TaxTMI 
TaxTMI 
2019 (12) TMI 947
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....hiksha Securities & Consultants Private Limited c. M/s Shadilal Marketing Private Limited d. M/s Sanchit Infrabuild Private Limited." and it is submitted by the petitioner that as per the said complaint of the SFIO, the aforesaid four companies had caused a loss to the State by hatching a conspiracy with one co-accused Md. Iqbal. The petitioner submits that he was summoned vide order dated 24.01.2019 on cognizance being taken by the Special Judge (Companies Act), Dwarka and appeared before the Court on 20.05.2019 and was taken into custody by the Court. The petitioner submits that his application seeking grant of bail was rejected vide order dated 07.06.2019 of the Special Judge (Companies Act) and further submits that he is not well educated and has not passed Standard X and worked as a salesman in a shoe shop company and is not connected with any of the four companies aforementioned and that he had not even been served with the summons by the SFIO for joining the investigation at any stage. 2. The petitioner further submits that the requirements of Section 212(6) of the Companies Act, 2013 for institution of a complaint under Section 447 of the said enactment....
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....he year 2011. Inter alia the applicant submits that he has clean antecedents and that there has been no recovery effected from him and that he has deep roots in society and he is the only bread earner of his family and that he ought to be released on bail. Inter alia the petitioner submits that there are no chances of his tampering with the evidence. 5. The applicant further submits that in as much as the investigation in the matter is complete and the charge sheet has been filed, no purpose would be served by keeping him in custody. A catena of verdicts is relied upon on behalf of the petitioner to contend to the effect that the applicant ought to be released on bail, in as much as the investigation in the matter is complete and that he is not likely to tamper with the evidence. The verdicts relied upon on behalf of the petitioner are as under:- "I. "Court on its own Motion Vs. CBI" [(2006) 4 RCR (CRL.) 206] II. "H.B Chaturvedi Vs. C.B.I" 171 (2010) DLT 223 III. "Ashok Kumar Vs. State" 231(2016) DLT 32(CN) IV. "Sanjay Chandra Vs. C.B.I" VII (2011) SLT 428 V. "Suresh Kalmadi Vs. C.B.I" 187(2012) DLT 575 VI. "Anup Prakash Garg....
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....s. 1896.94 lakhs and further these groups acquired the land through these clusters of companies 10 circumvent the Land Ceiling Act and A-28 Sachin Jain is the Director of four such companies. 6. It is pertinent to mention that the case of SFIO is that a criminal conspiracy was hatched by the prime accused A-1 Mohd. Iqbal who allegedly has been engaged in illegal sand mining operation in the State of Uttar Pradesh and in/ around District Saharanpur for the purpose of laundering the ill-gotten money so as the same to be projected as legitimate assets and therefore, a number of companies were fraudulently taken over by their shares being purchased at diluted prices and the companies were the shell companies/dummy companies and few of such companies are under directorship of A-28. Allegations against accused persons also covered Section 447 of Companies Act read with Section 212 (6)(ii) of Companies Act.", significantly, vide paragraph 7 of the said order, it was observed to the effect:- "7. Arguments Heard. Investigation file record perused. IO of SFIO has shown me investigation file (which is confidential in nature)." 8. The SFIO submits that in as much as the Ho....
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....nvestigation report of the SFIO to take a conscious decision whether or not to sanction prosecution and the MCA whilst exercising power under Section 212(14) of the Companies Act, 2013 issued instructions and sanction to initiate prosecution for the violations in the offences committed under the various provisions of the Companies Act, 1956 and the Companies Act, 2013 as well as under the Indian Penal Code, 1860 against 176 accused persons including the present petitioner and that the order directing the initiation of prosecution was placed before the Hon'ble Supreme Court, whereafter it was observed by the Hon'ble Supreme Court that there was nothing that survived in the matter and the petition was disposed of and as a consequence, a criminal complaint was filed before the Trial Court on 18.09.2017. 9. Inter alia the SFIO submits that the applicant has been summoned by the learned Trial Court for the offences punishable under Sections 418/420/468/471/477A/120B of the Indian Penal Code, 1860, under Sections 211/279/299/301/628/629A of the Companies Act, 1956 and under Sections 129/184/188/189/447/448 of the Companies Act, 2013 and for the offences punishable under Sections 447/4....
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....oup, these companies were having negligible cash/net worth and did not have any business transaction in the past and that they were with the help of the applicant and other accused, used by the Group to commit fraudulent acts. 12. Inter alia the SFIO has submitted that the investigation of 111 EUIs and associated entities revealed a design by Mohd. Iqbal, his family members, close associates of the family and professionals to launder the illicit gains from the rampant illegal sand mining undertaken by the group through a series of contracts awarded to the entities controlled by the conglomerate and that most of the entities incorporated or acquired off the shelf through self-acknowledged entry operators did not carry out any commercial or economic activity and that the sole purpose of having multiple set of companies and partnership firms was to use them as a front for converting the unaccounted money into legal assets, mainly agriculture land and later on in real estate and construction sector. It was further submitted by the SFIO that the facts which had come forth during the investigation showed that the entire network was created with a single objective of creating/ acquirin....
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....74) or any other law for the time being in force on granting of bail.", and that in as much as the case of the applicant falls under the provisions of Section 212(6)(ii) of the Companies Act, 2013 and as Section 212(6) of the Companies Act, 2013 starts with a non-obstante clause and the provisions stipulated under Section 212(6)(ii) of the Companies Act, 2013 are mandatory in nature, in the facts and circumstances of the instant case, the applicant is not entitled to be released on bail. 15. The SFIO places reliance also on the verdict of the Hon'ble Supreme Court in "Satpal Singh Vs. The State Of Punjab" AIR 2018 SC 2011 whereby on a prayer seeking grant of anticipatory bail under the NDPS Act, 1985 it was held that the twin conditions of bail under the NDPS Act, 1985 are applicable in a case of anticipatory bail also and it was submitted thus, on behalf of the SFIO that the provisions of Section 37 of the NDPS Act, 1985 being akin to Section 212(6) of the Companies Act, 2013, the limitations prescribed under Section 212(6) r/w Section 212(7) of the Companies Act, 2013 are applicable in the instant case. 16. It is thus, submitted on behalf of the SFIO that the orders unde....
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....that were made on behalf of the petitioner, reliance was sought to be placed on the investigation report dated 26.07.2017 that was submitted to be shared to the Chairman, CBDT for an appropriate action to contend that the offence punishable under Section 447 of the Companies Act, 2013, was not even adverted to therein qua the present petitioner arrayed as accused No.28. The petitioner has further sought to submit that several other accused in the complaint case No.720/2017 pending before the Special Judge, Companies Act i.e. Ashish Aggarwal A-91, Vijay Kumar Sharma A-86, Kumari Shiriti A-89, Bimla Gupta A-77, Vinod Kumar Mittal A-34, Arvind Kaneri A-92, Sujata Khandelia A-38, Shashi Sharma A-41 have been released on bail and Ravi Kumar Singhal A65, Yogesh GuptaA-57, Sanjay Garg A-66, Pawan Kumar Aggarwal A-81, Dharmender Gupta, Rakesh Sharma, Suman Sharma, Amitabh Singh, Abhijit Kanth A-58, Suresh Kumar Gupta, Mohit Kumar and Ritika Agnihotri have been granted interim protection by this Court on the basis of the order dated 11.07.2019 in Bail Appl. No.1615/2019 and even Mohd. Iqbal the stated kingpin vide order dated 29.05.2019 of the Hon'ble High Court of Allahabad whilst declinin....
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....ase the applicant moves an appropriate application personally or through counsel before the trial Court seeking discharge within five weeks from today, the same shall be considered and decided on its merit by speaking order after affording opportunity of hearing to both the sides. In the first instance, no coercive action shall be taken against the applicant till the period of five weeks from today or till presentation of the application, whichever is earlier and in case the discharge application is moved within aforesaid stipulated period, then no coercive action shall be taken against the applicant till disposal of discharge application. However, it is made clear that in the event no such application is moved within the time prescribed above, this order will be of no avail to the applicant." 20. The applications of Mohd. Naseem and 18 others in the said complaint case i.e. CC No.720/2017 were likewise disposed of vide order dated 29.05.2019 of the Hon'ble High Court of Allahabad. 21. On behalf of the applicant, has been submitted a copy of a complaint sent through speed post made by the applicant herein on 19.07.2019 to the SHO, PS Shakarpur seeking the re....
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....ill the date of his complaint and rather forged and fabricated his signatures on the documents referred to herein above as submitted with the charge sheet by stating that he was a Director of the companies i.e. M/s Sampat Financials Planners Private Limited, M/s Subhiksha Securities & Consultants Private Limited, M/s Shadilal Marketing Private Limited and M/s Sanchit Infrabuild Private Limited. 24. The petitioner has further submitted that because of this act of Sanat Kumar Jain and other accused persons, he has been falsely implicated in CC No.720/2017 without any accusation and has been languishing in jail since 20.05.2019. Inter alia the petitioner has submitted the copy of his account opening form bearing his signatures submitting that the same could be compared with the signatures on the documents that had been filed with the charge sheet in order to unearth the forgery done by the other accused persons. The petitioner submits that he does not know any of the accused persons in the matter. 25. On a consideration of the submissions made on behalf of either side, it is essential to observe at the outset that the charges in the matter are yet to be framed by the learned Tri....
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....illegal sand mining operations in the State of UP and in/around the District Saharanpur, so that he could project the said ill-gotten money as legitimate assets and these companies were utilized to purchase land and that majority of the transactions made by these companies were outside the banking channels and the companies did not even maintain any account,- are allegations, if established prima facie undoubtedly fall within the domain of a fraud in terms of Sections 447 and 448 of the Companies Act, 2013. 27. This is without any observations in relation to the applicability or non applicability of the Companies Act, 2013 to acts committed by the petitioner allegedly prior to the date 12.09.2013, in as much as the said aspect is sub judice before the Hon'ble Supreme Court pursuant to the observations made in W.P.(Crl.) No.2453/2018 vide verdict dated 29.08.2018 by the Hon'ble Division Bench of this Court in "Neeraj Singh Vs. Union of India & Ors." having been stayed by the Hon'ble Supreme Court in CRL.A.No.1114/2018 arising out of SLP Crl. No. 7421/2018 vide order dated 04.09.2018 in "Serious Fraud Investigation Office Vs. Neeraj Singh & Anr", in view of the contention raised o....
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....to be as those of the person who signed the account opening form with the Punjab National Bank, Laxmi Nagar Branch in relation to the account No.1603000/02055/117. 31. Taking the said aspect into account as well as the factum that the summons bearing no.SFIO/INV/334-339 & 359-463/ AMBBPL & Others and AAPL & Others/ 2016/I/8425/2016 dated 16.08.2016 and SFIO/INV/334-339 & 359-463/ AMBBPL & Ors and AAPL &Others/ 2016/I/10205/2017 dated 16.03.2017 issued to the petitioner by the SFIO referred to hereinabove were apparently not delivered to him, taking into account also the verdict of the Hon'ble Supreme Court in "Rukmini Narvekar Vs. Vijaya Satardekar and Ors." AIR 2008 SC 1013 with observations in paragraph 17 of the said verdict, which observes categorically to the effect that though defence material cannot be looked into by the Court while considering the framing of the charge in view of the verdict of the Hon'ble Supreme Court in "State of Orissa Vs. Devendra Nath Padhi" AIR 2005 SC 359, there may be some very rare and exceptional cases where some defence material when shown to the Trial Court, can be looked into by the Court at the time of the framing of the charges or taking ....