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TMI Blog2020 (7) TMI 550X X X X Extracts X X X X X X X X Extracts X X X X ..... uneet Bali, learned senior counsel appeared on behalf of the petitioner and submitted that petitioner was not named as an accused in the said F.I.R. and the ensuing chargesheet, which was filed as far back as on 06.01.2020, thereby marking conclusion of investigation by the Respondent against the Petitioner, fails to bring forth any material to implicate the Petitioner in the criminal proceedings emanating out of the said F.I.R., much less be able to justify the detention of the Petitioner in custody for more than 8 months, that too even after conclusion of investigation in the said proceedings. 3. Further submitted that a co-accused Anil Saxena has already been granted regular bail by the Court vide order dated 17.06.2020. From a bare perusal of the chargesheet, it becomes crystal clear that Anil Saxena and the petitioner have been attributed similar roles by the investigating agency. Anil Saxena was the group Chief Financial Officer and a member of the same Risk Management Committee (hereinafter referred to as "RMC")/Loan Investment and Borrowing Committee (hereinafter referred to as "LIABC") as the petitioner, which approved the loans, till his resignation on 14.11.2017. In add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h another NBFC license was obtained from RBI under the name of Religare Finance Ltd. An announcement was also made to this effect to the entire senior management of Religare Group in February 2010 by Shachindra Nath, then Group Chief Operating Officer (COO) REL and further reiterated in the group announcement made in April 2010 by Shachindra Nath, who was by then elevated to the position of Group Chief Executive Officer (CEO) REL under his guidance and supervision the SME business loan book grew from Rs. 264 Cr. in 2009 to Rs. 15,976 Cr in 2016. The total Revenue on the other hand grew from Rs. 11 Cr. in 2009 to Rs. 2,062 Cr. in 2016. However, not a single loan transaction under the 'SME business' has come under any kind of scanner or investigation by the RBI and neither has been questioned in the investigation in the present case. In fact, while the Petitioner's mandate was to handle the new SME lending business, it was the REL team responsible for managing the already existing Inter-Corporate Deposit (Later named as CLB) and loan against shares business, which were never under the control and supervision of the Petitioner, and in respect of which the Respondent has in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and the rest are not. Details of other RMC and RPT Members is given below: A. RMC Committee Members S.No. Name Post Loans Approved Whether Made Accused 1. Maninder Singh Group CEO and Boss of Kavi Arora 13 No 2. Mr.Avinash Chander Mahajan Independent Director of REL (Also Member of RPT Committee of REL) 6 No 3. Anil Saxena (Already Granted bail) Group CFO and Director of REL 6 Accused no.5 4. Sunil Kumar Garg Group Treasury Head and Director, RFL 6 No 5. Pankaj Sharma President and Chief Risk Officer, RFL 6 No 6. Sunil Godhwani MD and Chairman of REL (Also Member of RPT Committee of REL) 6 Accused No.3 B. RPT Committee Members S.No. Name Post Loans Approved Whether Made Accused 1. Avinash Chander Mahajan Independent Director, REL (Also approved 6 loans in RMC meetings) 11 No 2. Rashi Dhir Independent Director of REL 6 No 3. Monish K. Dutt International Finance Corporation (IFC) Nominee Director, REL 9 No 4. Sunil Godhwani MD and Chairman of REL (Also approved 6 loans in RMC meetings) 6 Accused No.5 5. Harpal Singh Director, REL 5 No 9. One such RMC Approval meeting dated 31.01.2017 clearly shows that approvals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused. In addition, he passed 3 loans as RMC member. Infact, as per RFL website, at present he is the President & Head of Corporate Planning and Strategy. Further, while sending the email he knew that rest of RMC (of which petitioner was a member) would not agree with his suggestion. In addition, as per the charge sheet, the defaulting entities were operating from the offices of RHC and transactions were carried out on instructions of Hemant Dhingra (Director of Finance of RHC). Statement of Hemant Dhingra relied upon in the charge sheet attributes no role to the petitioner, more so does not even mention his name. Statement of Directors of defaulting entities relied upon in the charge sheet attributes no role to the petitioner. Further, these Directors have stated that they were either known to the promoters or acquaintances of their late father. Not even remotely connected to the petitioner. 12. As held in P.Chidambaram vs. CBI: 2019 SCC OnLine SC 1197, if the applicant fulfils the triple test of bail then holding him in custody is detrimental to course of justice and violative of Article 21 of the Constitution. 13. In the case of S.K. Alagh vs. State of Uttar Pradesh & Ors.: (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Further submitted that petitioner's role in the conspiracy and petitioner's position in the complainant company found during investigation that the Petitioner was the CEO and Managing Director of the Complainant Company for 6 years, i.e., between 14.11.2011 to 12.11.2017. By virtue of his position as the CEO and Managing Director he was the overall incharge of the business of the Complainant Company. During his tenure as the CEO and Managing Director a large part of the siphoning took place. He was the ultimate approving authority on the various committees which sanctioned the loans and was directly responsible for such sanctions. Out of 19 loans in default which have been mentioned in the chargesheet, the Petitioner had approved 16 loans amounting to approximately Rs. 1900 crores. The other 3 loans out of 19 were initially granted under the Loan Against Property portfolio. Therefore, the Petitioner was approving all loans under the Corporate Loan Book. The Petitioner being the CEO and Managing Director was a key managerial personnel of the Complainant Company and responsible for disbursement of loans to the shell entities. Investigation has found that the Petitioner / Kavi Arora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner. 21.09.2016 The Petitioner was a party to an internal email which acknowledges that the CLB Loans must be evergreened to avoid being categorized as NPAs. The email was sent in the context of credit rating agency - ICRA seeking explanation regarding the CLB Loans from the Petitioner. 27.01.2017 Since the CLB Loans continued unabated, the RBI once again in a letter addressed to the Petitioner raised issues with the CLB Loans and specifically stated that the loans were routed from one entity to another. RBI red flagged the following entities which are also part of the chargesheet to which loans had been granted: A&A Capital Services Pvt. Ltd. Gurudev Financial Services Pvt. Ltd. Fern Healthcare Pvt. Ltd. Tripoli Investment and Trading Company Annies Apparels Pvt. Ltd. Torus Buildcon Pvt. Ltd. Rosestar Marketing Pvt. Ltd. Best Health Management Pvt. Ltd. Volga Management and Consultancy Pvt. Ltd. Ad Advertising Pvt. Ltd. 31.01.2017 Despite the aforesaid RBI letter to the Petitioner he immediately thereafter pursuant to the conspiracy approved loans to the following entities (which had been mentioned in the RBI Letter) amounting to Rs. 300 cr: A&A Capital Services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to CLB loans was a mere charade to legitimize the transfer of funds. (c) He knowingly falsified books of accounts, i.e., the Director's Report dated 31 August, 2017 to state that the CLB Loans were not NPAs, despite knowing to the contrary (as per email of 21 September, 2017 in the context of ICRA seeking answers from the Petitioner). (d) He was instrumental in granting of loan to Modland Wears Pvt. Ltd. who had admittedly indulged in round-tripping. Modland Wears Pvt. Ltd. in the insolvency proceedings initiated against it by the complainant has admitted that such loan was given for round- tripping and the same has also been recorded in the confirmatory order of SEBI dated 11.09.2019. 19. It is further submitted that the complaint is also against "other unknown persons (who are associates of the 'promoters' and aided and abetted such acts of the promoters)". Additionally, the complaint was filed at that time when the complainant was not aware of specific role of each co- conspirator and these details emerged only during the investigation. In any event it is settled law that the FIR is not an encyclopaedia of all the facts. As argued on behalf of the petitioner tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding the same is ongoing, by the Economic Offences Wing as well as independently by SEBI. The SEBI itself is still investigating fraud of about Rs. 600 crores and has recorded the same in its order dated 14.03.2019. Moreover, the loans granted by the Petitioner to the following entities amounting to over Rs. 600 crores are still under investigation: A. A&A Capital Services Pvt. Ltd. B. Shridham Distributors Pvt. Ltd (erstwhile Abhiruchi Distrbutors Pvt. Ltd) C. Annies Apparel Pvt. Ltd. D. Gurudev Financial Services Pvt. Ltd; and E. Tara Alloys Ltd. 23. The petitioner being influential is capable of tampering with evidence and influencing witnesses who were his subordinates. As apparent from the various documents and the bail applications themselves, there is no denial of the Complainant Company's funds by the accused persons having been siphoned away. In addition, there is a higher apprehension of the accused persons including petitioner herein absconding as they are aware that they are likely to be convicted. Further, the conduct of the Accused with respect to internal investigation being carried out by AZB & Partners is also relevant as the Accused refused to par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sitors and misappropriating their hard-earned money." 28. This Court is conscious about the fact that the Petitioner has been charged with Section 409 IPC which is a grave offence punishable with life imprisonment. The judgments of Sanjay Chandra vs. CBI is distinguishable from the present case as the charges in the said case carried a maximum punishment of 7 years, which is not the case herein. The same was also noted in Nittin Johari vs. SFIO (BA 1971/2019), wherein this Court held: "4. Ld. Sr. Counsel has submitted that investigation in the present case stands completed and even charge sheet has been filed by the investigating agency...Despite being CEO and a whole time Director, the petitioner was only an employee of BSL and has never been a shareholder or signatory of the Accounts of BSL. No financial benefit has accrued to the applicant from the allegedly fraudulent activities of BSL. Petitioner has only acted in his professional capacity as CFO of BSL. The work of the finance department was duly delegated, and each person was responsible for his scope of work. The petitioner was neither aware of nor involved in the alleged falsification of books or the alleged preparation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have to remain in jail longer than the period of detention had they been convicted, thus it was not in the interest of justice that they should be in jail for indefinite period. In Sanjay Chandra (supra) the Supreme Court was not dealing with a case of large number of investors rather the allegations were in respect of criminal conspiracy between the accused in the year 2009 to get UAS license for providing telecom services to a company otherwise ineligible to get UAS license." 31. Moreover, Sanjay Chandra vs. CBI & Ors. has been distinguished by this Court in the case of Sunil Grover v State: [(2012) 3 DLT (Cri) 861] wherein it was held that no public money was involved in Sanjay Chandra's case. This Court in Sunil Grover's case held as follow: "12. So far as the judgments of the Apex Court in Sanjay Chandra's case and Suresh Kalmadi's case (supra) are concerned, no doubt, these reinforce and revisit the basic principles of law with regard to the grant of bail...In the cases, which have been cited by the learned counsel for the petitioner, no member of the general public was affected directly, rather it was the public ex-chequer which was put to loss by not ho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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