9911796707
TMI Blog2020 (6) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... s Complaints, Enquires and Preliminary Enquiries conducted by it along with all necessary reports thereof in relation to the Petitioner and Educomp Solutions Limited (ESL), and EDU Smart Services Pvt. Ltd. (ESPL); c) Issue a Writ in the nature of Mandamus or any writ/order/direction to the Respondent No.3 CVC to place on record the complete records/details of any enquiry conducted by the Respondent No.3 CVC pursuant to the Petitioner‟s Representation dated 25.02.2020 made to the CVC in relation to registration of the impugned FIR by the Respondent No.1 CBI." 2. In brief, the facts of the case are that on 7.9.1994 Educomp Solutions Limited (ESL) (hereinafter referred to as „ESL‟) was incorporated under the Companies Act, 1956 with ROC, NCT of Delhi and Haryana. In the month of December 2005 ESL came out with an Initial Public Offer (IPO) and its shares got listed on the Bombay Stock Exchange. In the year 2009, Edu Smart Solutions Pvt. Ltd. (hereinafter referred to as „ESPL‟) was incorporated as a subsidiary of ESL. On 31.2.2010 the petitioner retired from Indo Tibetan Border Police (ITBP) as DIG/Offtg IG (CCD) Northern Frontier, ITBP, Uttrakhand. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o ESL under the CDR, as alleged. It is averred that consequently, ESPL discharged all its obligations with the complainant banks and no liabilities remained therein. In May 2017, ESL initiated the insolvency process by filing a petition under Section 10 of the Insolvency and Bankruptcy Code (IBC) with the Hon‟ble National Company Law Tribunal (NCLT), Delhi. On 30.5.2017, NCLT admitted the said petition and appointed an Interim Resolution Professional and the proceedings are still pending. 4. It is averred that on 8.10.2018, an affidavit was filed by the Resolution Professional before the NCLT wherein it has been stated that there has been no fraudulent transaction found in the transaction audit conducted under the provisions of Insolvency and Bankruptcy Code. It is averred that on 27.3.2019, one of the lenders bank on whose complaint the present FIR was registered i.e Yes Bank, had also previously made a complaint with EOW, Delhi wherein a detailed enquiry was conducted by the Police Authorities in relation to the same allegations. The said enquiry did not find any criminality or commission of any offences and therefore the complaint was closed by EOW, Delhi. On 23.5.2019, S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inized by the complainant banks when they agreed to re-structure the loans in the year 2014 under the CDR Mechanism. 10. It is further submitted that the CDR was implemented and approved by the consortium of Lender Banks after due investigation/verification of transactions of ESL. It is further argued that at the time of approval for CDR, no fraud or misfeasance was found in so far as the affairs of ESL are concerned and in case any fraud or misfeasance was found, then ESL would have been ineligible for CDR as per the mandate of the RBI which is not so in the present case. Since no fraud or misfeasance is found, so fresh corporate loans were sanctioned and disbursed pursuant to CDR proposal which was approved by the Lender Banks including the complainant SBI. It is further argued that even in the insolvency proceedings the affidavit filed by the Resolution Professional stated that no fraudulent transactions were found in the Audit conducted. It is further argued that in this case an extensive forensic audit was conducted and no fraud was detected and the same was reported to the NCLT. It is further argued that the present FIR is in complete violation of CVC circulars dated 21.8.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner cannot be made an accused as there is no vicarious liability for the offences under the IPC for the Prevention of Corruption Act. 14. On the other hand, counsel for the respondent-CBI who appears on advance notice argued that the case is at its initial stage and role of public servants is being examined. During the course of argument, counsel for the respondent-CBI has not denied the registration of two previous complaints which did not culminate into the registration of FIR. It is further argued that there is no illegality in the CBI taking over the investigation even if no public servant is involved or whose role has not been mentioned in the complaints. 15. Apparently, the corporate loan was sanctioned to ESL after due scrutiny by the complainant banks in the year 2012-2013 which was later on restructured by the complainant banks in the year 2014 under the CDR mechanism which according to the petitioner was approved by the consortium of Lender Banks after due investigation/verification of transactions to ESL. 16. In May 2017, ESL initiated insolvency process by filing a petition U/s 10 of the Insolvency and Bankruptcy Code (IBC) before the NCLT. On 30.05.2017, NCL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. Sr. counsel for the petitioner that CBI had violated the Office Order No. 06/08/2019 of CVC dated 21/08/2019, according to which when in matters in which the CBI suo motu proposes to take cognizance by way of PE/RC, it is only in those matters that the cases should not be referred to the Board but this is not the case as the FIR has been registered on a specific complaint. 22. Therefore, looking into the facts and circumstances of this case that on 2 previous occasions and on the basis of similar allegations no action was taken by the CBI or EOW and the contention of the Ld. Sr. Counsel for the petitioner that despite two closures, again on the same facts, the present FIR has been registered within a period of 4 days of the complaint dated 06.02.2020 without conducting any preliminary inquiry and without following the procedure established by law in regard to the alleged bank fraud cases and moreover, in the instant case, the petitioner had joined the company as a director on 13.11.2013 and all the loan facilities as per the FIR were prior to the petitioner joining the ESL as one of the Director and the only facility pursuant to his Directorship are under the CDR in which ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
