 1. 5.1 The respondent/State in Status Report besides mentioning factual position also gave details of investigation. It is stated that the accused no. 1 is engaged in the business of finance and money lending and complainant is the client of the accused no. 1 for last 15-20 years. The accused no. 1 in reply to notice under section 91 of the Code denied all allegations. 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate after 2012. 6.2 The applicant no. 1 in the reply dated 11.10.2022 stated that Bonus Share Certificates no. 31115 issued on 08.12.2017 were dispatched to the complainant. The applicant no. 1 has given contradictory reply regarding dispatch of 350 bonus shares which were issued on 08.12.2017 vide certificate no. 31115 to the complainant through post but details/proof of the post were not provided. The Bonus Certificate stated to be split into two certificates bearing nos. 31268 and 31269 for 50 shares and 300 shares respectively on 13.12.2017. The 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. 6.3 As per the copy of Board Resolution dated 12.12.2017 the accused no. 1 approved share transfer request of 300 shares bearing certificate no. 31269 from the complainant to Roohi Reshi on 12.12.2017 whereas in reply dated 09.11.2022, the accused 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omplainant. Neither the accused no. 1 nor the applicant no. 2 provided any request/intimation to the complainant in respect of the alleged adjustment. The applicants have not cooperated in the investigation and concealed material facts. The respondent/Stated prayed for custodial interrogation of the applicants on grounds that they have not provided requisite documents and gave evasive replies during investigation. 7. The facts which are emerging from the record are that the accused no. 1 was a listed Limited Company registered under the Companies Act, 1956, (CIN L65910DL 1990PLC040705) and presently the accused no. 1 is listed on Metropolitan Stock Exchange of India. The applicant no. 1 the accused no. 1 is engaged in the business of finance and money lending. M/s Skyline Financial Services (the accused no. 12) was appointed as Share Transfer Agent (STA) for maintaining and recording share transfer records. The complainant is having financial transactions with the accused no. 1 for last 15-20 years. The applicant no. 1 is 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in suspicion and appears to be much more tainted and stained as compared to the complainant. The court did not accept claim of the applicants regarding re-purchase of these shares due to FSL result by observing that the signatures of the complainant on the share Transfer deed were found to be forged. The court also observed that the applicant no. 2 in her written reply submitted to Investigating Officer prior to receipt of FSL result mentioned that vide letter dated 30.04.2016, she requested the accused no. 1 to pay Rs. 6,25,000 /- to the complainant on her behalf towards the payment for the above said 62,500 shares and the complainant after receipt of money handed over duly signed share transfer form which was contrary to the subsequent claim made by the applicant no. 1 that the accused no. 1 adjusted the said amount in the loan account of the complainant. The court also made certain other observations. 8. The applicants in bail applications under consideration primarily pleaded that the complainant, his wife and other family members and companies in which the complainant and his family members are Directors/Shareholders/Guarantors are clients/borrowers of the accused no. 1 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant. The applicant no. 1 could not provide original share certificate in respect of 62,500 shares purchased by the applicant no. 2 from the complainant and 300 shares purchased by Roohi Reshi from the complainant on 12.12.2016 and gave evasive reply. The applicant no. 1 also gave contradictory reply regarding dispatch of 350 bonus shares issued on 08.12.2017 to the complainant through post. The respondent/Stated sought custodial interrogation of the applicants on grounds that they have not provided requisite documents and gave evasive replies during investigation. 9. It would be relevant to discuss relevant statutory law and decisions rendered by the Superior Courts before adjudicating applications. The anticipatory bail is not defined in the Code. The anticipatory bail is pre-arrest bail and grant of anticipatory bail is discretionary. The Law Commission of India in its 41st Report pointed out the necessity of introducing a provision in the Code enabling the High Court and the Court of Sessions to grant anticipatory bail which may allow 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the evidence, the focus being on the prima facie issues including consideration of some reasonable grounds that would go to show if the accused has committed the offence or those facts that would reflect on the seriousness of the offence. The self imposed restraint on delving deep into the analysis of the evidence at that stage is for valid reasons, namely, to prevent any prejudice to the case set up by the prosecution or the defence likely to be taken by the accused and to keep all aspects of the matter open till the trial is concluded. 9.2 The Supreme Court in Masroor V State of Uttar Pradesh and another, (2009) 14 SCC 286 observed that courts ought to refrain from mechanically granting bail and absence of relevant considerations will make such an order susceptible to interference. It was observed as under:- 13. Though at the stage of granting bail an elaborate examination of evidence and detailed reasons touching the merit of the case, which may prejudice the accused, should be avoided, but there is a need to indicate in such order reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a seriou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired to be kept in mind while dealing with applications moved under Section 438 of the Code and observed as under:- 92.3. Nothing in Section 438 CrPC, compels or obliges courts to impose conditions limiting relief in terms of time, or upon filing of FIR, or recording of statement of any witness, by the police, during investigation or inquiry, etc. While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc 92.4. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a matter of discretion; equally whether and if so, what kind of special conditions are to be imposed (or not imposed) are dependent on facts of the case, and subject to the discretion of the court. xxxxxxxxxxxx 92.6. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Kapil Kumar who stated that in the year 2016, the complainant had offered to sell the shares to them and on their refusal sold shares to the applicant no. 2. The investigation is relying on alleged contradictions being made by the applicants in their various replies instead of establishing the case on the basis of the complainant. The Status Report filed by the Investigating Officer reflects vindictive nature of the Investigating agency. The Investigating Officer has already collected various documents and statements of independent witnesses. The applicant no. 1 has already explained entire facts pertaining to present case to the Investigating Officer. 10.2 The complaint was lodged on 14.06.2020 i.e. 9 days after the settlement agreement dated 05.06.2020 was executed between the Complainant and the accused no. 1 whereby the complainant had agreed to pay over Rs. 15 crores to the accused no. 1. The complainant is under wrong belief that 62,500 shares are worth more than Rs. 10 crores. The complainant at time of settlement dated 05.06.2020 was conscious that he had already sold 62,500 shares to the applicant no. 2 in the year 2016 itself. The accused no. 1 was not under legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion and never misused interim protection granted by this Court. The applicants never gave evasive and contradictory replies. The entire case is based upon the documentary evidence which has already been collected by the Investigating Officer. The investigation is already completed. The applicants have already joined investigation and relevant documents. The investigation is pending since the year 2020. The dispute is purely a civil dispute which pertains to allotment of shares issued by the accused no. 1 which were sold by the complainant to the applicant no. 2. There is no flight risk, likelihood of tampering evidence, and likelihood of influencing witnesses. The leaned Senior Counsel for the applicants argued that the applicants be allowed and also relied on certain decisions rendered by the Superior Courts. 11. The Additional Public Prosecutor for the respondent/State argued on basis of averments made in Status Reports. He argued that the custodial interrogation of the applicants is required to recover relevant documents and information from the applicants. 12. The learned Senior Counsel who assisted the Additional Public Prosecutor advanced oral arguments and also submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rate of Rs.200 per share (Rs. 10 as the face value and Rs.190 the premium) for a consideration of Rs.1.25 crore and the applicants have fabricated share certificate dated 27.11.2008. The applicants in the year 2016 illegally grabbed 62,500 equity shares of the Complainant by fraudulent transfer in favour of the applicant no. 2 by forged and fabricated documents and no money was ever paid into the bank account of the complainant in lieu of alleged transfer of shares. The jumbo shares certificate despite being issued on 29.01.2018 carries signature of Gulshan Jhurani who resigned from the accused no. 1 in December 2012. Sanjay Prasad Jain who allegedly transferred 50 shares to the complainant is a non-existent person. The applicant no. 1 alleged that 7 bonus shares for each share were given on 30.10.2017 on the 50 shares allegedly held the complainant and the applicant no. 1 issued and sent the said bonus share certificate on 08.12.2017 by post but no proof of the same is given. The complainant never transferred 300 shares Roohi Reshi and said transfer is fraudulent. The signature of the complainant on SH4 is forged as stated in FSL Report. Preet Kaur, wife of the complainant neve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or where there is abuse of power and non-compliance of the provisions of Code. However court can interfere with the investigation only in rare cases where there is abuse of process or non-compliance of the provisions of the Code. It was held in King-Emperor V Khwaja Nazir Ahmad, AIR 1945 PC 18 that it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes upon them the duty of enquiry. The decision in Khwaja Nazir Ahmad has been quoted with approval by the Supreme Court in Abhinandan Jha and others V Dinesh Mishra, AIR 1968 SC 117, State of Bihar and another V J.A.C. Saldanha and others, (1980) 1 SCC 554 and subsequent decisions. The Supreme Court in Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) V Arun Kumar Bajoria, (1998) 1 SCC 52, held that it is not the function of the court to monitor investigation processes so long as such investigation does not transgress any provision of law. It must be left to the investigating agency to decide the venue, the timings and the questions and the manner of putting such questions to persons involved in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy. 13.3 The Supreme Court in this case also discussed grant of anticipatory bail with Article 21 of the Constitution and referred State of M.P. and another V Ram Kishna Balothia and another, (1995) 3 SCC 221 wherein the Supreme Court held that the right of anticipatory bail is not a part of Article 21 of the Constitution of India and observed that anticipatory bail cannot be granted as a matter of right. It is essentially a statutory right conferred long after the coming into force of the Constitution. It cannot be considered as an essential ingredient of Article 21 of the Constitution. The Supreme Court in P. Chidambaram further observed as under:- We are conscious of the fact that the legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual s personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody. However, the court must also keep in view that a criminal offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... face value of Rs. 10 with premium of Rs. 190 which were stated to be allotted to the complainant on 27.11.2008 for consideration of Rs. 1.25 crores in favour of the applicant no. 2 by the complainant for sale consideration of Rs. 6,25,000/-; alleged transfer of 50 equity shares stated to be owned by Sanjay Prasad Jain (the accused no. 9) on 14.10.2017 in favour of the complainant; alleged transfer of 100 equity shares stated to be owned by Kavita Bhulani (the accused no. 10) on 30.12.2017 in favour of Preet Kaur, wife of the complainant; and alleged transfer of 300 shares stated to be owned by the complainant on 30.12 2017 in favour of Roohi Reshi (the accused no. 11). The accused no. 1 in its AGM held on 30.09.2017 also stated to be allotted bonus of 7 equity shares for each equity share to the complainant and as such 350 equity shares were allotted to the complainant making total number of equity shares to 400. As per the investigating agency above mentioned transactions pertaining to transfer of shares are forged and alleged share certificates and share transfer forms are fabricated documents. The complainant also alleged that he never sold these shares to the applicant no. 2 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial transactions with the accused no. 1 for the last 15-20 years. 14.3 The perusal of the Status Reports submitted by the respondent/State reflects that investigating agency has already conducted large part of investigation and the applicants have participated in the investigation although contrary is alleged by the Additional Public Prosecutor and the learned Senior Counsel for the complainant. The applicants cannot be subjected to custodial investigation merely due to reasons that the applicants failed to produce requisite documents and also gave evasive and contradictory replies during investigation as detailed in Status Reports and written arguments submitted on behalf of the complainant. FSL Report pertaining to genuineness of the complainant and his wife Preet Kaur on share transfer forms has already been received by the investigating agency. 14.4 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 suspicio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... errogation 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. 14.7 The applicants vide order 31.05.2022 were granted interim protection from arrest subject to the deposition of Rs. 5 crores in the form of FDR in the name of Registrar General. 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. The applicants in case of arrest shall be release on bail on furnishing personal bond in sum of Rs. 50,000/- with one surety of like amount to the satisfacti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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