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2020 (9) TMI 1235 - HC - Insolvency and BankruptcySeeking grant of Regular Bail - Tripartite Off-take Agreement - misuse of Working Capital Demand Loan - amount transferred to the other sister concerns/shell companies in order to square off its credit facility with the Corporation Bank - HELD THAT - It is an admitted fact that the co-accused namely Navin Kumar Jain and Hulash Chand Jain were the other Directors and shareholders of SALL as well as LMJIL. They also signed/undertook personal guarantee to the complainant company in their capacity as Directors of the SALL against the Working Capital Demand Loan . Navin Jain had also signed the Tripartite Off-take Agreement in the capacity of Director of LMJIL. Both of them were not even arrested and the charge sheet against them was filed without arrest. During two years of enquiry/investigation the petitioner joined investigation on multiple occasions. After his arrest the EOW sought only one day PC remand. Neither in the Status Report nor during the course of arguments any apprehension was shown that the petitioner is a flight risk . The case arises out of a commercial transaction and is based on documents that already stand seized. The petitioner has already approached the NCLT where a moratorium on the assets/properties has been declared and an IRP has been appointed. The complainant has already approached NCLT. The petitioner is directed to be released on regular bail on his furnishing a personal bond in the sum of Rs. 25 lacs alongwith two sureties of the like amount each to the satisfaction of the trial court and subject to further conditions imposed - the bail is granted - application allowed.
Issues Involved:
1. Application for regular bail under Section 439 Cr.P.C. read with Section 482 Cr.P.C. 2. Allegations of economic offences under Sections 409/420/467/468/471/120B IPC. 3. Commercial transaction and financial agreements between the parties. 4. Petitioner's involvement and cooperation in the investigation. 5. Opposition to bail by the State and complainant. 6. Legal principles governing the grant of bail. 7. Conditions for granting bail. Issue-wise Detailed Analysis: 1. Application for Regular Bail: The petitioner sought regular bail under Section 439 Cr.P.C. read with Section 482 Cr.P.C. in connection with FIR No. 128/2019 registered under Sections 409/420/467/468/471/120B IPC at P.S. Economic Offences Wing, New Delhi. 2. Allegations of Economic Offences: The case arose from a commercial transaction between the complainant and the accused companies, involving a "Working Capital Demand Loan" of Rs. 25 crores. Allegations included cheating, forgery, and misappropriation of funds. The complainant alleged that the loan amount was transferred to sister concerns/shell companies and used to settle other financial obligations, indicating potential fraudulent activities. 3. Commercial Transaction and Financial Agreements: The transaction was formalized through a Sanction letter, Facility Agreement, and a Tripartite Off-take Agreement. The complainant provided credit facilities to the accused companies, which faced financial difficulties and approached the National Company Law Tribunal (NCLT) for Corporate Insolvency Resolution Process. The NCLT declared a moratorium on the assets and allowed the complainant to raise objections as a Financial Creditor. 4. Petitioner's Involvement and Cooperation in the Investigation: The petitioner was arrested on 03.07.2020 and granted only one day of police custody. The charge-sheet was filed, and the petitioner was no longer required for further investigation. The petitioner had joined the investigation multiple times and provided comprehensive replies to the authorities. It was also noted that other directors were not arrested, and the charge-sheet against them was filed without arrest. 5. Opposition to Bail by the State and Complainant: The State and complainant opposed the bail application, citing the seriousness of the allegations and the potential for the petitioner to tamper with evidence. They highlighted the misuse of the loan amount and ongoing investigation into forgery related to the opening of bank accounts for sister concerns. 6. Legal Principles Governing the Grant of Bail: The court referred to several Supreme Court judgments, including Sanjay Chandra v. CBI, P. Chidambaram v. CBI, and Nikesh Tarachand Shah v. Union of India, outlining the principles for granting bail. Key considerations included the nature and gravity of the accusation, severity of punishment, risk of absconding, character and behavior of the accused, likelihood of the offence being repeated, and potential influence on witnesses. 7. Conditions for Granting Bail: The court, considering the facts and circumstances, granted bail to the petitioner with specific conditions: - Furnishing a personal bond of Rs. 25 lacs with two sureties of like amount. - One surety to be a family member. - Surrendering the passport to the trial court. - Providing a mobile number to the Investigating Officer. - Cooperating with the investigation and not tampering with evidence. - Regularly appearing before the trial court. Conclusion: The application for regular bail was disposed of with the above conditions, ensuring the petitioner's cooperation with the trial process while safeguarding against potential risks. The court emphasized that the decision should not be seen as an expression on the merits of the case.
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