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2022 (12) TMI 982 - HC - Companies LawSeeking grant of Regular bail - misuse of cheque discounting facilities - diversion and siphon-off the borrowed funds - fictitious sale of food grain and in creation of accommodation/adjustment accounting entries - section 447 of the Companies Act - HELD THAT:- There is no allegation by the SFIO that during the course of the investigation, the petitioner attempted to destroy evidence or intimidate witnesses, or that she otherwise interfered in the course of investigation - It is apparent that the essence of the allegation against the petitioner is, that being the wife of the main accused Suman Chadha and a director of the company, the petitioner signed various papers, documents and records in her capacity as a co-director, and is therefore an ‘officer who is in default’ in relation to the affairs of the company within the meaning of section 2(60) of the Companies Act. Despite having the power under section 212(8) of the Companies Act, to arrest the petitioner in the course of investigation, the investigating officer did not arrest the petitioner, by which it can reasonably be inferred that the officer did not have reason to believe that the petitioner was guilty of any offence punishable under the concerned sections of the Companies Act. Even when the report under section 212(12) of the Companies Act was filed, there is nothing on record to show that the investigating officer sought for the petitioner to be remanded to judicial custody - In the opinion of this court, the petitioner’s conduct cannot have a worse effect now, than it possibly could have had during the course of investigation, since all the purportedly incriminating evidence and material has already been collected and placed before the learned Special Judge as part of the criminal complaint. The proviso to section 212(6) of the Companies Act cannot be treated as nugatory or dead letter. By way of the proviso, the Legislature has specifically carved-out an exception to the otherwise strict provision for bail, to say that though the twin conditions in section 212(6)(i) and (ii) of the Companies Act must otherwise be satisfied before a person is released on bail, those conditions would not apply inter-alia to a woman. In view of the proviso, it would be anathema to the legislative intent to not grant the benefit of the relaxation to a woman accused. The notion that a person summonsed after cognisance must necessarily be remanded to judicial custody, simply because the allegation relates to a ‘serious offence’, must be disabused. Merely because the offence is cognizable and non-bailable, it is not essential that an accused must be taken into custody when the charge-sheet is filed. Bail, it is trite to say, is the rule and not the exception. Arrest at the hands of the investigating officer and remand by the court must not be done on a whim or without reason. The petitioner is entitled to benefit of the proviso to section 212(6) of Companies Act - the court is persuaded to admit the petitioner to regular bail, subject to the conditions imposed. Application allowed.
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