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TMI Blog2021 (1) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... f Narendra Singh and her brother Ishwar Dayal alongwith one Sanjay Bhati came to her house and told that Sanjay Bhati had launched a Company, namely, Garvit Innovative Promoters Limited' having its registered office at Gautam Budh Nagar, U.P.. It was also told that the said Company was registered under the Companies Act. They also stated that they have launched a scheme in the name of 'Bike Boat' and impressed her to invest amount in the said scheme. They also assured that on investment in the Company, certain EMI shall be returned monthly alongwith bonus. Informant also disclosed in the FIR that she paid / invested Rs. 34,15,500/- through bank transaction i.e. RTGS/Net on different dates in the account number given by the aforesaid persons in the year 2018. No amount, as assured by the aforesaid persons, was credited /returned in the account of informant, despite repeated request. Informant named nine persons in the FIR as accused including the present applicant as wife of Sanjay Bhati. Thereafter, one post dated cheque amounting to Rs. 50,10,056/- on 5.12.2019 signed by one Karan Pal Singh was sent at the address of the informant. It was also mentioned that the said c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessary to the applicant to make out a special or exceptional case for anticipatory bail. If offences levelled in the matter are not attracted, anticipatory bail should be granted. Applicant will cooperate with the investigating agency and conditions imposed upon her by the Court shall be adhered to. In support of his submissions, learned Senior Counsel has placed reliance on the following case laws: 1. Sudhila Aggrawal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1. 2. GHCL Employees Stock Option Trust vs. India Infoline Limited, (2013) 4 SCC 505. 3. N.K. Wahi vs. Shekhar Singh and others, (2007) 9 SCC 481. 4. Ajay Mitra vs. State of M.P. And others, (2003) 3 SCC 11. 5. Jai Prakash Singh vs. The State of Bihar and another etc., 2012 (4) SCC 379. 6. Bhadresh Bipinbhai Sheth vs. State of Gujarat and another, (2016) 1 SCC 152. 6. On the other hand, learned Additional Advocate General appearing for the State submitted that though applicant resigned from the post of Director of the Company in the month of February, 2017 yet she was having control over the day-today affairs of the Company. She was having share of 3.8% in the said Company and has access to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cooperating to the Investigating Officer. At this juncture, learned Additional Advocate General has also referred to attachment order issued by the Directorate of Enforcement and also the various other documents / papers. Lastly, in support of his case, he has also placed reliance on the following case laws: 1. State of M.P. And another vs. Ram Kishna Balothia and another, )1995) 3 SCC 221. 2. Securities and Exchange Board of India vs. Sharda India Real Estate Corporation Limited and others, (2016) 1 SCC 48. 3. Jai Prakash Singh vs. State of Bihar and another, (2012) 4 SCC 379. 4. P. Chidambaram vs. Directorate of Enforcement, (2019) 9 SCC 24. 5. Baldev Raj vs. State of Himachal Pradesh, (1980) 2 SCC 564. 6. Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, (2011) 1 SCC 694. 7. Sushila Aggarwal and others vs. State (NCT of Delhi) and another, (2020) 5 SCC 1. 8. Lavesh vs. State (NCT of Delhi), (2012) (8) SCC 730. 7. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case laws relied upon by the learned counsel for the parties carefully. 8. Before dealing with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or other considerations, are to be kept in mind. (Para 24-25, Sibbia). 52.6. Overgenerous introduction (or reading into) of constraints on the power to grant anticipatory bail would render it Constitutionally vulnerable. Since fair procedure is part of Article 21, the court should not throw the provision (i.e. Section 438) open to challenge "by reading words in it which are not to be found therein." (Para 26). 52.7. There is no "inexorable rule" that anticipatory bail cannot be granted unless the applicant is the target of mala fides. There are several relevant considerations to be factored in, by the court, while considering whether to grant or refuse anticipatory bail. Nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the accused's presence not being secured during trial; a reasonable apprehension that the witnesses might be tampered with, and "the larger interests of the public or the state" are some of the considerations. A person seeking relief (of anticipatory bail) continues to be a man presumed to be innocent. (Para 31, Sibbia). 52.8. There can be no presumption that any c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the filing of an FIR in respect of the matter covered by the order. The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the FIR as aforesaid. But this need not be followed as an invariable rule. The normal rule should be not to limit the operation of the order in relation to a period of time." (Para 42, Sibbia)." "85. Having regard to the above discussion, it is clarified that the court should keep the following points as guiding principles, in dealing with applications under Section 438, Cr. PC: 85.1. As held in Sibbia, when a person apprehends arrest and approaches a court for anticipatory bail, his apprehension (of arrest), has to be based on concrete facts (and not vague or general allegations) relatable a specific offence or particular of offences. Applications for anticipatory bail should contain clear and essential facts relating to the offence, and why the applicant reasonably apprehends his or her arrest, as well as his version of the facts. These are important for the court which considering the application, to extent and reasonableness of the threat or appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinue after filing of the charge sheet till end of trial. Also orders of anticipatory bail should not be "blanket" in the sense that it should not enable the accused to commit further offences and claim relief. 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. 85.6. Orders of anticipatory bail do not in any manner limit or restrict the rights or duties of the police or investigating agency, to investigate into the charges against the person who seeks and is granted pre-arrest bail. 85.7. The observations in Sibbia regarding "limited custody" or "deemed custody" to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that : "19........... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest. 92.3. It may be advisable for the court, which is approached with an application under Section 438, depending on the seriousness of the threat (of arrest) to issue notice to the public prosecutor and obtain facts, even while granting limited interim anticipatory bail. 92.3. Nothing in Section 438 Cr. PC, 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 ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... event (i.e deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that : " 19..........if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v Deoman Upadhyaya." 92.9. It is open to the police or the investigating agency to move the court concerned, which grants anticipatory bail, for a direction under Section 439 (2) to arrest the accused, in the event of violation of any term, such as absconding, non - cooperating during investigation, evasion, intimidation or inducement to witnesses with a view to influence outcome of the investigation or trial, etc.. 92.10. The court referred to in para (9) above is the court which grants anticipatory bail, in the first instance, according to prevailing authorities. 92.11. The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the part played by them in the transaction. There should be clear and unambiguous allegation as to how the Directors are incharge and responsible for the conduct of the business of the company. The description should be clear. It is true that precise words from the provisions of the Act need not be reproduced and the court can always come to a conclusion in facts of each case. But still in the absence of any averment or specific evidence the net result would be that complaint would not be entertainable. 13. In S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla and another, [2005] 8 SCC 89, it was, inter-alia, held as follows:- "18. To sum up, there is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability. A clear case should be spelled out in the complaint against the person sought to be made liable. Section 141 the Act contains the requirements for mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company. Therefore, they get covered under Section 141. So far as the signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141". 11. In Ajay Mitra case (supra), the Hon'ble Supreme Court has held as under (paragraph 18 of the said decision): "18. So far as the present appellants are concerned, they came into picture much later in July 1999, when various trademarks and brands of A-1 were purchased by A- 6. The appellants were not at all in picture at the time when the complainant claims to have spent money in improvement of its bottling plant on the basis of the agreement executed with Cadbury Schweppes Beverages India Pvt. Ltd. (A-1). Since the appellants were not in picture at all at the time when the complainant alleges to have spent money in improving the bottling plant, neither any guilty intention can be attributed to them nor there can possibly be any intention on their part to deceive the complainant. No offence of cheating can, therefore, be said to have been committed by the appellants on account of the fact that a notice was given to the complainant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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