2019 (1) TMI 785 - HC - Companies Law

SFIO Investigation Order Upheld under Companies Act 2013

The court upheld the legality of the order directing an investigation by the SFIO under Section 212(1)(c) of the Companies Act, 2013. It found that the ... Investigation by the Serious Fraud Investigation Office - Section 212(1)(c) of the Companies Act, 2013 - Held that:- The Central Government is entrusted with the power in Section 212 of the Companies Act, 2013 to order an investigation by the SFIO if in its discretion such an investigation is necessary to safeguard public interest. It is true that the text of the statute does not contain an explicit right to challenge the opinion of the Central Government. However, this does not mean that the power confers absolute discretion over the decision and that its decision consequently attains unassailable finality. An order of investigation is an administrative order. Being an administrative order, it is essential that the Government must form an opinion under the section and it has been repeatedly affirmed by the jurisprudence of our courts that certain defects in the formation of opinion are justiciable. The power to investigate the affairs of a company cannot be used casually. The materials which were on the record of the Central Government when it did issue the impugned order under Section 212 of the Companies Act – and given the report of the SFIO (which is, of course post such order) this court is of the opinion that there is no infirmity with the impugned judgment - appeal dismissed. Issues Involved:1. Legality of the order directing investigation by the Serious Fraud Investigation Office (SFIO) under Section 212(1)(c) of the Companies Act, 2013.2. Allegations of fraudulent transactions and mismanagement by Sunair.3. Applicability of principles from previous rulings under Section 237(b) of the Companies Act, 1956 to Section 212 of the Companies Act, 2013.4. Examination of material and sufficiency for forming an opinion for investigation.5. The impact of prior judicial decisions and proceedings on the current investigation.6. Applicability of the principle of double jeopardy under Article 20 of the Constitution of India.7. Public interest as a condition precedent for ordering an investigation under Section 212 of the Companies Act, 2013.Detailed Analysis:1. Legality of the Order Directing Investigation by SFIO:The appellant, Sunair, challenged the decision of the Union of India (UOI) dated 29.02.2016, which directed an investigation by the SFIO under Section 212(1)(c) of the Companies Act, 2013. Sunair argued that the order was based on insufficient material and relied on the precedent set by the Bombay High Court in Parmeshwar Das Agarwal v. Additional Director, which emphasized that the existence of relevant circumstances must be demonstrated for forming an opinion. The court, however, upheld the legality of the order, stating that the opinion was formed based on 'cogent and creditworthy material' warranting investigation in the public interest.2. Allegations of Fraudulent Transactions and Mismanagement:The allegations against Sunair included fraudulent re-transfer of developmental rights, rotation of funds, misstatement in the balance sheet, and theft of files from the Ministry of Corporate Affairs. The court noted that these allegations had been the subject of litigation since 1999 and had been dismissed by the Company Law Board (CLB) and upheld by higher courts. However, fresh complaints and the involvement of public institutions in furnishing loans to Sunair were considered sufficient to justify the investigation.3. Applicability of Principles from Previous Rulings:The court examined whether the principles governing investigations under Section 237(b) of the Companies Act, 1956, as established in Barium Chemicals v. Company Law Board and Rohtas Industries v. S.D. Aggarwal, applied to Section 212 of the Companies Act, 2013. It concluded that the two sections were framed in radically different terms, with Section 212 focusing on the 'necessity of investigation' in 'public interest' rather than specific circumstances suggesting fraud or misfeasance. Therefore, the direct application of principles from Section 237(b) to Section 212 was not appropriate.4. Examination of Material and Sufficiency:The court emphasized that the material upon which the opinion for investigation was formed must be prima facie demonstrable. It found that the Ministry of Corporate Affairs had received multiple complaints and fresh material post-2013, which were processed and led to the decision to investigate. The court noted that the decision was taken after receipt of fresh materials and was not solely based on past allegations.5. Impact of Prior Judicial Decisions:Sunair contended that the conclusion of previous disputes barred further investigations, citing double jeopardy. The court, however, referred to the Supreme Court's decision in Raja Narayanlal Bansilal v. Maneck Phiroz Mistry, which clarified that investigations into the affairs of a company are fact-finding in nature and do not amount to double jeopardy. The court concurred with the learned single judge's conclusion that fresh material justified the investigation despite past judicial decisions.6. Principle of Double Jeopardy:The court rejected Sunair's argument that the investigation amounted to double jeopardy, as the nature of investigations into the affairs of a company does not attract Article 20 of the Constitution of India. The court emphasized that investigations are exploratory and fact-finding, and the mere fact that previous allegations were considered does not preclude further investigation based on new material.7. Public Interest as a Condition Precedent:The court noted that the existence of public interest is a condition precedent to the exercise of power under Section 212. It observed that Sunair's involvement with public institutions and the gravity of the allegations justified the investigation in public interest. The SFIO's report, which detailed serious violations and fraudulent activities, further confirmed the necessity of the investigation.Conclusion:The court upheld the legality of the order directing an investigation by the SFIO under Section 212(1)(c) of the Companies Act, 2013. It found that the opinion for investigation was formed based on sufficient material and in public interest, and that previous judicial decisions did not preclude further investigation. The appeal was dismissed, affirming the impugned judgment.