2023 (5) TMI 144 - HC - Corporate Laws

Seeking grant of Regular Bail - Criminal conspiracy and cheating by diverting funds - siphoning off of funds - receiving money back into personal bank accounts from some 65 companies/entities through dubious transactions, which money he then showed as promoter contribution towards the CDR process - round-tripping funds - twin-conditions in section 212(6) of the 2013 Act, satisfied or not.

HELD THAT:- Since in the course of deciding a bail petition, this court is not required to render any ‘finding’ in relation to the allegations in the complaint and is required to decide the matter on ‘broad probabilities’, this court refrains from deliberating further upon the facts as propounded in the complaint.

The petitioner began working as an officer of ESL from 01.11.2013 as Senior Vice President (Finance) and thereafter, became the CFO from 26.05.2014 to 24.02.2018. Though it is alleged that he was advising ESL in his professional capacity as a Chartered Accountant/financial consultant even before that, at that time the petitioner was clearly not an officer of the company and could not, therefore, have been a ‘key managerial personnel’ or an ‘officer in default’ - Even as Senior Vice President (Finance), the petitioner could not have been the final deciding authority in relation to the financial affairs of ESL. Out of the Rs.240 crores alleged to have been siphoned-off from ESL, Rs.235 crores were siphoned-off before 31.03.2015, between FY 2012-13 and FY 2014-15; but the petitioner became CFO only w.e.f. 26.05.2014.

The principal promoters and Whole-time Directors of ESL have never suffered any custody, since they were granted interim protective orders by a Co-ordinate Bench of this court. Other senior officers, such as the Procurement Head and others, have not even been named as accused. Only 02 out of the 55 accused persons were ever arrested – one, the petitioner; and the other, the CTO/Dr. Bindu Rana. Dr. Bindu Rana has been admitted to regular bail by a Co-ordinate Bench of this court on 20.01.2023. The bail has been granted not under the special dispensation for women contained in the proviso to section 212 (6) of the 2013 Act but on the merits of her case.

In the circumstances, for the limited purpose of the bail plea, this court is satisfied that there are reasonable grounds for believing that the petitioner is not guilty of the offence charged under the 2013 Act. Furthermore, considering that the investigation is complete and the prosecution complaint has been filed before the learned Special Judge, this court is also satisfied that the petitioner is not likely to commit any offence while on bail.

The petitioner is admitted to regular bail, subject to the conditions imposed - petition allowed.