TaxTMI 
TaxTMI 
2021 (10) TMI 1069
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....ast Limited were interested in making mutual fund investments in May 2017 and for this purpose, they availed the services of the depository NSDL National Securities Depository Ltd. (NSDL) and its participant, Allied Financial Service Private Limited (AFSPL) through which account opening forms were signed and the respective DMAT Accounts bearing client ID No. 1006126 in the name of Dalmia Cement East Ltd on 20.02.2017 and client ID No. 1006129 in the name of OCL India Cements Ltd. on 10.05.2017 were opened. b) After the initial investment, several further investments and redemption were made in the said accounts from time to time and the complainant held securities worth Rs. 344.07 Crores in the said account as on 28.12.2018.It is pertinent to note that vide orders dated 01.05.2018, 28.02.2018 and 20.04.2018 passed by the NCLT, OCL and DCEL merged to form DBCL (Dalmia Cement Bharat Ltd.) which then became the owner of the said securities. c) On 27.12.2018, the complainant submitted a redemption request to AFSPL and as per the rules and the market practice, the said securities should have been credited by 28.12.2019. However, despite several reminders, the redemptio....
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....or the petitioner relied on the forensic Audit Report dated 14.08.2019, submitted to SEBI, which, at several places, mentioned the fact that the movement of mutual fund units and their use as collateral was known to the Dalmia Bharat Group. 5. The learned Senior Counsel for the petitioner further submits that on examination, the petitioner provided copies of the account opening forms and delivery instruction slips used for the alleged transactions of mutual funds. He states that the said transactions were made with the consent of the complainant in order to share the profits through derivative trading income, which were transferred to the concerned companies of the complainant in advance. 6. The learned Senior Counsel appearing for the petitioner submits that to verify the version of the petitioner, bank statements of the complainant's companies namely, Contribe Technology Pvt Ltd, Glowhome Technology Pvt Ltd, Antordaya Commercial & Holding Pvt Ltd., Vinmay Developers Pvt Ltd and Primarc Projects Pvt Ltd, and that of AFSPL were analyzed and it was found that payments from the petitioner were received by these companies. 7. The learned Senior Counsel further submits that th....
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....ts that the mobile phones and hard drives, which were in the possession of the petitioner herein, were seized by the Economic Offences Wing on 19.08.2019 and on 20.08.2019. The learned Senior Counsel for the petitioner also submits that the witnesses are exclusively formal in nature which precludes the possibility of influencing them. He further states that the petitioner has deep roots in the society and is willing to cooperate with the investigating authorities and abide by any conditions imposed by this Court. 11. The learned Senior Counsel further submits that the investigation qua the petitioner is complete, for which the petitioner cooperated fully even when he was on interim bail. He states that the continuation of further investigation that is mentioned in the chargesheet is in relation to other potential accused persons and not the petitioner herein. He states that the petitioner does not have any role in the ongoing investigation. He further submits that vide order dated 16.03.2021, the Supreme Court acknowledged that the mere filing of the charge sheet was not the conclusive proof of guilt. He, therefore, states that the petitioner be granted bail. 12. Per Contra, ....
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....., Glowhome Technology Pvt Ltd, Antordaya Commercial Holding Pvt Ltd, Vinimay Developers Pvt Ltd and Primarc Projects Pvt Ltd., are distinct from the DMAT Accounts of OCL and DCEL. The said companies are related to one of the directors of the complainant, who did their separate business through separate trading accounts that is maintained with the accused. 16. The learned counsel for the complainant contends that the accused herein fraudulently entered incorrect credentials of the complainant in NSDL's server, contrary to the one provided by the complainant through the Account Opening Forms that were submitted for the purpose of opening the Demat accounts. This was done to prevent the complainant from getting alert messages for any transaction carried out by the accused from the said accounts. The following table, vide status report dated 22.06.2021 mentions the changes that were carried out by the accused. Changes/fabrication As per the scanned copy of AOF As per AOF uploaded Corresponding address Dalmiapuram Distt Tiruchirapalli, Tamil Nadu H. No. 130, Sector530, Gautam Budh Nagar E-Mail agrawal.bijay@dalmiabh arat.com [email protected] Reg....
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.... by SH. Kuldeep Narayan, Ld. ASJ Karkadooma Court, the petitioner was asked to surrender, however, the petitioner only surrendered on 21.03.2021. 20. The learned counsel for the complainant contends that on several occasions, the bail application of the petitioner has been rejected. The same is summarized as follows : • 18.12.2019 - Order passed by Sh. Surinder Kumar Ld. ASJ Karkadooma Court, New Delhi. • 12.03.2020 - Order passed by the Hon'ble High Court in first regular bail application moved by the accused bearing bail application no. 43/2020 before this Hon'ble Court vide which bail application was dismissed as withdrawn • 29.05.2020- Order passed by the Ld. Additional Sessions Judge, East district, Karkardooma Courts, New Delhi, • 18.02.2021 - Order passed by Sh. Ritesh Singh, Ld. ASJ, Karkadooma Courts. • 08.05.2021 - Order passed by Sh. Ritesh Singh, Ld. ASJ, Karkardooma Courts, 21. The learned counsel for the complainant further contends that the order of the Supreme Court dated 16.03.2021 does not result in any change of circumstance since, prior to the said order, the securities were already attached ....
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....to the observations of this Hon'ble court in its judgement dated 1.12.2020 passed in Bail Application No. 1097/2020 titled V. Hansprakash v. State. It was submitted that the role of the accused therein, V. Hansprakash, head of Business Department and Chief Business Strategy Officer of IL&FS is similar to the present petitioner/accused, Mr. Awanish Kumar Mishra. It was further submitted that the above contentions made by Mr. Awanish Kumar Mishra/petitioner before this court have been made before the Hon'ble High Court by Mr. V Hansprakash and the Hon'ble High Court vide its detailed judgement was pleased to reject the same. Therefore, the rejection of the bail application of the co-accused in the said case by the Hon'ble High Court will have to be considered while dealing with the present bail application. He contends that there is no change in circumstances and the petitioner ought not to be granted bail. He further contends that the petitioner is accused of committing multiple acts of forgery and he is liable to be awarded life sentence on each of the forgeries committed by him. 27. Heard both the parties and perused the material on record. 28. The petitioner is the managing....
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....d that the petitioner sent false and fabricated holding statements of the OCL and DCEL to the complainant through e-mail to make the complainant to believe that the Mutual Fund units of the complainant are intact. 30. It would be pertinent to note that SEBI vide its order dated 02.07.2021 confirmed the allegations against the accused and passed directions against him. The findings of said order are as follows : "85.1. From the very start of the relationship with DCEL and OCL, AFSPL laid the groundwork to ensure that details of any transactions In these accounts would not come to the notice of DCEL and OCL. This was done by way of entering incorrect communication details in the DPM system of NSDL so that the CAS and transaction alerts would never reach the clients. 85.2. At the same time, DCEL and OCL were given the impression that their correct communication details are on record. This was done by sending them CMLs, which reflected the communication details given by DCEL and OCL. In fact, these details were completely different from the details captured In the DPM system of NSDL. 85.3. AFSPL has sent statement of holdings to DCEL and OCL which do not d....
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....s, either directly or indirectly, in any manner whatsoever, for a period of seven (07) years from the date of this Order. 150.2. Mr. Awanish Kumar Mishra is restrained from associating with a listed entity, a material subsidiary of a listed entity or a SEBI registered intermediary in any capacity, either directly or Indirectly, in any manner whatsoever, for a period of seven (07) years from the date of this Order. 150.3. Mr. Himanshu Arora Is restrained from accessing the securities market and from buying, selling or dealing in securities, either directly or indirectly, in any manner whatsoever, for a period of three (03) years from the date of this Order. 150.4. Mr. Jitendra Tiwari is restrained from accessing the securities market and from buying, selling or dealing in securities, either directly or indirectly, in any manner whatsoever, for a period of one (01) year from the date of this Order. 150.5. The following penalty Is levied on the Noticees: Under Section AFSPL Awanish Kumar Mlshra Himanshu Arora Jitendra Tiwari Section 15HA of the SEBI Act, 1992 Rs. 2,00,00,000/- (Rs. Two Crores only) Rs. 2,00,00,000/- (Rs. Two ....
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....n conducted by the SEBI and referred to the audit report filed by Grand Thornton Forensic. The said report, in great detail, lays down the method adopted by the AFSPL and IL & FS to use the Mutual Fund units given by the complainant to the AFSPL. The Audit Report submitted by the Grand Thornton Forensic indicates that the petitioner herein and V. Hansprakash had changed the data which was sent to the Exchange as well as to the Bank and sent the data to the Exchange without reducing the collaterals value in violation of the Exchange Rules and there was a fraudulent transfer of Mutual Fund units. This Court denied bail to the co-accused, V. Hansprakash, after taking into account the quantum of the economic fraud and held that the economic offence committed by the accused affects the moral fabric of the society. 33. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the Supreme Court has laid down the parameters for granting or refusing bail which are as under : "i. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; ii. nature and gravity of the accusation; iii. severity of the punish....
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....ted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. 24. In the instant case, we have already noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge". The offences alleged are economic of....
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....e accused at the Trial. The object of bail is neither punitive nor preventative and the person who has not been convicted should be held in custody pending Trial only to ensure his attendance at Trial; and to ensure that the evidence is not tampered with and the witnesses are not threatened. If there is no apprehension of interference in administration of justice in a criminal trial by an accused then a person should not be deprived of his liberty. Only a vague belief that he will tamper with evidence cannot be a ground to deprive a person of his liberty. 38. It is pertinent to note that the Hon'ble Supreme Court vide order dated 16.03.2021 has transferred the securities in favor of the complainant, on the basis of a bank guarantee. The Apex Court has observed as under:- "We agree with Respondent No.1 to the extent that mere filing of a charge-sheet would not constitute a material change in circumstances showing mala fide on part of ISSL. The same is not conclusive proof of guilt. Indeed, we find it imperative to note that we do not wish to express any opinion on the merits of the allegations made by the parties against each other at this stage." 39. The order of the....