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TMI Blog2022 (12) TMI 982X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 10.08.2022 opposing grant of bail. 4. Briefly, the petitioner was summonsed in the matter vide summoning order dated 07.03.2022 made by the learned Special Judge (Companies Act), Dwarka Courts (SW), the essential imputation against the petitioner being that she was director of M/s Parul Polymers Pvt Ltd. (accused No. 1), being the wife of Suman Chadha, who was the other director of the company; and taking cognisance of offences inter-alia under section 447 of the Companies Act, 2013 ('Companies Act' for short). 5. The gravamen of the offences alleged inter-alia under section 447 of the Companies Act is that the company, which was engaged in the trade of plastic granules, indulged in cash sales, in fictitious sale of food grain and in creation of accommodation/adjustment accounting entries, apart from misuse of cheque discounting facilities. 6. It is also the allegation that the company manipulated financial statements, to project substantial growth in its revenues, to mislead banks, so as to induce them to extend and enhance credit limits, which monies were not used towards the business activity of the company but were diverted and siphoned-off to other entities, with no ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder section 447 of this Act shall be cognizable and no person accused of any offence under those sections shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence referred to this subsection except upon a complaint in writing made by- (i) the Director, Serious Fraud Investigation Office; or (ii) any officer of the Central Government authorised, by a general or special order in writing in this behalf by that Government." (emphasis supplied) 14. It is further submitted that there is no material, nor even an allegation by the SFIO, that the petitioner is either a flight-risk or that she may intimidate witnesses o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal right of a accused to an expeditious trial; and where there are a large number of accused, delay in the trial is bound to occur; 18.5. K Veeraswami vs. Union of India & Ors (1991) 3 SCC 655 : On the point that a final report under section 173 Cr.P.C. (in this case, the criminal complaint filed by SFIO) is nothing more than the opinion of the Investigating Officer and does not constitute legal evidence; and 18.6. Dataram Singh vs. State of Uttar Pradesh (2018) 3 SCC 22: On the point that discretion in matters of grant of bail must be exercised judiciously, in a humane manner, and compassionately. SFIO's Contentions 19. On the other hand, opposing grant of bail, Ms. Raman has urged that the present application is the sixth attempt on the petitioner's part to seek bail in a span of 05 months. It is noticed however, that the bail applications referred to by the SFIO are all applications seeking interim bail on various grounds, which appear to have been withdrawn. These also include interim bail applications filed in the present petition itself. 20. It is further submitted that there is apprehension of witnesses being influenced, since charges are yet to be framed and evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is a vital factor and the nature of evidence is also pertinent in considering grant of bail; 24.6. Gurcharan Singh vs. State (1978) 1 SCC 118 : To urge that the likelihood of an accused fleeing from justice and tampering with prosecution witnesses are the two paramount considerations for grant of bail; 24.7. Rohit Tandon vs. Directorate of Enforcement (2018) 11 SCC 46: To urge that economic offences with deep rooted conspiracies and involving a huge loss of public funds need to be viewed seriously and considered grave offences affecting the economy of the country as a whole; 24.8. Shivani Rajiv Saxena vs. Directorate of Enforcement & Anr (2017) 245 DLT 230 : to contend that merely because the accused is a woman, does not by itself entitle her for bail under the proviso to section 212(6) of the Companies Act; and the nature and gravity of the offence has to be considered; 24.9. Arnesh Kumar vs. State of Bihar & Anr (2014) 8 SCC 273: To submit that not arresting the petitioner, was in compliance of the Supreme Court mandate as contained in this judgment; 24.10. Satender Kumar Antil vs. CBI (2022) 10 SCC 51, YS Jagan Mohan Reddy vs. Central Bureau of Investigation (2013) 7 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a consequence, the petitioner has been in judicial custody since 25.05.2022. 29. As observed above, the offences in relation to which the criminal complaint has been filed relate to the period 2011-2014. 30. In the opinion of this court, upon a cautious consideration of the averments contained in the subject criminal complaint, as also the summoning order; and in view of what is stated in the petition and the submissions made by counsel for the parties, the following inferences arise: 30.1. There is no allegation by the SFIO that during the course of the investigation, the petitioner attempted to destroy evidence or intimidate witnesses, or that she otherwise interfered in the course of investigation; 30.2. It is apparent that the essence of the allegation against the petitioner is, that being the wife of the main accused Suman Chadha and a director of the company, the petitioner signed various papers, documents and records in her capacity as a co-director, and is therefore an 'officer who is in default' in relation to the affairs of the company within the meaning of section 2(60) of the Companies Act; 30.3. Despite having the power under section 212(8) of the Companies Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adesh (1978) 4 SCC 47, cf. para 14, speaking through Krishna Iyer J., the Supreme Court has said that the consequences of pre-trial detention are grave, subjecting the undertrial to psychological and physical deprivations of jail life, which are usually more onerous than even those imposed on convicts. Not to mention, that an undertrial in custody is prevented from contributing to the preparation of their defence in the trial, which burden then falls heavily on innocent members of the family; 30.10. It is also noticed that in Laloo Prasad vs. State of Jharkhand (2002) 9 SCC 372, cf. para 7, after taking into consideration the seriousness of the charges and the maximum sentence that could be imposed, the Supreme Court directed the release of the accused, who had been in jail for a period of more than 06 months, observing that further detention as a pre-trial prisoner would not serve any purpose; 30.11. This court is constrained to observe, that in view of the above discussion, keeping the petitioner in judicial custody throughout the course of trial could only be justified by way of pre-trial punishment, which is abhorrent to the law. Keeping the petitioner in judicial custody wil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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