TMI Blog2022 (9) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... dence or to influence the witnesses. They being permanent residents of the State of Gujarat, having their movable and immovable property therein, cannot be expected to flee from justice. There are no criminal antecedences except a few litigations between the parties. There is no significant interest of the public or of the State involved in the matter. The dispute predominantly relates to dominance on a company. There is a long-standing dispute between both the groups. The accused have undertaken that at any stage of the investigation if they are able to get the Original Power of Attorney, they would produce it before the Investigating Officer. It is thus seen that merely on the ground that the Original Power of Attorney is not available with the Investigating Officer, the accused cannot be denied the benefit of anticipatory bail when it is found that they have been able to prove all other factors in their favour. This Court finds it appropriate to grant anticipatory bail to both the applicants. Accordingly, it is directed that in the event of arrest, the applicants be released on anticipatory bail subject to their furnishing personal bonds in the sum of ₹50,000/- each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he NCLT, Ahmedabad, under Sections 241 and 242 of the Companies Act, more than 100 shareholders are required. It is, therefore, submitted that there was no reason for the applicants to forge any document or signature of any shareholder inasmuch, as more than 130 shareholders had admittedly signed the concerned Power of Attorney, and they have specifically informed the Investigating Officer. It is also submitted that the impugned FIR suffers from malice and vexatious prosecution. Identical FIR/complaint was given by the complainant/Managing Director/Shailesh Bhanwarlal Bhandari before Santej Police Station Gandhi Nagar, Gujarat and enquiry was carried out by the officials of the said police station in detail. The statements of the applicants were recorded. All the documents were given to the police authority. The complainant realized that since no offence was made out, therefore, before the formal conclusion of the said enquiry at Gujarat, the complainant filed the present FIR with identical set of allegations at Police Station Lodhi Colony, New Delhi. The act of the complainant speaks volumes about his mala fide intent. It is also submitted that the complainant has also filed appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 SCC OnLine SC 344, Randheer Singh v. State of U.P. Ors. 2021 SCC OnLine SC 942, Mitesh Kumar J. Sha. v. State of Karnataka 2021 SCC OnLine SC 976, Arnab Manoranjan Goswami v. State of Maharastra and Others(2021) 2 SCC 427, P. Chidambaram v. Directorate of Enforcement (2020) 13 SCC 791, Bandekar Brothers Private Limited v. Prasad Vassudev Keni and Others (2020) 20 SCC 1, Siddharam Satlingappa Mhetre v. State of Maharashtra and Ors. (2011) 1 SCC 694 Satendra Kumar Antil v. Central Bureau of Investigation and Anr. 2022 SCC OnLine SC 825, MOH, decision of the High Court of Bombay in the case of Dr. Swapna Patker v. State of Maharashtra and Ors. Writ Petition No.2281 of 2021, and decision of this court in the case of Jamshed Adil Khan Anr. v. Union Territory of J K W.P.(CRL.) No.976 of 2022. 5. The prayer is vehemently opposed by learned APP for the State assisted by Shri Saurabh Soni, learned counsel for the complainant. Learned APP, while referring to the status report, submits that the perusal of the FIR shows that the allegations against the applicants are serious. According to him, out of 151 persons, who claimed to have signed the Power of Attorney, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; viii. While considering the prayer for gran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the company was made, and in 2010, it is stated that the company, on account of certain financial crunch, had to obtain certain loans, advances and credit facilities. There were certain irregularities in availing of the loans, and certain financial losses allegedly occurred to the concerned Bank and, therefore, that led to the filing of an FIR in the year 2014 by the Bank before the CBI, Mumbai, for the offences punishable under Section 120-B read with Section 420 of IPC with Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. The said case, at the instance of CBI, is pending before the CBI Court at Ahmadabad against the Directors of the Company and certain Bank officials. Another accused in the present FIR, who is an applicant in the connected case, namely, Siddharth Mukesh Bhandari stated to have taken charge as a Director of the company in the year 2017. He, having found that he was cheated by Shailesh Bhanwarlal Bhandari by siphoning of the funds through Shell companies and fictitious transactions, filed a criminal complaint being criminal inquiry No. 1483/2019 before the Chief Metropolitan Magistrate, Ahmedabad for the offences punishable under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above company petition for waiver of the mandate of the minimum requirement of 10% of shareholders. The said IA was dismissed by NCLT, Ahmedabad vide order dated 08.04.2021. The accused No. 2 in the present FIR/Mukesh Bhanwarlal Bhandari assailed the said order before NCLAT vide Company Appeal No. 86/2021, and according to him, in the meantime, around 150 persons came forward and represented to him that they were the shareholders of the company and want to initiate/join the proceedings under Section 241 242 of the Companies Act, 2013. It is seen that a Power of Attorney was prepared stating the details of DEMAT accounts of around 150 persons in favour of the accused No. 2/ Mukesh Bhanwarlal Bhandari and accordingly, the application was withdrawn in Company Appeal No. 86/2021 as, according to them, they were made to understand that they have the mandate of the required number of shareholders to initiate the proceedings under Section 241 242 of Companies Act. It is seen that the aforesaid Power of Attorney was allegedly forged by the accused in the present FIR. The same has been produced before the NCLAT, Delhi, for the purposes of withdrawal of the IA. It is also to be noted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Attorney is already a part of the record before this court as well as before the NCLT Ahmedabad and NCLAT Delhi. A certified copy of the same can always be obtained and can be used as secondary evidence, as per Section 65 of the Indian Evidence Act, 1872. In any case, it is submitted that on account of non-production of the Original Power of Attorney, the applicants should not be denied the protection of anticipatory bail. 13. Under the facts of the present case, this court is of the opinion that non-availability of Original Power of Attorney alone would not call for any custodial interrogation. It can be seen that applicant Mukesh Bhanwarlal Bhandari, who is a senior citizen has appeared before the Investigating Officer on 09.06.2022, 26.06.2022, 16.08.2022, 23.08.2022. The applicant Siddharth Mukesh Bhandari also appeared on 09.06.2022, 22.06.2022, 14.08.2022, 16.08.2022 and 23.08.2022 before the Investigating Officer. The offences alleged against the applicants are under Sections 420/468/471/120-B of the IPC. The maximum punishment is up to seven years with a fine. The offences in question are triable by Magistrate. There is no reasonable apprehension of the accused person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer/Investigating Officer/SHO of the concerned Police Station and also subject to the further following conditions:- (i) The applicants shall join the investigation as and when they are directed to do so. (ii) The applicants shall not directly or indirectly try to get in touch with the complainant or any other prosecution witnesses or tamper with the evidence. (iii) In case of change of residential addresses/contact details, the applicants shall promptly inform the same to the concerned Investigating Officer/SHO. (iv) The applicants shall regularly appear before the Trial Court as and when the charge sheet is filed against them. (v) The applicants shall not leave India without previous permission of this Court. They would surrender their passport forthwith. (vi) The applicants would render all assistance in securing the Original Power of Attorney and in case, at any stage of the investigation, if they are able to locate it, the same would be produce before the Investigating Officer without any delay. (vii) The complainant/State would be at liberty to file an appropriate application in case, it is found that the applicants are in contravention of an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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