TaxTMI 
TaxTMI 
2024 (4) TMI 174
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..... Pursuant to registration of an offence, a complaint case has been filed before the trial Court wherein the trial Court issued bailable warrant against the applicant, however, as the applicant was indisposed and was suffering with Hematuria, therefore, he could not appear before the trial Court. Thereafter, a non bailable warrant was issued against the applicant. The applicant then moved an application for grant of anticipatory bail before the trial Court, which has been rejected vide order dated 03/02/2024. 3. Senior Counsel for the applicant further contends that complaint has been filed before the trial Court alleging inter alia that the present applicant was signatory to a Joint Venture Agreement dated 1.4.2008 and a supplementary Agreement dated 06.11.2008, which were signed by the applicant in the capacity of the Chief Executive Officer, M/s PGH International Private Limited. An amount of Rs. 187.77 Crores as FDI was received by M/s PGH International Pvt. Ltd. The present applicant by a resolution of Board dated 22/02/2008 was authorized by the Board to sign a Joint Venture Agreement. The Joint Venture Agreement was signed by the present applicant on behalf of PGH Interna....
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....It is also contended by the counsel that Section 447 of the Companies Act, 2013 provides for punishment of fraud and as per the provisions of Section 447 of the Companies Act, a person can be punished who is found to be guilty of fraud involving an amount of Rs. 10,00,000/- or 1% of the turnover of the company, whichever is lower. It is contended by the counsel that there are no allegations of fraud against the present applicant, therefore, no overt act can be attributed to the applicant so as to attract the provisions of Section 447 of the Companies Act. 6. Learned counsel further submits that there is a schedule appended to the PMLA and the said schedule reflects that an offence committed under Section 447 of the Companies Act, 2013 is also covered within the meaning of Section 2(y) of the PMLA. It is contended by the counsel that though an offence under Section 447 of the Companies Act, was included in Schedule, but the said insertion was made in the schedule vide an amendment dated 19/04/2018. Before insertion of Section 447 of Companies Act, in the Schedule appended to the PMLA, offence under Section 447 of the Companies Act, was not a scheduled offence within the meaning o....
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....iance has also been placed on the order passed by the Allahabad High Court in Govind Prakash Pandey Vs. Directorate of Enforcement (Criminal Misc. Bail Application No. 1943 of 2023) dated 20.2.2023. It is also contended by the counsel that one of the co-accused Suresh Narayan Vijaywargiya has been enlarged on bail by this Court vide order dated 06/02/2024 in MCr.C. No.58013/2023. Therefore, the present applicant deserves to be enlarged on anticipatory bail on the ground of parity. It is contended by the counsel that this Court while granting bail to the co-accused Suresh Narayan Vijaywargiya has taken into consideration the aspect that the co-accused had appeared before the respondent upon receiving summons on two occasions and also the fact that the complaint was filed on 08/11/2023 i.e within ten days of the co-accused appearance before the respondents on 27/10/2023. It is contended by the counsel that the present applicant has also co-operated with the investigation and appeared as well pursuant to summons and thus the same ground is also available with the present applicant. 8. Per contra, learned counsel for the respondent submits that the application for anticipatory bail ....
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.... Court which has been dismissed vide order dated 03/11/2023 and the Indore Bench of this Court in paragraph 24 of the order has specifically observed that the allegations levelled in the complaint prima facie discloses commission of an offence. It is also contended that the Apex Court in the case of Tarun Kumar Vs. Assistant Director Directorate of Enforcement - SLP (Crl.) No. 9431 of 2023 has also considered the aspect of parity and held that even on the ground of parity, co-accusd cannot claim bail as a matter of right. The Apex Court in paragraph 18 dealt with the aspect as regards parity and also considered the effect of Section 45 of PMLA and concluded that it is imperative for accused to prima facie prove that he is not guilty of alleged offence and until and unless, said burden is discharged, it cannot be said that there is fulfillment of twin test as stipulated in Section 45 of the PMLA. 10. It is also contended by the counsel that in the present case after filing of complaint the trial Court issued a bailable warrant against the present applicant, however, despite opportunity, the applicant did not appear before the trial Court, therefore, the trial Court rightly dismis....
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....ree complaints were filed by the Deputy Registrar of Companies, Ministry of Corporate Affairs, Gwalior M.P. under Section 447 of the Companies Act, 2013. The said complaints were registered vide Complaint No. 3/2021, 10/2021 and 12/2021. As per the allegations levelled in the complaints, one Mr. Ashok Kumar Khosla made investment of Rs. 187.52 Crore by way of purchase of shares in M/s P.G.H. International Private Limited. The company i.e. M/s PGH gave loan to one Sarvajanik Jankalyan Parmarthik Nyas i.e. a Trust registered under the M.P. Public Trust Act, 1951. The said loan was not in the interest of the shareholders/company as the rate of interest was much lesser than the prevailing market price and the company had given interest free loans to related parties instead of carrying on its main business activity. Loans given to Sarvajanik Jankalyan Parmarthik Nyas were interest free whereas prevailing market rates at that time was around 6% - 8%. Thus, the company has extended wrongful gain to the other related party which includes the management of M/s PGH International Private Limited and wrongful loss to the shareholders/company of approximately more than 6% - 8% annually on the f....
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....on inserted to Section 3 by way of amendment of 2019 does not expand the purport of Section 3 but is only clarificatory in nature. It clarifies the word "and" preceding the expression projecting or claiming as "or"; and being a clarificatory amendment, it would make no difference even if it is introduced by way of Finance Act or otherwise. 19. Apart from the above, even when a Director discontinues his relationship with the company by submitting his resignation, he is liable for offences, which occurred during his tenure. The proviso to Section 168 (2) of the Companies Act, 2013 stipulates under:- 168. Resignation of director. - (1) xxxxxxxxxxxx (2) xxxxxxxxxxx "Provided that the director who has resigned shall be liable even after his resignation for the offences which occurred during his tenure. 20. The Apex Court in the case of Vijay Madanlal Choudhary and others Vs. Union of India and others (supra) has also held that provision of Section 45 are applicable to the bail applications under Sections 438 and 439 of Cr.P.C. The Apex Court in Paragraph 187 (xiii)(d) as under:- 187 (xiii)(d) - As regards the prayer for grant of bail, i....
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....cutive Officer of the Company, signed the Joint Venture Agreement with co-accused S.N.Vijaywargiya and thus, the applicant's signing the Agreement in the capacity of the Chief Executive Officer of the Company on the strength of enabling resolution, prima facie discloses the applicant's involvement. 23. It is further evident from perusal of the complaint that on account of alleged act, the shareholders of the Company suffered losses and various properties belonging to all the accused were provisionally attached including Rs. 1,02,28,031/- from the applicant, which is evident from the Provisional Attachment Order, reference of which finds mention in the complaint. It is also evident from Paragraph 9 of the complaint that outstanding balance of loan to others in respect of PGH International Pvt. Ltd. is Rs. 25.65 Crore and outstanding balance of loan lent to others as on 31.3.2022 in respect of PGH International Pvt. Ltd. is Rs. 22,05,10,516/-. As per Table 8, which finds mention in Paragraph 9.2 of the complaint, there are allegations of grant of loan to the tune of Rs. 45,01,10,043/- (interest free) and outstanding as per balance sheet for the year ending on 31.3.2022 was....
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.... framework of the proviso to Section 45 of the PMLA in addition to infirmity and sickness of the applicant therein also considered the aspect that he appeared before the Investigating Agency on two occasions. Co-accused S.N. Vijaywargiya despite ailment, had appeared twice before the Investigating Agency. It is evident from Paragraph 15 of the order that this Court considered the case of the co-accused for anticipatory bail in terms of the provisions contained in Section 45 of the PMLA and his health, as there was a report as regards his sickness. Accordingly, considering the aforesaid aspects, the benefit of anticipatory bail was extended to co-accused S.N. Vijaywargiya. 28. The present applicant cannot claim parity only on the ground that the present applicant also cooperated with the Investigating Agency. This contention of the applicant is also liable to be rejected, inasmuch as, upon filing of the complaint, when the applicant was issued a bailable warrant to appear before the trial Court, the applicant did not appear before the trial Court and therefore, the trial Court rejected the application of the applicant for anticipatory bail. 29. It is evident from perusal of th....