TaxTMI 
TaxTMI 
TaxTMI 
2018 (3) TMI 1335
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....al for the respondent and have examined the file. 3. The accused persons named in the FIR are : (i) M/s. INX Media (P) Ltd., Mumbai (hereinafter "INX Media"), through the then Director, Indrani Mukherjea and others; (ii) M/s. INX News (P) Ltd., (hereinafter "INX News"), through the then Director, Pratim Mukherjea @ Peter Mukherjea and others; (iii) M/s. Chess Management Services (P) Ltd., (in short "CMS"), represented through its Director, the present petitioner and others; (iv) M/s. Advantage Strategic Consulting (P) Ltd., (in short "ASC"), represented through its Director, Padma Vishwanathan @ Padma Bhaskararaman and others; and (v) Unknown officers of the Ministry of Finance, Government of India and other unknown persons. 4. 'INX Media' was incorporated on 08.08.2006 to carry on the business of creating, operating, managing and broadcasting a bouquet of television channels, including Hindi and multiple vernacular entertainment channels. 5. On or about 13.03.2007, 'INX Media' applied to the Chairman, Foreign Investment Promotion Board (in brief "the FIPB"), seeking its approval for permission to issue by way of preferential allotment, in one or more tranches (i) upto....
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.... with the approval. 'INX Media' further justified the excess foreign inflow receipt, as premium received against shares issued. 12. It is alleged in the FIR that upon receipt of the aforesaid letter of 'INX Media', the concerned officials of FIPB, who had been influenced by the petitioner, ignored the illegalities on the part of 'INX Media'. In abuse of their official position, these officials showed undue favour to the INX Group of Companies and advised 'INX News' to apply afresh for 'FIPB' approval in respect of downstream investment. It is further alleged that the officials of the FIPB ignored the request of the Department of Revenue to investigate into downstream investment made by 'INX Media' without FIPB approval. 13. The FIR further alleges that 'INX News', concealing the investment in 'INX Media' to the extent of 26%, again approached FIPB for permission for downstream investment in pursuance of a criminal conspiracy. Such deceitful and fallacious proposals were favourably considered by the officials of the Ministry of Finance and approved by the then Finance Minister. Concurrence to a "proposed investment" when investment had been made without the approval of the Finance....
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....c servants of 'FIPB' unit of the Ministry of Finance by virtue of relationship with the then Finance Minister and thus prevented any punitive action being taken against the INX Group. The unknown officers / officials of the Ministry of Finance also by virtue of influence exercised over them by the petitioner by abusing their official position caused undue pecuniary advantage to 'INX Media'. As a condition for such act, 'INX Media' paid substantial amounts to the companies in which the petitioner had sustainable interest directly or indirectly. 19. Learned Senior Counsel for the petitioner urged that the petitioner was illegally arrested by CBI on 28.02.2018 from Chennai airport and thereafter he remained in police custody till 12.03.2018. Subsequently, he was sent to judicial custody. It is vehemently urged that the allegations in the FIR against the petitioner are imaginary, highly improbable and malafide. The petitioner has been deliberately drawn into a small, routine commercial transaction between the two private companies for an alleged petty sum of Rs. 10 lacs. The petitioner had no control over business affairs of the company 'ASC'. The subject FIR has been deliberately str....
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....he income and paid income tax on the amount. 25. Learned Senior Counsel further submitted that the 'FIPB' used to be chaired by the Secretary, Economic Affairs and it included four other Secretaries (Industry, commerce, External Affairs and Overseas Indian Affairs) and the Secretary of the Administrative Ministry concerned. As per the normal procedure, the recommendation of the 'FIPB' submitted to the Minister of Finance were again examined by the junior officers and then by the Additional Secretary and the Secretary, before putting up before the competent authority (Finance Minister). No single officer could take a decision on any proposal; it used to be a collective decision of six Secretaries. It is highly unbelievable that any single individual could have influenced any officials of 'FIPB' including all six senior Secretaries to the Government of India. The Finance Minister used to approve only those cases that were recommended by 'FIPB' and put up by the Secretary (Economic Affairs). There was no question of any irregularity or illegality in the approval granted to the proposal of 'INX Media' as alleged. The petitioner had no occasion to meet any of the Secretaries in the 'FI....
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....sive compilation in a sealed envelope for the perusal of this Court to support his contentions. It is urged that during the course of investigation, sufficient oral and documentary evidence has been gathered to substantiate the various allegations in the FIR. It has been found that against the approved amount of Rs. 4.62 crores as FDI, 'INX Media' till May, 2008 received Foreign Direct Investment of Rs. 305 crores and till 2010 it increased to Rs. 731 crores. Reliance was placed on the statement of various officers including CFO and Legal Head of 'INX Media'. (Annexure 'B' in the compilation) 30. It is further urged that investigation revealed that prior to the approval dated 11.11.2008 accorded to 'INX News' by the 'FIPB' an amount of Rs. 43.90 crores had already been made by 'INX Media' in 'INX News' as downstream investment without the specific approval of the 'FIPB'. Again, reliance was placed on the statements of various officers (current and former) including CFO of INX Media and Company Secretary of 'INX News' detailed in the compilation. 31. Despite denial by the petitioner that neither he nor his company 'CMS' had ever rendered any service including FIPB related service ....
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....gan Chandrakant Bhujbal vs. Union of India', 2016 SCC OnLine Bom 9938; 'Ram Pratap Yadav vs. Mitra Sen Yadav and Anr.', 2003 (1) SCC 15; 'Kalyan Chandra Sarkar vs. Rajesh Ranjan Alias Pappu Yadav and Anr.', 2004 (7) SCC 528; 'Prasanta Kumar Sarkar vs. Ashis Chatterjee and Anr.', 2010 (14) SCC 496; 'Anwari Begum vs. Sher Mohammad and Anr.', 2005 (7) SCC 326, and 'Prahlad Singh Bhati vs. NCT, Delhi and Anr.', 2001 (4) SCC 280. 36. True, the petitioner has filed the instant application under Section 439 Cr.P.C. before this Court without exhausting the remedy to seek bail before the Trial Court / Special Judge. It is a matter of record that the petitioner had moved the Trial Court seeking identical relief under Section 439 Cr.P.C. However, the bail application was not considered because on the request of the CBI, police custody remand of the petitioner was extended from time to time till 12.03.2018. Apparently, the Trial Court was not in a position to dispose off the bail application due to its orders granting police custody remand in the interregnum period. It is to be noted that the petitioner did not challenge the orders of the Trial Court extending remand from time to time. When t....
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....ions by the learned Special Judge by an order dated 13.03.2018. The investigation in the said matter is still underway. Allegations against Bhaskararaman as narrated in the order dated 13.03.2018 were that he was involved in assisting the main accused i.e. the petitioner in the instant FIR in the commission of the crime. As the said proceedings are pending adjudication before the competent Court, allegations regarding laundering of money being the crime proceeds of the present FIR would not be of much relevance for disposal of the bail application in the instant case to avoid prejudice to the case of either of the parties. The parties will be at liberty to raise all these issues in the said proceedings, if so permitted. 41. In 'Prasanta Kumar Sarkar vs. Ashis Chatterjee & Anr.', 2010 (14) SCC 496, the Hon'ble Supreme Court observed : "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....
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....minating material at the instance of the petitioner or from his possession during police custody remand from 28.02.2018 to 12.03.2018. Learned Addl. Solicitor General, on instructions, fairly admitted that there was no such recovery. Order dated 09.03.2018 records that two separate applications, one seeking permission to allow Indrani Mukherjea and Pratim Mukherjea @ Peter Mukherjea to be brought to Delhi for identification of place in Delhi in the presence of the petitioner and the other seeking permission to confront the petitioner with co-accused Bhaskararaman were moved. When these applications were taken up for consideration at 02.00 p.m., CBI opted not to press the application seeking permission to allow Indrani Mukherjea and Pratim Mukherjea @ Peter Mukherjea to be brought to Delhi for identification of the place in Delhi in the presence of petitioner. The said application was dismissed as 'not pressed'. The application seeking permission to confront the petitioner with co- accused Bhaskararaman (since released on bail) being CA of the petitioner was allowed. 45. The incident whereby 'INX Media' allegedly entered into criminal conspiracy with the petitioner and others to re....
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.... time of consideration of bail, a detailed examination of the evidence and elaborate documentation of the merits of the case, which may prejudice the prosecution or accused is to be avoided. It has, however, been held by the Hon'ble Supreme Court that there is a need to indicate in the order reasons for prima facie concluding while bail was being granted particularly when the accused was charged of having committed a serious offence. ['Anwari Begum vs. Sher Mohammad & Anr.', 2005 (7) SCC 326] 48. Indrani Mukherjea claimed in 161 Cr.P.C. statement that in the said meeting at Hyatt, 'INX Media's Head Legal i.e. AS (name withheld) was present. In his statement recorded on 14.09.2017, 'AS', however, did not claim if he was present along with Indrani Mukherjea in any meeting with the petitioner at Hyatt. Certain other discrepancies have emerged in the statements of Indrani Mukherjea and AS which need not to be elaborated in the present proceedings. 49. In 'Haricharan Kurmi (CRA No.208 of 1963) & Jogia Hajam (CRA No.209 of 1963) Vs. State of Bihar', AIR 1964 SC 1184, evidentiary value of a confession made by co-accused person has been discussed. It was held : "The statements containe....
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....aterial to prima facie infer that though allegedly consultancy services were provided by 'CMS' of which the petitioner was a Director, the invoice, in fact, was raised by 'ASC'. It falsifies the petitioner's version that he had no concern whatsoever with 'ASC'. The prosecution has also relied upon various e-mails exchanged between the senior officers of 'INX Media' and Vice President of 'CMS' (names withheld). From the statements recorded under Section 161 Cr.P.C. of various individuals coupled with the e-mails exchanged, it can well be inferred that there was nexus between 'CMS' and 'ASC'. No plausible explanation has been given by the petitioner as to how and why, for consultancy services purportedly given by 'CMS', invoice in the sum of Rs. 10 lacs as professional fee was raised on behalf of 'ASC'. This incriminating circumstance, however, alone is not sufficient at this stage to deny bail to the petitioner as this payment was duly accounted for in the records and was received by a cheque. It is a matter of trial as to who was the ultimate beneficiary of this amount. No credible evidence has been produced on record regarding the exact relationship of the petitioner with 'ASC'. ....
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....t period and returned to India on 10.12.2017. Again, he was permitted to visit United Kingdom from 15.02.2018 to 28.02.2018 by Madras High Court by an order dated 16.02.2018 in WMP No.3031 of 2018 in WP No.21305/2017. The petitioner returned from United Kingdom on 28.02.2018 and from the airport itself he was arrested. 55. It is also not in dispute that the petitioner joined the investigation before CBI on 23.08.2017 in terms of the order dated 18.08.2017 of the Hon'ble Supreme Court. He again appeared before the Investigating Officer on 28.08.2017. On both the occasions, he was questioned / interrogated for sufficient duration. It is contended by the petitioner that after 18.08.2017 CBI did not issue any summons / notice to him to appear before the Investigating Officer or to supply any information or to produce any document. 56. Allegations against the petitioner primarily are for commission of offence punishable under Section 8 of Prevention of Corruption Act. The punishment for commission of the offence punishable under Section 8 is imprisonment for a term which may extend to five years with fine. Settled position is that generally bail should not be refused unless the crime ....