TaxTMI 
TaxTMI 
2019 (6) TMI 1647
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....This Court on 20.12.2018 had directed the Investigating Officer to submit the report of further investigation on 08.01.2019, since after filing of chargesheet, C.B.I. continued to further investigate the matter. It was also directed that the Investigating Officer shall aim to complete the investigation on or before 30.01.2019 and further request on this count shall not be entertained. The C.B.I. since had desired more time, this Court without expressing any opinion on the merits of the case, on 05.02.2019 had granted liberty to the applicant to approach this Court after three months, since further investigation which was going on was likely to be over. 2.The brief facts as alleged in the F.I.R. are as follows: 2.1. The Company viz. Diamond Power Infrastructure Limited, Vadodara (hereinafter referred to as 'the Company') had obtained borrowings from different banks, although, the Company had appeared in the defaulter list of the Reserve Bank of India (R.B.I.). It is also alleged by the prosecution that the actual turnover of the company was much less than the projected turnover and the false statements and documents were created so as to avail more drawing power ....
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....es and Rs. 900 Cr. on closely monitored expansion project. The funds were never given to the company in post 2013 period and merely interest recovery has been pressed. The company also faced according to the applicant, a cash drain out of over Rs. 740.82 Cr. in the form of PV, penalties, retentions and other issues related to execution of ongoing and past supplies. 2.5. It is the case of the applicant that due to insistence of the directors/promoters of the company in the year 2014, a joint lenders' forum was formed to restructure and to give additional funds to the company. The Joint Lenders' Forum insisted and investigated forensic audit to be carried out in the affairs of the company and the Banks which are part of the consortium, appointed one T.R. Chhadha & Co. for carrying out the forensic audit of the company. According to the applicant, after a thorough inquiry, a report was prepared by the auditor indicating that there was no diversion of fund or any other issue which would suggest any fraud has been committed by the company or its promoters. The consortium of the bank has also accepted the said audit and had not questioned the same at any time and at any ....
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....dicates that 20 years' old cases are still pending, and therefore, C.B.I. has not exercised the powers of arrest in most of the cases. There is no possibility of disposing of the trial within a reasonable time, and therefore, statutory right guaranteed under Article21 of the Constitution would require also the grant of bail. There are more than 100 witnesses and 5000 documents which will take years to complete the trial. 3.Affidavitinreply has filed by the respondent-C.B.I. urging that the present application is not maintainable. According to the C.B.I., on the basis of reliable source of information, a case came to be registered by CBI, ACB, Gandhinagar against M/s. Diamond Power Infrastructure Limited (DPIL), Vadodara, the founder of which is Shri Suresh Narain Bhatnagar and Managing Director of the said company is Shri Amit Suresh Bhatnagar and Joint Managing Director, Shri Sumit Bhatnagar. The present applicant is the Managing Director of the company. The searches came to be conducted at the premises on 05.04.2018, however, the applicant did not join the investigation, despite the service of notice under Section 41A of the Code of Criminal Procedure. The applicant was ar....
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....orically stated that the said letter is a forged one and was never issued by the RBI. This is evident that accused/applicant of having intention of cheating by getting the working capital limits released from Bank of India. Moreover, as per the valuation data provided by the Directorate of Enforcement dated 24.04.2018, the valuation of land and building, plant and machinery along with other properties of the borrower firm and its sister concerns/ directors and his family members is approximately Rs. 1,122 Cr. which is grossly inadequate to cover the outstanding dues. 6.It is also averred that from the year 2012 to 2014, the transaction with the companies indicate that there was no actual sale / purchase of goods which had taken place and the transactions were merely accommodation entries in order to project higher turnover so as to avail enhancement in credit facilities. It is further urged that the inventory was prepared by the officials of the company especially Accounts Department, but the applicant/accused is one of the directors of the company and is equally responsible for all the dealings undertaken with the consortium Banks. Furthermore, the Drawing Power (DP) is calcula....
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....ugh, no untoward incident has been reported. This Court already vide its order dated 05.02.2019 in Criminal Misc. Application No. 11793 of 2018 had provided the period of three months' time to the C.B.I. for completing the further investigation. 10. However, the CBI since is unable to complete its work of further investigation and is desirous of more time to investigate, which is again its prerogative being the investigation agency, this Court while recognising its right to further investigation needs to strike a balance and consider the request of the applicant. 11. This Court has heard learned senior advocate, Mr.S.V.Raju with learned advocate, Mr.Virat Popat for the applicant who have argued on the line of the memo of the application. Ld. Counsel has also argued about the family conditions of the applicant, whose daughter is mentally challenged. He has further urged that no purpose is going to be served of incarceration of the applicant. He has also been granted a temporary bail and has not misused the said liberty. He has urged that stringent conditions may be imposed, however, applicant be released on bail. 12. Per contra, learned Special Public Prosecutor Mr. R.C....
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....imited, Plot no. 101/B/7 GIDC Estate Road no.2, Ranoli, Vadodara (Land admeasuring 2300 Sq. M. Building and plant machinery) 3,02,75,000 Diamond Power Transformers Limited 7 Bungalow no.6/B Green Park Society, Nizampura, Vadodara (Land admeasuring 649.21 Sq. M. & Building) 3,73,54,450 Suresh Bhatnagar 8 Commercial office plot no. 5/9 & 5/10 BIDC, Gorwa, Vadodara (Land admeasuring 1212 Sq m and building) 6,90,66,000 1)Madhurilata S. Bhatnagar 2)S.N. Bhatnagar HUF 3) Richa Bhatnagar 4)Mona Bhatnagar 9 Residential Bungalow, R.S 217/P, Opp.Greenwood, New Alkapuri, Vadodara (Rear SideEast side Direction) (Land admeasruing 1866.51 S.M. & Building) 11,85,24,750 Amit Bhatnagar/Mona Bhatnagar 10 The Address Priyalaxmi Mill Compound, Ahead of Arunoday Cross Roads, Alkapuri, Vadodara R.S. No. 609 bearing city survey no. 3412 of Village Kasba, Dist. Vadodara, Tower B Flat No. 801 & 802 {Rs. 21850000 x 2} 4,37,00,000 Amit Bhatnagar 11 R. S no. 4/Part, Sheet no. 12, City survey no. 500. Janki Apartment, 2nd Floor, Flat no. 102, Opp. Yogi Amrut & Reliance Fresh Near C.H. Jewellers & HDFC bank, Alkapuri, Vadodara 42,30,000 Ami....
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.... {Rs. 33,75,000/x 1 } 33,75,000 Northway spaces ltd(earlier Mayfair Spaces Ltd.) 20 Millennium, opp. Navrachna University, VasnaBhayli Road, Vadodara R. Survey No. 2566, 2567 & 2568, Block No. 1769 of Village Bhayli, Dist. Vadodara, Tower C2, 3000 Sq. Ft per unit. Flat No. 601, 701, 801, 901 & 1001 (1 Unit) 902 & 1002 (1 unit) {Rs. 7150000/x 5 Units} 3,57,50,000 Northway spaces ltd(earlier Mayfair Spaces Ltd.) 21 Millennium, opp. Navrachna University, VasnaBhayli Road, Vadodara R. Survey No. 2566, 2567 & 2568, Block No. 1769 of Village Bhayli, Dist. Vadodara, Tower C33000 Sq. Ft per unit. Flat No. 601, 701, 801, 901 & 1001 (1 Unit) {Rs. 71,50,000/x 1} 71,50,000 Northway spaces ltd(earlier Mayfair Spaces Ltd.) 22 Millennium, opp. Navrachna University, VasnaBhayli Road, Vadodara R. Survey No. 2566, 2567 & 2568, Block No. 1769 of Village Bhayli, Dist. Vadodara, Tower B11500 Sq. Ft 3 BHK per unit. Flat No. 201, 202, 601, 701, 801, 901, 1001, 1101 & 1102 {3375000 x 9} 3,03,75,000 Northway spaces ltd(earlier Mayfair Spaces Ltd.) 23 Millennium, opp. Navrachna University, VasnaBhayli Road, Vadodara R. Survey No. 2566, 2567 & 2568, Block....
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....tion of Money Laundering Act, 2002. It could be noticed that in relation to those properties attached under the PMLA Act, 2002, the attachment was initially for the period of 180 days. It is given to understand that later on the said order was confirmed. This Court, therefore, on 12.06.2019 raised a specific query raised as to whether there are any other properties, other than those reflected in the order under the PMLA Act and those which have been specifically reflected in the list of properties tendered by the C.B.I. 15.1 The CBI was also asked as to whether it was contemplating to attach any property and whether any properties are left out for attachment. On 17.06.2019 the list of the properties had been submitted by the learned Special Public Prosecutor, Mr.R.C.Kodekar, on instructions, from the CBI officers, who are present before this Court and he could show that there were in all 25 properties. 15.2 List of the properties is as follows: Sr No Name of the person/company Description of Property 1 Amit Suresh Bhatnagar Plot No.3, Sr. No.215216, Akashvan Bunglows, Ahead of Sevasi, Gotri. 2 Northway Spaces Ltd. (erstwhile Mayfair Spaces ....
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....loor, Corporate Park, Survey No.657, Vibhag3, (Akota), Atladara, Vadasar Road, Vadodara (Vendor Party) 22 Amit Suresh Bhatnagar (Purchaser party) Office No.A204, Second Floor, Survey No.657, Vibhag3, (Akota), Atladara, Vadasar Road, Vadodara (Vendor Party) (Vendor Party) Office No.A301, Third Floor, Corporate Park, Survey No.657, Vibhag3, (Akota), Atladara, Vadasar Road, Vadodara Office No.A307, Third Floor, Corporate Park, Survey No.657, Vibhag3, (Akota), Atladara, Vadasar Road, Vadodara (Vendor Party) 23 Sumit Suresh Bhatnagar (Purchaser party) Office No.A_310, Third Floor, Corporate Park, Survey No.657, Vibhag3 (Akota), Atladara, Vadasar Road, Vadodara Road, Vadodara (vendor party) 24 Mona Amit Bhatnagar Shop No.AGF01, Ground Floor Front Side, Corporate Park, Survey No.657, Vibhag3 (Akota), Atladara, Vadasar Road, Vadodara (Vendor Party) Shop No.AFF101, Floor Front Side, Corporate Park Survey No.657 , Vibhag3, (Akota), Atladara, Vadasar Road, Vadodara (Vendor Party) 25 Madhuri Finsere Private Limited 202, Sunrise Apartment, Alkapri, Vadodara, GJ390007 For....
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.... the deponent and his family members and related corporate entities purportedly controlled by the deponent. 3. I submit that apart from the attached properties, the Enforcement Directorate is conducting an investigation in 12 other properties belonging to the deponent and his family members vide show cause notices dated 28.11.2018. 4. I further say and submit that two list of properties were produced before this Hon'ble Court by the prosecuting agency. That one list contains properties which Enforcement Directorate has been investigating and other list which CBI is contemplating to investigate and/or take appropriate action. Apart from this, from the applicant's side another list of properties is also produced. The properties contained in all three lists are substantially same and overlaps one another except properties at Sr.No.7, 10, 11, 14, 16 and 25 in the list of Enforcement Directorate and properties at Sr No.1, 2 and 3 in the list submitted by the present applicant. 5. I submit and declare that apart from the properties which have been mentioned in these lists, the deponent does not possess any right, title or interest in any other property.....
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....llegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice." 25.The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning 2 adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power ....
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....the prosecution; [c] surrender his passport, if any, to the C.B.I. Court within a period of three days from the date of his release; [d] shall not in any mode or manner transfer any of the properties which have been referred to at paragraph No.14 and 15.2. [e] mark his presence before the C.B.I./ACB office at Gandhinagar once in a fortnight on the 1st and the 15th day of every English calender month; [f] shall not leave the District Vadodara except for the purpose of marking presence and attending the trial at C.B.I. Court; [g] shall not contact any of the witnesses who are already forming the part of the papers of chargesheet and/or any of the Bank officials from the consortium of the Banks since the CBI is still investigating further; [h] any attempt on his part to so do it if is noticed, it will be open for the Investigating Agency to bring to the notice of this Court for the purpose of cancelling the bail. [i]any indulgence in any other offence will also make them liable to be incarcerated once again even during the pendency of the trial; [j] furnish the address of his residence to the Investigating Agency ....