TMI Blog2016 (7) TMI 1617X X X X Extracts X X X X X X X X Extracts X X X X ..... ounts which Geodesic (now under provisional liquidation), had promised to return to them. The Officers present before this Court informed the Court that they were extending their best efforts towards achieving this end, and as set out in their Confidential Reports were making all efforts to trace the funds which have been siphoned off / misappropriated by the Directors of the Company. The Officers once again assured the Court that they would do their best in the matter and would endeavor to bring back into the coffers of the Official Liquidator appointed by this Court as the Provisional Liquidator of Geodesic, the huge sums of money belonging to the Company and at present lying abroad. They submitted that they would submit their further report within a period of two weeks from today, to this Court. Since the present Order was required to be dictated and signed, the papers in the matter were retained in the Chamber - Stand over to 11th August, 2016. - Company Petition Nos. 514 of 2013 with 161 of 2013, 178 of 2013, 471 of 2013 with Company Application No. 68 of 2014, 469 Of 2014, 628 of 2014 with Company Application (L) Nos. 153 of 2014, 192 of 2014 and Ors. - - - Dated:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said amounts deposited in the accounts of its overseas subsidiaries, i.e. Emiloto Associated Inc. with HSBC Private Bank, Zurich, Geodesic Technology Solutions Limited with BSI Bank Ltd., Singapore and Zomo Technologies Limited with Clariden Leu, Zurich will remain untouched till the next date of hearing. (emphasis supplied) 3. On 4th April, 2014 the Director of Geodesic changed his above statement and now stated that the amounts were not held in deposit by the overseas subsidiaries (as had been represented on 19th December, 2013) but were in fact invested elsewhere. 4. By an Order dated 7th April, 2014, this Court (Coram : G.S. Patel, J.) recorded that the Affidavit filed by one of the Directors of Geodesic namely Mr. Prashant Mulekar, disclosed a very disturbing position. The Affidavit showed that the said Director - Mr. Prashant Mulekar had given false information to the Court and further that the Affidavit left much to the imagination. It was further noted that a false statement had been made to this Court that the amount in excess of ₹ 1,000 Crores was available as deposited in the accounts of overseas subsidiaries. The following paragraphs of said Order of G.S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber 2013 order says: The respondent will also inform the applicant in case the respondent proposes to pay the ICICI Bank Limited its dues and the said amounts deposited in the accounts of its overseas subsidiaries will remain untouched till the next date of hearing . 7. Taken together these statements can only mean one thing: that an amount in excess of ₹ 1000 crores was available deposited in the accounts of the respondent Company s subsidiaries in three banks overseas. At no point, either in December 2013, nor on 3rd April 2014, was the Court ever informed that any portion of these deposits was in the nature of a strategic investment made by one of the subsidiaries. The words strategic investment are, of course, a euphemism to camouflage what seems to be nothing but a low interest bearing loan to an entity carefully kept in the shadows, with neither its credentials nor its background specified at any point. 8. All this makes the respondent company s resistance to secure the petitioners claim all the more inexcusable. The petitioner has not brought this petition as a lender. As paragraph 9 of the petition makes clear, the petitioner comes to this cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the light of the above findings, this Court (Coram : G.S.Patel, J.) ordered Geodesic to deposit a sum of US $ 162 million in a no lien account with a Citibank Branch in London or Hong Kong as may be nominated by the Petitioner, after which the amount would be held by the Petitioner at the most optimal available rate of interest to be disbursed only upon further orders of this Court. If however, the Company failed to make the deposit as aforesaid, it was ordered that the Official Liquidator, High Court, Bombay shall stand appointed as the Provisional Liquidator of Geodesic as also for all its assets and properties, and thereafter the said Official Liquidator, High Court, Bombay, shall forthwith take charge of the assets and properties, including taking physical possession thereof. 6. An Appeal (L) No. 273 of 2014 was filed by Geodesic against the said Order. Since no ad-interim / interim orders were passed in the said Appeal, the Official Liquidator, High Court, Bombay stood appointed as Provisional Liquidator of Geodesic. The Company Application (L) No. 153 of 2014 came up for hearing before this Court on 10th June, 2014, at which time a statement was made on behalf of Geod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th June, 2014 was passed after all the Parties agreed to its terms. However, the said order also till date is not complied with by the Directors of the Respondent. Before taking any action against the Directors, which may be termed as harsh, and moreover since Mr. Kiran Kulkarni, Mr. Prashant Kurlekar and Mr. Pankaj Kumar the Directors of the Respondent Company who are present in Court, and undertake to furnish the bank accounts of the four overseas subsidiaries of the Respondent on Affidavit and also produce the books of accounts of the said four overseas subsidiaries within a period of three weeks from today, a final opportunity is given to the Respondent to comply with the orders passed by this Court as well as the undertakings given today by the Directors of the Respondent on or before 18th July, 2014. 9. Eventually, by an Order dated 9th July, 2014, this Court admitted the Company Petition while once again being constrained to record the fact that incorrect statements had been made before the Court by Geodesic / its Directors. The Official Liquidator continued as the Provisional Liquidator of the Company. Thereafter, Geodesic and its Directors repeatedly flouted the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... May, 2015 attended this Court and agreed to answer the questions that may be put to him by this Court, or on behalf of the Petitioner, in respect of his role in Geodesic or the Companies. Mr. Dinesh Jajodia instead of assisting the Court avoided giving answers, and it was apparent that he was making false statements in Court. In view thereof, on 8th May, 2015 this Court passed a detailed order setting out the dishonest conduct of the Directors of Geodesic, and also Mr. Dinesh Jajodia. 14. This Court recorded how the Petitioner as well as this Court had been mislead by the Directors of Geodesic and now Mr. Dinesh Jajodia, and every attempt made by the Court to trace the trail of monies which have been invested by the overseas subsidiaries, have been stonewalled. This Court also recorded in the said Order that stringent action is required to be taken against the Directors of the Respondent Company and Mr. Dinesh Jajodia for making false statements on oath and for the flagrant breach of the solemn undertakings given to this Court. By the said Order, this Court inter alia recorded that the matter requires investigation by SEBI in exercise of its wide powers under Sections 11B, 26E, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015 within three weeks from the date of this order. (vi) Mr. Prashant Mulekar, Mr. Kiran Kulkarni, Mr. Pankaj Kumar and Mr. Dinesh Jajodia shall not leave India without obtaining prior permission of this Court. (vii) The parties hereto have consented to the matter being retained as part heard before me, and undertake to obtain necessary directions in this regard if so required. Accordingly this matter is kept part-heard. Stand over to 15th June, 2015 at 3.00 p.m. 15. As recorded in the Order dated 8th May, 2015, by consent of the parties, the matters were treated as part-heard. Since the Court Assignments changed from June, 2015, pursuant to the Application dated 8th June, 2015, filed by the Advocate for the Petitioner, the then Chief Justice Shri Mohit S. Shah by his Order dated 9th June, 2015, directed the matter to be listed / continued with this Court. 16. I am informed that after several months, an Appeal was filed by Mr. Dinesh Jajodia impugning the above Order dated 8th May, 2015, which Appeal has been dismissed by a Division Bench of this Court about two weeks back, with a direction against Mr. Dinesh Jajodia to pay a sum of ₹ 1,00,000/- towards cos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siphoned off by the Respondent Company through its Directors. The letter also mentions that the Directors of the Respondent Company have committed offences inter alia punishable under the Indian Penal Code, 1860. Therefore, the SEBI requested EOW to take appropriate action against the Respondent Company, its Directors and any other persons found to have acted in a manner contrary to law. 21. Pursuant thereto, this Court after recording some of the aforestated facts, directed the Joint Commissioner of Police, E.O.W. Mumbai, to enquire into this case and ascertain whether a prima facie case of commission of cognizable offence/s is/are made out. Paragraphs 3 and 4 of the said Order are relevant and reproduced hereunder : 3. On the basis of the above facts as also the documents placed before this Court by the Petitioner and ICICI Bank Ltd., (proposed Intervenor in Company Petition No.471 of 2013) from time to time, this Court is of the prima facie view that the proceeds from the FCCBs appear to have been siphoned off through fabricated transactions. Having regard to the seriousness of the matter and the allegations especially in reference to a public limited company whose shar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urtherance of their common intention, hatched a criminal conspiracy to defraud the shareholders as well as FCCB holders in order to receive wrongful gains to themselves and committed several acts of falsification of accounts, cheating and criminal breach of trust and thereby committed offences punishable under sections 409, 420, 477 (A), 120 (B) read with 34 IPC. 17. I say that on 15th December, 2015, a complaint was registered by Shri Milind Manohar Desai, Police Inspector attached to the EOW, Unit-V who was also the Enquiry Officer in the said Preliminary Enquiry under Sections 409, 420, 477 (A), 120 (B) read with 34 IPC at the MIDC Police Station, Mumbai vide C.R. No. 760/15. I say that thereafter the said case was transferred to the Economic Offences Wing, Mumbai, and was renumbered as C.R. No. 88/2015. 23. By an Order dated 22nd December, 2015, this Court recorded some of the facts and directed SEBI as well Enforcement Directorate to forthwith take action against the Directors of the Respondent Company and Mr. Dinesh Jajodia as per the provisions of law. 24. Thereafter, from time to time, the EOW as well as the Enforcement Directorate have carried out investigat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achieving this end, and as set out in their Confidential Reports were making all efforts to trace the funds which have been siphoned off / misappropriated by the Directors of the Company. Thereafter, this Court in order to discuss the Confidential Reports submitted by the Agencies (i.e. the ED the EOW) to this Court, and to understand the problems, if any, faced by them in investigating the matter, heard the Officers present, only in the presence of the Additional Solicitor General and the learned AGP. The Officers once again assured the Court that they would do their best in the matter and would endeavor to bring back into the coffers of the Official Liquidator appointed by this Court as the Provisional Liquidator of Geodesic, the huge sums of money belonging to the Company and at present lying abroad. They submitted that they would submit their further report within a period of two weeks from today, to this Court. 28. Since the present Order was required to be dictated and signed, the papers in the matter were retained in my Chamber. To my surprise on 15th July, 2016 the Associate of my Court informed me that the Company Registrar had called for the papers on the ground tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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