TaxTMI 
TaxTMI 
2022 (5) TMI 1315
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....stered with the Serious Fraud Investigation Office, New Delhi (S.F.I.O.,New Delhi) and pending in the court of Learned Additional District & Sessions Judge-9, Kanpur. It was submitted by Shri Chaudhary, learned senior counsel appearing for the applicant that although technically this is the second bail application of the accused-applicant, but merit of the case has not been touched upon while deciding the first bail application of the applicant. It was next submitted that no prima facie case is made out against the applicant. Embargo created under section 212 (6) of the Companies Act will not come in the way in releasing the applicant on bail by a constitutional Court, as many other co-accused, having identical role, have been allowed on bail by the Apex Court. Next argument of the learned counsel was that father of the applicant namely, Vikram Kothari (since died) had approached the Apex Court challenging the vires of the provision of section 212 (6) of the Companies Act and interim relief was granted in the said petition staying the arrest of the father of the applicant. Learned counsel further contended that applicant, after rejection of the first bail application before this C....
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....on him have been fulfilled. It is next argued that co-accused Udai J. Desai had also approached this Court for bail and after rejection of the same, he approached the Apex Court and he was allowed on regular bail through S.L.P. (Crl.) No.3479 of 2021. Similarly, co-accused Vishwanath Gupta had approached this Court for anticipatory bail, which was allowed by coordinate Bench of this Court. S.F.I.O. approached the Apex Court challenging the anticipatory bail order granted in favour of the co-accused Vishwanath Gupta, but the said Special Leave to Appeal was dismissed. Other co-accused Kejriwal brothers had also approached this Court for anticipatory bail. On rejection of their bail application, they approached the Apex court wherein the Apex court granted interim bail to them. Sri Imran Ullah, learned counsel for the applicant also submitted that no fruitful purpose would be served directing the applicant to surrender before the court concerned and to keep him into custody till the disposal of the trial, as there is no likelihood of of the trial being concluded at an early date. In support of their contention, learned counsel appearing for the applicant also placed reliance on the....
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.... refuting the submissions raised by the learned Sr. Advocate appearing for the S.F.I.O. further argued that technically it is a second bail application, but same is well maintainable and can be considered on merits. Many co-accused have been released on bail. Thus, at this stage, when trial is actually not proceeding and applicant has fully cooperated with the Investigating Agency at all times, he has not committed any breach of terms and conditions imposed upon him during interim bail, thus argument advanced by the learned counsel for the S.F.I.O. are not sufficient to deny the applicant from bail. Referring to the aforesaid facts it was contended that the applicant is entitled to be released on bail. Prosecution case in nutshell, as disclosed in the bail application and affidavits filed by the parties are that the applicant has been arrayed as an accused no. 42 in the complaint dated 15.05.2020 filed by the S.F.I.O.. It has been averred in the said complaint that applicant was one of the promoter-Director of the Rotomac Global Private Limited (hereinafter will be referred as R.G.P.L.), Crown Alba Writing Instruments Private Limited; Kothari Foods and Fragrances Private Limited; ....
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....em and also furnished wrong reflection of sales and purchase figure. They have also wrongly classified the interest income. It has also been averred that applicant under the garb of MT conducted moping of interest arbitrage thereby, fraudulently induced the public sector Banks to obtain credit facilities. Applicant had knowingly falsified the books of accounts and the financial statements deliberately concealing material facts. It is also averred that applicant was also indulged in speculative currency trading unrelated to MT being undertaken by RGC thereby gambling with Banks money which resulted in huge loss. Applicant was instrumental in holding the currency losses in the books of accounts under the garb of debit notes. These debit notes were raised against foreign parties and made part of trade receivable. Later on these debit notes were adjusted against the payment received from the LC rotated funds. Allegation against the applicant is also that he abused his position as promoter-director and caused wrongful loss of Rs. 4188 Crores to public sector Banks. He utilized the corporate identity to perpetrate fraud of rotating the funds obtained through Letter of Credit discountin....
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....irectly before the High Court is not tenable. Present bail application can be entertained and decided by the High Court. Perusal of the record also reveals that one Udai J. Desai had also approached this Court for bail, but bail prayer made by him was rejected by this Court. Thereafter, he approached the Apex Court and he was allowed on bail. Another co-accused Vishwanath Gupta had applied for anticipatory bail, which was allowed by the coordinate bench of this Court, as is clear from the record. Order passed on the anticipatory bail application was challenged before the Apex Court, which was dismissed. Thus, keeping in view the entire facts and circumstances of the case, hearing the parties and keeping in view this fact that the first bail application moved before this Court was rejected on sole ground of the provision of Section 212 (6) of the Companies Act, but thereafter, having identical role, the co-accused Udai J. Desai has been allowed on bail through S.L.P. (Crl.) No.3479 of 2021, applicant has not misused the liberty of interim bail, nothing is on record to show that the applicant has committed any breach of the condition imposed upon him while he was on interim bail gra....