TaxTMI 
TaxTMI 
2025 (6) TMI 1826
X X X X Extracts X X X X
X X X X Extracts X X X X
....BNSS') in FIR No. 180 of 2025 ('FIR') dated 22.03.2025 under Sections 420/468/ 471 of the Indian Penal Code, 1860 ('IPC') registered at PS: Rajouri Garden, West Delhi, New Delhi. Since these Anticipatory Bail Applications are arising out of the same FIR having identical facts and prayers, they are decided by way of this common judgment. 2. The present Anticipatory Bail Applications are the second applications of the Applicants. The first anticipatory bail applications of the Applicants, praying for similar relief were filed before the learned Additional Sessions Judge-05 West: Delhi ('ASJ'), which were dismissed by the learned ASJ vide order dated 22.05.2025. 3. After the common order dismissing anticipatory bail applications by the learned ASJ, the present Anticipatory Bail Applications have been filed by the Applicants before this Court. FACTUAL BACKGROUND: 4. The FIR in the present case was lodged on 22.03.2025 under Sections 420/468/471 of IPC by Mrs. Gagandeep Kaur ('Complainant') regarding allegedly fraudulent transfer of 18,000 equity shares owned by the Complainant of M/s Malhotra Electronics Private Limited ('Company'). The FIR alleges that 18,000 shares of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n and non-production of the Form No. SH-4 following which, the Applicant- Tejinder Pal Singh Malhotra filed the BAIL APPLN. 2121/2025 before this Court. This Court, vide order dated 04.06.2025, granted interim protection to the said Applicant, who has joined the investigation on 05.06.2025. 12. The BAIL APPLN. Nos. 2195/2025, 2202/2025, 2203/2025 were listed before this Court on 09.06.2025 and interim protection was granted to the Applicants vide order dated 09.06.2025. 13. Thereafter, a Status Report dated 13.06.2025 was filed by the IO stating as per the independent auditor's report prepared for the year 2023, it came to the notice of the Complainant that her name was not mentioned in "Note No.2: Share Capital" of the said audit report, despite her holding 18,000 shares in the Company. The status report further states that upon perusal of the List of Share Transfer dated 06.09.2023, duly signed by Applicant- Gaganpreet Singh Malhotra - one of the Directors of the Company, it was found that 18,000 shares held by the Complainant were transferred in name of her husband without her consent or knowledge. 14. The Status Report further states that the Complainant has stated tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... further stated that on 05.06.2025, as per directions of this Court, Applicant- Tejinder Pal Singh joined the investigation, but did not cooperate and failed to provide Form No. SH-4. Status Report further states that documents received from the RoC indicate that the Applicant- Tejinder Pal Singh had attended the Annual General Meeting ('AGM') held on 06.09.2023, during which the shares of the Complainant were transferred to her husband through a resolution. 20. The Status Report states that custodial interrogation of Applicant- Tejinder Pal Singh is sought for recovery of documents based on which 18,000 shares were transferred from the Complainant to her husband. Being directors, the share transfer was approved and attended by the Applicants at the AGM. The Complainant's husband is the beneficiary of said 18,000 shares and is presently absconding. Anticipatory Bail of Applicants is opposed at this stage on the ground that they may tamper with the investigation and evidence. There is also apprehension that the Applicants may assist the Complainant's husband, who is absconding in evading arrest. SUBMISSIONS ON BEHALF OF THE APPLICANTS: 21. It is the case of the Applicants t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Applicants that in the midst of these mediation proceedings and while the Appeal was pending, the Complainant filed the instant complaint on 14.12.2024 and on 22.03.2025, the FIR was formally registered. The Applicants claim that the timing of the FIR, after nearly two years from the alleged incident and immediately after the breakdown of mediation, suggests that the FIR is an afterthought and has been filed as the Complainant's husband, who is also an accused in the FIR, refused to accept her demand of Rs. 18 Crores in mediation. 26. It is submitted that the Complainant is using FIR only to give way to her monetary demands from her husband as an afterthought due to unsatisfied monetary demands to accomplish her vindictive vendetta against her husband. It is further submitted that the FIR was lodged nearly two years after the alleged incident of share transfer and without producing any documentary evidence to substantiate the claim of forgery. It is submitted that despite the pendency of matrimonial proceedings between the Complainant and her husband since 2020, she had never claimed shareholding or disclosed any such investment in her income affidavit dated 16.02.2024, filed be....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat they have neither absconded nor evaded the process of law, and custodial interrogation is completely unwarranted in this case. It is further submitted that Mr. Amanpreet Singh Malhotra and the Complainant are husband and wife, who are not having cordial marital relations and are living separately since January 2020. Thus, the allegations made by the Complainant are false, malicious, and an outcome of an ongoing matrimonial conflict between the Complainant and her husband. 31. It is submitted that entire gamut of dispute is rooted in a matrimonial conflict, where the Complainant is attempting to leverage the criminal proceedings to extract some monetary benefits from the Accused Persons. It is submitted that the Applicants have been roped in by the Complainant in a false and fabricated case and fears imminent arrest by the police officials at the instigation of the Complainant based on these false allegations. 32. The learned Counsel for the Applicant submitted that the shares in the name of the Complainant were given to her out of love and affection when she became a member of the family. Initially, 1,000 shares were given, and subsequently another 17,000 shares were give....
X X X X Extracts X X X X
X X X X Extracts X X X X
....has arisen out of a matrimonial dispute between the husband and the wife. As regards the violations of the provisions of the Companies Act, the learned Counsel for the Applicants submitted that there are provisions for penalties for such violations, and the Company will suffer for not observing the necessary compliance in maintaining the records in accordance with law. 37. As regards the failure to produce Form No. SH-4, the learned Counsel for the Applicants submitted that the Applicants are being asked to create a record which does not exist. It was submitted that the Applicants cannot admit something, which is not true and cooperation in the investigation does not imply that an accused is bound to make statements merely to align with what the IO seeks or wishes to extract. The Applicants have consistently maintained that the said record does not exist. In any event, the issues raised are matters to be adjudicated during the course of trial, and no purpose would be served by taking the Applicants into custody in this regard. 38. The learned Counsel appearing for the Applicant- Gurpreet Singh Malhotra has submitted that the Applicant- Gurpreet Singh Malhotra is not named in ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....shall be transferred to the acceptor and if the shares or any of them, are not so accepted within one month from the date of notice to the Board the members proposing transfers shall, at any time within three months afterwards, be at liberty, subject to Articles 19 and 20 hereof, to sell and transfer the shares to any persons at the same or at higher price." 43. The learned Senior Counsel for the Complainant further submitted that the Complainant was never informed even of the rectification carried out subsequently by the Company. He submits that there must be consent of the concerned shareholder while re-transferring shares, and the meeting of Board of Directors has to be convened for the said purpose, but none of these compliances were made in the present case. 44. The learned Senior Counsel for the Complainant also relied on the reply dated 02.06.2025 by the Chief Financial Officer of the Company to the notice dated 22.03.2025 issued under Section 94 of BNSS. Mr. Dubey submitted that the Applicants are changing their stand every time regarding the availability of Form No. SH-4 and compliance with the relevant provisions of the Companies Act. To support his submission, the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... STATE: 49. The learned Additional Public Prosecutor ('APP') submitted that the very fact that shares have been transferred back establishes that those shares were wrongfully transferred earlier. The estimated value of the said shares is Rs. 2.7 crores. The Applicants are trying to make it a case of matrimonial dispute, whereas the case of forgery is apparent and same has to be investigated thoroughly by the investigating agency. The learned APP submitted that merely stating that it is a matrimonial dispute does not absolve the Applicants of forgery. In the process of re-transferring, the Applicants are using Form No. SH-4, which was not used for while executing the alleged transaction in question. 50. The learned APP further submitted that Form No. SH-4, as directed by the IO, has not been produced by the Applicants and thus it is submitted that the Applicants have not cooperated in the investigation. The learned APP submitted that the Applicants are not providing documents sought by the investigating agency and merely joining the investigation is not enough as the Applicants are required to cooperate with the IO. The learned APP further submitted that the documents relating....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r. There is no explanation offered for this delay in lodging the FIR, particularly when the Complainant had already been engaged in extensive litigation against her husband since 2020. 56. The List of Share Transfer shows that on 30.07.2022, the female members of the Applicants' family have transferred several shares to the male members of the family. The FIR stems from this transfer of shares. 57. The Company appears to be a closely held family-run business, and there is no public shareholding involved. FIR does not disclose as to when the Complainant became aware about the alleged share transfer. It only mentions about the report of independent auditor, who conducted audit of the Company in 2023. It is stated that from perusal of the said audit report, the Complainant came to know that her name is not mentioned as the shareholder although she was holding 18,000 shares of the Company. If further mentions that upon perusal of List of Share Transfer dated 06.09.2023 of the Company, she found that her 18,000 shares were transferred to her husband without her consent. 58. The FIR is silent about the exact details about the date on which the Complainant became the shareholder ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....it will not be appropriate to comment on the merits of the investigation, which is ongoing. 64. Further, the timing of the FIR after the failure of mediation between the Complainant and her husband for an incident that occurred two years prior to the date of the FIR is questionable. It is not disclosed in the FIR as to how and when the Complainant became aware about the report of the independent auditor of 2023. Even the residential address of the Complainant and the Registered Office of the Company are situated at the same premises. Hence, it is not possible to believe that the Complainant had no access to the records of the Company. 65. In such circumstances, the Applicants are entitled to the benefit of presumption of innocence. The Constitution Bench of the Supreme Court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 while stressing that a free man is entitled to presumption of innocence observed that "31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a directio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing of the Board Resolutions of the Company, List of Share Transfer and Form No. SH-4. The Applicants have provided all the documentary evidence and repeatedly asserted that no such Form No. SH-4 was ever executed. Even the Company has mentioned that Form No. SH-4 is not traceable in the records of the Company and the RoC has also not provided the same to the IO, which supports the stand of the Applicant about non-existence of Form No. SH-4. Notably, the custodial interrogation is requested only to ascertain the possession of Form No. SH-4. When no such document exists as admitted by the Applicants, there is no purpose of custodial interrogation of the Applicants. 68. The Applicants have joined the investigation and responded to multiple notices under Section 94 of BNSS. They do not have any prior criminal antecedents. They have provided replies and submitted audited financial reports of the Company for past several years. While the IO alleges non-cooperation due to non-production of Form No. SH-4, the Applicants have consistently maintained that the said document does not exist. The mere non-production of a document not in the possession/existence of the Applicants cannot be eq....